Petition for Writ of Certiorari — Love v. Pullman Co.

INDEX ee

. Page

MONO Te een eee eee 1

DUEISOG cect Seo ese seca ee eee eee 2

Question pr-sented__-__-------------- Boe eee eee 2

Statute and regulations involyed__------- eee peeeeee 3

Statemen’ «... --.-2.c--22--22-5--2-- en nn shnn-5 — 6

Reasons for granting writ_---.------------------------ 8

COMCIGSION. oss eens eee deseeeeeeeedeseseee 14

Appendix A--_-..-.---------------------------=------ 15

pA DVONOUK Doce nee eee ee ana eee eee eee 29

PIVOTING Aen eee eee 35

SU eNdIe V). oes eee eee 37

Appendix !) ~---------------------- eee 39

CITATIONS

Cases :

Burnett v. New York Central R. Co., 380 U.S. 424-- 13

Culpeper Vv. Reynolds Metals Company, 421 F. 2d

cc ree ee vere ne ee cree rc merce an 13

Georg: Power Co. v. EEOC, 412 F. 2d 462_------ 13

International Brotherhood of Electrical Workers, Ee

Local 5 v. EEOC. 398 F. 2d 248, certiorari denied,

- 393 U.S. 1021_----------_-_-______----_-___--- _- 11,12

Johnson v. Seaboard Air Line R.R. Co., 405 F. 2d

645, certiorari denied sub nom. Pilot Freight Car-

riers, Inc. v. Walkér, 394 U.S #!8_--------------- - 13

Miller v. International Paper Ca., 408 F. 2d 283_--- 13

Sanchez v. Standard Brands, 2 FEP Cases 788

(C.A. 5, No. 27730, July 1, 1970) ------------------ "13

Sanders v. Dobbs House, Inc., 2 FEP Cases 942

(C.A. 5, No. 29029, August 28, 1970) -------------- 10 :

Waters v. Wisconsin Steel Workers, 2 FEP Cases .-

574 (C.A. 7, No. 17895, April 28, 1970) -2--------_-- 10 | z

Weeks v. Southern Bell Telephone & Telegraph Co.,

SOR Dek 28 oa ccc 1B 4

(1) ‘ 3

408-767 —70——1 _ ’

®

II

Statutes and regulations involved :

Civil Rights Act of 1964, Title VIT: Page

Scetion 706(b), 42 U.S.C. 2000e-5(b)--- 2,3, 6, 7, 10,12

Section 706(d), 42 U.S.C. 2000e-5(d)_---=----- 3, 8, 12

DOC WR COO a ce 3-5

_ 80 Fed. Reg. 8408_-_,---------------------- @------ 6

Miscellaneous: | ,

110 Gong, Ret. 12025 2220-22255 23 eens es 11

116 Cong. Rec. (daily ed., October 1, 1970) S 16917--- _ 10

5. 24538, Diet Cong., 20 ess... ett see cates 10

" §. Rep. No. 91-1137, 91st Cong., 2d Sess.__.---------- 10

¢

Gn the Supreme Court of the United States

OcTOBER TERM, 1970

No.

UNITED STATES OF AMERICA AND EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, PETITIONERS

v.

— THE PuLttMan Company

- 9

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES |

' COURT OF APPEALS FOR THE TENTH CIRCUIT

The Solicitor General, on behalf: of the United

States and the Equal Employment Opportunity Com-

mission, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Tenth Circuit in this case.’ |

“OPINIONS BELOW

The opinion on rehearing (App. B, infra, p. 29)

and the original opinion of the court of appeals (App.

A, infra, p. 15) are not yet officially reported. The

opinion of the district court (App. E, infra, p. 39) is’

not Officially reported. |

‘Earl A. Love, plaintiff below, has also filed a petition seek-

ing review of this decision (No. 6018, this Term). Should the

petitions be granted, the Court may wish to consolidate the

cases.

{1)

—"

2d OR Raia pa RR erica

\

tS

JURISDICTION

The judgment of the court of appeals on rehearing

was entered on July 30, 1970 (App. D, infra, p. 37).

On Oétober 27, 1970, Mr. Justice White extended the

time for petitioning for a writ of certiorari to Novem-

ber 12, 1970; The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1). |

QUESTION PRESENTED

Under Section 706(b) of Title VII of the Civil

Rights Act of 1964, “no charge” of discrimination

“may be filed” with the United States Equal Employ-

ment Opportunity Commission until it has been filed

with a state agency empowered to seek relief from

employment discrimination, if one exists; and 60 days

have expired or the state agency Aas terminated its

jurisdiction, whichever is earlier. If EKOC is unable

to econciliate the charge, Title VII authorizes the

private party to file suit.

The question presented is whether a distriét court is

without jurisdiction to entertain a suit alleging racial

discrimination in employment in violation of Title VIT

because the Equal Employment Opportunity Commis-

sion, after receiving a written charge from the com- °

plainant, referring it-to the appropriate .state fair

employment practices commission. and waiting until

that agency had terminated its jurisdiction, investigated

the original charge without immediately obtaining an

additional written charge or authorization from the

complainant.

—-~——---~-- il

- STATUTE AND REGULATIONS INVOLVED :

Section 706(b) of the Civil Rights Act of 1964 (42

U.S.C. 2000e-5(b)), states in part: .

In the case, of an alleged unlawful employ-

ment practice occurring in a State, or political

subdivision of a State, which has a State or

local law prohibiting the unlawful employment

practice alleged and establishing’r authorizing

a State or local authority to grant or seek relief

from such pyactice or to institute criminal pro-

ceedings with respect thereto upon receiving

notice thereof, no charge may be filed under

subsection (a) of this section by the person ag-

grieved before the expiration of sixty days after

proceedings have been commenced under the

State or local law, unless such proceedings have

been, earlier terminated | ~~,

Section 706(d), 42 U.B.C. 2000e-5(d), states in part:

A charge * * * with respect to which the per-

son aggrieved has followed the procedure set out

in subsection (b), of this section, * * * shall be

filed by the person aggrieved within two than-

dred and ten days after the alleged unlawful

employment practice occurred,-or within thirty

days after receiving: notice that the State or

local agency has terminated the proceed-

ings * * * whichever is earlier * * *,

The pertinent present regulation of the Equal Em-

ployment. Opportunity COmtnEeIOn, 29 C.F.R. 1601.12,

provides:

(a) In\order to give full weight to the poliey

of secttor 706(b) of the Act which affords State

and local fair employment practice agencies that

-_ Ea

fall within the provisions of that section an op-

portunity to resolve disputes involving alleged

discrimination concurrently regulated by Title

‘VII of the Civil Rights Act of 1964 and State

or local law, the Equal Employment Opportu-

nity Commission adopts the following proce-

dures with respect to allegatioris of diserimina-

tion filed with the Commission where there is

no evidence that such allegations were earlier

presented to the State or local agency. It is the

intent of the Commission to thereby encourage

the maximum degree of effectiveness in the

State and local agencies, The Commission shall

endeavor to maintain close communication with

the State and local agencies with respect-to all

matters forwarded to such agenciés and shall

provide such assistance to the State or local

agency as is permitted by law and is’ practica-

ble. It is the experience of the Commission that

because of the complexities of the present pro-

cedures, persons who seek the aid of the Com-

mission aie often confused and even risk loss of

protectio» of the Act. Accordingly, it is the in-

tent of the Commission to simplify: filing proce-

dures for parties in. deferral States and_locali-

ties, and thereby avoid the accidental forfeiture

of important Federal rights.

