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August 29, 1979

Elbert G. Green et al., Plaintiffs
United States Steel Corporation et al., Defendants

The opinion of the court was delivered by: NEWCOMER


This is an action brought by three individual plaintiffs who allege that the defendants, United States Steel Corporation and the International United Steelworkers of America (AFL-CIO) and International and Local Unions Nos. 4889, 5092, 5030, 5116, 2670, 7246, 507, 510 (hereafter, the union or the union defendants), have engaged in employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, Et seq., and 42 U.S.C. § 1981. The defendants have moved to dismiss or for summary judgment on all of the plaintiffs' claims. For convenience, the Court will treat each plaintiff's claims separately, although certain issues appear in two or more of the cases.


 United States Steel has moved to dismiss the Title VII claim of Diane Durant. The company argues that Ms. Durant's claim is barred by the statute of limitations because she did not file a complaint with the Equal Employment Opportunities Commission (EEOC) within 180 days of the discriminatory act which forms the basis of her complaint. 42 U.S.C. § 2000e-5(e). For the reasons set forth below United States Steel's motion is denied.

 Ms. Durant received notice that she was rejected for the Physical Tester position on or before April 4, 1974. She filed her complaint with the EEOC on January 6, 1976, some twenty-one months later.

 At the time Ms. Durant was rejected for the Physical Tester position the case of Dickerson v. United States Steel et al., 472 F. Supp. 1304 (E.D.Pa.1978), was pending in this Court. Dickerson was filed as a class action on behalf of all black employees at the Fairless Hills plant. The complaint alleged generally that United States Steel engaged in a pattern and practice of discrimination in many areas of personnel management and relations, including hiring, firing, assignments and promotions.

 On September 16, 1974, the Court certified a class in that case consisting of:

"all blacks now employed or who might be employed in the future by United States Steel Corporation at its Fairless Hills, Pennsylvania, plant; all blacks who were employed by the company from July 2, 1965 to the present date, but who are no longer employed there; and all blacks who unsuccessfully sought employment at the Fairless Hills plant at any time between July 2, 1965 and the present date . . ."

 64 F.R.D. at 353 (E.D.Pa.1974).

 Nearly two years later, on August 21, 1976, the Court decertified a part of that broad class on the grounds that the claims of management employees, Clerical and Technical employees, and rejected applicants for employment were not sufficiently related to the claims of Production and Maintenance workers to support the inclusion of all of the groups in a single class. The claims of Production and Maintenance workers proceeded to trial in 1976 and 1977.

 As a rule, the filing of a class action complaint tolls the statute of limitations on the filing of individual claims for all purported members of the class. If the class is later decertified, the statute begins to run again and the individual class members must either file new law suits or timely requests to intervene in the original suit, or be barred by the statute. American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974); Haas v. Pittsburgh National Bank, 526 F.2d 1083 (3d Cir. 1975).

 United States Steel argues that Title VII cases at least those involving "pattern and practice" complaints are not governed by the American Pipe rule. To prevail on such an argument the company must meaningfully distinguish that case.

 American Pipe was an antitrust decision. There, the State of Utah filed a class action suit against a number of sellers of concrete and steel pipe on behalf of "public bodies and agencies of the state and local government in the State of Utah who are end users of pipe acquired from the defendants." After the expiration of the original time limit for filing a complaint the district court decertified the class for failure to satisfy the numerosity requirement of Rule 23(a)(1), F.R.Civ.P.

