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DICKERSON v. UNITED STATES STEEL CORP.

July 25, 1977

MOSES DICKERSON, et al
v.
UNITED STATES STEEL CORPORATION, et al.



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 This long trial has now reached a critical stage. Plaintiffs, a class of black production-and-maintenance (P & M) workers at the Fairless Works of United States Steel (U.S.S.), have rested their case after 58 days of trial. The Court has before it a number of motions made at or near the end of trial, including a motion to involuntarily dismiss. The Court below outlines its decisions on these various issues and its holdings. Part of the plaintiffs' case is dismissed, and the required findings of facts and conclusions of law are incorporated in this memorandum opinion.

 DECERTIFICATION

 Defendant U.S.S. has moved for decertification of the class action at this stage. This motion has been considered on a number of occasions, the most recent of these culminating in the Court's denial on May 19, 1977. U.S.S.' basis for again moving the Court to consider this issue is the recent decision in East Texas Motor Freight System v. Rodriguez, 431 U.S. 395, 97 S. Ct. 1891, 52 L. Ed. 2d 453, 45 USLW 4524 (1977). In light of this Court's most recent ruling denying this motion, the Court will now only discuss what impact, if any, the Rodriguez opinion has on certification in this case.

 Defendant argues that Rodriguez requires that all members of the class must have the "same injury" as the class representative. Although the Court agrees with this statement of law in general, the strict interpretation which the defendant urges cannot be accepted. Defendant in essence proposes that, in order to allow an action under Rule 23(b)(2), each class member must be virtually interchangeable, with each individual having factually identical claims to that of the named representative. This would virtually eliminate most class actions of employment discrimination. This Court sees nothing in the Rodriguez opinion which demands such a drastic limitation on class actions.

 The High Court's primary concern in Rodriguez was not with the similarity of claims among the class members, but with the adequacy of the named representatives. The Justices held that the circuit court erred in certifying a class when it was already established that the named plaintiffs had suffered no injury whatsoever. That is not the situation in the case at bar. At the time of certification, the two named plaintiffs were actively pursuing not only remedies for injuries to the class, but also for injuries they claimed to have sustained. Therefore under Rodriguez, they would be proper and adequate representatives.

 Defendant claims that decertification is required if the named plaintiffs fail to prove their individual claims. Rodriguez states to the contrary.

 
"Obviously, a different case would be presented if the District Court had certified a class and only later had it appeared that the named plaintiffs were not class members or were otherwise inappropriate class representatives. In such a case, the class claims would have already been tried, and provided the initial certification was proper and decertification not appropriate, the claims of the class members would not need to be mooted or destroyed because subsequent events had undermined the named plaintiffs' individual claims." Rodriguez, 431 U.S. at 406, n.12, 45 USLW at 4527, n.12.

 Thus, since the class claims have already been presented in toto by the plaintiffs, any failure of the named representatives' prima facie case or in the final adjudication will not affect the propriety of proceeding with this as a class action. Since the class was properly certified before, and the class claims have been presented to the Court, the motion to decertify is denied.

 SUMMARY JUDGMENT

 Defendant United Steelworkers of America and its locals ("the union") have filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary judgment under Fed. R. Civ. P. 56. Upon consideration of all the briefs and the evidence presented at trial, the Court has decided to deny these motions.

 At this stage of the proceedings, with the Court considering evidence outside the pleadings, a 12(b)(6) motion should be treated as one for summary judgment. Fed. R. Civ. P. 12(c); United States v. Lewisburg Area School District, 539 F.2d 301 (3d Cir. 1976). Therefore, in effect the Court has only a Rule 56 motion before it. The Court, in considering such a motion, may not resolve issues of credibility or fact; if material fact issues are in dispute, summary judgment is not appropriate. Lockhart v. Hoenstine, 411 F.2d 455 (3d Cir. 1969), cert. denied, 396 U.S. 941, 24 L. Ed. 2d 244, 90 S. Ct. 378 (1969). Summary judgment is only allowed when the law clearly requires it. The proceedings in this case have been governed by the provisions of a pretrial order, (Pretrial Order No. 3), signed by the Court on November 18, 1976. Section 1 of that order required plaintiffs to state in their pretrial statement "the theory of their case, including a statement of claims, issues of contentions, regarding the specific acts or practices of each defendant which plaintiffs claim have discriminated against the plaintiff class and/or the individual plaintiffs . . . (and) the legal bases and legal authorities supporting the theory of the case set forth . . ." Therefore, the Court must look to the pretrial statement, known as the "Red Book," to decide what are the allegations being made against the union.