(b) The following procedures shall be fol-

lowed with respect to cases arising in the local-

ities to which the Commission defers:

(1) Any document, whether or not verified,

filed at any field office of the Equal Employ-

-ment Opportunity Commission or at Washing-

ton, D.C., which may constitute a charge cogni-

zable under title VII,-shall be deferred to- the

iris Rat aaa,

5)

appropriate State or local. agency pursuant to

the procedures set forth below.

(i) All such documents shall be date and

time stamped on,receipt. .

(ii) A copy of the original document shall

be transmitted by registered mail, return re-

ceipt requested, to the appropriate State or

local agenev.

(iii) The aggrieved party shall be notified,

in writing, that the document which he sent to

the Commission. has been forwarded to the

State or local agency pursuant to the provisions

of section 706(b), and that unless the Commis-

sion is notified to the contrary, en the termina-

tion of State or local proceedings,:or after 60

days have passed, whichever comes first, the

Commission will consider the charge to be filed

with the Commission and commence processing

the case. Where the State or local agency termi-

nates its proceedings within 60 days of the date

of receipt of the document without notification

to the Commission of such action, the date on

which the aggrieved party is notified of: the

termination of the State or lccal action shall be

deemed to be the date that the document was

filed as a charge with the Commission.

(iv) The sixty-day period shall be deemed to

have commenced on the receipt of the document

by the State or local agency as. evidenced by the

date indicated on the return receipt. On noti-

fication of termination of State proceedings or

the expiration of 60 days, whichever comes

first, the Commission will consider the charge

to be filed with:the Commission and commence —

processing the case .

. x. * * *

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The regulation in effect at the time the charge in

this case was lodged with the Equal Employment Op-

portunity Commission (30 Fed. Reg. 8408) provided:

In any instance in which an aggrieved per-

son seeks to file a charge and it ‘appears from

the charge or from other information that the

aggrieved person has not. begun proceedings

before a State or local authority pursuant to

section 706(b).of Title VII, the Commission

may not accept the charge of filing, but shall

assist the aggrieved person in complying with

, section 706(b). |

- STATEMENT

This suit was brought by Earl A. Love, a black man,

against respondent Pullman Company for refusing

to promote him to the position of “conductor.” An

employee of respondent for approximately forty-five

years, Mr. Love alleged he was performing the duties

of a conductor under the job title of “porter-in-charge, "’

an all-Negro classification, and that he had not been pro-

moted to the higher paying -position of conductor he-

cause it was restricted to whites. |

Mr. Love initially filed a written charge of discrimi-

nation with the Colorado Civil Rights Commission in

1963. Apparently, no action was taken. He renewed

his complaint orally to the same office in 1965. By

letter of July 30, 1965, the Colorado Commission ad--

vised Mr. Love that the company offered to make him

‘ a conductor but without seniority. Mr. Love declined

the offer because of the lack of job seeurity which

would result from loss of his seniority.

7

Mr. Love wrote to the Equal Employment Oppor-

tunity Commission on May 23, 1966, again alleging

that he was being denied the higher pay and other

benefits of a conductor because of his race. The EEOC

informed the Colorado Commission that the charges

were apparently within the latter’s jurisdiction. On

June. 1, 1966, the Colorado Commission, by letter, de-

clined to assume jurisdiction, specifically waived the

60-day requirement of Section 706(b), and asked the

EEOC to proceéd. EEOC then began a formal investi-

gation without further communication with Mr. Love.

On July 23, 1966, Mr. Love signed a formal charge

on an. EEOC form. :

The Commission subsequently found cause to believe

that there was discrimination on the part of respond-

ent. Its efforts at conciliation were not. suecessful,

however, and it advised Mr. Love on May 3, 1968, that

he had thirty-‘days in which to bring suit. He filed suit

on May 28, 1968. ,

_The district court granted respondent’s motion for

summary judgment on the ground that Mr. Love had

allowed the statute of limitations to run by not filing

a complaint with the EEOC within thirty days of

July 30, 1965, the date of the letter from the Colo-

rado Commission to him. (App., ¢nfra, p. 42). The court

of appeals, Senior Judge Fahy dissenting, affirmed, add-

ing, as a separate ground for EEOC’s lack of jurisdic-

tion, the fact that the complaint had not been refiled

with the EEOC after being referred to the state com-

mission (App. infra, pp. 20-23).

40S-767—70——2

PALA LENGE NA ahi HAN ha to me Se ee,

8

Mr. Love moved for rehearing en banc. The United

States and the EEOC each intervened in support of

the motion. The petition for rehearing was referred

to the original panel. It held that its original decision

was erroneous insofar as it rested on the failure of Mr.

Love to file a complaint with the EEOC within 30 days of

the state commission’s letter of July 30, 1965, since the

discrimination complained of took place prior to the

effective date of the Act (July 2, 1965). The court,

however, reaffirmed its decision on the second ground.

It held that the letter of May 23 could not serve as a

complaint to the EEOC, since’ it had not then been

filed with the state commission; that it did-not toll or

suspend the 30-day period of limitations of Section

706(d), which began to run on June 1; and that the

EEOC was without authority to treat it as filed on or

-after June 1 ‘‘without further word or act by the

complainant”’ (App., infra, p. 33).2 While the court

did not discuss the formal charge filed by Mr. Love on

July 23, after the statute of limitations had run, it

apparently considered this defect jurisdictional, even

as to discrimination of a continuing character.

‘REASONS FOR GRANTING THE WRIT

The decision of the court of appeals potentially af-

fects more than one-fourth of the charges annually

filed with the Equal Employment Opportunity Com-

Inission, including many that are presently pending

* The court stated that the Commission’s regulations at that

time “did not contemplate or permit such manipulation of the

filing date,” and said ‘that in any event such a filing proceduie

could not “be regularized by the adoption of regulations”

(App., infra, p. 32).

“9

before the Commission, and could thus seriously 1m-

pair the rights of numerous individuals to enforce the

equal employment opportunity provisions of Title VIT

of the Civil Rights Act by private suit. The holding

is, moreover, In conflict with the rationale of the Court

of Appeals for the Third Circuit.in a closely analo-

gous situation: Review by this Court is needed to clar-

ify the procedural requirements of Title VII in order

to protect the rights of complainants to have their

claims adjudicated on the merits. :

1. From the time that Title VII became effective,

many complainants have filed charges of racially dis-

criminatory employment practices initially with EEOC

rather than the appropriate state agency. The Com-

mission has consistently referred these complaints to

the state agency and, after waiting until expiration

of the 60-day statutory period (or until the state

agency terminated its proceedings, if earlier), has

then accepted the complaints for formal filing. For the

first 3 years, EEOC usually (but not always) wrote to_

the charging party at this time to determine whether

he wanted it to assume jurisdiction. Since November

1968, the Commission regulation (sepra, pp. 3-5) has

’ provided that it will automatically assume jurisdic-

tion over these charges after the expiration of’ the

deferral period.

The original opinion of the court of appeals ap-

peared to prohibit altogether EEOC’s practice of re-

taining a copy of the charge and treating it as filed

after the deferral period. The opinion on rehearing

stressed the fact that EEOC had.accepted the present

9 i ida i toh kel Oh a Cee

10

charge for filing “automatically” after receipt of the

Colorado Commission’s letter declining jurisdiction

“without further correspondenc>” from the charging

party (App., infra, p. 32). At a minimum, there-

fore, the rationale of the court of appeals applies

to all charges received initially by EEOC, from com-

piainants in states having enforcement agencies,’ after

the effective date of the November 1968 regulations.*

More than 7,000 such complaints have heen filed since

that time.’