 The principal basis for the Supreme Court's holding in American Pipe was that a refusal to toll the statute of limitations for individual claims in a class action would induce many of the class members to seek to intervene in the class suit as individual plaintiffs before the end of the limitations period, for fear that their claims would be barred if the class were later decertified for any reason. If such intervention were sought routinely, utility of a Rule 23 class action would be destroyed. *fn1"

"In assessing whether American Pipe has any application to the circumstances of the present case, one must remember that what was involved in American Pipe was a single price-fixing conspiracy. Obviously, in the case of a single conspiracy, the problems referred to in Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (95 S. Ct. 1716, 44 L. Ed. 2d 295) (1975) of "loss of evidence, the disappearance and fading memories of witnesses, and the unfair surprise that could result from a sudden revival of a claim that long has been allowed to slumber' did not exist. The witnesses, the claims, and the evidence would all be the same in the class action as in the individual actions which were brought subsequent to denial of class certification.
To suggest that United States Steel was in any way put on notice that it should begin collecting evidence or witnesses and prepare to defend a claim involving a bid in 1974 for the physical tester position by a member of the clerical and technical local union by the filing of a charge by Moses Dickerson alleging that he had been misled in the Birmingham recruiting process and had been denied the chance to be a welder in 1969 is patently ridiculous."

 Defendant United States Steel's Reply Brief at 21-2.

 The difficulty with the defendant's argument is that the problems mentioned can arise in a Title VII class action where the statute of limitations is not in issue. Under present law, it is possible for an employer to be faced at trial with claims arising out of events from years past that it may have had no idea occurred.

 It is well settled that a plaintiff may bring a class action on behalf of those who have not filed a complaint with the EEOC. Bowe v. Colgate Palmolive Co., 416 F.2d 711 (7th Cir. 1969); Miller v. International Paper Company, 408 F.2d 283 (5th Cir. 1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir. 1971); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir. 1975).

 In certain circumstances, a Title VII defendant can be required to litigate the Individual claims of discrimination of individual class members who have not filed EEOC charges. That obligation would arise in a case in which individual damage claims were tried after a finding of liability to the class. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974); United States v. Wood Wire & Metal Lathers International Union Local Union No. 46, 328 F. Supp. 429 (S.D.N.Y.1971).

 Johnson v. Goodyear Tire & Rubber Co., supra, is particularly illustrative. There, the plaintiffs brought a broad-based class action somewhat similar to the Dickerson case. The Fifth Circuit upheld the trial court's finding of liability to the class, but reversed the trial court for its failure to award class-wide back pay. The court instructed the trial court to consider on remand a procedure whereby individual class members could present their discrimination claims individually. The putative class member would be required to establish his membership in the class. At that point the court recommended shifting the burden of proof to the employer:

"If an employee can show that he was hired into the labor department before April 22, 1971, and was subsequently frozen into that department because of the discriminatory employment practices established here . . . (it) will be incumbent upon Goodyear to show by convincing evidence that other factors would have prevented his transfer regardless of the discriminatory employment practices. If Goodyear wishes to show that a labor department employee would not be qualified for any other job then its proof must be clear and convincing. . . .
We are not unmindful that in many instances (an individual's) proving entitlement to back pay will be based on probabilities."

 Johnson v. Goodyear Tire & Rubber Co., 491 F.2d at 1379-80.

 If this Court had not decertified Clerical and Technical employees, and the broader class had established United States Steel's liability; and further, if this Court had decided to employ the Johnson procedure in the damages portion of the case; Diane Durant would have been permitted to bring her claim of discriminatory refusal of promotion in that stage of the case. She would not have been required to have filed an EEOC complaint, and United States Steel would be searching for witnesses to testify that "other factors . . . prevented" her promotion. Johnson, supra, 491 F.2d at 1380. In other words, United States Steel would be required (or at least well-advised) to try to obtain the evidence that it now argues would be an unfair burden to produce. Furthermore, it would be doing so without the benefit of an EEOC complaint to focus its attention on those facts likely to be at issue. In this case, the defendant had the benefit of an EEOC complaint long before trial. It is, in short, better off with respect to Ms. Durant's claim than it might have been if her part of the class in Dickerson had not been decertified and had later prevailed.

 It would be arbitrary and unreasonable to penalize a non-filing class member who happens to be in a class that is decertified while rewarding another non-filing class member who happens to fall within a class that survives intact through trial, at least in a case such as Dickerson where decertification was ordered only because of the unmanageability of the broader class. The Court agrees that permitting tolling during the pendency of a class action may work a hardship on large corporate defendants who are faced with a task of collecting stale evidence. Nevertheless, that problem was accepted by the federal courts when Title VII classes were first permitted to include those who have not filed EEOC complaints. Given that policy, Title VII cases cannot be removed from the American Pipe rule, and American Pipe must be held to control.

