*1 are Equally well set forth organized why professional base- reasons subjected possibly ball could States several laws antitrust games played. Therefore, reservations without of Federal the soundness as to doubts Toolson, I affirm would

Baseball and Judge, O’Sullivan, Senior Circuit four counts and on all below the decision opinion. dissented and filed participation of the limit af- conduct baseball’s courts throwing by the out Chief fairs to President) (in absence of Justice season. the baseball the first ball of KING, Plaintiff-Appellant,

Ward UNION

LABORERS INTERNATIONAL AMERICA, LO- UNION OF NORTH 818, Defendant-Appellee. CAL NO.

No. 20583. Appeals, Court of States

Sixth Circuit.

May 13, 1971. *2 Wallace, B. curiae.

Robert for amicus Blumrosen, Newark, J., Alfred W. N. appellant. Stanley Hebert, Counsel, P. General Wallace, Cashdan, David Robert R. B. Equal Attys., Employment Opportunity Commission, Washington, C.,D. on the Op- Equal U. brief for S. Commission, portunity curiae. amicus Knoxville, Tenn., evidence, Court the District Farmer, Jerry A. part, Farmer, jury, follows: in relevant Slovis, Jerry A. Norbert J. brief; Lockett, Knoxville, Tenn., on the Ward “Members Knoxville, Johnson, Slovis, Weaver & Sec- under Title this action filed Tenn., counsel, appellee. Code, States tion 200e-5 against *3 Interna- Laborer’s MILLER, and CELEBREZZE Before America, Union of North tional Union O’SULLIVAN, Judges, Sen- and Circuit Tennessee, 818, Knoxville, Local No. claiming Judge. ior Circuit by defendant discrimination Judge. CELEBREZZE, He his claims of race. Circuit because started the unlawful appeal the United is an This March, and continued around the Eastern States District Court being the the later date June involving Tennessee, an al- District of he this date filed action. leged the practice of discrimination says of Title “He that he is entitled in of VII further of race violation basis wages Rights or back Act of 1964. U.S.C. to recover those the back Civil you compensation, seq., in 1966. whatever want et as amended 2000e §§ it, of and call in amount $383.00 King May, filed In Ward damages proxi- and other as the direct Equal discrimination with of alleged of unlawful mate result Commission, Employment Opportunity discrimination. EEOC) (hereinafter as the referred to alleging that Laborers International ****** Upon investigation, against, any individual race ly refusing through conciliation and that unable reasonable ship, or otherwise Union’s 2000e-2(c) race, motion was of the Civil “to ion Union of North file suit trial was conducted. At the close of a (hereinafter 2000e-5 practice lawfully refusing race.” In “committed opportunity exclude or to had violated January, * * * moved for Civil enforcement pursuant equal opportunity EEOC picket cause obtain to Mr. granted. Rights Rights referred violation an unlawful [or] advised Mr. America, expel (1964). its lines. picket to statute. 42 U.S.C. voluntary compliance King, Act This civil action for believe Act of color” statutory duty [Mr. the EEOC found to as from member- counsel for of of Title VII February, because because trial and such because of 42 U.S.C. § Local No. On Title VII to be King] equal that the 1964 ensued. discriminate its King employment unlawful- May Union) of his of it was could right Un- Mr. un- his his of of his race. in has condition, tion. would not allow him to share tiff has not been able to members of the Union because not an isolated been pattern of his race. used as a Act, portion there tern some instances but this Union to discriminate this direct “Plaintiff * “Defendant admits that “At the outset ^[*] violation picketing you, been based denied was a of discrimination If there was an intentional * ^[*] there that in suffered picket proximate attitude or actions of practice upon opportunities says because of his race ^[*] ^[*] must be instance the Fair and order picket which has been used the Court any * ^[*] result of such vi- of the Act as damages the defendant an intentional rights against ^[*] ^[*] made avail- this action there discrimina- race, plaintiff’s has never picket charges because against part equally and if * ^[*] plain- while then read pat- ^[*] olation, alleged illegal he would be entitled to recover resulted from the hand, crimination, including any this lawsuit. On the other loss proof. portunities made available to members suit. proximate leged discrimination, rect you tained during based on troduced but nated against find fails ability pattern of discrimination proof race evidence titled to recover to of Local Union did practice dence. That means the of known as to there was intentionally must ion lawsuit he must show that Before “The ^[*] “On the other “The burden is July the evidence. participate race, *4 reason be entitled against party find that and preponderance carry of 1,1969, refusing Court sustain ^[*] damages, or of