* There are state fair employment agencies in at least 30

states, including California, New York, Ohio and Illinois. Ap-

proximately 25 percent of all charges are initially filed with it

instead of with the state commission. .

*-\t the time of the writi.:+: of this petition, the Senate

had passed S. 2453, which, wong other things, amends the

language of Section 706(b) to delete the term “no charge may

be filed,” in order to clarify congressional intent that the

Commission may receive the chargé, but may not take action

with respect to it until the prescribed period has elapsed.

S. Rep. 91-1137, 91st Cong., 2d Sess., pp. 22, 43. Section 11 of

this bill provides, however, that “[t]he ainendments * * * shall

_. not be applicable” to pending charges. See 116Cong. Rec. (daily

ed., October 1, 1970) S.16917.

* The courts of appeals for the Fifth and Seventh Circuits have

recently held that district courts have jurisdiction over suits in:

volving employment. discrimination under 42 U.S.C. 1981, not-

withstanding the complainant's failure to follow the procedure

prescribed in Title VII. Sanders v. Dobbs House. Inec., 2 FEP

Cases 942 (C.A. 5, No. 29029, August. 28, 1970); Waters v.

Wisconsin Steel Workers, 2 FEP Cases 574 (C.A. 7, No.

17895, April 28, 1970). It is therefore not clear that- these

complainants ‘would lose all of their judicially enforceable

rights with respect to. the alleged discriminatory practices of

which they complain. Regardless of whether complainants : re-

“tain the right to sue, the decision below, by depriving EEOC

of jurisdiction, frustrates the congressional intent that EEOC

be afforded an opportunity to conciliate prior to the filing of

suit.

11

2. The Commission’s practice of referring charges

initially lodged with it to the appropriate state agency

-and then treating them as ‘‘filed’’ after the expira-

tion of the deferral period properly implements the

. policies and requirements of Title VII. The Com-

mission’s function is to investigate and conciliate .

charges of discrimination, but only after the state

agencies have had a reasonable time within which

' to remedy the alleged discrimination. See 110 Cong.

Ree, 12725 (Sen. Humphrey). As Judge Fahy empha-

sized in his dissent below, the people whom Title VII

is designed to help and whose complaints are relied

‘upon to trigger the enforcement process are largely

_working men who cannot be expected to know the

procedural intricacies of Title VII. EEOC’s com-

plaint-filing practice ‘justly accomnnodates the states’

interest. under Title VII in having first opportunity to

cure discrimination with the basie congressional pur-

pose to vindicate individual rights against discrimina-

tion (App., infra, p. 27). :

The only other appellate ruling on EEOC’s com-

plaint-filing procedure, International Brotherhood of

Electrical Workers, Local 5 v. EEOC, 398 F. 2d 248

(C.A, 3), certiorari denied, 393 U.S: 1021, essentially

conflicts with the ruling below. In that case, as here,

the complainant wrote initially to the EEOC. The .

Commission advised the state agency of the charge

and after that agency allowed 60 days to pass without

taking final action, treated the charge as having been

formally filed with it. The complainant thereafter

filed ® “formal charge’’ on an EEOC form more than -

thirty days after the state agency had concluded its

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proceedings. The court ruled that the letter was not

‘a valid charge when received’? by EEOC because it

had not been sent to the state agency, but that this

defect was cured and the letter became an effective

charge after it was referred to the agency and the

deferral period expired. 398 F. 2d 248, 252.

The majority of the court helow ruled that the

International Brotherhood of Electrical Workers,

Local 5 case was distinguishable because the EEOC

there had sought and received a reauthorization from

the charging party before proceeding with its investi-

gation (App., infra, p. 32). Formal reauthorizations

are generally without practical consequence, however,

for EEOC’s practice is to interview the complainant

prior to commencing any investigation. Thus, if he

does not wish to proceed, he can withdraw.his charge

at this time. In the present ease, of course, the initial in-

terview was unnecessary. Mr. Love had complained to

EEOC just seven days before it assumed jurisdiction.

_ The state agency refused to constder the complaint

and took no other action. There was: thus no basis to

believe that there had been any change in. circum-

stances during the brief interval between referral to

the state agency and termination of its proceedings

which would eause Mr. Love to wish to withdraw the

complaint for which he initially sought the ae of

EEOC.

3. The court’s implicit ruling that the 30-day stat-

ute of limitations under Section 706(d) deprived the

district court of jurisdiction, even where the discrimi-

nation is of a continuing character, is also at odds

with the generous attitude displayed by other courts

Ret eee

13

of appeals toward procedural irregularities’ in the

filing of complaints with the EEOC.’ It was not, more-

over, required by the underlying policies for which

statutes of limitations exist. There was no urifairness

or prejudice to respondent, who had been aware of.

Mr. Love’s charge of discrimination at least since 1965

when it made an offer of settlement to him; nor was

there any lack of diligence on the part of Mr. Love.

In a comparable situation, this Court held that the

interests of vindicating rights of individuals outweigh

the statute’s policy of repose. Burnett: v. New ‘York

Central R. Co., 380 U.S. 424...

For these reasons, as well as those previously stated,

the court of appeals should have ruled that the initial

defective filing with the EEOC was later cured by

referral to and waiyer of jurisdiction: by the state

agency, and that it tolled the statute of limitations.

® See Sanchez v. Standard Brands, 2 FEP Cases 788 (C.A. 5,

No. 27730, July 1, 1970) (incomplete or erroneous statement. of

charges with EEOC can be’ amended after expiration of the

limitations period); Culpepper v. Reynolds Metals Company,

421 F.2d 888 (C.A. 5) (pursuit of remedies available under the

collective bargaining agreement is sufficient to toll the statute

of limitations for filing charges with EEOC under Title VII) ;

see, also, Georgia Power Co. v. EEOC, 412 F.2d 462 (C.A.

5); Miller v. International Paper Co., 408 F. 2d 283 (C.A. 5);

Johnson v. Seaboard Air Line R.R. Co., 405 F. 2d 645 (C.A. 4),

certiorari denied sub nom. Pilot Freight Carriers, Ine. v.

Walker, 394 U.S. 918; Weeks v. Southern Bell Telephone &

Telegraph Co., 408 F.2d 228 (C.A. 5).

;

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14

CONCLUSION

The petition for a writ of certiorari should be~

granted. |

Respectfully submitted.

Erwin N. GRIswoLn,

a Solicitor General.

_ JeErRIS LEONARD,

Assistant Attorney General. °

Davin L. Ross,

Ropert A. FEDE:.

Attorneys.

STANLEY HEBERT, |

General Counsel,

Equal Employment

Opportunity Commission.

NOVEMBER 1970.

SEND ALAR AT NON is ibis 4 * wo fae

ote ‘

o ‘

APPEN DI X A

. United States Court of Appeals

* Tenth Circuit

Aveusr 1969 Term

~ No. 209-69

Wart A. LOVE, PLAINTIFF2APPELLANT

Uv. ; .

THE PurtrMan Company, aN ILLINOIS CORPORATION,

DEFENDANT-APPELLEE

No. 226-69 .