 In their pretrial statement, four claims are asserted against the union. Three of these claims essentially assert that the Union is vicariously liable for the employer's acts. *fn1" Under Title VII, it is illegal for a labor union to "cause or attempt to cause an employer to discriminate . .." 42 U.S.C. § 2000e-2(c). The basis of the plaintiffs' claim is that the "cause" of the employer's action is the union's failure to bargain away the practices complained of. This is a claim then of "omission" and not "commission." Many courts considering this general question have sustained such a Title VII claim, but in varying ways. In Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478 F.2d 979 (1973), the Court pointed out that a union has a duty to protect its members from discrimination, first established by Steele v. Louisville & Nashville R.Co., 323 U.S. 192, 89 L. Ed. 173, 65 S. Ct. 226 (1944). "Where blacks are in a minority, as they so often are in large industrial unions . . ., tacit union acquiescence in an employer's discrimination effectively produces the same end result that was condemned in Steele." 478 F.2d at 989. Furthermore, the union has a responsibility to negotiate for non-discriminatory treatment.

 
"Where a union has not done so and where there is such solid evidence of employer discrimination as is alleged here, it would undermine Title VII's attempt to impose responsibility on both unions and employers to hold that union passivity at the negotiating table in such circumstances cannot constitute a violation of the Act." Id.

 In Hairston v. McLean Trucking Co., 62 F.R.D. 642 (M.D. N.C. 1974), vacated on other grounds, 520 F.2d 226 (4th Cir. 1975) the court there faced a similar situation, where the discriminatory act arose upon hiring. There was no evidence, as there is none here, that the union controlled or participated in the hiring process. The court held the local union liable for one-third of the attorneys' fees and costs.

 
"The Court has done this because it feels that Local 391, by its acquiescence, shares a part of the blame in discriminating against plaintiffs. While Local 391 took no affirmative action in discriminating, it certainly knew of the companies' actions and encouraged such by its own inactions . . . Local 391 plays an important role in the employment situation at MAS and McLean by representing the plaintiffs. The Court feels that its decision will serve to promote the policy and purposes of the Civil Rights Act of 1964 by encouraging those who have the power to stop discrimination to use that position." 62 F.R.D. at 673.

 Other cases *fn2" which hold the union liable for "acquiescing" in acts found to be discriminatory have been decided by the Courts of Appeals for the Fifth and Sixth Circuits. *fn3" Since the Court has decided to follow this rule, summary judgment on these three claimed areas of discrimination -- transfer, initial assignment and discipline -- must be denied.

 The union argues that it cannot be held liable for acts of the employer in light of the decision in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396, 45 USLW 4506 (1977). That case held that a seniority system could not be held illegal under Title VII since it was protected by § 703(h) of the Act, 42 U.S.C. § 2000e-2(h). Therefore, the Supreme Court held that "the union's conduct in agreeing to and maintaining the system did not violate Title VII." 431 U.S. at 356, 45 USLW at 4514. The Justices ordered that the injunction against the union be vacated.

 Defendant claims that the Supreme Court's release of the union in Teamsters impliedly rejects any theory that the union was liable for any other illegalities that might be contained in the collective bargaining agreement or done with its acquiescence. The Court does not read Teamsters as eliminating the union's liability. On the contrary, the implication of that decision, where the only claim of union liability was based on its agreement as to the seniority system, was that the union would have been liable but for the exclusion by § 703(h). In the case at bar, where many of the claims are outside the protection of that provision, the union cannot so simply escape liability for agreeing to and maintaining any other practices found to be illegal.

 The final claim -- discrimination in grievance processing -- requires the Court to make factual determinations on material issues. Its decision is not, therefore, appropriate under a Rule 12(b) motion or a Rule 56 request, but will be considered below under the motion for involuntary dismissal.

 RULE 41(b) AND PRIMA FACIE CASE

 Defendants have moved under Fed. R. Civ. P. 41(b) to dismiss this action at this stage, which is at the close of the plaintiffs' case-in-chief. In order to defeat the plaintiffs' claims at this stage defendants must first show that plaintiffs have failed to make out a prima facie case of discrimination. If the plaintiffs have failed to meet this level of proof, the claim, whether class or individual, will be dismissed. However, if the plaintiffs meet this burden, the Court must then examine the evidence and decide if "upon the facts and the law the plaintiff has shown no right to relief." Rule 41(b). In deciding this, the Court need not view the evidence in a manner most favorable to the plaintiff, but instead must weigh it, deciding issues of fact and credibility. James Burrough Ltd. v. Sign of the Beefeater, Inc., 540 F.2d 266 (7th Cir. 1976). Therefore, in deciding this motion, the Court has considered the evidence brought out by cross-examination as well as by direct. Some of this evidence has discredited the prima facie case. In this manner the Court has decided, on each claim, whether the plaintiffs have established a prima facie right to relief, or whether the claim should be dismissed for failure of proof. The standards for this initial level of proof vary with the statute under which the claims have been made. The Court will therefore discuss each statute separately.

 Under Title VII, a prima facie case can be established in a number of ways. For a class action, for example, gross statistical disparities alone may constitute prima facie proof of a pattern or practice of discrimination. Hazelwood School District v. United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768, 45 USLW 4882 (1977). International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396, 45 USLW 4506 (1977). This method is discussed below in greater detail. In an individual action, one method of proving a prima facie case was outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). That case held that discrimination can be established if it is shown:

 
"(i) that (an individual) belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S. at 802.

