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October 26, 1976

John R. SEK

The opinion of the court was delivered by: CLARY


 CLARY, Senior District Judge.

 This suit is brought by a Polish-American against Bethlehem Steel Corporation claiming violation of his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., to be free from national origin and race discrimination in employment. He seeks injunctive relief as well as reinstatement, back-pay and damages.

 The case is the unfortunate result of a collision between a strong-willed young man and a large industrial organization. The plaintiff, John R. Sek, is the third generation of his family to work for Bethlehem Steel. His grandfather served for 50 years as a "rougher" and his father has some 30 years of service as a highly-skilled welder with Bethlehem.

 The plaintiff accepted the position in the Industrial Relations Department, with reservations, and he asked to be considered for work in the Community Relations Department. Over the next few years, his interest in community relations work rose in proportion to the decline of his interest in industrial relations. Company records rated his performance as "above average" initially, but this declined to "average" by the end of a year and to "needs improvement" by the end of two years. At the end of three years, in June 1970, he was still rated "needs improvement", a substandard rating. During this period, company records also show that the plaintiff virtually barraged his superiors with requests to transfer to the Community Relations Department.

 The plaintiff's superior during this period, William Groben, testified that the most serious deterioration in Mr. Sek's performance began in the latter half of 1968 after he was refused a transfer to community relations. Sometime in 1969, Mr. Sek's co-workers complained to Mr. Groben that the plaintiff was not carrying his share of the load. This led to a confrontation between Mr. Sek and Mr. Groben at which Mr. Sek admitted that he felt by doing a poor job in industrial relations he would be reassigned to community relations.

 While Mr. Sek's status in the Industrial Relations Department stood in this posture, another young man, Woodrow E. Cooper, returned from military leave and began working in the department as a trainee in January of 1969. He was first rated as "below average," but in six months he moved up to "needs improvement" and in nine months to "average". By June of 1970, while Mr. Sek was rated "needs improvement" with the comment that he had a poor attitude and lacked industry, Mr. Cooper's ratings consistently were "average" with comments that he improved considerably, worked well with others and expressed interest in labor relations. In June of 1970, the records show he was considered "qualified for increased responsibility".

 In October of 1970, the steel industry fell into an economic slump and Bethlehem's management decided to cut back on the company's labor force. This decision applied to the Industrial Relations Department as well as the rest of the company. As a result of a review of the performance of personnel in the department, Mr. Sek was terminated while Mr. Cooper was retained.

 This was on November 27, 1970. Since that time, Mr. Cooper has continued to progress. He has been promoted at least once. For the year 1973 to 1974 he was rated "above average" with the potential for promotion to company headquarters. In short, the decision to retain Mr. Cooper instead of the plaintiff was a matter of business judgment which proved to be correct.

 Were it not for the fortuitous fact that Mr. Cooper is Black while Mr. Sek is White, the plaintiff could not present an even colorable claim on this record. The plaintiff impresses me as being highly intelligent, but unfortunately he also is rather arrogant. I think this character trait, and not his race, is the real cause of his difficulties with Bethlehem Steel.


 1. Plaintiff, John R. Sek, is a White male of Polish descent. He graduated from Seton Hall University in 1965 and received a Masters in Public Administration from Pennsylvania State University in 1967.

 3. Plaintiff completed an application form on February 24, 1967, and was interviewed for possible employment. On the form, plaintiff described his interests as legislation, management development techniques and community relations. By letter dated March 7, 1967, Benjamin C. Boylston, then manager of personnel for Bethlehem, invited the plaintiff to join the "1967 Loop Course Class" for steel plant industrial relations. The "Loop Course Class" is a management trainee program. Persons who enter Bethlehem Steel's employment at this level are known within the organization as "loopers".

 4. By letter dated March 11, 1967, plaintiff accepted the defendant's offer. However, he reiterated his desire to find placement in the "Personnel position involving Labor Legislation and Management Development" which he said was more compatible with his background. He asked to be reconsidered for that position.

