498 F.2d 641 (5th Cir. 1974), 73-1907, Guerra v. Manchester Terminal Corp.

Docket Nº:73-1907.
Citation:498 F.2d 641
Party Name:Elias Gonzalez GUERRA, Individually and on behalf of all other persons similarly situated, Plaintiff-Appellee, v. MANCHESTER TERMINAL CORPORATION et al., Defendants-Appellees, Local 1581, International Longshoremen's Association, and International Longshoremen's Association, AFL-CIO, et al., Defendants-Appellants.
Case Date:July 31, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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498 F.2d 641 (5th Cir. 1974)

Elias Gonzalez GUERRA, Individually and on behalf of all other persons similarly situated, Plaintiff-Appellee,

v.

MANCHESTER TERMINAL CORPORATION et al., Defendants-Appellees, Local 1581, International Longshoremen's Association, and International Longshoremen's Association, AFL-CIO, et al., Defendants-Appellants.

No. 73-1907.

United States Court of Appeals, Fifth Circuit.

July 31, 1974

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Gerald J. Goodwin, Houston, Tex., for defendants-appellants.

Stuart M. Nelkin, Houston, Tex., for Guerra.

Richard R. Brann, Houston, Tex., for Manchester Terminal.

Before THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.

GOLDBERG, Circuit Judge:

In this case we face again the difficult problem of harmonizing and synchronizing overlapping statutory methods for combatting employment discrimination. We face also the question whether the protective umbrella supplied by the federal civil rights laws is broad enough to cover those who claim discrimination based on their status as aliens. Two of the three defendants-- the union local and the union international-- appeal various portions of a generally adverse decision by the district court. We affirm in part, reverse in part, and remand for further proceedings.

I. THE SCENARIO-- TRIPLE FEATURE

Most of the important details in the controversy are undisputed, the parties having submitted stipulated facts to the court below on cross-motions for summary judgment. From October 24, 1960, to January 10, 1967, plaintiff-appellee Guerra, a Mexican citizen lawfully residing in Houston, Texas as a registered alien, worked for defendant Manchester Terminal Corporation (Terminal). During this entire period Guerra maintained his family in Mexico. Employees at Terminal's Houston facility worked in either the Cotton Compress and Warehouse Department (Compress) or the Dock and Commodity Department (Dock). Initially Guerra worked in Compress, but in 1963 he was transferred to Dock, where he performed satisfactorily.

Defendant Local 1581, International Longshoremen's Association (Local), represents Terminal's employees in each department. A single labor agreement covers employees in both departments, and provides higher rates of pay for all eleven job classifications in Dock than for any of the forty job classifications in Compress. At the time of the events from which this litigation arose, Local limited its membership to United States citizens and to those who had declared their intention to become citizens. Guerra was not a member although most of the members were Mexican-Americans or Mexican Nationals.

As a result of contract negotiations during the summer of 1965, Terminal agreed to hire its employees through the union hiring hall and to give preference to United States citizens. In addition, the bargaining agreement extended hospitalization benefits to both the worker and his family for those employed in Dock, but limited the benefits to the worker alone for those in Compress. The union membership then voted to establish a hiring hall referral system under which the more desirable jobs in Dock went first to United States citizens, then to Mexican citizens with families residing in the United States. Any jobs open thereafter would go to Mexican citizens who, like Guerra, kept their families in Mexico.

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On September 7, 1965, Terminal transferred Guerra from Dock back to Compress. This action, taken because of union insistence, triggered the litigation that is now before this Court. Guerra was told that he could not have permanent employment in Dock until he either became a United States citizen or moved his family from Mexico to the United States, and his place in Dock was taken by a Mexican-American with more seniority. Guerra continued to work in Compress until he voluntarily left Terminal's employ in 1967.

On October 7, 1965, Guerra filed an unfair labor practice charge with the National Labor Relations Board (NLRB). On May 28, 1971, the Board issued a complaint alleging unfair labor practices under section 8(b)(1)(a) and 8(b)(2) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158 (b)(1)(a), (b)(2) (1970.) On October 27, 1971, the Administrative Law Judge recommended dismissing Guerra's complaint; however, on May 22, 1972, the Board reversed the Administrative Law Judge and ordered defendant Local to grant relief to Guerra. The Board then asked this Court to enforce its order. On February 19, 1974, a panel of this Court granted the Board's request that its order be enforced. NLRB v. International Longshoremen's Local 1581, 5 Cir. 1974, 489 F.2d 635.