 These two methods of proof have received explicit approval by the Supreme Court. The differences in class and individual proof will be discussed further below. However, they are not the only tests by which a court may judge if a plaintiff or class of plaintiffs has established a prima facie case of discrimination. In Teamsters, the High Court noted that it had not "(purported) to create an inflexible formulation." 431 U.S. at 358, 45 USLW at 4514. There, the Court said: "The importance of McDonnell Douglas lies not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act." Id. Therefore, this Court has analyzed these cases to decide how plaintiffs must establish an inference of discrimination for class or individual cases. The shared element in these methods of proof is that each requires a plaintiff to show a disparity, or difference, in his condition as compared to that of non-minority individuals. Therefore, in order to meet this initial burden, the plaintiff must show such a disparity in treatment or status.

 As the Supreme Court noted in Teamsters, 431 U.S. at 335, 45 USLW at 4509, n. 15, there are two types of disparities which are recognized as discriminatory. That opinion succinctly defined the first, disparate treatment: "The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin." Id. The second type of claim, disparate impact, involves "employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Id. See also Dothard v. Rawlinson, 433 U.S. 321, 97 S. Ct. 2720, 53 L. Ed. 2d 786, 45 USLW 4888 (1977). The plaintiffs have made both types of claims in this case.

 As this Court has noted in its opinion in Croker v. Boeing Co. (Vertol Division), 437 F. Supp. 1138, 1182 (E.D. Pa. 1977), "once the plaintiff has presented a prima facie case of discrimination, the burden shifts to the defendant to rebut the inference of discrimination." So far in this case, defendants have defended by cross-examination. They have challenged the accuracy and appropriateness of the statistical studies and analyses and attempted to impeach witnesses' testimony. To the extent that these efforts have been successful, the discredited record evidence will not be considered as part of the plaintiffs' prima facie case. If the plaintiffs meet their initial burden, defendants may defeat this showing by justifying any disparity as a result of business necessity. Croker, supra. Under Title VII, courts have guaranteed a specific order of proof, which requires that plaintiffs be allowed to put on rebuttal testimony to overcome defendants' showing of business necessity. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). Therefore, consideration of any of defendants' business necessity defenses established by cross-examination must be postponed until plaintiffs are allowed to put on a rebuttal case. At this time, therefore, any part of the plaintiffs' case not impeached as to credibility or accuracy will be allowed to remain.

 The plaintiffs have presented both class claims and individual claims. As noted above, McDonnell Douglas enunciated one test of the individual's prima facie case. However, proof of a class-wide claim is somewhat more involved. In Teamsters, the Supreme Court said that plaintiffs in a class action "ultimately (have) to prove more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts." They must show "that racial discrimination (is) the company's standard operating procedure -- the regular rather than the unusual." 431 U.S. at 336, 45 USLW at 4509. Therefore, plaintiffs must show something more than a small number of discriminatory incidents affecting a few members of the class.

 One of the most effective means of showing the existence of a policy of discrimination is by use of statistics. In its recent pronouncements, the Supreme Court has repeatedly endorsed this method of proof. In Teamsters, the government compared the percentage of minority employees in the company's total employ to the percentage in the higher-paying jobs. *fn6" This disparity, coupled with testimony of individuals who "brought the cold numbers convincingly to life," was found to constitute prima facie proof. The Court referred to a number of its earlier decisions in which statistical analyses played an important role, such as Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 39 L. Ed. 2d 630, 94 S. Ct. 1323 (1974) and Turner v. Fouche, 396 U.S. 346, 24 L. Ed. 2d 567, 90 S. Ct. 532 (1970). "Statistics are equally competent in proving employment discrimination." 431 U.S. at 339, 45 USLW at 4510. One reason statistics are becoming increasingly important is that "'(in) many cases the only available avenue of proof is the use of racial statistics to uncover clandestine and covert discrimination by the employer or union involved.'" 431 U.S. at 340, n.20, 45 USLW at 4510, n. 20, quoting United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir. 1971).

 About one month after the Teamsters decision, the Court handed down Dothard and Hazelwood. Both of these cases turned on the use of statistics. *fn7" In Hazelwood, the Court held that properly presented statistics could constitute a prima facie case. In Dothard, the disparate impact of an employment policy was shown on the basis of numbers alone. "The plaintiffs in a case such as this are not required to exhaust every possible source of evidence, if the evidence actually presented on its face conspicuously demonstrates a job requirement's grossly discriminatory impact." 433 U.S. 321, 331, 45 USLW at 4890. *fn8"

 However, as the Court noted in Teamsters,

 
"statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all the surrounding facts and circumstances." 431 U.S. at 340, 45 USLW at 4510.

 In Hazelwood, the Justices rejected the district court's use of statistical comparisons. Therefore, although this Court accepts in theory the use of statistics in a Title VII case, it must analyze the propriety of the particular method used before considering it as probative evidence.

