Mosley v. St. Louis Southwestern Ry.

• Decision Date: 22 January 1981
• Docket Number: No. 80-1447,80-1447
• Citation: 634 F.2d 942
• Parties: 24 Fair Empl.Prac.Cas. 1366, 25 Empl. Prac. Dec. P 31,483 Aaron MOSLEY et al., Plaintiffs-Appellants, v. ST. LOUIS SOUTHWESTERN RAILWAY, d/b/a Cotton Belt Route, Defendant-Appellee. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 942

634 F.2d 942

24 Fair Empl.Prac.Cas. 1366,

25 Empl. Prac. Dec. P 31,483

Aaron MOSLEY et al., Plaintiffs-Appellants, v. ST. LOUIS SOUTHWESTERN RAILWAY, d/b/a Cotton Belt Route Defendant-Appellee.

No. 80-1447

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

Jan. 22, 1981.

Rehearing and Rehearing En Banc Denied Feb. 24, 1981.

Daves, McCabe & Crews, Joe K. Crews, Tyler, Tex., for plaintiffs-appellants.

Charles Stephen Ralston, New York City, amicus curiae, for NAACP Legal Defense & Educational Fund Inc.

William H. Ng, Robert E. Williams, Douglas S. McDowell, Mary Louise Kibbey, Washington, D.C., amicus curiae, for E.E.O.C.

Baker & Botts, V. Reagan Burch, Jr., Joseph R. Weeks, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before AINSWORTH, GARZA and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

This is an employment discrimination case brought under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs allege that the defendant, St. Louis Southwestern Railway Co., refused to hire plaintiffs on the basis of their race, and that the test used to screen job applicants had not been validated. Prior to trial, the district court conducted a hearing to determine whether negotiated settlement agreements signed by the parties should be upheld. At the conclusion of the hearing, the district court found that plaintiffs had voluntarily and knowingly entered into the agreements. Based upon this finding, the court upheld the agreements and dismissed plaintiffs' Title VII and Section 1981 claims. For reasons that follow, the district court's judgment is reversed, and the case remanded for further proceedings.

Aaron Mosley and Billy J. Butler, black male residents of Smith County, Texas, applied for employment with defendant during April and May of 1978. Both plaintiffs were hired for the position of brakeman-yardman. Defendant hires brakemen-yardmen on a student training basis. As a condition to permanent employment, trainees must pass an examination at the end of their initial forty-five days of training. The purpose of the exam is to demonstrate the trainees' familiarity with the rules and procedures governing the operation of defendant's equipment. After taking the examination on July 14, 1978, plaintiffs were informed that they failed to achieve a passing score. Plaintiffs subsequently were terminated.

On October 17, 1978, plaintiffs personally appeared at the Dallas district office of the Equal Employment Opportunity Commission (EEOC), and filed formal charges of discrimination against defendant. In essence, the charges complained of discrimination in the administration of the exam. ¹ After filing charges plaintiffs retained counsel who notified Celeste Dorsey, the Commission investigator assigned to plaintiffs' case, that his firm would be representing both plaintiffs.

In December 1978, Ms. Dorsey scheduled a fact-finding conference, which both plaintiffs and railroad representatives were required to attend. Plaintiffs appeared with their attorney, who was notified of the conference only shortly before it began. Plaintiffs' attorney introduced himself to Ms. Dorsey. Defendant appeared through its representative. Ms. Dorsey first met approximately two hours with defendant's representative, and after receiving defendant's answers to questions previously propounded by the Commission, asked whether defendant was interested in settling plaintiffs' claims. In response, defendant's representative informed Ms. Dorsey of the terms defendant would be willing to offer. Ms. Dorsey then summoned plaintiff Butler and spoke to him in private.

