Cedillo v. International Ass'n of Bridge & Structural Iron Workers, Local Union No. 1

• Decision Date: 06 July 1979
• Docket Number: No. 78-2105,78-2105
• Citation: 603 F.2d 7
• Parties: 24 Fair Empl.Prac.Cas. 1193, 20 Empl. Prac. Dec. P 30,135 Albert CEDILLO, Plaintiff-Appellant, v. INT'L ASS'N OF BRIDGE & STRUCTURAL IRON WORKERS, LOCAL UNION NO. 1, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 7

603 F.2d 7

24 Fair Empl.Prac.Cas. 1193,

20 Empl. Prac. Dec. P 30,135

Albert CEDILLO, Plaintiff-Appellant, v. INT'L ASS'N OF BRIDGE & STRUCTURAL IRON WORKERS, LOCAL UNION NO. 1, et al., Defendants-Appellees.

No. 78-2105.

United States Court of Appeals Seventh Circuit.

Argued April 10, 1979.

Decided July 6, 1979. ^*

Rehearing Denied Aug. 1, 1979.

Thomas R. Meites, Chicago, Ill., Leopoldo Fraga, Jr., Washington, D. C., for amicus curiae EEOC.

Thomas M. Crisham, Richard M. Stanton, Chicago, Ill., for defendants-appellees.

Before CUMMINGS and PELL, Circuit Judges, and JAMESON, Senior District Judge. ^**

CUMMINGS, Circuit Judge.

This appeal arises from a judgment order entered pursuant to Federal Rule of Civil Procedure 54(b) which granted partial summary judgment in favor of Local Union 1 ¹ and which dismissed the Joint Apprenticeship Committee (JAC) ² as a Rule 19 party in plaintiff's claim of discriminatory denial of union membership brought under the Civil Rights Act of 1866 ³ and Title VII of the Civil Rights Act of 1964. ⁴ We reverse on the ground that partial summary judgment is inappropriate when plaintiff was denied all discovery relating to the impact of the applicable union membership rules. Accordingly, we remand to the district court in order to permit prompt resolution of the motion for class certification and to afford plaintiff a reasonable opportunity to engage in discovery. In addition, that portion of the district court order which dismissed the JAC is hereby vacated and the district court on remand should determine whether the JAC should be retained as a Rule 19 defendant.

I

Summary judgment should be entered only when the pleadings, depositions, affidavits, and admissions filed in the case demonstrate that, except as to the amount of damages, "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R.Civ.P. 56(c). Because the question of the appropriateness of summary judgment must be decided upon the particular facts of the case, we shall set forth the facts underlying this litigation in some detail. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 259, 88 S.Ct. 1575, 20 L.Ed.2d 569.

Plaintiff Albert Cedillo, a Spanish-surnamed Mexican-American, was employed as an ironworker in Corpus Christi, Texas, and was a member in good standing of Iron Workers 510, a sister to Local Union 1. After Cedillo moved to Chicago he applied for membership in Local Union 1 but his application was denied (R. 1). He continued to work for his employer under temporary work permits until December 1975 when the Union refused to renew his permit and his employer discharged him. Cedillo filed this action on behalf of himself and others similarly situated ⁵ alleging that the Union discriminated against Spanish-surnamed Mexican-Americans on the basis of their race and national origin by, Inter alia, denying them transfer membership ⁶ into Local Union 1 from other Iron Workers Locals (Complaint PP 4, 7-9).

Local 1 moved for partial summary judgment as to the transfer membership claim on the basis of two affidavits. In both the president of the Union attested that since 1969 the Union has not accepted any new members except through its apprenticeship program or pursuant to the consent decree entered in United States v. The International Association of Bridge and Structural Iron Workers Local Union No. 1, No. 68 C 676 (N.D.Ill.1973) (R. 19). ⁷ A third affidavit subsequently was supplied in a supplemental motion for summary judgment. In this affidavit, the business representative of the Union stated that plaintiff was suspended on August 31, 1971, from membership in Local No. 510 for non- payment of dues and that this action rendered him ineligible for transfer membership into Local Union 1 (R. 35). Plaintiff's memorandum in opposition to summary judgment consisted of an argument purporting to show that neither the facts alleged in the affidavits nor the recent government suit and resulting consent decree preclude plaintiff from securing the requested relief from the defendant.