THE PuLuMAN Company, aN ILLINors CoRPORATION,

DEFENDANT-CROSS APPELLANT

v. ;

Earn A, Love, PLAINTIFF-CROSS APPELLEE

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLORADO (DISTRICT COURT NO. C-899)

Hugh J. McClearn, Denver, Colorado (Frederick

Miles, and Van Cise, Freenian, Tooley & McClearn,

Denver, Colorado, with him on the Briefs), for Ap-

pellant and Cross-Appellee.

Edward C. Eppich, Denver, Colorado (Neef, Swan-

son, and Myer, Denver, Colorado, with him’ on the

Brief ), for Appellee and Cr oas-A ppellant, The Pull-

man Company.

(15)

408-767 —70—3

Bo LNA Nam Sa Asatte MLR LE SY EBL

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ROPER SE TD TES ey)

16

Marian Halley, Attorney, Washington, D.C. (Daniel

Steiner, General Counsel, and Russell Specter, As-

sistant General Connsel, with her on the Brief), for

United States Equal Employment Opportunity

Commission, as Amicus Curiae.

Before Fany, Senior Circuit Judge* , Lewis and Ser,

Cireuit Judges. .

SetH, Circuit Judge.

Appellant brought > suit *pursuant to 42 US.C.A.

§ 2000e-5(f), a portion of Title VII of the Civil

Rights Act of 1964, alleging that he was discriminated

against in employment because he was a Negro. The

appellee moved to dismiss the complaint on the ground

that the charge was not timely filed with the Equal —

Employment Opportunity Commission and that ap-

pellant’s’ cause of action was moot. The trial court

treated appellee’s motion as a motion for summary

judgment, and granted it. This appeal was then taken.

The Equal Employment Opportunity Commission has

filed-a brief as amicus curiae. ’

Appellant was employed by the sutclive for more

than forty years as a Pullman porter. He resigned

from this position in November 1968. In 1951 the ap-

pellant was classified and began to perform the du-

ties of a ‘‘porter in charge.” Appellant states that

the duties of a porter in charge are for all purposes

identica. to those of a Pullman ‘conductor, and that

porters in charge must at axl times be ‘available to.

*Of the United States Court of\Appeals for the District

of Columbia Circuit, sitting by designaticy, :

\

17

work as such a conductor. Porters in charge how-

ever receive substantially lower wages than do con-

ductors. |

In his suit, appellant asserts that he hasS been

restricted tu the classification of porter in charge be-

cause of his race and that the classification of con-

ductor is primarily an all-white classification from

which Negroes were excluded. — .

The trial court found that -in 1963 the appellant

filed a written charge of discrimination with the

Colorado ,Civil.Rights Commission and ‘that in- 1965

he orally restated his complaint to that same commis-

sion. The court found also that this oral statement

did not literally comply with the Colorado statute

governing the same, but it was substantial compliance.

The court found that the appellant’s case was there-

by ‘reopened in 1965, hut the commission was unable

to reach an arrangement with The Pullman Company

that was satisfactory to the appellant. The company —

advised the commission they would promote the ap-

pellant to conductor, but by reason of the union con-

tracts he would be very low in seniority as a condue-

tor and that he would probably be laid off. The con-

mission so advised. the appellant by letter. This was

found by the trial court to have terminated the pro-

ceedings on appellant’s complaint in July 1965.

Thereafter, on May 23, 1966, appellant sent a letter

of complaint to the ‘Equal Employment Opportunity

Commission (EEOC) in Washington making the same

complaint that he had to the Colorado commission.

When the EEOC received ‘appellant’s letter it, in some

way undisclosed in the record, informed the Colorado

commission that it had received a charge of discrimi-

nation which appeared to be within the jurisdiction

of the Colorado commission. By letter of June 1, 1966,

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18

the Colorado commission advised the EEOC that in

light of its prior contacts with the appellant and his

failure to. return to file a complaint, the commission

would not “accept’? the sixv day deferment period,

waived it, and asked the EEOC to proceed.

The EEOC then served a copy of the charge on the

appellee and began an investigation. A charge on an

EMOC form signed by appellant dated July 23, 1966,

also appears in the record, and we assume this supple-

mented his original letter of May 23, 1966. -

A “Final Investigative Report’? by a Regional Di-

rector of the EEOC found no violation of Title VIT.

He instead found that the Sleeping Car Porters

Union and The Pullman Company were in ‘violation

of the Act by reason of their union contract. He

recommended that a commissioner’s charge be brought

on. this basis. The commission thereafter found other-

wrse and issued its Decision that there was instead

reasonable cause to believe that there was discrimina-

tion. On May 3, 1968, the EEOC notified the appellant

that it had been unable to secure the appellee’s volun-

tary compliance with Title VIT and that the appellant

had thirty days in which to bring suit.

The appellant then duly filed a complaint and later

an amended complaint.on behalf of himself and of all

persons similarly situated who had suffered from, the

appellee’s alleged discriminatory employment practice.

The appellant: also prayed that appellee be enjoined

from classifying its emplovees on the basis of race

and sought back pay for himself and for the class of

persons situated as himself in the amount of the

difference between the wages they had earned and

what they would have earned but for appellee’s

discrimination.

The trial court in granting summary judgment in

favor of the appellee ruled that since the Colorado

19

(Civil Rights Commission had terminated its proceed-

ings on appellant’s complaint on July 30, 1965, and

inasmuch as appellant did not file his charge with the

EEOC until May 23, 1966, or more than thirty.days

after termination, appeHant had failed to comply with

section 706(d) [42 U.S.C.A. § 2000e-5(d) ].

The trial court also ruled that since the appellant

had resigned from employment with the appellee in

November 1968, his request for injunctive relief was

moot.

-We must affirm the trial court on the timeliness of

filing issue,. and to thereby give effect to the time

limits expressed in the statute.

It is clear that the Colorado Civil Rights Commis-

sion acts under a Colorado statute prohibiting the em-

ployment practice ajleged and establishing state au-

‘thority, to grant or seek relief all as contemplated in

section 706(d) of the 1964 Civil Rights Act [42

“US.C.A. § 2000e-5]. Since the Colorado statute and

the State commission so come within the terms of

section 706(b) of the. Act, no charge can be filed with

the EEOC under section 706(a) until after the expira-

tion of sixty days after proceedings are commenced

in the State, unless the State proc eedings terminate

within such ‘Gime: Further the Act in section 706(d)

[42 U.S.C.A. § 2000e-5(d)] provides that filing with

the EEOC must be made under these circumstances

within two hundred ten days after the alleged unlaw-

ful employment practice occurred, ‘‘or within thirty

days after receiving notice that the State ar local

agency has terminated the proceedings under the State

or local law, whichever is earlier, * * *”’

The trial court found, and the record shows, that

the Colorado commission terminated its proceedings

on plaintiff’s complaint on July 30, 1965, and so noti-

Wien

FOLD INS PIERO Si eter >

ODA cit ae ne POMS 2 ce

.

SARNIA. OND pe escdncep Redes 19.

- 20

fied him. We also agree that this second period of con-.

sideration was an effective reopening of prior proceed-

ings on the same complaint. Thus if appellant had

filed his complaint with the EEOC within thirty days

thereafter there would be no question as to its author-

ity to act on such a complaint. Appellant did not do

so but waited until some time later and mailed a letter |

of complaint to the EEOC.

