Boudreaux v. Baton Rouge Marine Contracting Company

• Decision Date: 01 February 1971
• Docket Number: No. 29225.,29225.
• Citation: 437 F.2d 1011
• Parties: Antoine R. BOUDREAUX, Plaintiff-Appellant, Henry Wells, Jr. and Daniel C. Collins, Intervenors, v. BATON ROUGE MARINE CONTRACTING COMPANY, Ryan Stevedoring Co. and Local 1830 and Local 1833, General Longshore Workers, International Longshoremen's Association, AFL-CIO, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

437 F.2d 1011 (1971)

Antoine R. BOUDREAUX, Plaintiff-Appellant Henry Wells, Jr. and Daniel C. Collins, Intervenors, v. BATON ROUGE MARINE CONTRACTING COMPANY, Ryan Stevedoring Co. and Local 1830 and Local 1833, General Longshore Workers, International Longshoremen's Association, AFL-CIO, Defendants-Appellees.

No. 29225.

United States Court of Appeals, Fifth Circuit.

February 1, 1971.

Johnnie A. Jones, Baton Rouge, La., Lowell Johnston, Gabrielle A. Kirk, New Jack Greenberg, William L. Robinson, Lowell Johnston, Gabrielle A. Kirk, New York City, for plaintiff-appellant; George A. Davidson, Charles O. Blaisdell, Robert M. Fuster, Albert J. Rosenthal, New York City, of counsel.

C. Paul Barker, Jerry L. Gardner, Jr., Dodd, Hirsch, Barker, Meunier, Boudreaux & Lamy, New Orleans, La., for Locals 1830 and 1833 General Longshore Workers, etc.; Richard M. Troy, of counsel.

Armbrecht, Jackson & DeMouy, Mobile, Ala., for Ryan Stevedoring Co., Inc.

George Mathews, Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, La., for Baton Rouge Marine Contractors, Inc. and Ryan Stevedoring Co. Inc.

Before COLEMAN, INGRAHAM and WILKEY,^* Circuit Judges.

WILKEY, Circuit Judge:

Appellant brought this suit alleging discriminatory employment practices by two stevedoring companies and two local unions. Relief was sought pursuant to Title VII of the Civil Rights Act of 1964,¹ and also under 42 U.S.C. § 1981, a statutory derivative of the Civil Rights Act of 1866.

The District Court granted summary judgment against appellant, holding that he was not a "person aggrieved" as contemplated by the Civil Rights Act of 1964 and was therefore without standing to sue under Title VII, and that on the facts presented appellant had "stated no claim under 42 U.S.C.A. 1981." Finding both such determinations of the District Court to have been erroneous, we reverse and remand for trial.

Appellant Boudreaux has been a longshoreman for some 40 years. Since 1957 he has resided in Baton Rouge, Louisiana, and has worked for appellees Baton Rouge Marine Contracting Co., Ryan Stevedoring Co., and other stevedoring firms in Baton Rouge and Port Allen, Louisiana. The two defendant unions, Local 1830 and Local 1833, General Longshore Workers, International Longshoremen's Association, AFL-CIO, pursuant to collective bargaining agreements provide manpower for the dockside operations of Baton Rouge and Port Allen stevedoring firms, including appellees Baton Rouge Marine and Ryan. Local 1830, of which Boudreaux is a member and vice-president, at the time the complaint was filed had an entirely Negro membership of approximately 200 men. Local 1833 had an all white membership of approximately 100. Twice daily union members desiring work report to the docks for what is known as a "shape up." From the group of longshoremen thus reporting, men are selected to fulfill the work requirements of the stevedoring companies for the following shift.

The District Court accurately summarized Boudreaux's complaint as follows:

Plaintiff contends that longshoremen\'s work at the dock is assigned by giving one job to a member of Local 1830 and the next one to a member of Local 1833, and thus alternating between the two unions. He contends that this results in the individual white members of Local 1833 getting twice as many jobs as the individual members of Local 1830, and that thus there is a "built in" discrimination against the individual members of Local 1830. As a further ground for demanding relief, plaintiff contends that the "undesirable" jobs, such as jobs requiring heavy lifting and "dirty work" are always assigned to members of Local 1830, while desirable jobs, such as foreman, walking foreman, checker, clerk, and crane operator are always assigned to members of Local 1833. Plaintiff contends that all of the defendants are jointly responsible for these practices * * *.

