Love v. Pullman Company

PETITIONER:Love
RESPONDENT:Pullman Company
LOCATION:Former Ada County Courthouse

DOCKET NO.: 70-5033
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 404 US 522 (1972)
ARGUED: Nov 16, 1971
DECIDED: Jan 17, 1972

ADVOCATES:
Edward C. Eppich – for respondent
Hugh J. McClearn – for petitioner in No. 70 5033
Lawrence G. Wallace – argued the cause for the United States et al

Facts of the case

Question

Audio Transcription for Oral Argument – November 16, 1971 in Love v. Pullman Company

Warren E. Burger:

We will hear arguments in No.37, the United States against the Pullman Company and Love against the Pullman Company.

Mr. McClearn you may proceed whenever you are ready.

Hugh J. McClearn:

Mr. Chief Justice, may it please the court.

This case is before this Court on writ of certiorari to the United States Court of Appeals for the Tenth Circuit which affirmed and then affirmed on rehearing, the order of the United States District Court for the District of Colorado dismissing Mr. Love’s complaint against the Pullman Company.

Judge Fay dissenting from both Court of Appeals judgments.

The issue before this Court involves the interpretation of Section 706, Subtitle 7 of the 1964 Civil Rights Act.

This section of the statute deals with the mechanics of lodging a charge of discrimination with the Equal Employment Opportunity Commission.

More specifically it deals with the mechanical steps that one must take to lodge such a charge in a State that has its own Fair Employment Practices Acts, and Colorado does have such an act which makes discrimination at the terms and conditions of employment on the basis of race improper.

Mr. Love is a black man.

His complaint in the District Court was that he had been discriminated against in the terms and conditions of his employment by the Pullman Company because he was given a job classification of “porter in charge” where he performed the same functions as were performed by white people that were called conductors.

And yet he received substantially less pay for doing so.

He alleges that the only basis for the differentiation was race and that this constituted a violation of Title VII.

His complaint is that this discrimination was perpetrated against him.

Everyday he was employed by the Pullman Company because of the continuing existence of the discriminatory job classification and pay differential.

He first sought relief for this discriminatory condition in 1963 by approaching the Colorado Civil Rights Commission and of course at that time there was no 1964 Civil Rights Act.

The records of that context are lost.

However, he did what was required by the Colorado Statute to initiate a complaint.

He returned to the Colorado Civil Rights Commission in 1965 and verbally reiterated his complaint.

The Colorado Civil Rights Commission investigated his complaint in 1965 and they discussed the matter with the Pullman Company.

But the only relief that the Colorado Civil Rights Commission offered Mr. Love was the opportunity to be reclassified as a conductor.

But if he were to do that, he would lose all of the job seniority and it would have actually have resulted in his being laid off and being put out of work.

This relief was offered to him in a letter from the Colorado Civil Rights Commission that is dated July 30th 1965 and to which he did not respond.

Instead, in May 19th 1966, he wrote a letter directly to the Equal Employment Opportunity Commission complaining about this discriminatory classification and pay system.

And that letter appears to have been received by the Equal Employment Opportunity Commission on May 23rd 1966.

The Colorado Civil Rights Commission was advised by the Equal Employment Opportunity Commission that Mr. Love had lodged a complaint with it.

The Colorado Civil Rights Commission responded by writing a letter to the Equal Employment Opportunity Commission specifically saying that they did not want to investigate Mr. Love’s complaint waiving the 60 day deferment period provided for in the statute and —

Harry A. Blackmun:

When did that had started to run?

Hugh J. McClearn:

Excuse me sir.

Harry A. Blackmun:

When would that 60 day period have started to run?

Hugh J. McClearn:

The 60 day period could have run from I suppose either the time when they received the complaint or at the time that they were advised of it which would have had been somewhere between May 23rd and the 1st of June which is the date of the letter from the Colorado Civil Rights Commission to the Equal Employment Opportunity.

Harry A. Blackmun:

Would the Statute fix any time limit for the reference by the Federal Commission to the State Commission?

Hugh J. McClearn:

The Statute provides that the Equal Employment Opportunity Commission can do nothing for 60 days.

Harry A. Blackmun:

That is what I am trying to get.

60 days from what?

Hugh J. McClearn:

The term of the Statute is after the filing of the, excuse me — the indication is that the EEOC can do nothing from the time when a charge initiated with the State agency, and the last section of section — the last sentence in Section 706b indicates that all that need to be done under the Federal Statute is to send a letter to the State Statute.

Harry A. Blackmun:

Is it that it shall be deemed to have been commenced for the purpose of the subsection at the time such statement is sent by registered mail to the appropriate State or the local authority?

Hugh J. McClearn:

That is my reference.

Harry A. Blackmun:

So there is from that time — the state they sent I gather that which was mailed by the — not the one received?

Hugh J. McClearn:

It would indicate whatever is sent.

Harry A. Blackmun:

Mailed by the EEOC?

Hugh J. McClearn:

Or by the individual complainant, I suppose.

Mr. McClearn, to enable me to get this into focus, has there been any attempt by the petitioner to secure his rights through the collective bargaining agent?

Hugh J. McClearn:

There was none.

Am I correct in my impression that there have however, been attempts of this kind by other petitioners in the same predicament?

