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WHACK v. PEABODY & WIND ENGG. CO.

June 27, 1978

WILLY WHACK
v.
PEABODY & WIND ENGINEERING CO.



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 This race discrimination case, brought under Title VII of the Civil Rights Act of 1964, was tried before the Court, sitting without a jury, from May 4 to May 9, 1978. Closing arguments were heard on May 9, 1978. The parties filed with the Court proposed findings of fact and conclusions of law, and the case is now ready for decision.

 FINDINGS OF FACT

 The plaintiff in this action, Willy Whack, is a black male who was employed by the defendant, Peabody & Wind Engineering Company ("Peabody"), from October 1970 through January 1976 as a sheet metal worker. Peabody is a partnership engaged in the heating, ventilation and air-conditioning phase of the construction industry. The plaintiff was 31 years old and an experienced welder in 1970, when Local 19 of the Sheet Metal Workers International Association ("Local 19") issued him a permit and referred him for employment to Peabody. Plaintiff was initially assigned to work in the Peabody shop, under the supervision of John McFadden. He became a member of Local 19 in 1972.

 The plaintiff had no significant problems, either racially motivated or otherwise, during the first three years of his employment at Peabody. He had an excellent attendance record, and he received no complaints about his work. During the period of time he worked at the shop, plaintiff was asked many times to administer welding tests to persons to certify them for site jobs. In the process of administering the test, he was asked to train the employees for taking such tests. It was the plaintiff's feeling during the time he worked in the shop that Mr. McFadden was fair to him. At no time during the period from 1970 through 1973 did he have any problems with Mr. McFadden because of his race.

 In 1973, the plaintiff had a problem with Local 19 concerning the scheduling of his vacation. The matter was settled to the plaintiff's satisfaction, and he took his vacation as planned. Shortly after he returned from vacation, he was transferred from the shop to Peabody's nuclear power plant construction project in Salem, New Jersey. At the time of the transfer, work in the shop was declining, and many of the sheet metal workers employed in the shop had been laid off. At the same time, work at the Salem site was increasing, and experienced welders such as the plaintiff were needed. We find that the plaintiff was transferred to Salem because people with his skills were needed there rather than in the shop in 1973, and the plaintiff's race was not a factor in the decision to transfer him to Salem.

 The plaintiff was the only black on the job site at Salem, and he experienced some harassment by other employees because of his race. On two occasions he complained about the harassment to Peabody's superintendent on the project, Edward Lampe.

 In 1975, Peabody had in excess of sixty sheet metal workers assigned to the Salem project, including seventeen welders. As the project neared completion, the number of employees working on the project declined sharply. Finally, on January 9, 1976, Mr. Lampe laid off the plaintiff along with nine other individuals. Thereafter, only ten sheet metal workers were working on the Salem project, four of whom were welders and the remaining six performed other phases of sheet metal work.

 DISCUSSION AND CONCLUSIONS OF LAW

 This employment discrimination case arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq. The plaintiff alleges that Peabody discriminated against him by reason of his race in connection with his transfer in 1973, and his layoff in 1976. *fn1"

 In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), the United States Supreme Court set out the order and allocation of proof in private, non-class action discrimination cases:

 
The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination . . . . [If this is done, then] the burden must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. . . . [If this is done, then the plaintiff must] be afforded a fair ...

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