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Ostapowicz v. Johnson Bronze Co.

argued as amended september 29 1976.: June 22, 1976.


Appeal from the United States District Court for the Western District of Pennsylvania. District of Columbia Civil No. 71-404.

Kalodner, Adams and Weis, Circuit Judges.

Author: Weis

Weis, Circuit Judge.

In a lengthy and stoutly contested class action, the district court turned aside a jurisdictional attack and determined that the defendant had been guilty of sex discrimination in its employment practices. The court ordered relief in the form of back pay and other measures designed to prevent future discrimination. Although we affirm in all other respects, the portion of the order establishing a hiring quota is vacated because of a lack of support in the record.*fn1

The dispute centered on a contention that defendant Johnson Bronze Company had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e. Plaintiffs argued that the defendant had engaged in discrimination which resulted in women being laid off while men with less seniority were either retained or recalled at an earlier date.

Defendant manufactured bushings and bearings in a plant organized into ten divisions. Approximately one-half of the hourly workers were employed in Division 1, the machine shop comprised of some 225 machine centers. Most of the testimony was devoted to conditions existing there.

Each machine operation generally requires a "set-up" which entails placing fixtures and tools in the machine at proper positions, angles and distances so that the bushings or bearings produced comply with exacting customer specifications. The ability to perform a "set-up" is an important factor in classifying a machine operator as first or second class. The first class operators set up the machines as well as operate them, but second class operators only run the machines, the set-up being performed by a machine setter. However, on occasion a machine setter will set up a first class operator's machine.

There were two means by which a second class operator could become first class: "bidding" or "bumping." In the former situation, if an opening for a first class operator occurred, employees could "bid" for the job, with seniority as the sole criterion. After a five-day qualifying period on the machine, the employee was required to demonstrate his ability to both set-up and operate the machine. In the latter, if an employee's job was eliminated, he could "bump" another employee who had less seniority and take his job. However, when a bump occurred, the bumping employee had to pass the test for becoming a first class operator immediately - no qualification period was allowed. Further, if, upon being laid off, an employee refused to bump a certain job, he could not be recalled to that position if an opening later occurred.

Qualification as a first class operator without experience was not possible. The company did not have a formal program for training second class operators to become first class, and an employee could only learn how to make the set-ups by watching machine setters, asking questions and attempting to do the work. The skills and experience an employee acquired working on one machine usually were not transferable to another mechanism. The machines were so diverse that one obtained the ability to become first class only on those which he had operated as a second class operator or which were related in their manner of operation.

The gravamen of Ostapowicz's allegations was that women were discriminated against because they were employed only as second class operators and were never promoted to first class. Although there was a slight difference in the wage scales for the two classifications, the major impact of the classification was felt when layoffs occurred. Under the collective bargaining agreement, the company was generally obliged to lay off second class operators before first class operators regardless of the individuals' seniority. Thus, a decline in business would affect a female before a male first class operator with far less seniority.

In April, 1968, the union which represented the employees filed a charge with the Equal Employment Opportunity Commission alleging that the company maintained sex-segregated job classifications which resulted in women being laid off while men with less seniority were both retained and recalled from layoffs before women. Attached to the charge, which was docketed at YCL9-079, was a grievance from a woman in the shipping department. The resulting investigation and EEOC findings were limited to the shipping department, and in August, 1970, the Commission found reasonable cause to believe that the allegations were true. Plaintiff Ostapowicz, who was not connected with the shipping department, filed two additional sex discrimination charges, TCL1-0558 and TCL1-0802, in October and November, 1970.

The EEOC conciliation efforts began in December, 1970 but were unsuccessful. On March 29, 1971 the Commission sent "right-to-sue letters" to Ostapowicz and others referring to charge YCL9-079. Based on that letter, she instituted this action on April 27, 1971, within the then applicable thirty-day period. Without further investigation, on May 11, 1971, EEOC issued additional letters citing the charges filed in October and November, 1970, and Ostapowicz promptly amended her complaint to include them.

The district court certified the case as a class action*fn2 and found that plaintiffs established a prima facie case of discrimination. Finding that strength was not a determinative factor for positions in either the shipping department or Division 1, the court concluded that the company was hostile to women who wanted to become first class operators or heavy packers and had intimidated them at least to a degree.

The court detected a pattern of intentional discrimination. In 1970 a man was made a mail clerk while many women with greater seniority were laid off. Women had never been employed in five of defendant's ten divisions, and in 1965 and 1966 sixty-five men were hired in Division 1 and only one woman. Because of the decline in business, there were few bids open for first class positions, and women had to rely mainly on bumping to achieve that classification. However, their progress was hindered because they had not been given the opportunity to observe difficult set-ups being made and were thus deprived of the primary ...

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