King v. Laborers Internat. U. of No. America, UL No. 818

• Decision Date: 13 May 1971
• Docket Number: No. 20583.,20583.
• Citation: 443 F.2d 273
• Parties: Ward KING, Plaintiff-Appellant, v. LABORERS INTERNATIONAL UNION OF NORTH AMERICA, UNION LOCAL NO. 818, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

443 F.2d 273 (1971) Ward KING, Plaintiff-Appellant, v. LABORERS INTERNATIONAL UNION OF NORTH AMERICA, UNION LOCAL NO. 818, Defendant-Appellee.

No. 20583.

United States Court of Appeals, Sixth Circuit.

May 13, 1971.

Robert B. Wallace, for amicus curiae.

Alfred W. Blumrosen, Newark, N. J., for appellant.

Stanley P. Hebert, General Counsel, David R. Cashdan, Robert B. Wallace, Attys., Equal Employment Opportunity Commission, Washington, D. C., on the brief for U. S. Equal Employment Opportunity Commission, amicus curiae.

Jerry A. Farmer, Knoxville, Tenn., Norbert J. Slovis, Jerry A. Farmer, Knoxville, Tenn., on the brief; Lockett, Slovis, Weaver & Johnson, Knoxville, Tenn., of counsel, for appellee.

Before CELEBREZZE and MILLER, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

CELEBREZZE, Circuit Judge.

This is an appeal from the United States District Court for the Eastern District of Tennessee, involving an alleged practice of discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e et seq., as amended in 1966.

In May, 1968, Ward King filed a charge of discrimination with the Equal Employment Opportunity Commission, (hereinafter referred to as the EEOC) alleging that the Laborers International Union of North America, Local No. 818 (hereinafter referred to as the Union)

"committed an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964 by unlawfully refusing Mr. King equal opportunity to picket because of his race."

Upon investigation, the EEOC found reasonable cause to believe that the Union had violated its statutory duty not "to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race * * * or color" by unlawfully refusing to Mr. King, because of his race, an equal opportunity to be on the Union's picket lines. 42 U.S.C. § 2000e-2(c) (1) (1964). On May 29, 1969, the EEOC advised Mr. King it was unable to obtain voluntary compliance through conciliation and that he could file suit pursuant to statute. 42 U.S.C. § 2000e-5 (1964). This civil action for private enforcement of Title VII right of the Civil Rights Act of 1964 ensued.

In January, 1970, counsel for Mr. King moved for a jury trial and such motion was granted. In February, 1970, a trial was conducted. At the close of the evidence, the District Court charged the jury, in relevant part, as follows:

"Members of the jury, Ward King filed this action under Title 42, Section 2000e-5 of the United States Code, against defendant Laborer\'s International Union of North America, Union Local No. 818, Knoxville, Tennessee, claiming discrimination by defendant because of his race. He claims that the unlawful discrimination started around March, 1968 and continued to June 17, 1969, the later date being the date he filed this action.

"He further says that he is entitled to recover those back wages or back compensation, whatever you want to call it, in the amount of $383.00 and other damages as the direct and proximate result of the alleged unlawful discrimination.

* * * * * *

"Plaintiff says that the defendant would not allow him to share equally in picketing opportunities made available to members of the Union because of his race.

* * * * * *

"Defendant admits that the plaintiff has not been used as a picket in some instances but that this action has been based upon the plaintiff\'s condition, attitude or actions while used as a picket and that he has never been denied such picket rights because of his race.

* * * * * *

"At the outset the Court charges the jury that in order for there to be a violation of the Fair Employment Act, a portion of which has been read to you, there must be an intentional pattern and practice upon the part of this Union to discriminate against this plaintiff because of his race and not an isolated instance of discrimination. If there was an intentional pattern of discrimination against this plaintiff because of his race, then there was a violation of the Act and if plaintiff suffered any damages as a direct and proximate result of such violation, he would be entitled to recover in this lawsuit. On the other hand, if there was no intentional pattern and practice of discrimination by this Union against this plaintiff by reason of his race, the plaintiff would not be entitled to recover in this lawsuit.

"The burden is upon the plaintiff. Before plaintiff can recover in this lawsuit he must show that this Union intentionally followed a practice or pattern of discrimination against him by reason of his race. Where the proof is upon a particular person, he must carry that proof by what is known as a preponderance of the evidence. That means the greater weight of the evidence. It may or may not be based on the number of witnesses introduced but it depends on the believability of the jury as to whether or not the party has carried the burden of proof.