 Under 42 U.S.C. § 1981, this Court has held that an essential element of plaintiffs' proof is discriminatory intent or purpose. Croker, 437 F. Supp. 1138, Slip. Op. at 73, Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). *fn9" Intent may be inferred from a statistical disparity, Teamsters, 431 U.S. 324, 45 USLW at 4509, n. 15, although most cases have held that such disparities must be dramatic in order to make such an inference on statistics alone, Croker, supra. If lesser disparities are found, "further inquiry into historical background, specific events and other indicia of intent is necessary." Croker, 437 F. Supp. 1138, Slip Op. at 74. Therefore, if the Court finds that a disparity exists on any claim of an individual or the class, in order to hold that the plaintiffs' burden is met, a further finding must be found as to defendants' motive or purpose.

 
"If two or more persons conspire . .. for the purpose of depriving, either indirectly or directly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . ."

 there is a basis for a civil action. In Griffin v. Breckenridge, 403 U.S. 88, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971), the Court noted that § 1985(3) requires that "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' actions." The Justices concluded: "The conspiracy, in other words, must aim at a deprivation of the equal employment of rights secured by law to all." 403 U.S. at 103. In light of this, read with Washington v. Davis, supra, it is clear that the specific intent requirement of § 1981 applies with equal force under § 1985(3).

 Clearly, the second most important element of this cause of action is proof of a conspiracy. Under Griffin, the law clearly reaches conspiracies between private individuals. In Lohr v. Association of Catholic Teachers, Local 1776, 416 F. Supp. 619 (E.D. Pa. 1976) Judge Hannum considered a case in which the union was being held liable on the basis of illegal disbursement of funds collected under the collective bargaining agreement. Since the agreement itself was not illegal, the employer was not liable for the union's acts not pertaining to the agreement. The employer's knowledge of the illegal use of the money was not a basis for conspiracy. He referred to Byrd v. Local Union No. 24, 375 F. Supp. 545, 563 (D.Md.1974), which said that alleged co-conspirators "must have agreed, expressly or impliedly, with one or more entities to inflict a wrong or injury upon another."

 It is clear that if this Court finds provisions of the written agreements between USS and the union to be illegal that a conspiracy may be found. However, this Court also believes that a party who acquiesces in illegal behavior which could be regulated by contract, either by not pressing for change in the contract or not complaining about an apparent disregard of its provisions, has impliedly entered into a conspiracy. These actions would constitute more than those of the employer in Lohr, who merely was aware of illegal activity, but did not possess the means to affect it. If a party has the potential to stop illegal activity but fails to act to do so, and sits idly by, then that party may be said to have impliedly conspired in such illegalities.

 JURISDICTION AND STATUTE OF LIMITATIONS

 The Court must first define the extent of its jurisdiction under the applicable statutes, 42 U.S.C. §§ 1981, 1985(3) and 2000e et seq. The Court first finds defendant USS is a corporation doing business in the Commonwealth of Pennsylvania. It owns, operates and maintains facilities in Fairless Hills, Pennsylvania. USS is an employer within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b) and is engaged in an industry affecting commerce. Defendant union, United Steelworkers of America (AFL-CIO) and its locals are labor organizations within the meaning of the Act and are engaged in an industry affecting commerce. The locals represent employees at the USS plant at Fairless Hills, Pennsylvania.

 This case is being brought as a class action under Fed. R. Civ. P. 23(b)(2). On August 21, 1976, this Court defined the class to consist of:

 
"a. All blacks now employed or who might be employed in the future as hourly Production and Maintenance employees by United States Steel Corporation at its Fairless Hills Plant, Fairless Hills, Pennsylvania; and all blacks who were employed as hourly Production and Maintenance employees by the Company from July 2, 1965, to the present date, but who are no longer employed there;

 There are at present two class representatives, Moses Dickerson and Eddie Williams. In a class action, the named plaintiffs can represent all persons who could have filed charges with the Equal Employment Opportunity Commission (EEOC) as of the effective date of a class representative's filing. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3d Cir. 1975); cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975). The plaintiffs argue that although no charge was filed with the EEOC until October 27, 1971, equitable principles mandate that the filing date should be deemed to have been earlier.

 Plaintiffs argue that in March of 1970, Moses Dickerson filed a complaint with the Department of Labor. They contend that since he was not referred to the EEOC as the proper agency, that filing should be held to be a filing with the EEOC under equity. Defendants argue that because filing with the EEOC is a jurisdictional prerequisite, Wetzel, supra, it must be strictly construed. The Court has decided, after reviewing the case law, that the plaintiffs' position must prevail.

 Dickerson was hired in November, 1969. In March of 1970 he wrote to the federal Department of Labor concerning his complaints about USS. (N.T. 8255). On February 1, 1971, Dickerson and Williams wrote again to Labor, inquiring as to the status of their case. The letter, P-3074, refers to Labor's response to their initial complaint, which they received in November, 1970. The reply letter from Labor dated March 25, 1971, also supports Dickerson's claim that P-3074 was his second letter to Labor. Therefore, the Court accepts Dickerson's statement that he filed a written complaint on March of 1970 and will adopt March 31, 1970 as the date of filing. This will give maximum benefit of doubt to defendant.