The appellant, and the EEOC as amicus curiae, ar-

ote here that this letter to the EEOC started a new

chain of events, and they ignore the prior failure by

appellants to comply with the time requirements. The

EEOC, to sustain this position, urges that upon re-

ceipt of a complaint letter directly from an individual

as the appellant here, it may hold it in some sort of

suspense and ‘‘advise” the State commission con-

cerned. Then at the end of the period the State has

to consider complaints (sixty days) the commission

can then automatically ‘‘assume jurisdiction,’ as if

the complaint had been made directly to the State

agency and, thereafter within the time hit, filed with

the commission.

As indicated above, we must affirm the trial court

in its holding that the time limit was ignored as to

the complaint appellant himself. filed with the Colo-

rado commission. ‘We also:hold that the device used

by the EEOC to start a new time. sequence was inef-

fective to do so. Under the Act, when the appel-

lant’s letter to the EEOC was received it was there-

by filed as: the filing date cannot be manipulated hy

the commission. Its own regulations state ‘“‘* * * a

charge is deemed filed when the Commission receives

from the person aggrieved a written statement suffi-

ciently precise to identify the parties and to describe

generally the action or practices complained of.’’ The

charge was apparently definite enough for the EEOC

ed

ee ge eae ee

21

to advise the Colorado commission although the rec-

ord does not show how this was done. The EEOC in

its brief also states: “It is established beyond ques-

tion that a charge, originally in the form of a letter,

may later be reduced to proper form, and that the ©

later official charge will relate back to the date of the

letter.”’ Thus the charge here concerned was filed

when received, and at that time the EEOC had no

authority over the matter because it had then not yet

heen presented to the Colorado commission.

In International Bhd. of Elec. Workers v. United

States Equal Employment Opportunity Comm’n, 398

F.2d 248, the Third Circuit held that a charge when

filed with the EEOC before the expiration of the

State’s sixty day period was not then valid: The same

situation here prevails because appellant’s charge was

filed with the EEOC before Colorado had a chance to

act on it. The court in J.B.F.W. however found a

subsequent charge filed within the statutory time

intervals and sequence was valid and within the two.

hundred ten day per 10d.

The trial court in the case at bar also had no statu-

tory power to hear the case because the EEOC also

lacked such authority. The trial court so held. See -

Washington vy. Aerojet-General Corp:, 282 F.Supp.

‘O17 (C.D. Calif.), where the date of ree em and the

date of filing were also considered.

The Civil Rights Act of 1964 is precise in its re-

quirements that the States with adequate statutes

and machinery have the first opportunity to consider

complaints. This first opportunity is a clear require-

ment in the sequences set out in the Act. This oppor-

tunity cannot come by an advice from the EEOC that

a complaint has already been filed with it. This prac-

tice seeks to channel complaints first to the EEOC

_ which then ‘‘advises’’ the State agency, gives it sixty

REEMA TILE Uys

en MARAT

22

days, and then the LEOC automatically proceeds. The

statute does not contemplate this procedure.

In the case before us the record does not show

what the EEOC advised the Colorado commission nor

how it did so. We have only the Colorado commis-

sion’s response. This response, as mentioned above,

noted that appellant had requested nothing further

of the State commission, iidicated that appellant was

perhaps disappointed in jt, and asked the EEOC to

proceed. This reference shows, of course, that the

same complaint theretofore presented to the Colorado

commission was recognized. Thus this is not an in-

stance where the State agency was unfamiliar with

the complaint. Its letter of June 1, 1966, indicates

that appellant was expected to return. We don’t of

course know whether other action would have been

taken had appellant returned to it and presented an-

_ other complaint. The deposition of the State director

only states that the policies were undergoing substantial

changes at the time. After careful consideration we can-

not on this record say that submission to the Colorado

commission by appellant would have’ been wholly

futile.

We must thus apply the procedure and the time

limits set by Congress which are. explicit in the

statute. The language is clear and needs no. inter-

pretation. However, there were .important reasons

set out in the legislative history as to why the com-

plaints must first be filed with the State agency when

the State statute contains the required provisions.

110 Cong. Ree., part 10, 13008 and 12721 (1964), 88th

Cong. 2d Sess. The debates in Congress include a_

variety of views as to several sections of the Act,:

especially the provisions relating to conciliation; how-

ever, the sequence of State and federal action was

debated with little or no evidence of a difference of

23

opinion as to the meaning of the provisions proposed.

It beeame.a fundamntal issue, and the subject of a

significant compromise; thus the legislative history is

also clear if it need be considered.

The court in) Equal Employ at, Opportunies

Comm’n vy. Union Bank, 408 F.2d 867 (9th Cir.),

held that the mandate is evident that the claimant

must first proceed “under available state law before

filing a charge with the EEOC.” The time limitation —

foy filing with the EEOC follows to permit the federal

_ agency thereafter to consider the matter. For reasons

. Congress fully considered, the reference of com-

plaints to the federal agency comes after their con-

sideration hy the States. See also Edwards v. teeta

American Rockwell Corp., 291 F. Supp. (199 (Co. D.

Calif.). - 7

In order to preserve this stated sequence and the

statutory thirty day period in which to invoke- federal

agency authority, the holding must be that the ap-

pellant waited too long after final State action to

take the matter to the EEOC, and thus the federal .

agency did not have authority to act, nor did the

trial court. .

The sequence and the time period is applicable

under the statute to all types of allegedly unlawful

discrimination. It does not differentiate between con-

tinuing discrimination and isolated incidents. The

familiar “continuing violation’? argument advanced

by appellant and the -EEOC would permit a com-

plaint to be initially filed with it at any time what-

ever as to a continuing offense, and the elements of

the Act considered above would thereby be ney ee

Affirmed.

Fauy, Senior Circuit Fuiae, dissenting.

As the court points out, the trial court found the

reopened 1965 case was terminated by the State Com-

RSET MME tO x aa

POUR IERCORRY I RD ORE remy

SEPP IOLLEEE j

eR NN A SC eh a NL ata Sac eh alae

anemia ae Ossasprics cance:

24

mission in July of that year. No complaint was

filed with the Equal Employment Opportunity Com-

mission within thirty days thereafter. It follows, I

agice, that § 706(d) (42 USCA § 2000e-5(d)) was not

complied with, insofar as the reopened 1965 case is

eoneerned. However, on May 23, 1966, as che court

also points out, appellant sent a letter complaint to

EEOC. Since the discrimination of which he had

complained to the State Commission, and now com-

plained to EEOC, was of a character which con-

tinued te the time of the filing, this complaint, if it

were handled so as to meet the procedural require-

ments of the Act, initiated a new case.

To recognize that Some discrimination is of a con-

tinuing character is not to say that repetitious com-

plaints or reopenings may be unlimited. An admin-

istrative agency, as well as a court, has the power to

prevent abuse of its process. But I find no such abuse

here, just as this court found none when it accepted

as valid an oral renewal in 1965 of Love’s formal

complaint made before the State. Commission in 1963.

In fact, our court now comments that had appellant

filed his present complaint with EEOC within thirty

days after he was notified that his 1965 complaint to

the State Commission was terminated “there would be

no question as to the (EEOC ’s) authority to act on

. such a complaint.” The court makes no mention, how-

ever, of the requirement in §706(d) (42 USCA

§ 2000e-5 (d.) ) that a, valid complaint to EEOC, if a

state commission has taken jurisdiction, must be made

within 210 day s-after the alleged employment practice

occurred or within 30 days after receiving notice of -

the terminationof state proceedings, whichever is

earlier. If Love’s renewed complaint before the state

. 25

commission in 1965 was not justified by a continuing

discrimination, any complaint to EEOC at this later

time would clearly have been filed more than 210 days

after the alleged unlawful employment practice which

led to the 1963 complaint.