 5. On July 5, 1967, plaintiff began a four-to-five-week orientation period in the home office of the defendant. On or about July 30, 1967, he was assigned to the Industrial Relations Department at the defendant's plant in Bethlehem, Pennsylvania.

 6. During all times relevant to this law suit, plaintiff's supervisor was Mr. William E. Groben, who then held the title of assistant management representative. The management representative, Mr. Groben's immediate superior, was John G. Davies. Plaintiff worked directly under Mr. Cyrus Schaeffer in the area of labor relations. Plaintiff's co-workers included Robert Myers, James Posh, Albert Albright, John Hammerick, and, later, Woodrow E. Cooper. Mr. Groben had regular contact with the plaintiff and with Mr. Schaeffer during the plaintiff's employment at Bethlehem.

 7. Plaintiff's duties included processing grievances on appeal to the "Step 3" level of procedure as prescribed by the labor agreement in effect at the plant. This required investigation, fact-finding, and contract interpretation.

 8. As a "looper" or technical trainee, plaintiff's payroll classification was "nonexempt". He was given to understand that when his training period ended, he would be given "exempt" status and a change of title. The length of the training period is indefinite, and there is no company policy in this regard. In general, however, "loopers" in the Industrial Relations Department achieved exempt status after about three years with the company. To attain exempt status is to be exempt from the provisions of the Fair Labor Standards Act, and to be ineligible for overtime pay. It is considered a promotion to attain exempt status.

 9. Plaintiff's job performance was superior at first. For example, in March of 1968, he prepared a memorandum suggesting modifications in the grievance procedure some of which were later adopted. However, he began to deteriorate toward the latter part of 1968.

 10. During this period, the plaintiff repeatedly expressed his desire to transfer into the Community Relations Department. In March of 1969, he was interviewed for a possible position in the Community Relations Department. However, when a vacancy opened up several months later, it was filled by another White male employee.

 11. During this same period, in discussions with Mr. Groben, plaintiff indicated that he was not interested in labor relations work. Other individuals, including the plaintiff's father, contacted Mr. Groben, advising him that the plaintiff was unhappy with labor relations and asking if he could be transferred to another function.

 12. As a result, Mr. Groben spoke to the plaintiff about a transfer within his own division. This was not agreeable to the plaintiff.

 13. Some time prior to the plaintiff's termination, Charles Burford, a Black male employee, was transferred from labor relations in Bethlehem to labor relations in the Pottstown, Pennsylvania plant. This was the same work for which the plaintiff had already expressed his dislike.

 14. Plaintiff also was anxious about his failure to obtain exempt status. He approached Mr. Groben and Mr. Davies to determine what was required to become exempt. He was told he had to display an interest in his work.

 15. As a result, the plaintiff took a Management Development Course in March of 1970. This is a 40-hour program for first-line supervisors taken on company time at no cost to the employees. Plaintiff was the only nonexempt employee enrolled in the course. He did well in the course, but since there were no vacancies, he was not promoted to a supervisory, or exempt, position.

 16. The deterioration in the plaintiff's performance resulted from his frustration both in failing to secure a transfer to the Community Relations Department and in failing to achieve exempt status.

 17. In early 1969, Cyrus Schaeffer and Robert Myers approached Mr. Groben and complained that the plaintiff was not carrying his share of the load of grievances. Mr. Groben was told that the plaintiff had been observed day-dreaming at his desk. Mr. Groben attempted to resolve the problem by making a chart which defined each employee's area of responsibility. The plaintiff was assigned to process grievances from the Blast Furnace, Fuel, Fabricating and the Alloy and Tool Steel Divisions. Woodrow E. Cooper was assigned to assist Messrs. Myers and Schaeffer.

 18. Although the divisions to which the plaintiff was assigned grievances generated only five percent of the total, plaintiff felt that the fact that he was responsible for these divisions was all the more reason he should have been given exempt status. However, the document prepared by Mr. Groben identified as P - 1 was designed to assist him in delineating zones of responsibility within his ...

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