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February 7, 1973

Gyula Fekete, Plaintiff,
United States Steel Corporation, Defendant

Scalera, District Judge.

The opinion of the court was delivered by: SCALERA

This is a Title VII Civil Rights action in which plaintiff, Gyula Fekete, a native of Hungary, alleges he was discriminated against while employed by defendant, United States Steel Corporation, by reason of his national origin. He avers he was discriminatorily discharged and that before and after his discharge he was discriminated against with respect to the compensation, terms, conditions and privileges of his employment.

 Plaintiff was discharged from his employment on October 21, 1967. On July 18, 1968, he was reinstated with full back pay as a result of an arbitration decision, on grounds that he had not been sufficiently warned that past derelictions in his work would be considered in later disciplinary proceedings.

 While arbitration proceedings related to the discharge were pending, plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) on January 12, 1968, alleging that he had been discriminated against by his employer due to his national origin.

 The EEOC referred plaintiff's complaint to the Pennsylvania State Human Relations Commission pursuant to Section 706 of the Civil Rights Act. On May 21, 1968, after investigation and review, the Pennsylvania Commission found that no probable cause existed for crediting the allegations of the complaint.

 The EEOC then conducted its own investigation of the charges and on September 30, 1968, found that reasonable cause did not exist to believe respondent was in violation of Title VII of the Civil Rights Act. The plaintiff, Mr. Fekete, was notified of the Commission's decision by letter dated October 17, 1968.

 This complaint was filed on November 21, 1968. On June 11, 1969, Judge Gerald J. Weber 300 F. Supp. 22 granted defendant's motion to dismiss the complaint on grounds that the district court lacks jurisdiction to entertain a complaint alleging discrimination in employment when the EEOC finds there is no reasonable cause to believe discrimination has occurred.

 The court also found that since the only specific relief authorized for unlawful discrimination under Title VII is reinstatement with back pay, which plaintiff had received by virtue of his arbitration award, his claim for relief based upon an alleged discriminatory discharge was moot and should be dismissed.

 The United States Court of Appeals for the Third Circuit 424 F.2d 331 on April 13, 1970 reversed this decision, holding that appellant was entitled to maintain an action for alleged employment discrimination due to his national origin, even though the EEOC found that reasonable cause did not exist to believe that the employer was in violation of the Civil Rights Act of 1964. The Court of Appeals also held that the action had not been rendered moot by the arbitration award since plaintiff's complaint sought an injunction against an alleged continuing course of conduct not remedied by plaintiff's reinstatement to his job with back pay. The case was remanded to this court for further proceeding consistent with the decision.

 On August 20, 1970, Judge Weber stayed further pretrial procedure for one year on representation that plaintiff was in such poor health that he was unable to prepare for trial. Pretrial procedure was reinstated by order of court dated September 23, 1971, and on July 10, 1972, a pretrial conference was held.

 On July 19, 1972, plaintiff filed a motion for leave to amend and supplement the complaint, in which plaintiff requested that he be permitted to change his request for relief from a request for an injunction against further discrimination to a request for money damages. Plaintiff moved to strike subparagraphs (b) and (c) of paragraph 9 of the original complaint which requested the court to:

b. Enjoin defendant from engaging in unlawful employment practices and, particularly, from discriminating against plaintiff by reason of his nationality as to his compensation, terms, conditions and privileges of employment;
c. Grant such affirmative relief, including money damages, as to the court shall seem appropriate;

 and substitute the following requests for relief:

b. Award plaintiff compensatory damages, including compensation for lost wages and medical expenses from September of 1969, when plaintiff became totally disabled.
c. Award plaintiff punitive damages by reason of gross discrimination against plaintiff throughout his employment by defendant.
d. Award plaintiff nominal damages for violation of his constitutional rights.

 Counsel for plaintiff indicated by affidavit that since September 1969, subsequent to the filing of the original complaint, plaintiff had been physically unable to work and would never be able to return to his employment. Under such circumstances, it was submitted, equitable relief was no longer necessary.

 Plaintiff further requested that he be permitted to amend his complaint for the purpose of requesting a jury trial, which was not requested at the time the original complaint was filed.

 Defendant filed a motion to strike plaintiff's motion for leave to amend and supplement the complaint.

 This court entered a memorandum order on September 12, 1972, granting plaintiff's motion to amend and supplement his complaint for the purpose of changing the form of relief requested and denying plaintiff's motion with respect to his request for a jury trial.

 A non-jury trial was conducted on September 25 and 26, 1972, at which evidence relevant to plaintiff's averments of discriminatory treatment was adduced. Plaintiff's allegations of discrimination are basically threefold.

 1. He contends he was discriminatorily disciplined and discharged.

 2. He alleges he was continuously harassed by employees and supervisory personnel of United States Steel due to his national origin and that its failure to protect him from these acts constitutes discrimination.

 3. Plaintiff avers that he suffers from numerous allergies and has peribronchial fibrosis of the lungs, as a result of which he is abnormally sensitive to inhalants. He alleges that as a result of defendant's discriminatory refusal to assign him to an area where he would not be subjected to excessive noxious odors to which he was allergic, his physical condition deteriorated resulting in inability to work.

 This court having duly considered the evidence, the trial briefs and oral arguments of counsel, and the post-trial requests for findings of fact and conclusions of law, now makes the following findings of fact and conclusions of law based thereon.

 Findings of Fact

 Plaintiff, Gyula Fekete, is a native-born Hungarian who came to the United States in 1956 as a refugee following the Hungarian revolution.

 He commenced working for United States Steel's National Works located in McKeesport, Pennsylvania, as a machinist on November 5, 1964.

 He was initially recompensed for his services at the starting rate for machinists. Upon successfully completing his probationary period he was promoted to the intermediate rate, and was given back pay retroactive to the date of his hire based on this intermediate classification.

 The week before the first test plaintiff refused to avail himself of the opportunity offered to him by management to practice on and familiarize himself with the milling machine, which he would be required to operate during the test.

 After he failed the second time, machine shop general foreman George Sucha offered to help him learn how to cut the gear, one of the tasks required to be performed during the examination which plaintiff had not mastered, to permit him to pass the test on his third try. Plaintiff did not take advantage of this offer nor did he request to take the test a third time.

 Subsequent to the successful completion of his probation period and throughout his employment, plaintiff's supervisors experienced difficulty working with and supervising him. He resented authority, argued with his supervisors when they attempted to instruct and correct him, and occasionally disregarded their orders.

 On one occasion plaintiff broke a drill holder because he failed to follow the instructions which foreman Frank Kuczler had just given to him. Observing plaintiff attempting to start a hole with a flat-bottom drill, foreman Kuczler instructed him to use another drill to reach the desired depth and then to use the flat-bottom drill to square out the bottom of the hole. Plaintiff disregarded his ...

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