 "Courts have continuously construed Title VII so as not to allow procedural technicalities to bar a claim under the Act." Wetzel v. Liberty Mutual Insurance Co., 511 F.2d 199, 202 (3d Cir. 1975). As the Third Circuit noted, initial complaints under the Act are filed by laymen, not familiar with the bureaucratic maze of federal agencies. See Love v. Pullman, 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972), "Were we to interpret the statute's procedural prerequisites stringently, the ultimate result would be to shield illegal discrimination from the reach of the Act." Egelston v. State University College at Geneseo, 535 F.2d 752 (2d Cir. 1976).

 It is for these reasons that other courts have held that filing with the Labor Department is the equitable equivalent of filing with the EEOC. Egelston, supra; EEOC v. Collator Corp., 8 E.P.D. paragraph 9481 (9th Cir. 1974); EEOC v. Nicholson File Co., 408 F. Supp. 229 (D. Conn. 1976); EEOC v. Delaware Trust Co., 416 F. Supp. 1040 (D. Del. 1976). The Delaware Trust case, decided by a district court in this circuit, has many of the elements found in the instant case. There, plaintiff had attempted to write the EEOC but her letter was returned. She then wrote to the Labor Department, which only forwarded her letter to the local EEOC four months later. Dickerson first went to the New Jersey Department of Labor, which referred him to the federal office. He contacted the office as well as the Pennsylvania Human Relations Commission, where another formal complaint was filed. *fn10"

  Defendants argue that International Union of Electrical Workers v. Robbins & Myers, 429 U.S. 229, 97 S. Ct. 441, 50 L. Ed. 2d 427, 45 USLW 4068 (1976), requires that all jurisdictional prerequisites be strictly construed. That is not the teaching of the case. That case held that the filing of a grievance in the contractual system did not toll the statute of limitations. The Justices contrasted the situation with Burnett v. New York Central R.R., 380 U.S. 424, 13 L. Ed. 2d 941, 85 S. Ct. 1050 (1965), where an FELA plaintiff filed in the wrong court and his actions was dismissed. The filing was sufficient to toll the statute since he asserted the same statutory claim in state and federal courts, the Court held. In Robbins & Myers, the Court noted a grievant asserted a contract-based claim, while a Title VII litigant pressed a statutory claim. Therefore, the filing of one did not affect the other.

 This Court holds that Burnett and Robbins & Myers require that equitable tolling principles must be applied. As in Burnett, plaintiff was prevented from asserting his rights before the EEOC because the Labor officials never informed him that he was before the wrong agency. The question posed by Judge Schwartz in Delaware applies here: "Can bureaucratic ineptitude defeat an aggrieved lay person's diligent attempts to file a charge of [employment discrimination] with the federal Equal Employment Opportunity Commission?" Since the cases mandate that the answer is "no," this Court will consider March 31, 1970 as the filing of a charge against USS. Therefore, any class member claim which arose after October 2, 1969, can be considered under Title VII. *fn11"

 In view of the fact that no evidence was introduced at trial to show that the Labor Department complaint contained charges against the union, this date will not relate to claims against the union. Eddie Williams' EEOC charge, dated in October 27, 1971, will establish the class claim date against the union of May 1, 1971.

 As this Court has previously held in Dupree v. Hertz, 419 F. Supp. 764 (E.D. Pa. 1976), the statute of limitations under § 1981 is six years. This limitation, discussed fully in Croker, supra at 437 F. Supp. 1138, slip op. at 69-72, will result in the Court considering all claims under this statute arising after June 11, 1967.

 Since all jurisdictional prerequisites have been met, the Court concludes that it has jurisdiction of this case under 42 U.S.C. §§ 1981, 1985(3) and 2000e et seq.

 Having established the relevant date for the tolling of the statute of limitations, this Court must now decide what evidence or claims must be excluded. Plaintiffs have argued that discriminatory incidents occurring prior to the time period included by the statute can still serve as a basis for liability if "locked-in" by a racially neutral practice. This Court previously had accepted this theory, since it had been embraced by most circuits. See Memorandum Opinion, Dickerson v. United States Steel, C.A. No. 73-1292 (E.D. Pa. February 28, 1977). However, that opinion noted that the Supreme Court was presently reviewing cases that might alter the opinion. That contingency has now come to pass. The opinion in United Air Lines v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571, 45 USLW 4566 (1977) holds that acts not made the basis of timely charges cannot be the basis of any liability, even if the effects are continuing because of a racially neutral practice. *fn12" The Justices said that such a charge is the legal equivalent of a pre-Act discriminatory incident. "It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences." 431 U.S. at 558, 45 USLW at 4567. Therefore, it is clear to this Court that any action, not within the statute of limitations period established for the class, cannot serve as a basis of liability, whether it be pre-Act or post-Act.

