411 F.2d 998 (5th Cir. 1969), 25826, Pettway v. American Cast Iron Pipe Co.

Docket Nº:25826.
Citation:411 F.2d 998
Party Name:Rush PETTWAY and Peter J. Wrenn et al., Appellants, v. AMERICAN CAST IRON PIPE COMPANY, Appellee.
Case Date:May 22, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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411 F.2d 998 (5th Cir. 1969)

Rush PETTWAY and Peter J. Wrenn et al., Appellants,



No. 25826.

United States Court of Appeals, Fifth Circuit.

May 22, 1969

Rehearing and Rehearing En Banc Denied Oct. 7, 1969.

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Oscar W. Adams, Jr., Birmingham, Ala., Leroy D. Clark, Robert Belton, New York City, for appellants.

J. R. Forman, Jr., Samuel H. Burr, Birmingham, Ala., J. Fredric Ingram and Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., of counsel, for appellee.

Daniel Steiner, Gen. Counsel, Russell Specter, David R. Cashdan, Attys., EEOC, Washington, D.C., amici curiae-Equal Employment Opportunity Comm.

Before JOHN R. BROWN, Chief Judge, and RIVES and McENTEE, [a1] Circuit judges.

JOHN R. BROWN, Chief Judge:

This case involves a unique question arising under Title VII of the 1964 Civil Rights Act. 1 That question is whether a charge filed pursuant to § 704(a) of the Act (42 U.S.C.A. § 2000e-3(a)) prohibits an employer from discharging an

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employee for having made false statements in a request for reconsideration of his case before the Equal Employment Opportunity Commission claiming racial discrimination against him and fellow Negro employees. The District Court, finding that the statement was not privileged, upheld the discharged and refused to grant relief to the discharged employee. We reverse. Appellant here, Peter Wrenn, a Negro, had been employed by Employer, American Cast Iron Pipe Co. of Birmingham, Alabama, for some 17 years at the time of his discharge in September 1967. The Employer was willed in trust to the employees by its founder in 1924. The stock was left to a Board of Management and a Board of Operatives. Membership on the Board of Operatives and the Board of Management is limited to white male employees. Another board, called the Auxiliary Board, is limited to Negro male employees. The Auxiliary Board does not have a meaningful voice in matters of management but exists solely for the purpose of bringing to the attention of the Board of Operatives matters which affect Negro employees. Employer employs some 2700 employees, of whom 790 are Negro. None of the employees are represented by a labor organization. There are 12 members on the Auxiliary Board and 12 on the Board of Operatives. Each member serves for a 2-year term and 6 new members are elected each year. The race lines are preserved throughout. Only Negro employees vote for members of the Auxiliary Board and only white employees vote for members of the Board of Operatives. Wrenn, prior to his discharge, had been elected by his fellow Negro employees to serve 2 terms of 2 years each on the Auxiliary Board. He was serving his second 2-year term as a member of the Auxiliary Board and as chairman of that board at the time of his discharge.

The Company has been a contractor with the United States since the effective date of Executive Order No. 10925 signed by President Kennedy, and therefore has been under an obligation since 1961 to undertake an affirmative action program to eliminate discriminatory employment based on race or to institute affirmative action programs to assure equal employment opportunities to minority groups. 2 At least since 1963, Wrenn and other Negro employees have continuously and persistently sought relief from claimed racially discriminatory employment practices of Employer through various appeals to Federal agencies and officials. In November 1963-- to the availability of Title VII-- Wrenn sent a letter to the President of the United States alleging the continuance of serious racial discrimination by Employer. He received a reply from a Mr. Brimm, Chief Equal Employment Opportunity Officer, who came to Birmingham and investigated the charge and subsequently filed a no-cause finding. Wrenn and others continued to petition the President for relief. On March 30, 1965, the Committee For Equal Job Opportunity was organized by a majority of the Negro employees of Employer.

