Title VII and § 1981. The defendants involved in this action are the same. This case is also only being tried as to liability at this stage.
The Court has decided that at this time Worthy's claim of disparate discipline should not be dismissed. He was suspended for a total of 10 days and was not discharged solely because he demoted out of the craneman's job. The testimony and documents submitted by the plaintiff show that whites were not so treated under similar circumstances.
The claim against the union is premised on the fact that union representatives did not attempt to fight this discipline. They told him that there was nothing they could do. One grievance man advised him to plead for leniency. This conduct indicates that the union had evaluated his case and had decided that a grievance would not succeed. Under Vaca, they do not have to contest each case. Therefore, the claim against the union will be dismissed.
Moses Dickerson first came into contact with Fairless Works personnel on October 21, 1969 in Birmingham, Alabama. Bruce Glen, a management employee in the Fairless personnel office, was recruiting workers for the plant in conjunction with advertising being done in the Alabama newspapers. During their conversation, Glen assured him that welding positions were available in Pennsylvania. On his application, Dickerson noted the varied welding jobs he had held. He also gave Glen a copy of his vocational school certificate. He was given a preliminary physical, which he passed. He was then given travel money and a bus ticket to Trenton.
Dickerson claims that USS promised financial help with family relocation. Since this testimony was not corroborated by the other Birmingham witnesses, the Court will not credit it. That claim is dismissed.
When Dickerson arrived in Trenton, he was taken to the YMCA, where the recruits were to stay. Since the evidence shows only that all recruits stayed there, regardless of race, any claim regarding housing will be dismissed.
After a physical at Fairless, he was told that he did not pass his physical because of a bad back. He was told that he could take a janitorial job or go back to Alabama. The Court does not find, from this evidence, that any inference of discrimination may be drawn as to the failure to make him a welder. However, the Court does find an inference of discrimination, because of the class-wide evidence, that he was discriminatorily assigned to be a janitor instead of to other non-lifting jobs in white clusters such as plant guard. Plaintiffs have argued that Dickerson's assignment to the laborer's work was discriminatory. In view of the fact that no other black "Birmingham hire" was so treated, but sent to non-welding work, there is no reason to assume that USS had to make up such a story merely to keep Dickerson out of a welding job. This Court believes that the diagnosis provides a "business necessity" for not hiring Dickerson as a welder, and would rebut the prima facie case. However, in light of plaintiffs' right to have the last word under Albemarle Paper, the claim of discriminatory denial of a crafts job will not be dismissed at this time. The assignment claim will be retained because of the class-wide evidence. Plaintiffs will be given an opportunity to show that Dickerson did not, in fact have a bad back and that this reason was merely a pretext for discrimination. They will have to present more evidence than Dickerson's own testimony that he has never had problems with his back. The Court finds such testimony self-serving and will not accord it any weight.
Dickerson was classified as a "hard-core" unemployable, in spite of his long work record. He was given a longer probationary period, but did not receive the promised training. Discrimination can clearly be inferred from this evidence, so this claim will not be dismissed.
Dickerson complains that he was disciplined because he had filed complaints with outside authorities. The company has defended this charge on cross-examination by attempting to show that Dickerson was properly disciplined for frequent absenteeism and drinking before and on the job. Since plaintiffs have established an inference of discriminatory treatment, by showing a flurry of disciplines
imposed on Dickerson immediately after his claims were publicized, this claim will not now be dismissed, despite doubts raised by USS' cross-examination.
In June, 1973, Dickerson received a discipline slip for failure to report off, and was given five days' suspension subject to discharge. The hearing was short, because the superintendent refused to hear his defenses. However unfair the Court may believe this behavior was, it does not raise an inference of discrimination in absence of any indication that whites fared better in this procedure.
In July of 1973, Dickerson received another discipline slip which he alleges was discriminatory.
Although the circumstances surrounding this incident demonstrate again that Dickerson was treated unfairly, this does not rise to the level of discrimination. Chatman v. U.S. Steel Corp., 425 F. Supp. 753, 14 FEP Cases 979 (N.D. Calif. 1977). He was again subject to discharge and, on advice of his union representative, resigned rather than be fired. Plaintiffs claim that in light of his prior treatment by the superintendent, this was a "constructive discharge." Even if this is true, since the Court has decided this prior treatment was not proven as race discrimination, this claim must also be dismissed.
Finally, Dickerson complains that the union discriminatorily failed to press his claims at the discharge hearing. The union man sat silent through most of the proceedings, but made a plea for leniency. This charge does not meet the Vaca standard of bad faith and must be dismissed. Second, Dickerson contends that his grievance man should not have urged him to quit, but should have prosecuted his claim instead. This Court finds that, in light of the prior discharge proceedings regarding Dickerson, that the union's activity certainly did not constitute bad faith but may have seemed to be the only advice he could give.
