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Whack v. Peabody & Wind Engineering Co.

decided: April 3, 1979.



Before Aldisert, Adams and Higginbotham, Circuit Judges.

Author: Per Curiam


Plaintiff Willy Whack appeals from a judgment by the district court rejecting his race discrimination claim brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e Et seq., as amended. The trial judge, after hearing testimony from Whack, several representatives of the defendant company, and a statistical expert, concluded that "race was not a factor" in the decision to lay-off the plaintiff.*fn1 Because we cannot say that the district court erred in concluding that Whack failed to carry his burden of proof in this regard, we affirm its judgment.


Peabody & Wind Engineering Co. (Peabody) is a company specializing in the heating, ventilating and air conditioning phases of the construction industry. Its principal operation is in Philadelphia, Pennsylvania, but it has many employees at various job sites "in the field." The great majority of Peabody's employees are sheet metal workers, generally members of Local 19 of the Sheet Metal Workers International Association (Local 19), although in recent years the company has also employed so-called "blue label" workers, who perform non-construction related work formerly done by Local 19 members.*fn2

In September, 1970, Peabody hired Willy Whack as a sheet metal worker in its main shop. Whack had had some welding experience, but had not participated in the apprenticeship program generally required for union membership and therefore began working at Peabody pursuant to a special permit. Permits of this nature are provided to men who have not gone through the regular apprenticeship program when the regular union rolls are exhausted and additional manpower is needed. In 1972 Whack became a full member of the union, as a permit worker may, with union permission, even though he had not completed the formal apprenticeship program.

As the grant of a permit suggests, the early seventies was a period of relative prosperity, both for Peabody and for sheet metal workers generally. By 1973, however, recession and severe unemployment set in, and many workers at Peabody's Philadelphia facility had to be laid off. Peabody's practice was to leave the choice of which employees would be retained in the hands of individual supervisors, who were closer to the work and to the employees, and who, it was assumed, were best able to determine which workers would be the most productive, considering the amount and type of work available.

Under normal circumstances, Whack might have been one of those discharged in 1973, but instead he was transferred to "the field" to work on a new Peabody job: the construction of a nuclear power plant at Salem, New Jersey. Such a transfer was uncommon at Peabody, where the main shop and the field sites operated almost as two different companies.*fn3 But the new work required experienced welders and this need resulted in Whack's transfer to Salem.

Whack was the only black employee working at the Salem site,*fn4 and encountered some racial antagonism from a few of his fellow workers. This antagonism was apparently individual in nature and did not involve either company or union representatives. When plaintiff complained to his supervisor about this matter, steps were taken to deal with the problem.*fn5 Thereafter plaintiff made no further complaints on this subject.

On January 9, 1976, Whack was laid off. The work force at Salem had reached a high of over sixty sheet metal men in mid-1975, but as the project neared completion, the need for workers inevitably slackened. Moreover, the winding down of the Salem project paralleled a general economic decline in the industry. According to one estimate as many as thirty-three to forty percent of the Local 19 members were unemployed.*fn6 When Peabody laid off Whack and the nine other men discharged on the same day, the work force at Salem became a skeleton crew of only ten. As was the company's practice, the decision regarding who would be retained was delegated to the on-site supervisor, in this case Edward Lampe. In Lampe's judgment the ten men discharged on January 9, 1976 were less useful in completing the job than the ten retained.*fn7

Plaintiff, charging that his dismissal was racially motivated, sought relief from his union, but the union concluded that he had no justifiable grievance. Whack also filed a charge with the Equal Employment Opportunity Commission and was issued a right to sue letter, whereupon he filed this suit in the district court. The trial judge determined that plaintiff, as a minority worker who had been dismissed from a job for which he was ostensibly qualified, had established a Prima facie case of racial discrimination under the rules established by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Upon considering the company's explanation, however, the court determined that plaintiff's discharge was not discriminatorily motivated, and that the company's procedures in determining who would be discharged were not discriminatory in practice. Whack now appeals to this Court.


Under McDonnell Douglas, a title VII case is divided into three phases. First the plaintiff must demonstrate a Prima facie case of discrimination. Then the defendant is called upon to articulate a legitimate non-discriminatory reason for its action. Finally, the plaintiff is afforded an opportunity to show that the proffered ...

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