The absence of abuse is further ev idenced by the

acquiescence of all'the parties in the propriety of the

present proceedings as they went forward before

EEOC. That agency treated the complaint of May 23,

1966 as a new complaint or renewal of an earlier one,

not as an untimely effort to confer jurisdiction upon

EEOC «efter the termination of earlier proceedings.

Perhaps even more significantly, it was so treated by

the State Commission itself: Furthermore, in the en-

suing proceedings before EEOC, the Pullman Com-

pany also so treated it. It was only after EEOC had

itself terminated the case initiated by the May 23, 1966

complaint and Love timely went to th» District Court »

that the Pullman®Company raised there the objection

now accepted by @ur court.

It is apparent that the complaint of hay 23, 1966

cannot be considered an abuse of the stattittory scheme.

This court nevertheless holds that KEOC’s referral of.

. this complaint to the State Commission was not com-

plianee with § 706(b) (42 USCA § 2000e-5(b)). The

court cerrectly observes that § 706(b) requires a com-

plaint of employment discrimination to be filed before

a ‘state commission, if one exists, before it is to be con-

sidered by EEOC. To meet this requirement of the

‘Act, EEQC adopted the practice of referring a charge,

mistakenly filed initially with it, to the appropriate

state agency, EEOC subsequently assuming jurisdic-

tion.’ The authority of EEOC to make such referrals

1G. C, Opin. 11/18/65 & 12/2/65; Comm. Dec. 12/30/65.

‘

Bb ia ae et eu det aes Deane a en en RE

26

&

‘has been embodied in an amendment of Regulation

§ 1601.12 (F.R. Doe. 68-13553, eff. Nov. 7, 1968) :

The aggrieved party shall be notified, in writing,

that the document which he sent to the Commis-

sion has been forwarded to .the state or local

agency. pursuant to the provisions of § 706(b),

‘and that unless the Commission is notified to the

contrary, on the termination of state or local

proceedings, or after 60 days have passed, which-

ever comes first, the Commission will consider the

charge to be filed with the Commission and com-

mence processing the case.

SS ORSAY ST ENG one Dane ee geen ees ey

/

This regulation was not in .effect Avhen EEOC re-

ferred Love’s complaint to the State Commission, but,

as indicated above, it merely formalized the earlier

Commission procedure. That procedure, conforming

to the statutory scheme, has heen accepted, with-

- out being questioned, by the Third Cireuit in Interna-

+ . tional Bhd. of Elec. Workers vy. EEOC, 398 F.2d 248

. (3rd Cir. 1968). In that case, as in ours, a charge6f,

= discrimination was originally filed with EEOC, which 7

}§ referred the complaint to the state agency. The charg-

3 - ing party wird made a. formal complaint directly to

the state agency. The court nevertheless tacitly found

compliance with § 706(b). EEOC had proceeded upon

the original complaint after a subsequent request by

4 the complaining party that it assume jurisdiction.

EEOC’s past procedure and present regulations do

not run counter to the policy of the Act. On the con-

trary, as the regulations state, “it is the intent of the

Commission to thereby encourage the. maximum de-

gree of effectiveness in the state and local agencies.” ?

Yet, with no mention of the current regulations, the

‘court rules inconsistently with them, and in my view

thus unduly restricts the right of EEOC to entertain

? Reg. § 1601.12, supra.

I A DALLA MAE ie IRDA AM ABEL EG BES, RBAEG EES BONA RAEN BE? sO elect CW PPLE ABER BEE.

27

and expedite claims for ‘which it has responsibility

under the Act.to seek a solution. I think we should

keep in mind that’

we are ngt dealing with businessmen-plaintiffs

or plaintiffs accustomed to consulting lawyers

about their rights. This law is a remedial one,

and the Congressional purpose would not be

furthered by making plaintiffs of the kind with

which we are concerned, members of the working

class who .are generally. without substantial

higher education, dot every “i’’.and cross every

“t”’ on the way to the courthouse.’ .

The consistency of the EEOC procedure with the |

policy of the Act is emphasized by the facts of this

ease. The Colorado Commission, ‘as a result of the

1963 -and 1965 complaints, fully considered Love’s

complaint before EEOC was even aware of its exis--

ten€e. The State Commission had been unable te ob-

tain an arrangement satisfactory to the parties, and

accordingly, terminated its proceedings. These ‘unsuc

cessful efforts of the State Commission led Love to go .

to EEOC for relief. EEOC, in order to bring the mat-

ter within the’statutory plan, that is, to enable the

Colorado Commission to have the fullest opportunity

to consider the complaint initially, referred it to that:

.Commission. Because of the Colorado Commission’s

acquaintance with ‘the Love grievance and with his -

dissatisfaction with the result of its efforts, it in-.

formed EEOC that it would waive jurisdiction over

the matter. Only at this point did EEOC assume jur-

_ isdiction. I think it was entitled to do so, and that

_ after the termination of its proceedings the District

Court obtained jurisdiction by the timely filing of

* Antonopulos v. Aerojet-Gencrql Corp., 295 F Supp. 1390, 5

(KE. D. Cal. 1968).

Re RR eR tan de

” . “eT DerRecr wey

~ se ah ow, GK +N

eos

en

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L

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tail Wid Bit , . : ¥iy

28

suit by Love—that Love then came to the door of the

court with quite valid credentials.‘ Accordingly, I re-

spectfully dissent in appeal No. 209-69 from the

court’s affirmance of the District Court’s order dis-

missing Love’s complaint.’

*T do ‘not read. International Bhd. of Elee. Workers v.

EEOC, supra, as does the court. Moreover, it should be noted

that Washington v. Aerojet-General Corp., 282 F.Supp. 517

(C.D. Cal. 1968), also cited by the court, relied upon the case |

in.the District Court which was reversed by the Third Circuit:

in the 7BE'W case, supra. See footnote 9, 282 F. Supp. at 522, °

And EEOC vy. Union Bank, 408 F. 2d 867 (9th Cir. 1969), also

cited, does not oppose the position I take; for there the matter

seems never to have been before the State agency at all.

~ © The cross-appeal of the Pullman Company, before us in ap-

peal No. 226-69, takes issue with the District Court’s ruling

that the proceedings before the Colorado Commission were-

validly reopened in 1965, a ruling with which this court

agrees. It is unnecessary for me to take a position on this mat-

ter since in any event I conclude that the complaint of May

23, 1966, validly. set. in motion proceedings which led to the

timely filing by Love of his complaint in the District Court

which in my opifion gave that court jurisdiction.

~ ‘ - reenter acai CR aT areas ane RO Ree ET AED, EERIE

APPENDIX B

United States Court of Appeals

Tenth Circuit

No. 209-69

Eart A, Love, PLAINTIFF-APPELLANT

| U.

THE PULLMAN CoMPANY, ‘AN ILLINOIS CORPORATION,

| DEFENDANT-APPELLEE ;

and

UNITED STATES OF AMERICA, AND EQuaL EMPLOYMENT

OPPORTUNITY COMMISSION, INTERVENORS

United States Court of Appeals

Tenth Circuit ,

No. 209-69—JULY 1970 TERM

os.