Hugh J. McClearn:

I am not prepared, in this case or in related case generally?

The reason I asked you is that I have a distinct impression, I have not checked it but we have litigation of this kind on the Court of Appeals in which was sent before brought by just such petitioners against all the system board or the brotherhoods and so forth.

Hugh J. McClearn:

Well, in answer to that question I think there has been litigation in the Norman case from your old circuit and I think the conclusion reached in those and other cases has been that that is not an exclusive remedy and that the Federal Rights created by Title VII of the ’64 Act can be exercised regardless of whether or not an attempt is made to seek redress under collective bargaining agreements.

In answer to your specific question here, in this case, there is no record that Mr. Love made any formal attempt under the Collective Bargaining Agreement, that he was working under as a porter.

Well, the EEOC after having been told by the Colorado Commission that the Colorado Commission did not want to proceed went forward and put Mr. Love’s charge on an official form which was sworn to on July 23rd, served that on the Pullman Company which under regulations then and now in effect had the right at that time to respond to the charge of discrimination that had been lodged with the EEOC.

During the course of the next two years, the EEOC investigated, found probable cause, attempted to conciliate and being unable to do so, on May 28th, 1968, Mr. Love filed this litigation.

Six months thereafter, on December 3rd 1968, the Pullman Company moved to dismiss and it is that motion that dismissed which was granted.

What was the relief sought?

Hugh J. McClearn:

The relief sought in the complaint in this case at that time and still is for a declaratory judgment terminating the differentiation and for back pay on behalf of Mr. Love and all those similarly situated.

There is — I see — because I was wondering because it appears in the brief that Mr. Love voluntarily resigned from his employment with the Pullman Company in November of 1968.

Hugh J. McClearn:

That is correct.

And I wanted, if by any chance the issues in this case become moot because of that?

Hugh J. McClearn:

We do not believe that they are because of the class allegation.

And the back pay?

Hugh J. McClearn:

As well as the back pay relief which has been sought.

Now, the Tenth Circuit’s judgment on rehearing, quite properly in our judgment determined that the complaints that Mr. Love had made about events that occurred prior to July 2nd 1965, the effective date of this Act, were not properly considered in this case and its judgment on rehearing therefore, is quite different and on quite different grounds than its original judgment in this case or the judgment of the District Court.

Hugh J. McClearn:

The Court of Appeals ruling on rehearing maybe summarized as follows: Because Colorado Statutes prohibit discrimination in employment based on race, 706b says that no charge maybe filed with the EEOC until 60 days after a proceeding under the Colorado Statute had been initiated or such earlier time as such a proceeding is terminated.

Mr. Love did not go to the Colorado agency in 1966.

He went directly to the Equal Employment Opportunity Commission as many others do.

The EEOC then referred his complaint to the Colorado agency and was specifically advised by it that.

Colorado wanted nothing further to do with it.

When Mr. Love’s complaint was rejected by the Colorado Civil Rights Commission, the EEOC then commenced to process the charge which it already physically had in its possession.

Byron R. White:

In the form of the prior complaint?

Hugh J. McClearn:

The letter which she sent to it on May 19th.

Byron R. White:

With that, did they admit that charge although it had been filed within the court before going to the Colorado Commission?

Hugh J. McClearn:

That is correct.

The opinion on hearing says that the EEOC cannot consider the letter of May 19 as the basis of the charge because it was physically received by the EEOC prior to the time when any approach had been made to the Colorado Civil Rights Commission.

Byron R. White:

Did it have that effect saying no complaint is pending?

Hugh J. McClearn:

That is right.

Byron R. White:

EEOC.

Hugh J. McClearn:

That is correct.

Byron R. White:

There must be a complaint before the EEOC can act and that is the case?

Hugh J. McClearn:

That is correct.

Byron R. White:

And that the complaint must by the aggrieved employee?

Hugh J. McClearn:

Well, the opinion can be read to the effect that the referral of the complaint by the EEOC is not proper.

Byron R. White:

Well, is that not tantamount to say that the aggrieved employee must first invoke a state remedy whatever the State Commission, as they never go to the Federal Agency?

Hugh J. McClearn:

That is right.

And there is the indication is that he physically personally must do it.

The decision thus requires that one administrative agency, the EEOC which is receiving complaints from the most unsophisticated of our citizens must ascertain at the time the charge is received by it, either from the complainant or from a state administrative agency whether or not a complaint had been lodged with that state agency.

Byron R. White:

And I suppose, well suppose to do that as it finds it has not been — that it has to return the complaint to the employee and say you got have to go the state agency before you can come to us.

Hugh J. McClearn:

That is correct.

And he also has been advised that he could come back.

But he has to do so within very prescribed time limits.

Byron R. White:

And what is that?

Is that 60 days?

Hugh J. McClearn:

That would be 30 days.

Hugh J. McClearn:

In other words 30 days after the termination of the State proceeding.

Byron R. White:

The State proceeding may go on intermittently —

Hugh J. McClearn:

Intermittently, the, forgive me Your Honor.

The 30 day would be the minimum time and 60 days after the State proceeding has commenced he may then come back.

Byron R. White:

In other words, 60 days after the employee has gone to the state agency, if he has not had a termination, then he can come to EEOC.

Hugh J. McClearn:

That is correct.