Plaintiffs' attorney testified that when Ms. Dorsey entered the corridor to summon Butler, he also stood "assum(ing) that ... (he would) be going into the room with (Ms.) Dorsey ... but, instead (Ms.) Dorsey came up and got Mr. Butler and took him into the room ..." without indicating that plaintiffs' attorney could accompany his client. Tr. 61. Plaintiffs' attorney also testified that although Ms. Dorsey did not prevent him from entering the conference room, she did not give him an opportunity to say anything before summoning Butler, and that subsequently he departed for a previously-scheduled court appearance. Ms. Dorsey, however, testified that when she "went out of the conference room to talk with the (c)harging (p)arties their attorney was gone." Tr. 35. After speaking with Butler, Ms. Dorsey interviewed plaintiff Mosley and then spoke to both of them together. While counsel was still absent, Ms. Dorsey presented the proposed settlement to both plaintiffs. In the absence of their attorney, they signed the agreement, as did defendant's representative.

Under the settlement agreements plaintiffs promised not to institute suit under Title VII based upon their respective charges filed with the Commission. In return, defendant promised to (1) purge plaintiffs' personnel files of any information pertaining to the charges filed before the Commission, (2) refrain from disclosing to any prospective employer any evaluation of plaintiffs other than a neutral statement of the nature and duration of their employment, and (3) allow plaintiffs to reapply for employment and to consider their applications carefully. The settlement agreements did not address plaintiffs' charges of discrimination in the administration of the tests.

When plaintiffs' attorney learned later that day that settlements had been signed in his absence, he protested to the Dallas EEOC office. On behalf of plaintiffs, and with their consent, he also filed new charges, alleging that the test used by defendant to screen trainees had not been validated. The Dallas office dismissed the new charges and issued notices to plaintiffs of their right to sue. Subsequently, plaintiffs filed suit. Based upon the settlement agreements, the district court dismissed plaintiffs' claims. On appeal plaintiffs argue (1) that the agreements were not knowingly and voluntarily executed, and therefore are unenforceable, (2) that the agreements, even if valid, do not preclude plaintiffs' Section 1981 claims, and (3) that the agreements, even if valid, do not preclude the claims filed subsequent to their execution.

In dismissing plaintiffs' complaint, the district court determined that the settlement agreements were signed by plaintiffs both knowingly and voluntarily, and that the absence of plaintiffs' attorney did not constitute a denial of access to counsel. The court based its conclusion upon "the fact that at no time during the (meeting with Ms. Dorsey) did either plaintiff object to the absence of their counsel or ask to be allowed to discuss the proposed settlement with him."

This finding is without support in the record. At the pre-trial hearing, Ms. Dorsey acknowledged that plaintiffs, when presented with the proposed settlement agreements, stated that "they had to have their attorney present to sign the agreement(s)," and that in response, she informed plaintiffs that "they did not have to have their attorney to sign the agreement(s)." Tr. 15. Nothing in the record contradicts this testimony. The record also demonstrates that plaintiffs, particularly Butler, were reluctant to sign the agreements, but were told that if they wanted the agreements they had to sign at that time, without an opportunity first to confer with counsel, and that their failure to sign would result in the commencement of formal proceedings. Ms. Dorsey also told plaintiffs that the terms offered by defendant were the best she could obtain, and intimated that if plaintiffs elected to sue, they might be held liable for attorneys' fees. ²

The right to the advice and assistance of retained counsel in civil litigation is implicit in the concept of due process, Potashnick v. Port City Construction Co., 609 F.2d 1101, 1117-19 (5th Cir. 1980), and extends to administrative, as well as courtroom, proceedings. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). This right inheres in the very notion of an adversarial system of justice, and is indispensable to the effective protection of individual rights. Inasmuch as a valid settlement or waiver has an effect equal to the entry of a formal judgment, the applicability of these principles to the administrative proceeding in this case cannot be gainsaid.

Access to retained counsel is particularly important when, as in the case sub judice, a settlement is negotiated prior to a Commission determination of reasonable cause to believe that a discriminatory practice has occurred. When it is necessary to balance the merits of the employee's claim of discrimination and the likelihood of success on that claim against the degree to which a proposed settlement will substantially accomplish...