discrimination of discrimination would show proximate the number a result has carried the burden no period practice of of preponderance plaintiff but further followed ^[*] equally charges you intentional a and that 818 because his race. Where be preponderance depends any damages plaintiff by hand, to allow this particular person, he thereof It can recover of his recover in this law- as to whether or not of October this lawsuit. proof by entitled in that may may ^[*] result of such of of plaintiff would if because of greater as was discrimi- or on the believ- you picketing op- witnesses color; find that against ^[*] a direct and followed followed this Union of reason find that plaintiff. situation this Un- evidence what as a recover. his in this weight of not if ^[*] or race sus- him Appellant you evi- his en- di- al- be of ployers 269 F.2d 38 sters, Chauffeurs, Warehousemen Rules of Helpers, See with meet each of the time limitations Rules 11 and 402 F.2d 510 late 357; consin, States, but States v. procedural tory language. dismiss Rules of the date on which the pellee not been filed within above-stated rules. See with stated in 1966) denied filed. Rule objection filed a late missal because the sues On script 11(a), 12(c), Counsel solely compensation resulting Before ant’s (5th July Appellee less than a month after Procedure, original Procedure, 17 L.Ed.2d raised on United States v. contended cert. denied 386 239 F.2d 79 Mutual Appellant’s The rules cited 221 F.2d 476 transcript on account refusal every appeal Cir. Local Union 524 v. Edwards, permissive, to the Court’s Appellate 14, 1970, considering Appellate Procedure, regard issues raised filed the Government’s (9th moved for dismissal. 31(a) notice of 1962); Watley Federal Rules (9th Liability appeal, Black v. United areWe it Federal Rules of and that his notice Cir. Phillips 782; within S.Ct. to Rule 366 F.2d 853 Procedure. allow motion for a tran- three months after Cir. and rather his the substantive 1959) did not raise Bowen, forty days charge. (5th entitled which does not record by Appellee not Ins. race.” appeal. 1968); him to forty days (c). than turn to cert. denied required Cir. ofCo. Wis this Court 1956). Billington, brief of v. United regard had Appellee. 310 F.2d to a dis- had not expense, L.Ed.2d (2d Federal Federal defend- manda States, Appel- Appel Team 1955). Rules after been Em Cir. Ap- had and is- of to to case, you Appel plain- “In the find In the instant event proceeded tiff, duly such lant from the is entitled recover damages pauperis directly proximately Court in and without aid and forma Congress provided assigned ap- that: of counsel. His notice timely Mr. peal in a fashion. was filed “(c) unlawful em- It shall King diligently proceeded appeal the organi- ployment practice for a labor with adverse decision District Court’s zation— transcript at regard printing to the expel (1) its to exclude expense, the EEOC to have Government membership, or otherwise discrimi- appeal represent interests on his against, any individual because nate appeal his state the issues religion, race, color, sex na- Appellant requested Had the was based. * * * origin; tional U.S.C. disposition for the an extension of time 2000e(c) (1).” transcript at his to obtain a motion aggrieved party’s statuto- To enforce an expense, would have we Government granted rights ry em- eliminate unlawful an extension time. Congress provided ployment practices, inexperi- Appellant’s obvious view the types proceedings in federal three judicial procedure his ence with the good (1) proceedings by the after courts: remedies, pursuit his faith claiming ag- EEOC, person to be unjust improper believe grieved ac- initiate a civil simple failure dismiss 2000e-5(e); tion, after request to make for an extension *5 court in a ac- an order of issued civil time. may proceed- tion, the commence EEOC September, 1970, permitted the In ings compliance prior compel with the represent Appellant’s interests EEOC court, order of U.S.C. 2000e- the 42 § appeal. There been no subse- have 5(i), Local No. 189 et v. EEOC Union Appellee quent delays. Further, has (6th al., 1971); and 438 408 Cir. F.2d alleged any prejudice by de- the uncured statutory pursuant limited to certain lays its motion which occurred before circumstances, Attor- the United States Accordingly, Appellee’s motion dismiss. action, ney may bring civil 42 General pursuant 11, and to dismiss to Rules 12 2000e-6 U.S.C. § 13, Appellate Rules Proce- Federal statutory language author dure, hereby is denied. izing private the of a commencement to the substantive issues We now turn aggrieved person by suit under civil an contends, appeal. The EEOC raised on materially Title VII differs Appellant, itself in behalf of and authorizing language the initiation of charge so Court’s District Attorney civil suit the United States important re- in at least three defective aggrieved