The lower Courts had trouble with that.

We point out two things that I do, we are dealing with the mechanical steps that people who believe they have been discriminated against must follow.

After hearing —

Byron R. White:

Well, what is your position?

How do you think it should be constituted?

Hugh J. McClearn:

Well, we feel that Title VII creates Federal Rights which are to be enforced by a federal agency in the United States District Courts.

The policy behind 706b, the Congressional Policy is to give the States the first track at resolving those problems.

Byron R. White:

But is it your position that it does not matter let, him come to the Federal agency.

The Federal agency should not move but invoke the State agency to proceed.

Hugh J. McClearn:

That is right.

Byron R. White:

As long as it ought not to be denied it merely because he did not go to the State agency first.

Hugh J. McClearn:

As long as the State agency has an opportunity to rectify the claim of the —

Byron R. White:

And the interpretation that the Federal agency gives the State agency that opportunity.

Hugh J. McClearn:

That is our position.

Byron R. White:

By transferring the matter to it.

Hugh J. McClearn:

And the provision will —

Byron R. White:

He also said that he — must say that he does not exactly finish in the state agency, he had to file a claim with the EEOC.

Hugh J. McClearn:

We would say that was a useless act.

They already have the claim in their file.

Byron R. White:

Let us go back to what you said that EEOC could not do; treat their prior claim as the current claim.

Hugh J. McClearn:

We feel —

Warren E. Burger:

Are you saying that the traditional or conventional exhaustion standards cannot defy to this kind of situation, exhaustion of state remedies?

Hugh J. McClearn:

Yes.

We do not believe the Federal Statute creates Federal Rights.

Hugh J. McClearn:

The policy is to give the State an opportunity to intercede but regardless of whether they do or do not.

Warren E. Burger:

So it is just a difference matter?

Hugh J. McClearn:

That is right.

The State whether or not the State takes action affirmatively or not —

Byron R. White:

Well it is definitely why difference matter though, the Federal agency has to give the state agency, if it is appropriate for the Federal agency to accept the employee’s complaint.

It may not enact on it until it has given the State agency an opportunity to act on it and that the 60 day period, that is only up to State agency does nothing within 60 days that the Federal agency may then rule, is not that it?

Hugh J. McClearn:

That is correct.

And for that period of time, you are quite right.

Byron R. White:

First of all it requires the exhaustion of the state remedies to that extent.

Hugh J. McClearn:

Well, Mr. Justice White, the deferral period is built in to the Statute but whether or not the State acts on the complaint is immaterial.

Byron R. White:

Does it congressionally require the exhaustion for 60 days.

Hugh J. McClearn:

To that extent, I would agree with that statement.

Warren E. Burger:

Mr. Wallace.

Lawrence G. Wallace:

Thank you Mr. Chief Justice and may it please the Court.

Title VII of the ’64 Act was a product of legislative compromise and accommodation in which Congress stressed voluntarily compliance by assigning the Equal Employment Opportunity Commission, the role of attempting conciliation but also conferred a right on the complainant to sue in a Federal Court if the commission’s efforts were unsuccessful and this was layered over by another legislative compromise to give State and local employment commissions where they exist an opportunity to attempt first to resolve the complaint locally, while preserving that reasonable process of the complainants federal remedies.

And one result of these compromises is the uncommonly complex procedural provisions of Section 706, set forth in our brief on pages 32 through 35.

And the act intended beneficiaries as has already been said are lay working men and women, many of whom are unlettered and uncounseled in attempting to pursue these remedies.

Accordingly, the Equal Employment Opportunity Commission and most Federal Courts have from the outset taken the view that the procedural requirements of Section 706 should be applied so as to accomplish in substance the various policies of the Federal Statute but not in a way that imposes unnecessary obstacles to the ultimate determination of the merits of complaints made in good faith.

The problem of this application has arisen in various contexts discussed in our brief.

Some of these arose because the Equal Employment Opportunity Commission which under its appropriations, has never been generously staffed and still is not, quickly develop a sizable backlog of cases which is still growing.

There have been imperfections and some inconsistencies in the commission’s application of this procedural requirements particularly in the early years but we believe its basic approach has been sound one.

Indeed, the act itself specifically authorizes the commission to adopt procedural regulations.

This is in Section 713(a) which is set forth on page 35 of our brief.

And the adoption of such regulations is particularly appropriate with respect to the procedural matter involved here, the receipt of the complaint initially by the EEOC when there is a State agency to whom it must first be referred because the act, despite the detail of procedural complexity does not speak to the question of what the EEOC should do when it received the complaint initially in such a situation.

And so, bearing in mind all of the policies of the act, especially the overall of policy of preserving a federal remedy on the merits ultimately in Federal Court, EEOC has adopted this policy of referring such complaint to the appropriate State agency under regulations duly adopted.

The regulation is within effect at time of this complaint was a generally worded regulation set forth on page 38 of our brief.

That regulation has since been refined and elaborated and the new regulation begins on page 36 of our brief.

I think it is worthwhile to look for just a moment on page 36 at subsection A of that regulations in which the commission recites some of the reasoning behind the regulation particularly in the last two sentences of that subsection, the commission stated “It is the experience of the Commission that because of the complexities of the present procedures, persons who seeks the aid of the Commission are often confused and even risk loss protection of the Act.