 It is important to emphasize at this point that the Court is not addressing the issue of "tacking". Diane Durant can rely on her membership in the Dickerson class to toll the statute of limitations on her EEOC filing. A far different issue might be presented if a plaintiff were attempting to rely on a chain of broadly drawn class complaints. A very large employer might have any number of such complaints pending over a number of years. Thus, the Court expresses no view as to whether Ms. Durant could later have relied on a different broad-based class action filed more than 180 days after the alleged discriminatory act to toll her own filing obligation. Cf. Wetzel v. Liberty Mutual Insurance Company, supra, 508 F.2d at 246. If she could not have, many of the objections raised by the defendant would lose much of their force.

 Other cases may present slightly different Title VII tolling issues. It is sufficient to say that Diane Durant's EEOC complaint in this case was timely filed, and will support her individual claim.

 United States Steel argues for summary judgment on Ms. Durant's § 1981 claim on the grounds that it is undisputed that she was accorded the unfettered right to pursue her claim of race discrimination through the grievance and arbitration provisions of the collective bargaining agreement, just as any white worker would have been permitted to do. In other words, she was accorded the "same right . . . to make and enforce contracts . . . As is enjoyed by white citizens." 42 U.S.C. § 1981.

 The company concedes that an employee has a right to bring suit to enforce statutory rights granted by Title VII, notwithstanding a previous decision on the same claim by an arbitrator. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974). The company would distinguish review under the Title VII from review under § 1981 on the grounds that § 1981 offers "protection for his or her contractual rights only" (Defendant's Memorandum at 24), and not the sort of independent statutory rights accorded by Title VII. Since it is essentially undisputed that Ms. Durant was accorded full access to the grievance-arbitration process, it is argued that there is no factual issue as to whether her right to enforce a collective bargaining agreement was abridged.

 The company's argument is plausible, but it is unsupported either by case law or the policies underlying § 1981.

"It is well settled . . . that § 1981 affords a federal remedy against discrimination in private employment on the basis of race."

 Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S. Ct. 1716, 1720, 44 L. Ed. 2d 295 (1975). See also, Young v. International Telephone and Telegraph Co., 438 F.2d 757 (3d Cir. 1971).

 The flaw in the company's argument is that Ms. Durant is not contesting the fact that the company permitted her the same access to the arbitration process as is enjoyed by whites, nor that the arbitrator decided that she was not discriminated against she is complaining that the company discriminated against her for a promotion opportunity because of her race, and further, that the arbitrator was wrong in deciding otherwise.

 She invokes the terms of § 1981 to attack United States Steel's alleged refusal to "make" a contract with her having the same terms and conditions as the employment contracts it entered into with white employees. Her contract, in other words, allegedly did not include the right to consideration for promotion free from racial discrimination. That issue is entirely separate from whether she was accorded the right to enforce the collective bargaining agreement through arbitration, a right which the company seeks to establish as the limit of her contractual rights.

 The arbitrator did decide that Ms. Durant was not discriminated against on the basis of race. Where, as here, the arbitrator gave the grievant's race discrimination claims full consideration, that determination is entitled to "great weight". Alexander v. Gardner-Denver Co., supra, 415 U.S. at 60, n. 21, 94 S. Ct. 1011. However, the district court cannot relinquish to an arbitrator the decision as to whether the rights guaranteed to the plaintiff by a federal statute have been violated. The arbitrator's jurisdiction to interpret the collective bargaining agreement does not extend to jurisdiction over statutory claims. Id., 415 U.S. at 52-4, 94 S. Ct. 1011. To the extent that the rights afforded by the statute and the collective bargaining agreement are similar, the arbitration decision is entitled to commensurately greater weight.

