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October 30, 1980

Roosevelt O. HICKS

The opinion of the court was delivered by: GILES


Following a non-jury trial in the above matter and after considering the parties' post-trial briefs, the court makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).


 1. Plaintiff is a citizen of the United States and is a member of the black race. He is a resident of Philadelphia.

 2. Defendant, Sears, Roebuck and Co., is a corporation doing business within the Commonwealth of Pennsylvania, is engaged in a business affecting interstate commerce and employed more than fifteen (15) employees for each of twenty (20) or more calendar weeks in each of the years 1975 to the present. At all times material herein defendant was an employer within the meaning of 42 U.S.C. § 2000e(b) and was subject to the provisions of 42 U.S.C. § 1981.

 3. Plaintiff was employed by defendant from September 15, 1971 until January 29, 1976 at its Bridge Street Warehouse in Philadelphia, Pennsylvania as a merchandise handler. Part of his job involved the driving of a motorized vehicle, a tow motor truck, on the warehouse floor for the purpose of moving loads of merchandise from one location to another.

 4. At all times material hereto, plaintiff was a member of a collective bargaining unit represented by Teamsters Local 107, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which union had a labor agreement with defendant covering certain terms and conditions of employment.

 5. Plaintiff was discharged from employment January 29, 1976.

 6. A charge of race discrimination was filed by plaintiff with the U.S. Equal Employment Opportunity Commission ("EEOC") on May 27, 1976.

 7. A Notice of Right to Sue in the United States District Court was issued to the plaintiff by the EEOC on July 13, 1977, and received by plaintiff after that date.

 8. The complaint in this matter was filed on October 11, 1977.

 9. Plaintiff was discharged from employment on the night of January 29, 1976 for being under the influence of intoxicants during working hours. This was a summary offense punishable by immediate discharge, according to the rules of conduct incorporated into the labor agreement.

 10. Prior to the discharge, plaintiff had received no written warnings pertaining to his job performance, attendance or other work related conduct.

 11. During his work shift on January 29, 1976, plaintiff did exhibit erratic behavior while driving the tow motor truck (sometimes referred to as a tractor). This behavior was unusual for plaintiff and, in the estimation of his immediate supervisor was consistent with intoxication from alcohol. It prompted the supervisor to confront plaintiff about his actions.

 12. However, prior to the confrontation by his immediate supervisor, at approximately 9:30 p.m., he had been observed by Robert Finley, a supervisor, in another part of the warehouse, driving the tow motor truck at a rate and in a manner unsafe to himself and pedestrian traffic. He almost collided with Finley. He yelled at Finley to stay out of the way and kept going. (N.T. 225-226). Finley later reported the incident to Clyde Beagle, Jr., plaintiff's immediate supervisor.

 13. Plaintiff was late reporting back from his lunch break (N.T. 129) and could not be located by Beagle thereafter between 10:45 p.m. and 11:40 p.m. When Beagle saw him, plaintiff was driving an empty tractor. Beagle yelled at him but plaintiff did not respond to the call or to his whistle. Upon plaintiff's return ten (10) minutes later, he was observed by Beagle driving the tractor down the main aisle in a weaving fashion (N.T. 131-132). When asked where he had been, plaintiff yelled at Beagle that he could go to hell, that he worked for Sears, not for him (N.T. 38, 132).

 14. When he was about three feet from plaintiff Beagle detected on plaintiff's breath what he believed to be the smell of alcohol and judged that plaintiff's speech was very slurred (N.T. 132-133). When instructed to continue to perform his duties by Beagle, plaintiff refused to take instructions. Beagle then directed plaintiff to wait because he was reporting the matter to his superior, William Conroy, the Warehouse Superintendent, who would have to handle it (N.T. 133). Beagle did not tell Conroy anymore than that plaintiff was refusing to take directions.

 15. On his way to plaintiff's area, Conroy advised the Teamsters Shop Steward, Fred Utti, of the situation and asked that he accompany him, which was a normal procedure (N.T. 183-184).

 16. Before Conroy could approach or speak to him about the situation, plaintiff yelled at Conroy, whom he knew, that Conroy was not his boss, and that he, plaintiff, worked for Sears (N.T. 185).

 18. At that point Conroy terminated plaintiff's employment because he had concluded plaintiff was under the influence of drugs or alcoholic beverages within the meaning of Article 12.3, the applicable provisions of the collective bargaining agreement (N.T. 190). Although Conroy had reason also to conclude plaintiff was insubordinate, he was not charged with that offense. (Id.). The discharge action was subject to review through grievance and arbitration machinery of the labor agreement.

 19. At no time during the confrontation with either Conroy or with Beagle did plaintiff complain that he was sick or distraught or did he give any explanation for the behavior which was unusual for him (N.T. 207-208).

 20. About two weeks later, at a grievance hearing, he stated that on the night of discharge he was not intoxicated from alcohol but had been taking cough syrup for fever and a cold and was upset due to the illnesses of close family members (N.T. 207-208).

 21. Plaintiff admits having less than a clear recollection of the events of the night of January 29, 1978. However, he does remember being sick from a cold and was possibly staggering (N.T. 22, 41-42); being emotionally upset about a seeming sudden onslaught of family illnesses (N.T. 27-28); becoming angry when Beagle asked him where he had been; giving Beagle no explanation for his anger (N.T. 37-38); feeling that he was doing more work than a white employee driving a similar tractor and doing similar work; cursing at Beagle; telling him to go to hell; and not thinking much of the words had with Beagle (N.T. 38).

 22. Plaintiff also recalls that when Utti, the shop steward came onto the scene, he was still angry and that Utti tried to calm him down but does not recall what he said either to Utti or Conroy (N.T. 61, 64-65). He believes he tried to explain to Conroy that Beagle was pressuring him but that Conroy did not give him a chance to explain the situation.

 23. Utti, plaintiff's witness, testified that he tried, but was unable to restrain plaintiff in his verbiage or persuade him to return to work, that Conroy asked plaintiff for an explanation of his refusal to work, that plaintiff refused to give one but was belligerent and grossly insubordinate in his responses to Conroy and that plaintiff refused several opportunities given by Conroy to return to work. Utti testified that plaintiff pulled away from him and went toward Conroy yelling, "I'm your boss, you are not my boss", and that thereafter Conroy told plaintiff that he was fired (N.T. 96-101).

 24. Utti did not form an opinion that plaintiff was intoxicated and did not recall whether his breath had the smell of alcohol (N.T. 97-98) but he did conclude that plaintiff's conduct was so insubordinate at the time that he could have ...

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