Prior to the filing of the present action, appellant, as required by Title VII,² had presented these charges to the Equal Employment Opportunity Commission (EEOC), on 20 and 26 January 1967. After investigation the EEOC found that appellant was a person aggrieved within the meaning of the statute,³ and undertook to conciliate the dispute by seeking to obtain the elimination of the discriminatory practices through the voluntary action of appellees. The conciliation effort was unsuccessful, however, and on 17 December 1969, nearly two years after the filing of the charges, after issuing its decision finding reasonable cause to believe that appellees were violating Title VII, the EEOC notified appellant that he was eligible to seek redress in the courts. Within 30 days the instant suit was commenced by appellant on behalf of himself and all others similarly situated.⁴

I. The Claim Under the Civil Rights Act of 1964

On the Title VII claim the District Court granted summary judgment for appellees on the ground that the pleadings and discovery materials showed that appellant had not met the "jurisdictional prerequisite" for suit of being personally affected by the alleged discrimination within 90 days prior to the filing of charges with the EEOC.⁵ This finding was based on the fact that on 30 March 1966 appellant had suffered a broken ankle while working as a longshoreman aboard a ship in Baton Rouge. From the time of his injury until the filing of the EEOC charges (some 9 months), and for some 24 months thereafter, appellant did not report for any shape-ups and consequently did not apply to and performed no work for either of the appellee companies. Throughout this time, appellant received disability compensation under the Longshoremen's and Harbor Workers' Act.

Assuming that the 90-day requirement is indeed a "jurisdictional prerequisite" to suit,⁶ and if the above facts were all that was presented to the District Court, summary judgment would have been properly entered. However, Boudreaux testified on deposition that at the time he filed his EEOC charges he was in fact physically capable of performing certain types of "light" work, i. e., jobs that did not require heavy lifting, climbing ladders, etc. Such jobs, he alleged, were never given to Negroes, but were reserved exclusively for white workers. To have reported for the shape-ups during the 90-day period in the hope of being hired for this "white only" work, he maintains, would have been a futile act.⁷

In our view, this testimony created disputed issues of material fact, i. e., whether appellant was capable of performing "light work" during the relevant period, and whether, under the prevailing employment practices, "light work" was reserved exclusively for whites, thus rendering the suit inappropriate for resolution via summary judgment.⁸ Appellant should have been permitted the opportunity to prove his claim that he was capable of light work, but that discriminatory practices made it unavailable to him.⁹

II. The Claim Under the Civil Rights Act of 1866

However, even if appellant is unable to demonstrate his aggrieved status within the 90-day period for the purposes of his Title VII claim, on the facts of this case it is clear that he has stated a claim for relief under 42 U.S.C. § 1981.¹⁰ The District Court's holding that no such claim was made out may be attributable either to the view that § 1981 does not reach purely private incidents of racial discrimination in employment where no "state action" is involved,¹¹ or to the contention that the enactment of Title VII of the Civil Rights Act of 1964 preempted or repealed by implication whatever remedy for employment discrimination that previously existed under § 1981.¹² Whatever the basis for the District Court's holding, it suffices to note here that this court has explicitly rejected both of these positions in Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970).

As to the former of these contentions, we noted, in agreement with the 7th Circuit,¹³ that:

§ 1981 prohibits "private racial discrimination in employment by companies and unions." Such a conclusion was clearly forecast by the Supreme Court\'s opinion in Jones v. Alfred H. Meyer Co. 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). In Jones the Court held that 42 U.S.C.A. § 1982 prohibited "all racial discrimination, private as well as public, in the sale or rental of property. * * *" The Seventh Circuit reasoned that since § 1981 and § 1982 are both derived from § 1 of the Civil Rights Act of 1866, they must be construed consistently and that since § 1982 is enforceable against private entities, § 1981 is similarly enforceable. We agree. * * * Defendant\'s concern that this decision is unprecedented is much too myopic. The result in this case is both predicted and required by Jones.¹⁴

On the argument that Title VII preempted the prior remedy provided by § 1981, this court, again relying on Jones v. Alfred H. Meyer Co., 392 U.S. 409, 88 S.Ct. 2186, 21 L.Ed.2d 1189, held in Sanders that "the equal employment provisions of the * * * Civil Rights Act of 1964 do not supersede the provisions of § 1981 * * *. The specific remedies fashioned by Congress in Title VII were not intended to preempt the general remedial language of § 1981.¹⁵ In Sanders, as in the instant case, the appellant had first sought redress under Title VII. After conciliation had failed, Mrs. Sanders was provided by the EEOC with notification of her entitlement to bring suit within 30 days. Her suit, in contrast to that in the case at bar, was not filed until after the 30-day period had elapsed. This court held that, although dismissal of the Title VII action was proper for failure to sue within the statutory period, Mrs. Sanders should have been permitted to amend her complaint to state a claim under § 1981, which is not subject to such a stringent statute of limitations.¹⁶

If a plaintiff who has not met what is clearly a jurisdictional prerequisite to a Title VII suit, i. e., the 30-day requirement for filing a court complaint, may...