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Carmen Smith v. Delaware River Stevedores

November 28, 2011

CARMEN SMITH
v.
DELAWARE RIVER STEVEDORES, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This is an employment discrimination action brought pro se by Carmen Smith against a union, the International Longshoreman's Association, Local 1291 (the "Union"). Ms. Smith, who works as a longshoreman, alleges that she was unable to work for the companies who hire at the Port of Philadelphia because of discrimination on account of her sex and retaliation for filing grievances. The plaintiff alleges that this discrimination prevented her from working the number of hours required to obtain seniority status within the Union. The defendant has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

The Court will grant the defendant's motion.

I. Procedural History

The plaintiff filed a charge of gender discrimination with the Equal Employment Opportunity Commission ("EEOC") on September 6, 2006, alleging sex discrimination in the assignment of work hours at the hiring center at the Port of Philadelphia. Compl., Ex. 1. She alleged that men who began working at the port after she did were receiving more work that herself and other women. In addition, she alleged that women who were receiving more work were obtaining jobs by providing sexual favors to the foremen at the Port. Id. The EEOC issued a right-to-sue letter on March 21, 2007. Id.

On June 12, 2007, the plaintiff filed this suit against the International Longshoremen's Association, Local 1291; the Delaware River Stevedores Association ("DRS"); Greenwich Terminals, LLC; and the Philadelphia Marine Trade Association ("PMTA"). Id., Ex. 2. The plaintiff supplemented the reasons for her claim in a request for appointment of attorney submitted on May 8, 2007 (Docket No. 5). On September 24, 2007, the Court held an on-the-record Rule 16 conference during which the plaintiff explained the basis of her complaint. Because the plaintiff is pro se, the Court directed that the transcript be made part of Ms. Smith's complaint. The Court granted Ms. Smith's request for appointment of counsel and ordered the Clerk of Court to attempt to obtain counsel for the plaintiff through the employment litigation panel (Docket No. 23). Ms. Smith was unable to secure representation.

On November 10, 2008, the Court granted motions to dismiss brought by DRS, Greenwich Terminals, LLC, and PMTA for failure to exhaust administrative remedies. Neither DRS or Greenwich Terminals, LLC was named in Ms. Smith's formal charge with the EEOC. PMTA was named in one of Ms. Smith's EEOC charge questionnaires, but was not named in the formal charge. The Court found that Ms. Smith's claims against these three defendants were not exhausted, but was careful to note that this dismissal was without prejudice, which meant that the plaintiff could file administrative charges against these three defendants. Order Nov. 10, 2008 (Docket No. 36). The Union remained as a defendant in the suit.

During discovery, the Court held several telephone conferences with the parties to structure discovery so that Ms. Smith was able to obtain information from the defendant and third parties (Docket Nos. 49, 51, 56, 59, 62, 72, 75). In addition to a filing subpoenas, Ms. Smith provided a list of the documents she sought from the defendant and third parties at the close of her deposition. Def. Mot, Ex. 15 ("Pl. Dep.") 282-90.

In February of 2010, the Union filed this motion for summary judgment. The Court issued an order asking the plaintiff to "point out any evidence she has that indicates that the union was involved in the discriminatory or retaliatory acts against her" (Docket No. 86). In response, Ms. Smith sent the Court a one-page letter requesting information about a witness statement cited in the defendant's motion as well as describing several statements made to her at the hiring center (Docket No. 87). The defendant responded by letter that the information requested which was in the defendant's possession had already been provided to Ms. Smith and was attached to the defendant's motion. Def. Ltr. Mar. 24, 2010.

The Court construes the plaintiff's letter as a request for additional time to conduct discovery. The Court will deny that request. Both the Court and the defendant have worked with the plaintiff to provide discovery, and the plaintiff has not advised the Court of additional discovery she has been unable to obtain or would seek with additional time.

II. Summary Judgment Record

The defendant provided the Court with a summary judgment record that includes the complete deposition of the plaintiff, documentation of the plaintiff's work history, and grievances she filed. Because the plaintiff is pro se, the Court reviewed this material in order to consider any arguments or evidence in the plaintiff's favor.

A. Role of the Union and Assignment of Work

The defendant is a labor organization that represents the longshoremen who load and unload cargo onto and off of vessels docking in the Port of Philadelphia and transport cargo at the port. The Union acts as a collective bargaining agent for its members and represents the members in grievances and arbitrations involving employers. Def. Mot, Ex. 9 ("Butler Aff.") ¶ 4. The Union is governed by its elected officers and executive board. Boise Butler currently serves as the President of the Union, and John Lafferty, Darryl Larke, and John "Sonny" Howlett all serve as business agents. Id. ¶ 3.

The Union is party to a collective bargaining agreement ("CBA") with the Philadelphia Marine Trade Association ("PMTA"). Id. ¶ 9. The PMTA is a multi-employer bargaining association that represents employers in the stevedoring and terminal business who employ workers at the port. Butler Aff. ¶ 9; Def. Mot., Ex. 13 ("Doland Aff.") ¶ 2. The Union does not employ the longshoremen who work at the port; rather, longshoremen are employed by individual PMTA member companies. Butler Aff. ¶¶ 5-6, 9.

PMTA member companies hire employees at the port's hiring center, also known as the Hall, based upon on the employers' needs for that day. Most of the work opportunities are determined and assigned on a day-to-day basis. Hiring occurs both in the morning "shape-up" and throughout the day if PMTA member companies need additional workers. Id. ¶¶ 24-25, 36, 41. Hiring is performed by foremen, who are also known as "bosses." Id. ¶ 26; Dolan Aff. ¶ 11. Occasionally the Union business agents or the PMTA dispatchers at the Hall will identify the workers requested by the foremen if the foremen are on the job site. Pl. Dep. 123-24. The foremen are employed by the individual PMTA member employers. Butler Aff. ¶ 26; Dolan Aff. ¶ 11. Because they are longshoremen, they are also members of the Union. Butler Aff. ¶ 27; Dolan Aff. ¶ 13.

Hiring by the foremen for the PMTA member companies is governed by the CBA. Union members are placed in seniority groups, a designation noted on color-coded picture identification cards. The highest seniority group is the Basic Group. It is followed by the Secondary Workforce. These groups are subdivided further into seniority levels. In addition, some jobs require certification that the employee is able to perform certain tasks such as driving forklifts or yard hustler trucks. Qualified Basic Unit members of the highest seniority level must be offered an available job before Basic Unit members of a lower seniority level may be offered that job. After jobs have been offered to qualified Basic Unit members, jobs are offered to qualified workers in the Secondary Workforce Group, beginning with the highest seniority group. After jobs have been offered to Secondary Workforce Group members, the foremen offer jobs to qualified casual workers. Butler Aff. ¶¶ 12-14, 19, 47.

Casual workers are those who are new to the industry. Registered Casual workers have passed a physical fitness examination, and foremen are required to hire a Registered Casual Worker before hiring a non-registered Casual worker. Id. ¶ 17. Every Registered Casual worker has the same seniority as every other Registered Casual worker. Id. ¶ 15; Pl. Dep. 46-47.

The date a person enters the industry has no bearing on seniority. Instead, longshoremen obtain membership in seniority groups by working a certain number of hours each contract year, which runs from October 1 to September 30. Butler Aff. ¶¶ 16, 20-22; CBA at UNION 000402-03, 426-27. A Registered Casual worker must work 1300 hours in two consecutive contract years to be admitted to the Secondary Workforce. Butler Aff. ¶ 21. In order to work this many hours, Registered Casual workers must go to the hiring center everyday that work is available, accept jobs offered, and remain during the day so that they are available if foremen ...


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