individual al If an General. error, plain spects constituted leges the existence of an “unlawful prejudicial.” “obvious and O’Brien both employment practice” in as defined 163, Willys Motors, Inc., 2000e-3, 2000e-2, 385 F.2d v. has 42 U.S.C. §§ 1967). (6th made a sufficient evi 166 United States substantive Cir. See dentiary showing to form a 391, basis Atkinson, 157, 297 56 v. S.Ct. action, private civil 42 § U.S.C. (1936). agree. L.Ed. 555 We However, 2000e-5. the United States First, allege Attorney EEOC contends must General improperly the District Court instructed “has cause believe that reasonable [a in person order for there to group persons] certain or * ** engaged pattern “there of Title must VII in a or is * * * pattern practice practice and enjoy- [a] resistance to the full * * discrimination], rights not an [0f ment of secured 2000e]; instance subchapter isolated of discrimination.” U.S.C. [42 § pattern practice an instruction to the Such and that or maintains, deny EEOC constituted “obvious intended nature prejudicial” rights error. the full herein de- exercise added) (Emphasis prejudicial” an 42 U.S.C. “obvious scribed.” burden Appellant. 2000e-5(e), 2000e-6, Unit- Jenkins v. §§ (5th Corp., F.2d 32-33 ed Gas Second, Court’s 1968). Piggie Park Cir. Newman See separate several occasions indicated Enterprises, 401 n. prove have to 19 L.Ed.2d engaged pat- Appellee in an “intentional charging erred District Court tern” an “intentional high practice.” in accordance with the statutory proof required oí standard implied actual intent While Congress brought by the of suits United an is a discriminate on unlawful basis Attorney States General. U.S.C. § necessary brought element of an action 2000e-6. have Whereas should General, Attorney the United States jury with the accordance 2000e-6, expressly 42 U.S.C. it is not § statutory set out 42 U.S.C. standards pre-requisite private included as to a 2000e-2, jury should 2000e-5. The §§ suit, 2000e-5(e). civil In a single that a have been instructed suit, private implied civil the actual or stance form party allegedly intent private basis of a suit. employment committed an unlawful Congress ag- established the becomes more relevant in deter grieved party pub- mining injunctive as a vindicator whether remedies right compliance lic the Civil 2000e-5(g). with available. 42 U.S.C. See securing Rights Act of “com- Papermakers Local and Pa pliance law,” Piggie perworkers States, with the Newman v. United F.2d Enterprises, Park 390 U.S. at 88 S. 1969). 995-997 Assum aggrieved necessarily party Ct. 964 deciding, ing, without intent some seeks to eliminate an or acts of dis- necessary act to discriminate is a element *6 crimination Numer- every private as affect him. litigant, find case of a we ous cases have found a Title VII failing District Court erred in ex showings proof upon plain limited jury to the such an intent single single g. (e. to a act a breach of totality inferred from duty representation; of fair a conduct, Union’s the circumstances charge leading or failure to train for advance- purported to the act of discrimi upon ment based racial motivations or nation. single causes) practice or a of unlawful Third, we find District against aggrieved discrimination erroneously jury Court instructed party. Clair v. Local Union St. No. damages, any, if based on loss of (6th 1969); F.2d 422 128 Everett Cir. compensation to Mr. should lim Airlines, F.Supp. v. Trans-World 298 resulting ited to those from the Union’s (W.D.Mo.1969); Culpepper 1102 alleged him refusal allow Reynolds Metals, F.Supp. v. 296 1232 “solely on account of his race.” (N.D.Ga.1970). Phillips Martin See Marietta, was 91 28 entitled to an in (1971). permitted L.Ed.2d 613 do struction which him re We not believe jury reasonably compensation a could under- cover lost ex have unless there charge “irrespective stood the District Court’s isted some other have reason — permitted finding Appel- a in favor of also form [race]” —which only non-discriminatory lant in those instances where a sin- valid basis gle (e. g. inability act or of discrimination was to do Rights job 2000e-5(g). assigned). shown. VII of the Title Civil clearly contemplates Marietta, Phillips Act of 1964 Martin at private litigants may Thus, succeed in a civil if one 91 S.Ct. showing. unlawfully action We find discriminated charge VII, placed employer the District need Court’s violation of Title grounds, 421 F. pay grant on other remanded him or back not reinstate 1970). (5th 2d employer had Cir. also shown that can be non-discriminatory motivation a lawful and remanded. Reversed considered when for his actions which Judge O’SULLIVAN, Senior Circuit re- caused the same have itself would (dissenting). discriminatory purpose. But sult as his respectfully 51 of I Rule dissent. that discrimina- can where it be shown pro- Procedure Federal Rules of Civil religion, race, color, tion on the basis that: vides origin part, was, in sex or national assign party may as error the “No discharge refusal to factor causal giving give an in- the failure aggrieved aggrieved party, the hire the objects thereto struction be- unless damages statutorily party entitled to jury retires to consider its fore the compensation. 