Accordingly, it is the intent of the Commission to simplify filing procedures for parties in deferral States and localities and thereby avoid the accidental forfeiture of important Federal Rights.

But in the previous part of the paragraph, the Commission also recites that its purpose is to encourage the maximum degree of effectiveness in the State and local agencies, also in accordance with Congressional intent under Section 706.

Lawrence G. Wallace:

Now, we believe that this practice which the Commission has developed is a valid procedure under the Act and under the Commissions regulations both those existing at the time in the present regulation.

The Court of Appeals, the majority of the Court of Appeals, believed in its word that the Commission could not manipulate the filing dates in this fashion.

This meant that there were two possible defects as the majority of the Court of Appeals saw it, I think this is already been brought out; one would be that rather than have the Commission refer the complaint to the Colorado agency, Mr. Love should have been told to file a complaint and solve with the Colorado agency when the Commission received the complaint.

We hardly see that this would make a substantial difference in the case.

The Colorado agency quickly indicated that it was waiving its jurisdiction having previously failed to satisfy Mr. Love.

The other possible defect under the majority opinion of the Court of Appeals was that after the Commission received word from the Colorado agency that it was waiving its jurisdiction, it should have asked Mr. Love to file another form of complaint within thirty days even though he had just —

Byron R. White:

Mr. Lawrence, what would the reference manipulate the filing date?

Lawrence G. Wallace:

That was what the majority of the Court of Appeals complained of —

Byron R. White:

What would that suppose to (Inaudible).

Lawrence G. Wallace:

Well, we do not quite understand the opinion ourselves.

As far as we can see, it is referring to one of these two possible defects; that treating the letter previously received is having them filed after the waiver of jurisdiction, apparently was a manipulation of the filing date in view of the majority.

That letter was received only a week prior to words from the Colorado Commission that it was waving its jurisdiction so that it hardly seems a very serious question whether Mr. Love still would want EEOC to proceed.

We believe the procedure that was followed was a valid procedure and honored all of the policies of the Act —

Byron R. White:

Excuse me, would you just bring me up to date.

When is it that the employee after EEOC finally has acted on this case, may go on to Federal Court?

Lawrence G. Wallace:

Thirty days after he received words from EEOC.

Byron R. White:

30 days, whatever it is?

Lawrence G. Wallace:

That is right, And we also specify in our brief that even if the EEOC procedure is not valid, we still believe that under the policy of the Federal Act, EEOCs in the State should not file relief for the employee as we have elaborated both in this brief and the brief we filed last term in the Crosland case at the invitation of the Court.

I would like to reserve the balance of my time for rebuttal.

Warren E. Burger:

Mr. Eppich.

Edward C. Eppich:

Mr. Chief Justice, may it please the Court.

I think it is important to begin with to straighten out the sequence of filing requirement of Section 706 and the time requirements of Section 706.

The Act is quite clear for the states that no charge maybe filed with the Act until a State proceeding was commenced.

That is what the Act says and there is just in my humble opinion no room for construction otherwise.

In this particular case, Mr. Love, at no time filed a written charge with the Colorado State Commission nor any time was a written charge filed on Mr. Love’s behalf.

Initially and in the Trial Court, we, because the State did listen to Mr. Love’s oral claim, and because the State did take some affirmative action and did terminate the proceedings, the Trial Court decided, yes he had complied with commencing a State proceeding as required by the Act but we must then look at the timeliness requirements of Section 706(d) which state an equally equivocal terms.

That the man must then file with EEOC within 30 days after the State has terminated proceedings or over than 210 days after the alleged unlawful employment practice has occurred, whichever is earlier.

It is just that simple.

It is just that clear.

And that posture went up to the Tenth Circuit and the Tenth Circuit affirmed on the timeliness issue.

Edward C. Eppich:

At that point however, the Equal Employment Opportunities Commission interjected into the case their deferral regulation which is set forth in their brief and also in our brief and tried to justify their procedures utilized in this case based upon a 1968 regulation which of course was not in force at the time that this particular matter transpired.

It was at that point that Judge Seth (ph) made the comments about the deferral regulations.

Then on we hearing, it was pointed out to the Court that Title VII of Civil Rights Act did not become effective until July 2, 1965.

Accordingly, the matters before the State in 1965 had to antedate the jurisdiction of the Equal Employment Opportunities Commission and hence, they could not be the basis on determining the timeliness and hence, the basis for the decision.

It was at this point that we got into the manipulative trial and debates and in manipulative procedures.

Because this record is very clear and the Trial Court so found that there was one filing date in this case, that is May 23. 1966.

It was not until the appellate arguments that the Equal Employment Opportunities Commission decided to say, “Well, we will use another filing date.”

This, the Tenth Circuit did not think was proper.

With that thought in line gentlemen, I would like —

Harry A. Blackmun:

Mr Eppich, certainly along the line, you will tell us how Pullman is prejudiced?

Edward C. Eppich:

This time I cannot, Your Honor.

There has been no hearing on the waiver.

Now, as far as the prejudice is concerned, we certainly have a lapse of time but other than that, no I cannot really say that Pullman Company has been prejudiced but I think what we are talking about here is subject matter jurisdiction granted.