The district court granted summary judgment, reasoning that "where the defendants have made No selection of members from transfer applications at all, no charge of disparate treatment can be sustained according to the prima facie requirement of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (93 S.Ct. 1817, 36 L.Ed.2d 668) (1973)" (emphasis in original) (R. 52). The district court rejected defendants' claim that Cedillo is not eligible for transfer because he is not a member in good standing of his own Local. The court concluded that since Cedillo was " 'at all times ready, willing and able to pay any past dues owing' ", the lack of "good standing" was but a technical defect which could be easily remedied at the time of transfer. Of necessity, the district court also concluded that plaintiff's motion to compel the Union to answer proffered interrogatories be denied. ⁸

II

The party moving for summary judgment has the burden of clearly establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. The issue of material fact required to be present need not be resolved conclusively in favor of the party asserting its existence, but the movant need only show that sufficient evidence supporting the claimed factual dispute does not require a jury or judge at trial to resolve the parties' differing versions of truth. All inferences to be drawn from the facts contained in the affidavits, exhibits, and depositions are to be drawn in favor of the non-movant. Adickes v. S. H. Kress & Co., 398 U.S. 144, 153, 159-161, 90 S.Ct. 1598, 26 L.Ed.2d 142; First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 303, 305-307, 88 S.Ct. 1575, 20 L.Ed.2d 569; Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 468-469, 82 S.Ct. 486, 7 L.Ed.2d 458. Upon review of a summary judgment we are obliged to review the entire record in the light most favorable to the opponent of the movant. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176; Hughes v. International Brotherhood of Teamsters, Local 683, 554 F.2d 365 (9th Cir. 1977); Moutoux v. Gulling Auto Electric, 295 F.2d 573, 576 (7th Cir. 1961). Finally, as a general principle, questions of motive and intent are particularly inappropriate for summary adjudication. Moutoux v. Gulling Auto Electric, supra, at 576.

Cedillo argues that the district court erred in finding that "no genuine issue as to any material fact" exists as to his claim that the Union discriminated against him and other Mexican-Americans seeking membership through transfer. Primarily, he contends that the district court's failure to compel defendants to answer plaintiff's interrogatories which had been served upon them justifies the generality of the papers filed in opposition to the motion for summary judgment. He also argues, in sum, that the past conduct of the Union with respect to the employment of minorities in general, and an alleged nepotism involved in the administration of the apprenticeship program, the only other method by which the Union replenished its ranks, warrant a denial of summary judgment in this case.

The appropriate legal standard for "the order and allocation of proof" in a non-class action challenging employment discrimination was outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (footnote omitted):

"The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications."

In United Brotherhood of Teamsters v. United States, the Supreme Court made it clear that the required showing in a disparate impact case could not be inflexibly limited to any "discrete elements of proof" but would necessitate only that the plaintiff carry

"the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion under the Act." 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396.

The Union's argument on summary judgment was intended to meet plaintiff's prima facie case by establishing the existence of a legitimate non-discriminatory reason for the rejection of the plaintiff for membership which, in the absence of a showing that the proffered justification was "in fact pretext," would have been conclusive of the plaintiff's action. McDonnell, supra, 411 U.S. at 804, 93 S.Ct. 1817; see also Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978); Davis v. Weidner, 596 F.2d 726 (7th Cir. 1979); Taylor v. Philips Industries, Inc., 593 F.2d 783 (7th Cir. 1979).

Under recent Supreme Court law it is clear that Title VII proscribes practices which are facially neutral but which in fact have a " disparate impact" on one group. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843; see Local 53, Asbestos Workers v. Volger, 407 F.2d 1047 (5th Cir. 1969). Defendants seek to use a dictum in the Teamsters case to argue that defendants simply made too few employment decisions to warrant a conclusion that there has been a denial of equal access to any employment opportunity. 431 U.S. at 360, 97 S.Ct. 1843. However, on the state of the record before us we are unable to conclude as a matter of law that a blanket determination to limit all membership via a transfer program is incapable of an offensive disparate impact when members...