2000e- of lost U.S.C. stating distinctly verdict, the matter 5(g). v. Local Union In St. Clair grounds objects and the which (6th 1969), this Cir. F.2d objection.” which instruction Court found bar, In case at enforcement of this recovery permitted of Title in excess by my rule find- is excused brothers “plain statutory er- VII limitations to be ing Judge Taylor L. that District Robert Similarly, Dis- find ror.” giving “plain committed error” charge unduly limit- trict Court’s majority opin- set instruction out right statutory Appellant’s to loss ed the ion.' This accused instruction was ob- compensation circum- under certain satisfactory appellant’s viously attor- “plain also stances was error.” ney given, and at the time it was was the District the errors in Based to the case consistent with and relevant judgment to the Court’s pleaded plaintiff-appellant and the District is vacated Court recovery.' my view, relied for his trial. new is remanded matter only “plain the instruction not was question whether will, error,” it not error all. I was granting Appellant’s mo- Court erred however, my confine discussion to the raised tion trial “plain claim of error.” remand, appeal. However, upon Motors, Willys Inc., I read O’Brien v. the District Court would be well for limiting 1967) 385 F.2d 163 body jurispru- growing consider the *7 “plain our use of error” to excuse obedi- equita- that the basic dence which holds ence Rule 51 to situations where the cases in Title VII ble involved issues prejudicial claimed error is “obvious subject to a determi- not be should party.” ato We there recited Unit- Georgia Highway v. nation. Johnson Supreme ed States Court’s advice as to Express, Inc., 1122, F.2d 417 1125 “plain when the error” rule should be Paper 1969); Federal v. Gillin Atkinson, invoked. In United States v. (D. Inc., 383 Co., F.R.D. 52 Board 157, 160, 391, 392, 297 U.S. 56 S.Ct. 80 Inc., Co., Conn.1970); Moss, v. Jr. Lane 555, (1936), Supreme L.Ed. 557 Long v. (W.D.Va.1970); 50 122 F.R.D. Court said: Co., (N. Georgia F.Supp. Kraft 328 681 “ Luggage D.Ga.1969); exceptional circumstances, espe- v. Sardis Madlock ‘In Co., F.Supp. (N.D.Miss.1969); cially cases, appellate 866 in criminal Hayes courts, public interest, Railroad may, Seaboard Coastline of Co., (S.D.Ga.1968); motion, 52-53 46 F.R.D. their own notice errors to Bell Tele- exception Cheatwood v. Central South which no if taken, has been F.Supp. phone Telegraph Co., obvious, & the errors are oth- Cong. (M.D.Ala.1968). seriously fairness, 755-756 See erwise affect also, Culpepper integrity, public reputation judi- Rec. 7255 See ” Reynolds Company, proceedings.’ 296 F. (Emphasis sup- Metals cial Supp. plied.) reversed 1239-1242 States, In Eaton v. United 398 F.2d I would not issue take with such an aca- (1968), said: assertion, demic abstract but that not was what was involved in the lawsuit plain “The was error rule intended tried the District Court. applied be and rath- should be serve point throughout first I out that its justice. er than to subvert the ends of language the relevant section only in The rule is to invoked ex- be statute here relied ceptional circumstances to avoid a —42 2000e-5 —the misconduct which will vio- miscarriage justice.” late the statute is referred “an un- to as States, In Johnson v. United employment practice” lawful and in the (1943), S.Ct. 87 L.Ed. 704 (g) subsection thereof where various speaking Douglas, Mr. Justice wronged remedies to a available em- court, expressed view unanimous ployee out, are set the subsection be- “plain should error” em- gins: having ployed permit litigant, cho- respon- “If the Court finds that style presenting sen at his case employer] intentionally dent [an trial, then to new trial obtain because engaged intentionally engag- in or is of an error to which he at a assented ing prac- employment in an unlawful first trial. He said: charged complaint tice * * (Emphasis supplied.) “Any comport other course with the standards the administra- provides and then for the relief which justice. tion of cannot criminal We given upon proof can be of a permit pursue an to elect accused the Act. then, one at course the trial and when proved unprofitable, that has complaint whereby to be plaintiff be- gan insist course his action asked that defendant be rejected reopened trial be enjoined continuing at the “policy, its him.” at practice, U.S. at usage” denying custom and 555, 87 L.Ed. equal employment opportuni- pleading ties. This basic recited that “plain error” claimed to infect asserting was an action for