After the effective date of Title VII of the Civil Rights Act of 1964, 3 Wrenn, as Chairman of the Committee For Equal Job Opportunity, in addition to filing on his own behalf, assisted fellow Negro employees in the filing of numerous charges of employment discrimination. Several of those charges, including the one of Wrenn, formed the basis of Pettway I 4 recently decided by another

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panel of this Court. During the pendency of Pettway I in the Court below, Wrenn was suspended from his job for two weeks because of an alleged altercation with a white employee. In September 1966, Wrenn filed a charge with EEOC alleging that he had been suspended because of his race. In May 1967, Wrenn was advised by EEOC that his charge had been dismissed, because EEOC after investigation had concluded that his suspension did not constitute a violation of Title VII. However, Wrenn was advised that he could submit additional information if he thought EEOC should reconsider its finding. It is the response to this invitation which is at the bottom of the present case. On July 13, 1967, Wrenn, in his capacity as Chairman of the Committee For Equal Job Opportunity wrote a letter to Stephens Shulman, Chairman of EEOC stating his objections to the May 1967 nocause finding, and requesting further investigation. 5 EEOC, and later the

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District Court, treated the letter as a timely filed petition for reconsideration. EEOC forwarded a copy of the letter to the Company in August 1967. On September 5, 1967, an official of Employer summoned Wrenn to his office, and upon ascertaining the authenticity of Wrenn's signature on the letter, permanently discharged Wrenn for making false and malicious statements about Employer in the letter. On September 13, 1967, Wrenn filed another charge with EEOC alleging that his discharge of September 5 was an act of reprisal for Wrenn's having previously filed charges of discrimination against Employer and that his discharge was based on discrimination because of his race. 6 Wrenn filed a petition in the District Court for injunctive relief on September 15, 1967, as an ancillary matter to Pettway I (No. 24813, see note 4 supra). The District Court concluded that since it had earlier dismissed that case for lack of jurisdiction, the case was not then pending so it did not have jurisdiction as an ancillary proceeding. However, the Court treated the motion as a new and independent action and after hearing, denied relief on the merits, ruling that the letter constituted serious, false charges and was not privileged.

We must first determine whether the District Court erred in refusing to treat Wrenn's motion as ancillary to Pettway I. We find that it did. Wrenn's motion for injunction pending appeal specifically invoked F.R.Civ.P. 62(c). It plainly asserted that while Pettway I was pending in the District Court, Wrenn had been suspended by Employer for two weeks supposedly because of his involvement in an altercation with another employee, but that his later discharge actually resulted from charges filed with EEOC protesting that suspension, and that both the suspension and discharge were the result of Wrenn's continuing efforts to seek relief under Title VII from racially discriminatory employment practices assailed in Pettway I. Wrenn sought reinstatement to maintain the status quo pending determination of the question whether, in fact, the Company was in violation of Title VII. Regardless of the District Court's view concerning the necessity for conciliation efforts before suit could be filed, 7 and District Court did have

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jurisdiction of this motion for injunctive relief as ancillary to the case then pending on appeal.

That Pettway I was dismissed for want of jurisdiction, rather than on the intrinsic merits, is a matter of no consequence. Of course, the Trial Court could not, during the pendency of the appeal, take action with respect to the order then under review which would hinder or frustrate 8 determination by the Court of Appeals. But the case was a 'pending' one, at least in the sense that if, as actually happened, the Court of Appeals differed with the District Court, the case would go back as a viable one from the very date of its filing. 9

Several cases 10 gives strong support to the conclusion that the Trial Court erred in failing to treat the petition as ancillary to Pettway I. Pettway II followed the traditional Title VII pleading seeking an injunction and reinstatement. Pettway II sought relief under F.R.Civ.P. 62(c). It is well settled that 62(c) is expressive of the power in the courts to preserve the status quo pending appeal. 11 Once power to act is established, it is equally plain that there was a need for the Trial Court to maintain the status quo and thus avoid the possibility that Pettway I might become moot as to Wrenn. 12

We therefore find that the District Court should have considered the motion as ancillary to Pettway I. Considering that the denial of a preliminary injunction was for nearly all practical purposes the ultimate determination of Wrenn's case on the merits-- maybe as to both Pettway I as well as II-- we look upon it in that light, uninsulated by usual principle that tests a grant or denial of preliminary injunctions in terms of abuse of discretion. Here there were a number of reasons clearly calling for interim protection.

The question of charging party privilege is one of first impression under Title VII. The Employer's position, as we understand it, is that Wrenn's allegations contained in his July 13, 1967 letter to EEOC 'constitutes a false and malicious accusation that (Employer) bribed or improperly influenced federal officers in the exercise of their official duties.' The Employer maintains that it was knowingly and maliciously libeled and discharged Wrenn for that reason.

Wrenn, on the other hand, makes a dual response. First, he...

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