Meanwhile Guerra proceeded along an alternate route. On March 5, 1966, nearly six months after his transfer from Dock to Compress, Guerra sent a letter to the Equal Employment Opportunities Commission (EEOC) protesting the transfer; on August 8, 1966, he filed his sworn charge with the EEOC, alleging the denial of rights under Title VII of the Civil Rights Act of 1964. On August 12, 1970, the EEOC found reasonable cause to believe that the named defendants had committed violations of the Act. Having received his notice of right to sue on December 16, 1970, Guerra filed the instant lawsuit in the United States District Court for the Southern District of Texas on January 6, 1971.

Guerra alleged that various policies and practices followed by defendants discriminated against him and other Mexican Nationals on the basis of national origin in violation of rights secured by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and by the Civil Rights Act of 1866, 42 U.S.C. § 1981. 1 He sought declaratory and injunctive relief as well as back pay and attorneys' fees. By final order entered on November 6, 1972, the district court held that defendants had engaged in an illegal discriminatory practice. 2 After a March 1973 hearing on damages, the court (1) permanently enjoined all the defendants from giving job preferences based on the citizenship of an employee or the residence of the employee's family; (2) permanently enjoined defendants Local and International from requiring United States citizenship as a condition of membership in the union; (3) imposed back pay liability on defendants Local and International, jointly and severally; 3 and (4) ordered all defendants

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to pay reasonable attorneys' fees and costs. 4

II. TITLE VII CLAIM

In Espinoza v. Farah Manufacturing Co., 5 this Court held that an employer's refusal to hire an applicant because of her lack of United States citizenship did not fall within the prohibition of Title VII of the Civil Rights Act of 1964 against employment discrimination on the basis of national origin, 42 U.S.C. § 2000e-2(a)(1) (1970). On the authority of Espinoza the court below concluded that plaintiff-appellee-Guerra not entitled to relief under Title VII, reasoning that any discrimination against Guerra turned on his status as an alien and on the foreign residence of his family rather than on his national origin.

After the district court's decision, the Supreme Court affirmed our decision in Espinoza, Espinoza v. Farah Manufacturing Co., 1973, 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287. The Court did note that Title VII protected aliens otherwise within its coverage from discrimination based on race, color, religion, sex, or national origin, and that a citizenship requirement might be unlawful if it were 'but one part of a wider scheme of unlawful national origin discrimination' or had 'the purpose or effect of discriminating on the basis of national origin.' 414 U.S. at 92, 94 S.Ct. at 338, 38 L.Ed.2d at 293. The Court concluded, however, that Title VII did not apply to discrimination based solely on lack of United States citizenship. Like Mrs. Espinoza, appellee Guerra has failed to demonstrate that he suffered from discrimination based on

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his national origin rather than on his status as an alien. We therefore affirm the district court's denial of relief under Title VII. 6

III. SECTION 1981 CLAIM: LIMITATIONS

Appellants make a broad-based attack on the district court's treatment of the portion of the case resting on 42 U.S.C. § 1981. We consider first the argument that Guerra's § 1981 claim was barred by limitations. 7

As the district court recognized, when an action is brought for back pay or similar damages under a federal statute which contains no built-in limitations period, the federal district court must apply the statute of limitations of the state where it sits which would be applicable to the most closely analogous state action.

Franks v. Bowman Transportation Co., 5 Cir. 1974, 495 F.2d 398, 405. Boudreaux v. Baton Rouge Marine Contracting Co., 5 Cir. 1971, 437 F.2d 1011, 1017 n. 16. The court reasoned that the most applicable

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Texas statute of limitations would be either Vernon's Tex.Rev.Civ.Stat.Ann. art. 5527 (contract claims), or art. 5529 (claims not otherwise provided for), both of which allow four years. However, in Johnson v. Goodyear Tire and Rubber Co., 5 Cir. 1974, 491 F.2d 1364, 1378-1379, decided after oral argument in the instant case, this Court held that § 1981 actions for back wages brought in federal court in Texas are to be governed by Tex.Rev.Civ.Stat.Ann. art. 5526, which limits recovery of back pay to a two-year period. Cf. Franks v. Bowman Transportation Co., supra, 495 F.2d at 405-406. Thus the district court's conclusion regarding the limitations period applicable to Guerra's claim for back pay is no longer valid.

Guerra's claim for back pay is based on the September 7, 1965, transfer from Dock to Compress. We agree with the district court that the...

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