* * * * * *

"The Court charges you that if you find from the preponderance of the evidence that defendant followed a pattern or practice of discrimination against this plaintiff because of his race by refusing to allow this plaintiff to participate equally in picketing opportunities made available to members of Local Union 818 because of his race during the period of October 23, 1967 to July 1, 1969, and that as a direct and proximate result thereof plaintiff sustained damages, in that situation plaintiff would be entitled to recover.

"On the other hand, if you find that the preponderance of the evidence fails to show that they followed a practice of discrimination against this plaintiff because of his color; or if you find that plaintiff was discriminated against but further find that he did not sustain any damages as a direct and proximate result of such alleged discrimination, plaintiff would not be entitled to recover in this lawsuit.

"In the event you find for the plaintiff, he is entitled to recover such damages as directly and proximately resulted from the alleged illegal discrimination, including any loss of compensation resulting from defendant\'s refusal to allow him to picket solely on account of his race."

Counsel for Appellant did not raise any objection to the Court's charge.

Before considering the substantive issues raised on appeal, we turn to the procedural issues raised by the Appellee. On July 14, 1970, three months after Appellant filed his notice of appeal but less than a month after this Court denied Appellant's motion for a transcript at the Government's expense, the Appellee moved for dismissal. Appellee contended it was entitled to a dismissal because the Appellant had not filed a transcript within forty days of the original notice of appeal. Rules 11(a), 12(c), Federal Rules of Appellate Procedure, and that a brief had not been filed within forty days after the date on which the record had been filed. Rule 31(a) and (c). Federal Rules of Appellate Procedure.

The rules cited by Appellee are stated in permissive, rather than mandatory language. We are not required to dismiss every appeal which does not meet each of the time limitations in the above-stated rules. See with regard to Rules 11 and 12, Federal Rules of Appellate Procedure, Black v. United States, 269 F.2d 38 (9th Cir. 1959) cert. denied 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357; United States v. Bowen, 310 F.2d 45 (5th Cir. 1962); Watley v. United States, 221 F.2d 476 (5th Cir. 1955). See with regard to Rule 31, Federal Rules of Appellate Procedure, Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 524 v. Billington, 402 F.2d 510 (9th Cir. 1968); United States v. Edwards, 366 F.2d 853 (2d Cir. 1966) cert. denied 386 U.S. 908, 87 S.Ct. 852, 17 L.Ed.2d 782; Phillips v. Employers Mutual Liability Ins. Co. of Wisconsin, 239 F.2d 79 (5th Cir. 1956).

In the instant case, the Appellant duly proceeded from the District Court in forma pauperis and without aid of assigned counsel. His notice of appeal was filed in a timely fashion. Mr. King diligently proceeded to appeal the District Court's adverse decision with regard to the printing of a transcript at Government expense, to have the EEOC represent his interests on appeal and to state the issues upon which his appeal was based. Had the Appellant requested an extension of time for the disposition of his motion to obtain a transcript at Government expense, we would have granted such an extension of time. In view of the Appellant's obvious inexperience with the judicial procedure and his good faith pursuit of his remedies, we believe it would be improper and unjust to dismiss his appeal for a simple failure to make a request for an extension of time.

In September, 1970, we permitted the EEOC to represent Appellant's interests on appeal. There have been no subsequent delays. Further, Appellee has not alleged any uncured prejudice by the delays which occurred before its motion to dismiss. Accordingly, Appellee's motion to dismiss pursuant to Rules 11, 12 and 13, Federal Rules of Appellate Procedure, is hereby denied.

We now turn to the substantive issues raised on appeal. The EEOC contends, in behalf of itself and the Appellant, that the District Court's charge was so defective in at least three important respects that it constituted plain error, both "obvious and prejudicial." O'Brien v. Willys Motors, Inc., 385 F.2d 163, 166 (6th Cir. 1967). See United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936). We agree.

First, the EEOC contends that the District Court improperly instructed the jury that in order for there to be a violation of Title VII "there must be * * * a pattern and practice * * * of discrimination, not an isolated instance of discrimination." Such an instruction to the jury, the EEOC maintains, constituted "obvious and prejudicial" error.

Congress has provided that:

"(c) It shall be an unlawful employment practice for a labor organization —

(1) to exclude or

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