 Plaintiffs argue that Evans and Teamsters, supra, read together, do not disallow their "lock-in" theory altogether, but merely limit it. They claim that these decisions hold only that a bona fide seniority system cannot be attacked as illegal if its effect is to perpetuate prior discrimination. This Court cannot agree, for these opinions say more than that. Evans is based on two separate grounds. First, the Court holds that a prior discriminatory act cannot be a basis of liability if the individual failed to file a charge under § 706(d), 42 U.S.C. § 2000e-5(d), even if its effects are continuing. This opinion clearly holds that the statute of limitations is an absolute bar and that it cannot be circumvented by "lock-in." A second and independent holding said that such a past event may not serve as a basis for a present challenge to a neutral seniority system which is immunized by § 703(h), 42 U.S.C. § 2000e-2(h).

 Plaintiffs look to Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) to keep their "lock-in" theory viable. There, the Supreme Court said that non-job-related entrance requirements could not be allowed, even if facially neutral, if they operated to effectively close out minorities. "Under the Act, practices, procedures or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." 401 U.S. at 430. The "prior" practices in the Griggs case occurred prior to Title VII. It appears that Evans puts a limiting gloss on the word "prior." However, even if in Teamsters the Supreme Court intended to keep this "lock-in" theory available for practices other than those attached to a seniority system, the plaintiffs still have not made a proper case. As pointed out below, in the discussion of transfer policies, those factors which may "'freeze' the status quo" in the instant case are part and parcel of the seniority system, and thus cannot be a basis of liability, as in Teamsters. Those few practices which are separate from it cannot be said to be independent and overriding "lock-in" factors. In this case, apart from the seniority system, there is no practice strong enough to perpetuate any alleged past discrimination as to all class members. See Teamsters, supra.

 The "lock-in" theory may still be used to show that present neutral practices illegally affect blacks more than whites. This is what is known as the "disparate impact" theory, discussed infra. The "disparate impact" theory allows plaintiffs to attack any policy, even if facially neutral (except seniority systems), as violative of Title VII. An example of such a practice, although not the only one, is the use of qualifying tests or other hiring criteria which bear no relation to business necessity. See Griggs, supra. Another example, recently discussed in Dothard, supra, is a height-and-weight requirement for guards which disparately excludes women. All that Teamsters and Evans do to this approach is to bar attacks on a legitimate seniority system, no matter how disparate its impact. Otherwise, a facially neutral practice can be violative of Title VII if its impact is disparate on different groups. However, this Court believes the "disparate impact" theory cannot be used to revive past acts which are otherwise beyond the law. In this opinion, because of the failure of plaintiffs' "lock-in" theory, the Court has not found either defendant liable for any incident occurring outside the statute of limitations period.

 The Court will first discuss the class claims which will be dismissed under the 41(b) motion. There are six areas of claimed discrimination outlined in the Red Book upon which plaintiffs have failed to establish a class-wide prima facie case. They are: transfer (in part), harassment and discipline, "racially discriminatory atmosphere," grievance processing, hiring, and implementation of the consent decree. Each of these areas will be discussed at length below, with the findings of facts and conclusions of law incorporated into the discussion.

 Transfer

 Plaintiffs have made a number of attacks on transfer policies at Fairless. All but one of these fail, partially in fact and partially on the law. Since the law has changed drastically since this case was instituted, plaintiffs' claims in this area have been shifting.

 Originally plaintiffs have two claims. First, they argued that the seniority system contained disincentives to transfer that resulted in freezing blacks into their discriminatory initial assignments. The Teamsters decision, which held seniority systems immune under § 703(h) of Title VII, eliminated that argument. Secondly, they contended that the system of interviewer discretion at Fairless *fn13" resulted in illegal treatment of blacks in transferring. This second argument has been retained, and with some additions and deletions, is now the plaintiffs' major "lock-in" claim. It must be dismissed for failure of proof.

 This argument now has two dimensions -- disparate treatment and disparate impact. The class-wide proof of disparate treatment, however, has not been presented. A number of witnesses testified that their requests for transfer had been denied. Well over half of these recitations did not establish a prima facie case of discrimination. More than that number testified that their transfer requests had been granted. Plaintiffs presented no statistical evidence that blacks had been denied transfers at any greater rate than whites. Indeed, the only class-wide data presented, Appendix J, shows that the black and white transfer rates are not significantly different. Therefore, there is no basis on which to infer a practice of discrimination in treatment. The only evidence which would even suggest that discrimination was possible is the discretionary method of awarding transfers. Yet a discretionary system, with no evidence of pervasive abuse, cannot support a class claim of disparate treatment. The individual claims dismissed are analyzed later in this memorandum.

 However, plaintiffs have attempted to show that this system has a disparate impact. Plaintiffs try to argue from the fact that the system requires a formal written application and places great discretion in the interviewers and the evidence of a low (2 1/2% per annum) transfer rate that Fairless has an unwritten "no-transfer" rule. This cannot be shown by the evidence. Transfers are allowed, but the testimony shows that many employees do not seek them. There are many disincentives to transfer which may inhibit persons from applying to transfer. Most notable of these disincentives is the seniority system itself, which was the plaintiffs' original target. Once an employee had accumulated seniority (prior to 1974) he lost it and all its protections if he transferred. This is the most significant disincentive to transfer, but cannot be attacked under Title VII. Plaintiffs have been unable to carry their burden of proof, for having demonstrated that the seniority system is a significant disincentive to transfer, they have defeated their own case. The Court is not convinced that the formal requirements for transfer pose a greater disincentive to transfer than the loss of seniority. *fn14" Also, the plaintiffs have not demonstrated a causal connection between the discretion in interviewers and the rate of transfer.