There is no question that the racial discrimination is invidious and we are not questioning that at all.

What we are saying is that prior to the Civil Rights Act of 1965, as wrongful as the discrimination might have been, it was not an action of a wrong, at least not in the Federal Courts.

Congress created statutory right.

And within that statutory right, Congress imposed certain limitations, and certain guidelines, and certain things that had to be done.

And gentlemen, a reading of this Act can lead that to two conclusions.

One is thou shalt go to the State first and thou shalt thereafter go to the Equal Employment Opportunities Commission from the time there in prescribed.

And failure to do that sir, has been held each time by each Circuit Court to be a jurisdictional deficiency.

Thurgood Marshall:

Mr. Eppich, how long has the porters in charge been trying to get Pullman can deduct their salaries?

Edward C. Eppich:

I cannot answer the question sir, I do not know.

Thurgood Marshall:

Where will one?

Edward C. Eppich:

I should imagine that way, that is far back in the —

Thurgood Marshall:

As a company, Pullman Company got in around for which is?

Edward C. Eppich:

The Pullman Company sir, no longer has porter in charge as the operations had been turned over.

Thurgood Marshall:

Do you have ample staff?

Edward C. Eppich:

Well, sir I do not know why it was limited but it sounds like a very technical situation but it is not gentleman.

Congress, in the legislative history of be it as marked in some areas is quite clear in one area and that is the States will have the initial opportunity to take care of these matters and resolve them at the local level.

William J. Brennan, Jr.:

Are you telling us that it is crystal clear on the face of the Statute that what Congress said was, “Employee could go to the State agency if there is one.

William J. Brennan, Jr.:

You go within certain time and you get its determination within the certain time where after a certain lapse of time, then you start all over again before the Federal Commission.

And unless you do those two things, no matter what happens in either agency if they are adverse, you cannot ever get any judicial relief”?

Edward C. Eppich:

Yes Sir that is what I am saying, that the Act is just that clear.

Now with one exception.

As I understood Mr. Justice Brennan, the question was that regardless of what the State did, you still could not go back to the Equal Employment Opportunities Commission.

William J. Brennan, Jr.:

No, I did not mean to put it that way.

Edward C. Eppich:

Right, that is not the case.

William J. Brennan, Jr.:

No, what I meant to put was you have to wait a certain length of time.

I gather,it is 60 days, you have to go to the State agency.

Edward C. Eppich:

Alright, it can be either 60 days or 30 days after the State has terminated its proceedings.

William J. Brennan, Jr.:

Well, in any that whatever maybe the time of it.

Edward C. Eppich:

No, let me straighten this out, this is a little confusing.

William J. Brennan, Jr.:

Will you tell me what you think, what you say the Statute said.

Edward C. Eppich:

The Statute says this and I can refer the court in Section 706(d) where it says no charge maybe filed.

It is just that no charge maybe filed with the Equal Employment Opportunity Commission until the State proceeding has been commenced.

Alright, that provides that for 60 days —

William J. Brennan, Jr.:

That is commenced by the authority?

Edward C. Eppich:

This is an interesting question Sir.

It is not entirely clear I would suggest this to you.

When the Bill initially came out of the House into the Senate, it contained the language, the expressed language that the charge could be filed by or in behalf of the person agreed.

Now, in the Senate, in the Erikson landfill amendment to it, which eventually became the law, removed those words on individual behalf and just left in the words “filed by the individual”.

Now, I am not going to sit here and tell this Court that the lawyer could not file a charge with the Equal Employment Opportunities Commission or with the State.

But nevertheless, the Act does state that you will to the State first and then —

William J. Brennan, Jr.:

Well, certainly you say that if he goes in the Federal Commission first, the Federal Commission cannot send it to the State.

Edward C. Eppich:

I do not see that Sir.

William J. Brennan, Jr.:

Oh you do not?

Edward C. Eppich:

No Sir.

I say that the Federal body cannot accept the charge for filing unless the man has been to the State first because that is what the Act says.

William J. Brennan, Jr.:

Well, may the Federal body send it to the State body?

Edward C. Eppich:

I have no objection to that Sir.

Edward C. Eppich:

I certainly think they can. if they are acting solely in the capacity as a conduit.

In other words, here is a misdirected complaint.

It was sent to the wrong place, we are going to forward it on to the proper body.

I have no question with that.

No problem with that at all.

William J. Brennan, Jr.:

So now, at least it has to be before the State body first?

Edward C. Eppich:

No question about it Sir.

William J. Brennan, Jr.:

Now, how long do you say it has to be there before being held —

Edward C. Eppich:

60 days or 30 days depending.

It could be early.

William J. Brennan, Jr.:

Whatever that time is, then he has to file all over again with the Federal body, is that right?

Edward C. Eppich:

Yes.

William J. Brennan, Jr.:

A brand new, even though it is the identical complaint —

Edward C. Eppich:

Or some further direction, some further direction, if any, some further different direction.

Something plenty to revive that which he previously, the prematurely did.

Byron R. White:

According to you he has never filed before.

He does not even file it again because he has never filed.

Edward C. Eppich:

Sir, he never filed with the State Mr. Justice White.

Byron R. White:

Well, I mean he has never filed a corpus charge with the Federal authority because he filed it before he went to the State.

Edward C. Eppich:

That is correct.