the Judge Taylor’s resides prevention employment “unlawful statement for there to a viola- practices” 2000e-5; under 42 U.S.C. Act, tion the Fair “there sought pay back prac- must be intentional discriminatory because of defendant’s part tice of the union to dis- “practices”; policy it is “the criminate designate to first race,” re- duty those members of the Local who quired prove “fol- that defendants regular job”; unable to work at lowed a of discrimination.” It that “on numerous occasions” he was argued that one act *8 picket duty race; refused because of his true, is sufficient. That indeed be prac- and that the enforcement of this but that was not the cause of action injury. him tice caused No “isolated pleaded by or relied in the stance” of discrimination is mentioned allegation this in the ease. There is no anywhere pleaded. in the cause of action complaint wrong that con- defendant’s complaint The recited that sisted in one or more instances of dis- King charge against had filed the de- crimination. the brief to us Equal Employ- fendant union with argument style: EEOC heads in this his Opportunity and a ment Commission copy of that Commission’s decision was “An Isolated Instance of Discrimina- Complaint attached to the filed May an Unlawful tion Constitute District Court. The decision Practice Violation Charging that EEOC discloses “[The] Title VII.” only totally appears the race related 60- Party [plaintiff] is disabled applicants.” Respondent Negro year-old member undisputed Union;” is that “[i]t Thus, appears the EEOC was engage in Party Charging unable “pattern picket duty dealing with a gainful employment which type of assignment” and neither the Commis- normally its mem- affords Respondent Court, plain- sion, nor the the District plain- appeared also that there It bers.” pleaded deal- cause of action was tiff’s receiving Security benefits tiff Social ing any instance of “isolated with totally person. The Deci- disabled as a crimination.” recites that: sion of the EEOC given the case instruction fitted The that, of “Respondent’s reveal records pleaded relied which the picket allowed those individuals upon. At the conclusion of the August through January charge, following colloquy Judge’s Party [plaintiff 1968, Charging place: took King] only picket unable to was the jury ex- “Does either side want The engage regular physical labor. suggestions while I call for or cused show Caucasian records also requests? If side wants either working capable of members who are I will. excused regular job more have received Henley: attorney ap- for [The “Mr. assignments picket frequent for King] objections pellant no We have pertinent period pay during than requests. further or Party Charging Charging Party. objections “Mr. have no Slovis: We period during this earned $255.00 requests, Your Honor. one Cauca- while at least able-bodied Court: Let the record show “The pick- sian member earned $638.00 attorneys the Court asked eting. any underly- “Accordingly, circumstances any objections part of this ing the difference in the amount special requests, was what Charging Party pay received answer, counsel? require close scru- members Caucasian that, tiny. Henley: attorney ap- Respondent’s record shows “Mr. [The 1967, Charging Party pellant King] no.” received The answer was picketing earnings, major ap- share of District Court file discloses parently, all other members because commencing appellant action regularly employed in indus- were represented three attor- was during try period.” neys, At- one whom was Senior Staff Equal Employment Opportunity Legal torney Uni- for the Clinic of Commission concluded: then Upon versity their mo- of Tennessee. entirely original is not trial, plaintiff’s matter free “While the tion and before doubt, persuaded attorneys permitted Re- to withdraw were explain pat- spondent’s failure to their to take “Plaintiff refuses because assignment duty tern other and desires obtain best advice appears totally Party’s appellant Charging respect al- It was “With during periods, paid legation tlie disabled relevant was not for several that he drawing picketed security for Re- maximum social bene when he occasions Thus, race, pay picket spondent record fits. tlie union for duty ing appellant. clearly a “windfall” each occasion shows *9 Respondent given “major Party, by Charging He was share” of cited paid Negro regularly pickets, when bis fellow unionists were no Caucasian. employed, they Party’s allegation Charging thus but when were out by appeared given proved work were record.” duty picketing appellant. more than paragraph A fur-tlier of the EEOC De- says: cision as he advise him wish- who will counsel es.” ANTENNA, MEADVILLE MASTER Petitioner, INC., order, appears pretrial In a wrong alleged defendant FEDERAL COMMUNICATIONS practice', “isolated no COMMISSION pretrial or- is referred to stance” pleading. Plaintiff’s other