 Second, plaintiffs contend that this unwritten no-transfer rule is brought about by the lack of plant-wide posting requirements. Although this contention is at least borne out by some witnesses' testimony, *fn15" it is still not convincing. Under the procedures, transfer applicants need not wait for an opening to occur. At any time, an employee may file an application for transfer which will remain active for one year. Under the LSA, e.g. Section E-9 of the 1971 agreement, these transfer applicants are to be considered for jobs as they become open. Jobs need not be posted in order for employees to apply.

 This practice seems to work more often than not. At trial, a total of 44 individuals mentioned attempts to transfer. Of these, 18 were successful in their transfers. The Court cannot assume that, in light of the obviously biased nature of this "sample," Fairless' transfer system is not generally implemented correctly. Plaintiffs have failed to show that potential transferees were inhibited by the lack of plant-wide posting instead of by the seniority provisions. Other systems, such as the personnel office's file and the informal employee grape-vine evidenced by testimony, operate to effectively make job opportunities widely known.

 The plaintiffs' second attack on the transfer policies at Fairless is the exemption of the new facilities from seniority requirements. Since this is an explicit exemption to the seniority system, it cannot be immunized by § 703(h). This policy, unlike the other transfer policies, has resulted in a disparate impact. The new unit first crews are not bid on a basis of seniority. Under a memorandum of understanding, USS is given broad discretion in picking these crews. At Fairless, this discretion has resulted in all-white first crews, while blacks are allowed only on the second and third crews. *fn16" The memorandum of understanding virtually obliterates all transfer rights which provide some measure of protection to minority workers. Carl K. Smith and Benjamin Williams are examples of this problem. Both lost bids to be on a first crew in 1968; junior whites were awarded the jobs.

 In light of this evidence, the Court has decided not to dismiss this claim of transfer discrimination against USS under both Title VII and § 1981. Furthermore, in light of the union's obvious participation in the memorandum of understanding, the claims against the union will also be retained. In addition, the claim under § 1985(3) will also be retained.

 Finally, the plaintiffs contend that the no-transfer rule between bargaining units operates to "lock-in" employees. They acknowledge that this agreement is an integral part of the seniority system, yet challenge its "bona fide." Their argument, that any system which clearly operates to separate all-white units (in this case guards, clerical and technical, etc.) from heavily-black units (P & M) cannot be bona fide under § 703(h), is rejected by the Teamsters opinion. The system here is the same as in Teamsters, where one bargaining unit was all-white. In each case, transferees across bargaining units would lose all seniority. A bona fide system is one that "applies equally to all race and ethnic groups." 431 U.S. at 355, 45 USLW at 4514. Plaintiffs have not presented any evidence that the practice of maintaining the separate units is not "rational, (and) in accord with the industry practice . . ." Ibid. Therefore, the Court must hold that this no-transfer rule is protected by § 703(h), in that this is part of a bona fide system.

 Plaintiffs have argued that seniority systems may still be attacked under § 1981. However, that section, as noted above and in Croker, now requires proof of intent in order to make a prima facie case. Any system protected by § 703(h) would not have been formulated or implemented with this requisite intent or it would not be considered bona fide. Therefore, if the system cannot be challenged under Title VII, it follows that it also is immune from attack under § 1981.

 For the reasons set forth above, this Court will dismiss all of the class claims regarding discrimination in transfer except that concerning the manning of new facilities. That claim will be retained under Title VII and §§ 1981 and 1985(3) against both USS and the union.

 Harassment and Discipline

 Plaintiffs claim that management harasses, disciplines and discharges black employees more than white employees. They have, however, provided no statistical proof of such charges. The Court has not been told, as it was in Croker for example, that blacks receive proportionately more discipline slips than whites. It has not been presented with even raw data as to the number or distribution of discharges each year. In short, no class-wide proof of disparity has been presented. These charges rest solely on the testimony of a few individual class members at trial.

 Many of the witnesses at trial had relatively clean discipline records. Other witnesses had extensive lists of discipline slips in their files and a few were discharged. Like the transfer system, the discipline procedures vest large amounts of discretion in the foremen. Each employee is given a copy of the plant rules when he is hired. Discipline slips, detailing the alleged infraction, its circumstances, and the punishment meted out, are to be given or mailed to the employee following any incident. The system requires cumulative punishment: first, an oral warning, then a written one, on up through successively longer periods of days off until finally, discharge. If an individual is unhappy with the discipline received, he can grieve the matter through the union's procedure. If successful, he may have the discipline slip removed from his file and receive any lost wages he suffered.