Eddie Williams is the other named class representative. The Court found, in listening to this witness' testimony at trial, he exaggerated many of the incidents that occurred, especially as the situation in his life worsened. Therefore, the Court has discounted parts of his testimony as incredible.
Williams was hired in October, 1969. He was recruited in Birmingham by Bruce Glen. Prior to his work at Fairless, he had done welding work at companies in Alabama, but had never performed any maintenance welding. He had taken a welding training course, which he did not complete. Williams claims that he was guaranteed a welding job in the Birmingham interview. As the other recruits, Moses Dickerson and Willie Noble, have testified only that they were assured that openings were available if they were qualified, the Court does not believe this testimony. The Court finds no basis for liability as to the Birmingham recruiting. The housing claim will also be dismissed, for lack of competent evidence that Williams was treated any differently because of his race. Williams himself testified that the YMCA was in a "mixed" neighborhood. Williams also testified that he was promised transportation assistance to and from the plant. This evidence is borne out by the testimony of the other recruits. Again in the absence of any evidence of disparity, this claim will be dismissed.
When he was hired at Fairless, he was assigned to the open hearth as a laborer. Williams will benefit from the inferences raised on the class claims as to assignment and access to crafts. Therefore, these claims will not be dismissed, since the Court infers that he was denied the opportunity to take a first welding test for a long time, as were other class members, because of his race. Furthermore, even if he was not qualified to be a welder, the Court infers that he was assigned to the open hearth, one of plaintiffs' five "undesirable" clusters, instead of to a laborer's job in another unit, because he was black.
Williams corroborated the testimony of Willie Noble about harassment, which was the giving of "special assignments." Both men complained that their foreman gave them work different from the others in their department, after they complained about their initial assignment. The Court has therefore decided not to dismiss this claim.
After one and a half years in the open hearth, continually requesting a welder's job, he put in a request for transfer. He transferred to the general services department, but found that job more unpleasant than his previous one and transferred back. He claims that he was only allowed to transfer because of publicity of his claim in local newspapers. However, this is the only time that he tried for jobs other than welder. His claim of transfer discrimination to non-crafts jobs will be denied because no inference of disparity has been raised by the facts here.
Williams was finally allowed to take a welder's test in the spring of 1970, which he did not pass. He claims that this was a different test than that given to white applicants. The Court does not find that testimony believable. There is no evidence to support Williams' claims that he passed the test, since his welding experience was very limited in scope. His jobs both before and after his Fairless employment involved the simplest type of welding. He admitted on cross-examination that he was not experienced in acetylene welding. Based on this evidence and the witness' lack of credibility, the Court does not find that he was given a "rigged" test.
Williams went to the general plant superintendent with his contention that the test was "rigged". Although the superintendent offered no assistance at the meeting, he was later scheduled for a second welder's test, which was rescheduled a number of times. Williams admitted on cross-examination that he refused to take the test a second time. No separate liability arises because of this second test, since he refused to take it. It does not however rebut his claim of discrimination in access to crafts, since he had to repeatedly file requests before he was even allowed to take the test once.
Williams complains that after the publicity of his race discrimination claim, he started being harassed on the job. The testimony on this claim is vague and lacks detail. Since the Court has found Williams to exaggerate many of his problems, this testimony cannot be credited nor can it serve as a basis of liability against Steel.
The Court allowed Williams to testify in support of the class claim against the union, even though he had not raised any individual claim. He and Dickerson told their problems to a union representative to the plant's Civil Rights Committee. The man told him that he could not help him. This evidence does not significantly bolster a pattern and practice claim, since it does not show union discrimination, but merely ineffectiveness.
Williams, like Dickerson, received a number of discipline slips. He claims that they were related to the March, 1970 publicity of his complaints. However, plaintiffs did not put into evidence as part of their case any of the discipline slips to support this allegation. All the Court has before it is some generalized and vague testimony from the witness. In view of this slim record, this claim will be dismissed.
Finally, plaintiffs claim that Williams was constructively discharged because of his harassment and discriminatory assignment. Since most of this claim is not supported by evidence of discrimination, as noted before, this charge cannot be sustained. They also contend that he was harassed after he left USS and that bad recommendations caused him to be fired from his next job. He was fired from his job at Southeastern Metal Company because of his failure to do his job properly. The Court does not find a causal link between his negative recommendation from Fairless, and his firing, which occurred much later.
Clarence C. Newcomer, J.
AND NOW, to wit, this 25th day of July, 1977, in accordance with the reasons set forth in the accompanying memorandum, it is hereby Ordered that:
1. Defendant USS' motion to decertify the class is DENIED;
2. Defendant union's motions under Fed. R. Civ. P. 12(b) and 56 are DENIED;
3. Defendant USS' motion to dismiss under Rule 41(b) is GRANTED as to the following class claims only:
a. Transfer (except to new facilities),
b. Harassment, discipline and discharge,