Bart A. Love, pPLAINTIFF-APPELLANT

vu. .

THE PULLMAN CoMPANY,°AN ILLINOIS CORPORATION,

| DEFENDANT-APPELLEE

and

UniTep States oF AMERICA, AND EQUAL EMPLOYMENT

OPPORTUNITY Commission, INTERVENORS

(29)

30

>

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLORADO (DISTRICT COURT NO, C-899)

OPINION ON REHEARING

a 2 7

Hugh: J. McClearn, Denver, Colorado (Van Cise,

Freeman, Tooley & McClearn, Denver, Colorado,

with him on the Brief), for Appellant, Earl A.

Love.

Edward C. Eppich, Denver, Colorado (Neef, Swanson

and Myer, Denver,, Colorado, with him on the

Brief), for Appellee, The Pullman Company. |

Benjamin W. Mintz, Attorney, Department of Justice,

Washington, D.C. (Stephen P. Passek, Attorney,

Department of Justice, Washington, D.C., and

James L: Treece, United States Attorney, with him

on the Brief), for Intervenor, United States of

America.

Russell Specter, Acting General Counsel, Washington,

D.C. (Marian Halley, Attorney, with him on the

Brief), for Intervenor, Equal a a ment Oppor-

tunity Commission.

Before Lewis, Chie} Judge, Fauy, Senior Circuit

Judge*, and SetH, Circuit Judge.

SetH, Circuit Judge.

,

OPINION ON REHEARING

The Equal Employment Opportunity Commission

argues for the first time on this rehearing the rela-

tionship of the effective date of Title VII of the Civil

*Of the United States Court: of Appeals for the District of

Columbia Circuit, sitting by designation.

31

Rights Act. of 1964 to the proéedural and jurisdic-

- tional events. Title VII became effective on July 2, °

1965, which was a date during which the Colorado

Civil Rights Commission was attempting to provide

some relief or remedy for the appellant. The record

shows that the Commission discussed the complaint

with The Pullman Company and advised Love that

he could be promoted to the position of conductor, but —

under the existing Union contracts, lis seniority as a

conductor would be so low that he probably would be

laid off. This was not a satisfactory prospect for

appellant. This date, July 30, 1965, was determined

by the trial court to be the termination date by the

State authorities, and thus appellant’s time for appli-

cation for relief to the EEOC then began to run.

The EEOC on this rehearing now urges that the

pre-July 2, 1965,-event be disregarded as being in-

effective as antedating Title VII. We agree with this

position, but it does not materially alter the considera-

_tion of the events. | ,

The termination by the Colorado Commission on

July 30; 1965, could only have been of proceedings

which related to events, conditions, or acts Which took

place before the effective date of the Act, and insofar

as these asserted acts of discrimination they could

not have been within the jurisdiction of the EEOC.

Crosslin v. Mountain States Telephone & Telegraph

Co., 38 U.S.L. Week 2514, F., 2d (9th Cir.) ;

Nishiyama v. North American Rockwell Corp., U.S.

D.C., Cent. Dis. Calif., #68-1423-AAH; Griggs v.

Duke Power Co., 292 F. Supp. 243 (M.D.N.C.):

Dobbins v. Local 212, Int’] Bhd. of Elec. Workers,

292 F. Supp. 413 (S.D. Ohio); Banks v. Local Union

136, Int’l Bhd. of Elec. Workers, 296 F. Supp. 1188

(N.D. Ala.).

32

Thus the first post effective date that events could

have been considered under the record before us were

those referred to in the letter of complaint of May 23,

1966, sent by appellant directly to the EEOC. This

was the letter the Commission did not file but sus-

pended until the Colorado Commission was advised

and a reply received on June 1, 1966.-Then according

to the arguments and briefs of the EEOC it “* **

automatically accepted the charge for filing.” This

determination of the time for filing was made by the

Commission without further correspondence from the

appellant as apparently later became the procedure,

as described in the prior opinion of this court. Inter-

national Bhd. of Elec. Workers v. United States

Equal Employment Opportunity Comm’n, 398 F. 2d:

248 (3d Cir.)-

“The regulations of the Commission did not con-

template or permit such a manipulation of the filing

date, and it is contrary to uniform practice before

_ Governmental agencies. We are strongly urged to

consider regulations adopted at a later date, but this

cannot be done, even if the method could be reg-

ularized by the adoption of regulations.

It must be pointed out that if complaints of this

nature are so received by the EEOC but not ‘‘filed”’

until a reply is received from a State agency or

until sixty days have elapsed, it is entirely possible

and even likely that the time for appeal of the per-

son complaining may have elapsed by reason of prior

termination by State authorities. Under these circum-

stanees, the EEOC to save the appeal would have to

“file” the complaint at a date much earlier than the

day on which the situation became known to it. The

post-date filings made “automatically” by the EEOC.

as described on this appeal have little to recommend

P a

33

them over, pre-dating the “filings” to a‘date before the

day such act was accomplished.

The EEOC here argues that it need only advise the

State agency of the complaint. In its brief it states

that section 706(b) ‘‘* * * requires only that a state

agency be given notice of the claim and 60 days in

which to deal with it”before the EEOC may assume

Jurisdiction over the case *.* *,” and elsewhere that

the requirements are met if it “* * * informs the

state agency of the pendency of a eharge * * *.”’ This

without further word or act by the ccmplainant to

permit the EEOC to then “automatically” assert jur-

_ isdiction after sixty days does not comply with the

Act as described in the prior opinion.

The action of -the trial court in treating appellee's |

motion as one for summary judgment, and the grant-

ing of the. motion is affirmed for the reasons stated in

this opinion on rehearing and as set forth in the prior

opinion. | _ |

Affirmed.

Lewis, Chief Judge, concurring.

- I concur in the affirmance of this judgment on its

_ record facts for to do otherwise would give judicial

approval to administrative “flexible” filing to obtain,

postpone, or reject jurisdiction. Admittedly those per-

sons seeking relicf under the Act are usually unin-

formed as to procedural necessities, often present their

problem in letter form and directly to the Commis-

sion, and so need reguiatory or legislative protection -

to preserve their basic rights against unnecessary

procedural bars. But this problem is not unique with

this Commission and its solution certainly does not

he in the approval of the manipulated procedures re-

flected in this record. To do so, migl.t well, under dif-

ferent facts, penalize compliance as well as reward:

noncompliance with the requirements of the Act.

Bra NN uaa La eat ele a a cc

34

Fany, Senior Circuit Judge, Dissenting.

With a modification to be mentioned I adhere to

the views expressed in my dissenting opinion filed

September 22, 1969. In light of the fact that Title Vil

of the Civil Rights Act of 1964 did not hecome effec-

tive until July 2, 1965, I agree with the opinion of

the court on rehearing that the correct basis for decid- .

ing that the Equal Employment Opportunity Com-

mission did not have jurisdiction of the reopened

1965 case is that the conduct complained of occurred ,

" prior to July 2, 1965, rather than as stated in my.

dissent of September 22, 1969.

=

seotachee pastor tea teemevonees ° SARE CE ILO

a site a eee are

APPENDIX C

United States Court of Appeals:

Tenth Circuit

SEPTEMBER TERM, SEPTEMBER 22, 1969

No. 209-69

Earut A. LOVE, PLAINTIFF-APPELLANT

Vv.