However, I do not believe that he has to file an identical charge.

I think that is all that is required is that some direction be given by him to revive that charge, in other words refer to my complaint and let us get it off.

Byron R. White:

Mr. Eppich, in this case when he came back from the State, well, he did not come back from the State —

Edward C. Eppich:

Well, I think Your Honor —

Byron R. White:

He did not comeback from the State but the Federal people revived the old charge should I take it, is that right?

Edward C. Eppich:

It is not in the record but they did Sir.

Byron R. White:

Well, they started moving anyway, did not they?

Edward C. Eppich:

Yes.

As a matter of fact —

Byron R. White:

On something.

Byron R. White:

Now, let us assume for the moment they moved on the old charge that had been filed, and you say that would be wrong under the plain words of the Statute?

Edward C. Eppich:

Yes Sir.

Byron R. White:

Now, in the alternative however, if they had sat down and talked about it, they would not need to have moved on the old charge at all, a member of the Commission could have filed the charge?

Edward C. Eppich:

Yes Sir.

Byron R. White:

At that point, without hearing a word from the employee?

Edward C. Eppich:

No Sir.

I think the Commission too, is required to go to the State.

Byron R. White:

Well, it had already been to the State.

Edward C. Eppich:

I am lost now, pardon me.

Byron R. White:

Will you think if a member of the Commission had wanted to sentence him down after the State had disposed off this claim and file a charge except you to have even not with the identical charge, he would have to take it to the State first?

Edward C. Eppich:

Are we presupposing the matter has been before the State.

Byron R. White:

Just like it was here?

Edward C. Eppich:

Sir it was not before the State, it never did get before the State.

Let me try this Sir again.

The matter was never before the State, because at the time Mr. Love proceeded before the State, Title VII of the Civil Rights Act of 1964 had not become effective.

Therefore, the jurisdictional arm of Title VII was not in play.

Therefore, his acts before the State cannot be considered for any purpose.

However if you are going to consider him for being —

When they referred it to the State, when they did refer it to the State, the State came back and said we do not want anything to do with it.

Now, was the State proceedings terminated?

Edward C. Eppich:

In that regard, let us find out how they referred it to the State.

The only evidence in the record is a sharp talk, sharp talk type of discussion between a representative of the Equal Employment Opportunities Commission and the Director of the Colorado Civil Rights Commission.

Well, now let us assume there had been an exchange of formal letters, we refer to you a claim that Colorado says we do not anything to do with it, would that have been an adequate going to the State —

Edward C. Eppich:

Like, I think would be much more difficult case from my stand point Sir.

There is very simple reason that both the State and the Federal Act require that filing of written complaint to start a State proceeding.

And I do not believe that this is meaningless procedural requirement.

I do not know of any proceeding that be commenced without something in writing, and this is a simple.

William J. Brennan, Jr.:

I get your position, even if whatever it is that takes to get the names of the State had been complied, after the State finished with it, nevertheless, EEOC cannot move on it until the employee then bring something within 30 days that the States finished back to the EEOC, is that right?

Edward C. Eppich:

Well, that is what their interpretation of the time set, yes Sir.

William J. Brennan, Jr.:

What is your position?

Edward C. Eppich:

I do not think we get to that point here because — it is before the State Sir.

Now —

William J. Brennan, Jr.:

There has never been a State after the enactment of the Civil Rights Act, there has never been a State proceeding?

Edward C. Eppich:

There has never been a written charge filed with the State of Colorado, no sir.

William J. Brennan, Jr.:

By anybody?

Edward C. Eppich:

By anybody.

William J. Brennan, Jr.:

What was that they responded to then when they said we were no part of this?

Edward C. Eppich:

Apparently the sharp talk type discussion when overall policy of the EEOC and the Colorado commission —

William J. Brennan, Jr.:

You mean nothing has ever been referred to the State in writing?

Edward C. Eppich:

That is correct sir.

William J. Brennan, Jr.:

And it is because there has been a failure to submit anything to the State agency in writing, the States never for purposes of the Statute had anything?

Edward C. Eppich:

Precisely, and having that decided by the State, the requirement that they first go to the State, the EEOC has never got into it.

And let us assume that this oral advice method is proper, is a proper referral, and realizing that matters such as notice, and matters such as preserving a record, and matters such as some sort of an orderly proceeding which generally follow the filing of written complaint.

We then get back to the situation.

Well, is this referral procedure that the EEOC is trying to establish here, is it proper?

I do not think it is.

If it is only to misdirect the misguided complaints, that is one thing.

And if it is designed to get the complaint and to get the man before the State so that the State can take some meaningful action, then I have to quarrel with it.

I think that is proper.

I think that is in keeping with the Statute.

I think that is in keeping with the Congressional intent the State had first — But the regulation of the EEOC is asking this Court to hold, there is more than that.

What in effect it does it says this, when this charges come in, let us bear in mind we are not talking about filing dates because we are talking limitation period.

When these charges come in, the EEOC says we will take the time to stop them, that they will send them a copy of it to the State.

And then without further word or act, the complaining party unless we have heard the contrary, we will on our own hook, undertake and resolve this matter for you.

Gentlemen I submit that that does nothing to play lip service.