 Testimony has been received on numerous instances where individuals believed they had received discriminatory discipline. Some of these instances establish discrete prima facie cases; others, as outlined more fully below, do not. Viewing the combined incidents as a whole, plaintiffs prove neither a case of disparate impact or treatment. The "facially neutral practice," of giving to foremen virtually unfettered discretion, has not been shown to affect blacks more than whites. The specific instances of discrimination do not amount to more than isolated incidents of discriminatory treatment and do not meet the Teamsters decision's standard of pattern and practice. Since this claim fails on both grounds, it will be dismissed.

 Plaintiffs also claim that the class members are "routinely harassed" by supervisors. However, very little credible testimony has been introduced on this subject. The Court cannot find, on this record, that racial harassment was the "standard operating procedure" at Fairless Works.

 Finally, plaintiffs claim that USS refuses to negotiate or recognize claims of racially-based discipline brought to its attention by members of the civil rights committee. No class proof was presented of this claim. Since plaintiffs have failed to establish a prima facie case of disparity, the Court will dismiss the claims of harassment and discrimination in discipline as to the class. Individual cases will be considered below.

 Grievance Processing

 Plaintiffs have claimed that in disciplinary matters, the union failed to correct the company's allegedly disparate handling. Since the claim against USS has been dismissed as to discipline, any vicarious liability which the union might have fails also. However, plaintiffs contend that the union is liable on its own for failure to process grievances as an independent Title VII violation. This Court finds that this claim is not established.

 Many witnesses testified as to the handling of their grievances. Of these, a number blamed the union for the unsatisfactory results. However, very few of these witnesses revealed any evidence of disparity, either in the system or their treatment under it. Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967), established the standard for deciding if a union wrongfully breached its duty to process grievances. Not all grievances are entitled to be processed. Only if the union representative can be shown to have acted out of bad faith, evidenced by disparate treatment because of racial discrimination, may the Court intervene. The testimony of the individuals, of which little meets the prima facie level, does not reach the level needed to establish a "pattern and practice." No other class-wide evidence was elicited, for example, as to the number of grievances processed. Therefore, this claim must be dismissed as to the class.

 Hiring

 Previously, this Court decertified from the class the individuals who had unsuccessfully applied for hire at Fairless Works. See Memorandum and Order, Dickerson v. United States Steel, C.A. No. 73-1292 (E.D. Pa. August 21, 1976). This action effectively removed the issue of discrimination in hiring from this case. In light of that order, and plaintiff's resultant lack of evidence on the subject, this claim will be dismissed.

 Implementation of Consent Decree

 The steel industry became subject to a consent decree in 1974, U.S. v. Allegheny-Ludlum Industries, 63 F.R.D. 1 (N.D. Ala. 1974). Plaintiffs contended at trial that this Court was an appropriate forum for reviewing any failures to administer that decree. This Court, in certifying the instant case, recognized that the decree did not foreclose a suit against USS. Dickerson v. United States Steel, 64 F.R.D. 351 (E.D. Pa. 1974). However, it is clear that violations of the consent decree can be properly tried only in Alabama. Therefore, the Court excluded this evidence at trial. See EEOC v. A.T. & T., 419 F. Supp. 1022 (E.D. Pa. 1976) (Higginbotham, J.) This claim will not be dismissed.

 Racially discriminatory atmosphere

 Plaintiffs' Red Book claims include one entitled "racially discriminatory atmosphere." This appears to be an agglomeration of the other claims of specific discriminatory practices into one mass which will allow every black at the plant to recover. The Court thinks that such a claim, especially in a case of this magnitude and with these facts, must be denied.

 As a class claim, this is virtually incapable of proof in all but the most blatant of situations. Such a nebulous concept -- that of "atmosphere" -- is not susceptible to any accepted methods of proof in a court of law. To allow plaintiffs to establish it as it has been alleged in their pretrial statement, as a totality of all allegedly illegal practices, would be to impose double liability on defendants. First, they would be liable for any illegal practice, such as initial assignment discrimination, to those individuals directly harmed. Second, they would be liable to those same individuals and any others aware of such practices for a chilling effect. Although some courts have recognized this chilling effect for purposes of remedy, see Franks v. Bowman, 424 U.S. 747, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976), establishing it as an independent basis of liability stretches Title VII beyond its intended purpose.

  Plaintiffs attempted to get in proof of defendants' discriminatory "reputation" under Fed. R. Evidence 405 and 803(19). Such evidence may be of help in the damages stage of this trial, but this Court has not been able to find a single case that holds a "discriminatory reputation" to be a Title VII violation. This is most likely because reputation cannot necessarily be controlled by the individual and certainly cannot be termed a "practice."

  Finally, it should be noted that plaintiffs have included, under this claim as to individual witnesses, incidents of racial name-calling by fellow employees. As held in Croker, supra, acts of fellow employees are not usually bases of claims against the employer. "Liability can only be premised on the employer's failure to take reasonable steps to prevent racial harassment of which its upper level management is aware." Croker, 437 F. Supp. 1138, Slip. Op. at 94. These few incidents, which do not ...


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