Gibson v. Missouri Pac. R. Co., 78-1309
| Decision Date | 05 September 1978 |
| Docket Number | No. 78-1309,78-1309 |
| Citation | 579 F.2d 890 |
| Parties | 29 Fair Empl.Prac.Cas. 676, 17 Empl. Prac. Dec. P 8598 Jay Lee GIBSON, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY et al., Defendants-Appellees. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jay Lee Gibson, pro se.
Clarence M. Small, Jr., Birmingham, Ala., Everett R. Scott, Jr., Lake Charles, La., James P. Simpson, Dallas, Tex., for Missouri Pacific Railroad Co.
Abner W. Sibal, Gary T. Brown, Joseph T. Eddins, Jr., Associate Gen., Beatrice Rosenberg, Asst. Gen. Counsel, E. E. O. C., Washington, D. C., for E. E. O. C.
Ross & Kraushaar, Harold A. Ross, Cleveland, Ohio, for Switchmen and Trainmen.
Appeal from the United States District Court for the Western District of Louisiana.
Before MORGAN, CLARK and TJOFLAT, Circuit Judges.
On December 12, 1950, Jay Lee Gibson, then employed as an engineer for Missouri Pacific Railroad Co., was injured while in the course of his employment. He eventually recovered a jury award in an action against the Railroad under the Federal Employer's Liability Act, 45 U.S.C.A. § 51 Et seq. On July 1, 1958, four months after this judgment was collected, Gibson sought full reinstatement. The Railroad's denial was carried through grievance procedures before the National Railroad Adjustment Board which were unavailing to Gibson, See Gibson v. Missouri Pacific Railroad Company, 441 F.2d 784 (5th Cir. 1971). The present action against the Railroad, the Equal Employment Opportunity Commission (EEOC), and the Brotherhood of Locomotive Engineers and other unions (unions) is predicated on the claim that racial discrimination occurring during the year 1950, as a result of Gibson's endeavors on behalf of Negroes seeking employment in the Railroad's Houston, Texas yards, caused the refusal to reinstate. We affirm the district court's denial of relief.
The Railroad, EEOC, and unions contend the court lacks jurisdiction of the appeal because notice was not timely filed. An order dismissing Gibson's action was entered on June 13, 1977. Gibson, acting pro se, complained about the court's decision in a letter filed June 21, 1977, which the court treated as a motion for rehearing. On August 12, 1977, the court entered an order denying rehearing relief and dismissing the case as to all defendants. In a letter filed on August 19, 1977, Gibson again communicated informally to the court his desire to be further heard on the matter and stated that both the judge who had entered the prior order of dismissal and the successor judge had talked with him and agreed to hear him further. On January 30, 1978, after hearing, the successor judge denied this record request for rehearing. In the order the court stated: "Because of some possible misunderstanding about the rehearing before Judge Hunter, I, after consulting with Judge Hunter, granted plaintiff a hearing on his motion for a rehearing." On that same day Gibson noticed his appeal to this court from that order. In the unique status of the present proceeding conducted by a pro se plaintiff, we conclude that the notice of appeal was timely filed and that we have jurisdiction to determine the...
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