To the requirement, States have the first opportunity to do this thing because what happens; the charges go into the Federal Government first, the Federal Agency first, and for all practical purposes, the mechanics of the Statute are complied with.

But the State did not get a meaningful whack at it.

I certainly do not, an oral reference and that is what they are asking this Court to do; to affirm an oral reference and secondly to say that you can have a proceeding without a written complaint.

I just cannot see that that regulation accomplishes a Congressional purpose.

Warren E. Burger:

Hypothetically, if this Court reversed the Tenth Circuit, what would next happen on — I just like to see how this is would unfold in a normal case.

Edward C. Eppich:

Well, Sir first of I think we would probably get in the National Railway Arbitration Act, because of course the labor agreements with both the Porters Union and the Conductors Union are, as I understand had entered into under the offices of other National Railway Arbitration Act.

Whether or not he has an arbitration, if you reversed whether or not we would raise that as a defense on our own, I do not know.

Probably not.

William J. Brennan, Jr.:

What the national arbitration you mean, the adjustment to for it?

Edward C. Eppich:

National Railway Labor Act as advised by the Pullman Company is under the office of whom these labor agreements were in the interest, Sir.

William J. Brennan, Jr.:

Yes I know.

I just wonder what you are talking about the, I just never heard of the National Railway arbitration.

Edward C. Eppich:

So you got to say Pullman Company, in this situation they entered into an agreement of the office one Federal Act.

This is the Labor Agreement.

They are paying conductors extra, paying porters why.

Well another piece of federal legislation comes along and says that at least Mr. Love said that this is discriminatory against — where does it fit gentlemen, I frankly do not know.

I have not straightened it out.

But I do believe it is going to be a problem and I do believe that eventually be raised.

And then this simply effect the jurisdictional matters are dispose off contrary as Pullman Company’s position to its trial on the merits.

Warren E. Burger:

Trial where?

Edward C. Eppich:

In the United States in District of Colorado.

Mr. Eppich, straighten me out a little bit.

Title VII of the ’64 Act became effective on July 2, ’65?

Edward C. Eppich:

Yes Sir.

Was it after that date that the Federal Commission referred or made a reference to the Colorado people?

Edward C. Eppich:

Yes sir.

Yes sir it does.

In May of 1966, at some place between May 23 and June 1, it has to —

The government brief says May 19, ’66.

Would you say that this is not a proper filing with the State Commission subsequent to the adoption of Title VII.

Edward C. Eppich:

Yes sir.

To say that it is a proper filing when first disregards the clear statutory language that a written complaint be filed.

Because this best was an oral communication, the exact nature which we do not know and this I say we cannot do.

But was not that more than an oral communication?

Edward C. Eppich:

No sir.

Edward C. Eppich:

Not to the State.

Well, Mr. Love however, wrote to the EEOC.

And did not the EEOC refer that writing to the Colorado Commission?

Edward C. Eppich:

No sir, at no time.

What does it do?

Just telephone?

Edward C. Eppich:

Apparently it came up when a representative of the Equal Employment Opportunities Commission was in Denver talking with Mr. Reynolds about overall policies.

In other words, what are we going to do with, how we are going to set this thing up to make it work?

And Mr. Love came up just kind of an aside, a collateral matter.

This is what they are doing upon this Court; to have the dignity of commencing a State Proceeding in Courts of Federal Legislation.

When the Federal Act itself specifically states that you will file a written complaint.

I am aware of no proceeding can be started in this matter.

Firstly, Colorado Commission knew what it was all about.

They had it before —

Edward C. Eppich:

This is questionable sir whether it did in fact know what was all about.

This get us back to this problem with the labor management agreements.

At least according to Mr. Love’s letter to the Equal Employment Opportunities Commission, he says that the Commission did not understand my complaint.

So, we must take Mr. Love’s and his word.

I think he was more to it than that.

Mr. Reynolds testified his deposition that when the matter was initially before them in 1965, the Colorado Commission was not recognizing discrimination through labor agreement as such.

In other words, this was not a discriminatory practice.

However he testified in 1966 that the Colorado Commission views in this have changed.

And that they were now recognizing that a man could be discriminated against through his particular collective bargaining agreement.

So what I cannot tell this Court nor would the Tenth Circuit say and as a matter fact as they specifically said that a referral in 1966, they would not say, — would have been totally futile.

And based upon this record, they could not.

I suggest to this court that it may well have been.

That had Mr. Love or someone on behalf of him submitted this written charge to the Colorado Commission.

The Colorado Commission would have considered it and considered it in view of their enlightened views on discrimination.

This discrimination is a changing thing.

I think we all recognize that.

Edward C. Eppich:

Colorado is no different but they recognized in ’66 that being discriminatory they did not recognize in ’65.

What they recognized in ’65, they did not recognize in ’60 so on down the line.

It just began back in 1963 as I understand.

Edward C. Eppich:

That is correct sir, yes.

Potter Stewart:

Even when he went to the State Commission.

Edward C. Eppich:

Yes sir and at that time all record not entirely clear apparently a finding of no discrimination was made.

But here again, you see Mr. Love is tied in to his union, to this management agreements.

Potter Stewart:

And he came back to them in 1965?

Edward C. Eppich:

Came back to 1965.

And at which point they could make him connector but because of the seniority rules, and the course of the fact that fringes for all the state and attributed services added, or there is just no work available.