 The company also argues that to permit Ms. Durant to arbitrate her discrimination claims and then to sue upon them would be to accord her Greater contractual rights than are enjoyed by white employees. The argument is simply wrong. White employees are entitled to have their claims of racial discrimination submitted to the grievance-arbitration process, and they are thereafter entitled to sue under § 1981. See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976).

 Section 1981 is a broad statutory proscription of employment discrimination. It is as true under § 1981 as under Title VII that the plaintiff "is not seeking review of the arbitrator's decision. Rather (she) is asserting a statutory right independent of the arbitration process." Alexander v. Gardner-Denver Co., supra, 415 U.S. at 54, 94 S. Ct. at 1022. Ms. Durant must be accorded a full opportunity to pursue the rights granted her by § 1981.

 The company has moved for summary judgment on the merits of Ms. Durant's claim, arguing that there are no material issues of fact and that it is entitled to judgment as a matter of law.

 The record shows that as part of the arbitration process, Ms. Durant was given a test to determine whether she was capable of performing the Physical Tester job. The arbitrator found that she was not physically capable of doing the job. The arbitrator's only comment about whether the test was related to the demands of the job was that "the test covered four regular items of the Physical Tester's work . . .". Arbitration Award, p. 2. The Arbitration Award was authenticated by Ms. Durant at her deposition, and is properly part of the record.

 Ms. Durant testified that she did not know what the Physical Tester job involved, but that she felt that she passed the test.

 Ms. Durant's admission that she does not know precisely what the Physical Tester's job involves is not fatal to her claim. She testified that she felt that she passed the test, and that testimony is sufficient to create an issue of fact as to whether she was qualified for the position. In resisting a motion for summary judgment she is entitled to have her deposition testimony credited entirely, and she is entitled to every reasonable inference that can be drawn from her testimony. It is reasonable to infer that although Ms. Durant does not know all the duties involved in the job, she was certain that she performed the tasks assigned to her during the test without error. For example, the Court is required to infer that she in fact made a clear impression with the metal stamp, even though the arbitrator was of the opinion that she did not. *fn2"

 Of course, the issue of whether Ms. Durant was qualified for the promotion is not dispositive of the case. In fact, the Court and the parties may be faced at trial with a very difficult issue of whether Ms. Durant could have suffered legal harm if (a) she was clearly unqualified for the job, but (b) one of the company's reasons for refusing to promote her was her race. Compare Patmon v. Van Dorn Co., 498 F.2d 544 (6th Cir. 1974) with Marquez v. Omaha District Sales Office, Ford Division, 440 F.2d 1157 (8th Cir. 1971).

 In any event, there is certainly an issue of fact on the discrimination question. The plaintiff has introduced evidence, which, if believed, raises the possibility that blacks are seriously under-represented in the Clerical and Technical division. Of course "proof of (a) pattern or practice (of discrimination) supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy". Teamsters v. United States, 431 U.S. 324, 362, 97 S. Ct. 1843, 1868, 52 L. Ed. 2d 396 (1977). A fortiori, evidence of a pattern or practice at least raises an inference of discrimination sufficient in most cases, and in this case, to preclude summary judgment on an individual claim, either under Title VII or under § 1981.

 The union defendants have moved to dismiss Ms. Durant's Title VII complaint on the grounds that Ms. Durant did not name the union in her EEOC complaint. The union's motion will be granted.

 Resolution of this motion is governed by Glus v. G. C. Murphy Co., 562 F.2d 880 (3d Cir. 1977). The plaintiff in Glus named the company and her local union in her EEOC sex discrimination complaint but failed to name the International union that was involved. The International had helped to negotiate the discriminatory contracts at issue and was held liable by the district court for contribution to the company. The Court of Appeals remanded the case to the district court on the issue of the International's liability, with instructions to make findings of fact about the circumstances surrounding the plaintiff's EEOC filing. The Court listed four factors which should be considered by the district court in determining whether it has jurisdiction over a party not named in the EEOC complaint:

(1) Whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of ...

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