570 F.2d 1168 (3rd Cir. 1978), 77-1165, Bethel v. Jendoco Const. Corp.

Docket Nº:77-1165.
Citation:570 F.2d 1168
Party Name:Dec. P 8090 James BETHEL, Appellant, v. JENDOCO CONSTRUCTION CORPORATION, Navarro Corporation, Noralco Corporation, Dick Corporation, Graziano Construction Co., Inc., Martin & Nettrour Contracting Company, Carpenters' District Council of Western Pennsylvania, United Brotherhood of Carpenters and Joiners of America, jointly and severally, Appellees.
Case Date:January 16, 1978
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 1168

570 F.2d 1168 (3rd Cir. 1978)

Dec. P 8090

James BETHEL, Appellant,



Noralco Corporation, Dick Corporation, Graziano Construction

Co., Inc., Martin & Nettrour Contracting Company,

Carpenters' District Council of Western Pennsylvania, United

Brotherhood of Carpenters and Joiners of America, jointly

and severally, Appellees.

No. 77-1165.

United States Court of Appeals, Third Circuit

January 16, 1978

Argued Dec. 2, 1977.

As Amended Feb. 1, 1978.

Page 1169

Eileen R. Kalinoski, Dennis S. Shilobod, Messer & Shilobod, Pittsburgh, Pa., for appellant.

Page 1170

Leonard L. Scheinholtz, John C. Unkovic, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellee companies.

Michael P. Malakoff, Samuel A. Vitaro, Berger, Kapetan & Malakoff, Pittsburgh, Pa., for Daniel Anderson, amicus curiae.

Before SEITZ, Chief Judge, GARTH, Circuit Judge, and MEANOR, [*] District Judge.


GARTH, Circuit Judge.

James Bethel, a black carpenter, instituted a civil rights action against various companies engaged in the construction business and against certain unions which represent construction workers. 1 Essentially, he complained that the defendants, individually and in concert, engaged in racial discrimination in violation of, inter alia, 42 U.S.C. §§ 1981, 1983, 1985(3), 1986 & 2000e et seq. (Title VII of the 1964 Civil Rights Act). 2 By Order of December 6, 1976, the district court dismissed Bethel's complaint in its entirety against three of the construction companies: Navarro Corporation (Navarro), Noralco Corporation (Noralco), and Martin & Nettrour Contracting Company (Martin & Nettrour). 3 We affirm the district court's dismissal of Bethel's § 1983 claim but we reverse the dismissal of Bethel's other statutory claims which are the subject of this appeal.


Bethel's complaint, as refined by two amendments, 4 was dismissed by the district court pursuant to Fed.R.Civ.P. 12(b)(6) ("failure to state a claim upon which relief can be granted"). This procedural posture at the time of dismissal is significant, in that we take as true all the averments made by Bethel in his complaint.

Under such circumstances, we must take all of the well pleaded allegations of the complaint as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any circumstances, the plaintiff might be entitled to any relief. 4 As the Supreme Court admonished in Scheuer v. Rhodes, 5 . . . :

  1. See, e. g., Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Polite v. Diehl, 507 F.2d 119, 124 n. 2 (3d Cir. 1974); Quinones v. United States, 492 F.2d 1269, 1273 (3d Cir. 1974); Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974); Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (3d Cir. 1965).

  2. 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

    When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims. 6

  3. Id. at 236, 94 S.Ct. at 1686.

    Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977); accord, Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir. 1977). With this

    Page 1171

    principle in mind, we turn to Bethel's complaint.

    The most relevant sections of the complaint which bear on our discussion of the various statutory claims other than § 1983 read as follows:

  4. Defendant employers, individually and in concert, acting alone and through their agents, employees and officers, engaged in and continue to engage in racially discriminatory employment practices against plaintiff and other black persons from 1966 to the present, including but not limited to the following practices:

    (a) Refusing to employ plaintiff as a journeyman carpenter because of his race;

    (b) Employing plaintiff for only short periods of time, because of his race, and then, for the sole purpose of undertaking the most undesirable duties of a journeyman carpenter, while giving the more desirable jobs to white persons;

    (c) Laying off plaintiff after completion by plaintiff of the most undesirable jobs of journeyman carpenters and then employing white carpenters to continue in plaintiff's stead, despite their lack of experience, skill, seniority and residence, as compared to plaintiff;

    (d) Laying off plaintiff, because of his race, while retaining or employing white carpenters despite their lack of skill, experience or seniority as compared to plaintiff;

    (e) Transferring plaintiff, because of his race, from job site to job site during job inspections by governmental agents investigating defendants' compliance with the aforementioned Equal Employment Opportunities Act, in order to give the false impression that defendants employed black carpenters and/or other craftsmen or tradesmen;

    (f) Denying plaintiff the opportunity to engage in overtime work because of his race, while granting overtime work to white carpenters, regardless of whether or not they had more or less skill, experience or seniority than plaintiff;

    (g) Intentionally depriving plaintiff of the opportunity of having among his co-workers, as journeyman carpenters, other members of his own race;

    (h) Refusing to consider plaintiff or other blacks for supervisory positions within the defendant corporations and in the field because of their race;

    (i) Denying plaintiff, because of his race, the same on-the-job assistance of other carpenters and other employees as was given to white carpenters;

    (j) Refusing to recall plaintiff to work after a layoff because of his race, but instead, employing white carpenters of lesser skill, experience and seniority;

    (k) Conspiring with the defendant labor organizations to discriminate against plaintiff and other black persons in employment practices;

    (l ) Denying plaintiff full employment because of his race.

  5. Since 1966, defendant labor organizations, acting alone and in concert with the corporate defendants, and through their agents, employees and officers, engaged in the following racially discriminatory practices against plaintiff and other black persons:

    (b) Conspiring with the corporate defendants to deny full employment to plaintiff and other black persons;

  6. Beginning in November, 1974, and continuing to the present, intending to discriminate against plaintiff for asserting his right to be free of racially discriminatory employment practices and employment opportunities, and to punish him for asserting such rights and for filing complaints against Jendoco Construction Corporation, Navarro Corporation, Noralco Corporation, Graziano Construction Company, Inc., Carpenters' District Council of Western Pennsylvania, and United Brotherhood of Carpenters and Joiners of America with the Equal

    Page 1172

    Employment Opportunity Commission and the Human Relations Commission of the City of Pittsburgh, Commonwealth of Pennsylvania, the defendants conspired among themselves to deprive plaintiff of fair employment opportunities; furthermore, they have denied him employment opportunities as a journeyman carpenter; in addition, they have intentionally, wilfully, maliciously and wickedly, acting through their supervisory personnel, deprived plaintiff full employment, harassed plaintiff on job sites, (and) made disparaging comments about plaintiff because of his assertion of such rights. . . .

  7. Each defendant, conspiring with the other defendants, through its agents, officers and employees, from 1966 to the present, has gone upon the premises of persons owning real estate for the purpose of then and there carrying out construction activities and for the purpose, incidental thereto, of continuing to deprive plaintiff and other black persons, directly or indirectly, of the equal protection of the laws of the Commonwealth of Pennsylvania and the United States of America which grant plaintiff full and equal employment opportunities, and this, each and everyone of the defendants herein has done in violation of the terms of 42 U.S.C. 1985(3).

  8. Defendants, and each of them, through their individual agents, employees and officers, had knowledge of the wrongs conspired to be done and done by their own agents, employees and officers and by their subdivisions and by and with the other defendants, in depriving plaintiff and other black persons of...

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