Potter Stewart:

Well, and that did never been his claim.

He did not want to be a conductor.

Edward C. Eppich:

He does not want to be paid less.

Potter Stewart:

He does not want the conductor’s pay, he was porter in charge, was that it?

Edward C. Eppich:

That is yes.

That is as I understand it.

But, he just did not comply with the act.

And I think we also have to bear in mind one other thing.

He was advised, at least judging from Mr. Reynolds so called waiver letter of June 1966.

He was advised to return the Colorado Commission and file a written complaint.

We do not have a situation here of a man being totally mislead or led down the garden path.

He was told by the director to do, he chose not to.

That is certainly his decision but I believe Congress gave him a right that is now previously on a concept to that man to comply with it.

What Congress says he will do, obtain remedies under that.

There is one other danger here gentlemen.

I think it should be called to your attention.

In his getting back again in this manipulated filing date, a filing date could make it have at one time that is when its is received, it is filed.

The EEOC would seem to say well, we can file them.

At this time when we receive them or we can sit on and wait on it for a while and then fit it to the scheme of thing so that nobody is out at Court.

I suggest that this practice that they do not file things when they receive it could well deprive a man of his day in Court, a man who has complied with the Act.

Edward C. Eppich:

We must bear in mind that he must go to the State first and thereafter, he has only 30 days within which to file with the EEOC.

Let us assume the man has gone to the State.

Let us assume that on the 29th day he sends this charge into the Equal Employment Opportunities Commission and instead of filing it, they refer it back to the State.

Gentlemen that man is out of Court and yet he has done everything that the law requires him because the EEOC did not filed it.

There can only one filing date and it should not give them the opportunity to manipulate these things because as I say, the man has done what he is supposed to do and is not allowed to be in court.

Warren E. Burger:

Mr. Wallace, you have four minutes for rebuttal.

Lawrence G. Wallace:

Thank you Mr. Chief Justice.

I would like to respond to two points that are arisen in the questioning.

First, this record does not show the manner in which the referral was made by EEOC to the Colorado Commission in 1966.

This referral was made during the first year of the administration of Title VII and the procedures at that time were not as regularized as they are now.

But what the record does show on page 8 of the appendix is the Colorado Commission responds to that referral.

That responds says specifically that the case of Mr. Love has come to the Commission’s attention, the Colorado Commission’s attention and in the last paragraph of that letter, it seems quite clear that the Colorado Commission treated the referral whatever matter it was made in as adequate to invoke its jurisdiction.

The Colorado Commission said under the circumstances, we could not in good conscience accept the 60 day deferment period and accordingly waive it.

Will you proceed, speaking to the EEOC under the provisions of Title VII, to give any relief that you can to Mr. Love.

Now, I see nothing in the Federal Act that prohibits this State from treating a referral or an oral complaint of any kind, in whatever matter made as adequate to invoke the State’s jurisdiction.

This is the matter for the State agency to decide the matter of State Law whether its jurisdiction was invoked.

It is at first sentence, that it has come to my attention that Mr. Love has filed a complaint against the Pullman Companies from your office, that you say evidence is that something got from the State of Colorado in writing or orally or not it does not say just for a comparison.

Lawrence G. Wallace:

The record does not show it but this letter shows —

Shows irregularity or something?

Lawrence G. Wallace:

Well, I think this letter showed that however it was done and the testimony is that it was a referral from the EEOC but the testimony does not say in what manner or I think the letter shows that however it was done, the Colorado Commission treated this referral as adequate to invoke this response that it was waving its 60 day jurisdiction under the Statutory deferral period.

That is one jurisdiction until 60 day deferment period.

Lawrence G. Wallace:

That is right.

Well, that is what it has under the Title VII, it has 60 days before EEOC can grant it sub-jurisdiction and it is waiving that period.

It treated its jurisdiction as invoked and it waived its jurisdiction.

And there is nothing in the Federal Act that prevents the State from treating that referral as adequate to invoke its jurisdiction.

What 706b says that if the State Agency requires more than just a simple –?

Even if it was orally complained and written was required, they can waive written and take it off, is that it?

Lawrence G. Wallace:

That is our position.

So it is really is, it is the State’s privilege to determine how much jurisdiction is invoked?

Lawrence G. Wallace:

That is our position Your Honor.

Lawrence G. Wallace:

We do not believe the Federal Statute presumes to say that the State could not have treated this as the adequate invocation of its jurisdiction.

It does in 706b say that if the State requires too much that a merely written complaint dating back will be treated as having been adequate for purposes if that invoke in the federal remedy.

And the other point I wish to respond to is Mr. Justice Blackmun’s question about whether the Pullman Company has been prejudiced.

Judge Seth (ph) own opinion on rehearing, he states the record shows that the Colorado Commission in the 1965 proceeding discussed the complaint with the Pullman Company.

They have had noted that at least since, shortly before the Federal Act became effective of Mr. Love’s complaint and any lapse of time that occurred thereafter, is attributable to the fact that the company was unwilling to give re-dress and so we ask the Court to remand this case for hearing on the merits of this long standing complaint of Mr. Love.

Warren E. Burger:

Thank you Mr. Wallace.

Thank you gentlemen.

The case is submitted.