THE PuLLMAN Company, AN ILEINOIS CORPORATION,

DEFENDANT-APPELLEE -

Before Honorable David T. Lewis, Honorable Charles

Fahy and Honorable Oliv er Seth.

This cause came on to be heard on dhe record on

-appeal from the United States District Court for the

District of Colorado and was argued by counsel. On

consideration whereof, it is ordered that the judgment

of said court is ‘affirmed. Honorable Charles Fahy

dissents.

Wanrn L. WHITTAKER,

a

By Rane ‘J ACOBSON,

Depa Clerk.

(35)

—

Oo aor ein GE CARE tS aE 2 ANE EEE

APPENDIX D

United States Court of Appeals

Tenth Circuit

JuLY Term—Juxy 30, 1970

No. 209-69

Karu A. Love, PLAINTIFF-APPELLANT

, v. |

THE PULLMAN Coeaxy, AN ILEINoIS CorPoRATION

| _ DEFENDANT-APPELLEE

- and >

Unxitep States or AMERICA, AND Equa EMPLOYMENT

OPPORTUNITY Commissi0x, INTERVENORS

]

Before Honorable David T. Lewis, Chief Judge; and

Honorable Charles Fahy, Senior Cireuil Judge ;.and

Honorable Oliver Seth, Circuit J udges

This cause came on to be heard on rehearing, and

was argued by counsel. Upon consideration wher eof,

it is ordered that the judgment of the United States

District Court for the District of Colorado‘is af-

firmed. Lewis, Chief Judge, specially concurring;

many, Senior Cir cuit Judge, dissenting.

Wituism L.. WHirtaker, Clerk,

HELEN R. Barrna, Deputy Clerk. -

(37)

en ai

a>

*

Don he gk pm SRAM. GSS a ERED:

APPENDIX E

United States District Court

District of Colorado

Civil No. C_899

Earu A. LOVE, PLAINTIFF

2,

PULLMAN COMPANY, DEFENDANT

February 28, 1969

Hugh J. McClearn, Denver, Colorado, for Plaintiff,

Edward C. Eppich, Denver, Colorado, for De-

fendant.

Array Ch. J.: The plaintiff’s action is based upon

the provisions of 43 USCA, Section 2000-e—5 et seq.,

commonly referred to as Title VII of the Civil

Rights Act of 1964. The plaintiff alleges that he has

been employed by the defendant for a number of

years as a porter, and for the last several years he

has been performing the duties and responsibilities

of the porter-in-charge, which are commensurate with

the duties and responsibilities of a Pullman con-

ductor, yet he ‘received lower wages due to his race.

‘The defendant has moved to dismiss the action on

the grounds that the court lacks jurisdiction over the

subject matter and that the plantiff’s cause of action

has become moot. The defendant’s motion is supported

by the deposition of James Reynolds, Director of the

Colorado Civil Rights Commission, together with the

, exhibits attached thereto. The record also contains

- facts which have been stipulated to by counsel for the

(39)

~

~

ai

40

- parties. Accordingly, the motion to dismiss filed by

the defendant will be treated as a motion for summary

judgment. .

Before an action may be commenced under Title

VII of the Civil Rights Act of 1964, 42 USCA,

§ 2000-e-5 et seq., there are certain statutory prerequi-

sites which must be met before this court has juris-

diction over the subject matter of this type of action.

It is apparent from 42 USCA, § 2000-e-5(b), thatnf

a state has a statute which prohibits the alleged un-

lawful employment practice, that no charge may be

filed under the Civil Rights Act of 1964 with the

EEOC until after proceedings have been commenced

under the state law. The State of Colorado has such -

a statute (CRS 1963 80-21-1 et seq.) which has been

in effect since 1957 and prohibits the type of employ-

ment practice alleged by Mr. Love. The Colorado —

statute (CRS 1963 81-21-7(1)) requires the filing of

a written complaint with the Colorado Civil Rights

Commission to commence proceedings there. The Col-

orado statute is recognized by the EEOC as a state

law which requires deferral:of the EEOC action under

42 USCA, § 2000-e-5(b).

The record before the ccurt. shows that in 1963 the

plaintiff did file a written complaint with the Colo-

rado Civil Rights Commission, but apparently this

claim was not resolved, at least to the plaintiff’s

satisfaction. Thereafter, in the summer of 1965, the

plaintiff again went to the Colorado Civil Rights

Commission and restated his complaint to the Com-

mission, but no written complaint was filed at that

time; however, Mr. Reynolds, the director and head

of the Colorado Civil Rights Commission, did con-

tact the defendant who stated they would promote

Mr. Love to the position of a conductor, but that he

would probably be laid off because of the seniority

2 IE gh oe

4]

rules in effeet. On July 30, 1965, the Colorado Civil

Rights Commission so advised Mr. Love by letter.

It is the court’s opinion that since Colorado has a

state law prohibiting the discrimination alleged by

the plaintiff and providing a remedy for such dis-

crimination, that the language of 42 USCA, § 2000-

e-O(b) requires that an aggrieved person exhaust his

remedies through ‘the state machinery before the

EEOC and this-court are conferred with jurisdiction

over the subject matter. Although the plaintiff did

not file a written complaint in 1965 with ‘the Colorado

Commission, he did file such a complaint in 1963. It

is the court’s opinion that the Colorado Civil Rights

Commission treated the oral complaint in 1965_as a.

reopening of the 1963 matter, and that although there

wasn’t literal compliance with the wording of the

statute there was substantial compliance. Accordingly,

the court holds that the plaintiff’s failure to file a

written complaint in 1965 does not oust this court of

jurisdiction, ;

- 492 USCA, . § 2000-e-5 (d) states inter alia: “In. the -

case of anaMilawful employment practice with respect

to which the person aggrieved has followed the pro-

cedure set out in sub-section (b) of this section, such

_ charge shall be filed by the person aggrieved within

210 days after the alleged unlawful employment prac-

tice occurred, or within 30 days after receiving notice

- that. the state or local agency has terminated the pro-

ceedings under the State or local law, whichever is

_ earher® 2 < «2 . |

‘The Civil Rights Commission of the State of Colo-

rado terminated its. proceeding on July 30, 1965, and

so notified Mr. Love. No further contact was had by

Mr. Love with the State Commission. He filed his

complaint with the EEOC on May 23, 1966.

42

It is the court’s opinion that the state proceedings

were effectively terminated on J uly 30, 1965, and that —

the plaintiff’s period within which to file a complaint

with the EEOC commenced on July 31, 1965. As

Mr. Love did not file with the EEOC until May 23,

1966, it is the court’s conclusion that the charge and

complaint before-the EEOC was not filed within the

time required by 42 USCA; § 2000-e-5(d), and that

the EEOC did not have jurisdiction to consider Mr.

Love’s charge. As. Mfr, Love’s charge was not timely

filed with that body, this court is also without juris-

diction to hear.the eomplaint herein.

I'irthermore, as to the plaintiff’s claim for injunc-

tive relief, it is obvious that inasmuchyas the plaintiff

has resigned his position with the defendant, which

fact is admitted by the plaintiff, then the request for

injunctive relief is moot.

* There is no genuine issue of material fact, and the

court as a matter of law concludes that the defendant’s

motion should be granted.

It is, therefore, Ordered that judgment be, and the’

same is, hereby granted in favor of the defendant,

The Pullman Company, and that the judgment of dis-

missal of this action shall be entered forthwith.

U.S GOVERNMENT PRINTING OFFICE: 1970

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