der or “refused to was that Ameria, claim Respondents, United States of Communications, picket- Inc., Lamb equally in Intervenor. to share allow ing opportunities available made No. 19293. because of Local Union members Appeals, United States Court of alleged period vio- his race.” Third Circuit. extended October lations Argued Feb. 1971. filing the com- to the date May 19, 1, 1969, Decided May plaint, without reference any specific instance.” date “isolated pretrial order was also in the

Included stipulation that: will submit trial brief “Parties

*** anything therein include should be other told to 2000(e)- under

than Title Section (c) (1) for- race discrimination as employment.”

bidden following February 20, 1970,

On verdict,

jury’s attorney who tried

the case for was allowed appeal, briefs

withdraw as counsel. On appellant curiae were filed amicus Counsel for the staff of the General argued us

the EEOC. The cause professor school of the law

Rutgers University. join in I cannot

finding “plain error” in the Dis- what Judge did in

trict this case. I the further add observation my the retrial ordered brothers

it should be within the discretion of the Judge whether to allow

to withdraw his demand trial for a

and have the case tried to the Court. appellant, aided new

counsel, opportunity. asks I do allowing litigant try

favor his case by him, first before as demanded having

and, lost, permit him

choose, retrial, a different tribunal. States, supra, See Johnson 189, 201, L.Ed.

I would affirm.