773 F.2d 857 (7th Cir. 1985), 85-1026, Babrocky v. Jewel Food Co.

Docket Nº:85-1026.
Citation:773 F.2d 857
Party Name:Empl.Prac.Cas. 1667, Patricia BABROCKY, et al., Plaintiffs-Appellants, v. JEWEL FOOD COMPANY and Retail Meatcutters Union, Local 320, Defendants- Appellees.
Case Date:September 19, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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773 F.2d 857 (7th Cir. 1985)

Empl.Prac.Cas. 1667,

Patricia BABROCKY, et al., Plaintiffs-Appellants,


JEWEL FOOD COMPANY and Retail Meatcutters Union, Local 320,

Defendants- Appellees.

No. 85-1026.

United States Court of Appeals, Seventh Circuit

September 19, 1985

Argued June 4, 1985.

Rehearing and Rehearing En Banc Denied Dec. 12, 1985.

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[Copyrighted Material Omitted]

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Susan Margaret Vance, Mendel, Lipton & Stevenson Ltd., Edwin H. Benn, Asher, Pavalon, Gittler & Greenfield, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and WRIGHT, Senior Circuit Judge. [*]

CUMMINGS, Chief Judge.

Plaintiffs Patricia Babrocky, Juanita Coffman, Eva Davis, Wilma Keene and Agnes Ross filed a complaint against Jewel Food Company ("Jewel") and Retail Meatcutters Union Local 320 (the "Union"). Five Counts of the complaint brought by the five plaintiffs alleged that Jewel and the Union had discriminated against them on the basis of their sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. ("Title VII"). The other five Counts brought by the plaintiffs alleged that the Union had breached its duty of fair representation under Section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185. For want of merit the district court granted summary judgment to Jewel and the Union with respect to the Title VII claims against both the Union and Jewel having to do with segregated job categories and the Union's unfair representation of plaintiffs in the matter of segregated job categories. It dismissed for lack of subject matter jurisdiction the remaining Title VII claims against both defendants on the ground that they were not included in the EEOC charge. The court also granted summary judgment to the Union on the Section 301 claims as barred by the six-month statute of limitations contained in the National Labor Relations Act (29 U.S.C. Sec. 160(b)). We AFFIRM in part and REVERSE in part.


The facts, viewed in the light most favorable to plaintiffs establish that they, all union members, were employed in Jewel's meat markets in the Northwest Indiana area when Jewel discharged them in December 1980 because of a decline in business. Jewel's meat market employees are

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classified in four categories--three categories of meat cutters (head meat cutters, journeymen meat cutters and apprentice meat cutters), and meat wrappers. Being an apprentice meat cutter requires no special skills; an applicant need be only eighteen years of age or older. Under the hiring hall provision of the collective bargaining agreement, in filling vacancies Jewel must first request the Union to refer applicants. Evidently Jewel fills its meat-cutter vacancies through Union referrals (oral argument). In December 1980, all thirty-one of the Jewel meat cutters in the Northwest Indiana area were men while all fifteen of the meat wrappers in the same area were women. The collective bargaining agreement required that each of the retail meat markets be staffed by a minimum of one meat wrapper to every four meat cutters. Prior to this contract's becoming effective (pursuant to a merger between two union locals) in September 1980, the ratio of meat wrappers to cutters had been 1:2. The prior contract governing the union local that merged with Local 320 had not mentioned any employment ratios. In the December 1980 layoffs, only meat wrappers were discharged. No meat cutters were dismissed; in fact, they took over some of the meat-wrapper work.

On December 20, 1980, plaintiffs informally protested their layoffs to the Union in the form of typewritten letters. At the time they met with a union official, Clarence O'Connor, who informed them that they did not have a case and that the Union would not pursue their discharge. He also informed them that the new 1:4 employment ratio permitted plaintiffs to be laid off, although the ratio refers only to minimum staffing levels required for hiring and does not address the appropriateness of Jewel's targeting meat wrappers for layoffs when these minimum levels have been exceeded. Plaintiffs followed up on their informal complaint in the first nine days of January, when they separately filed identically worded charges with the Equal Employment Opportunity Commission ("EEOC") against both Jewel and the Union. Thereafter plaintiffs were informed that they would receive the Union's answer to their charges at the EEOC meeting scheduled for March 1981. The charges against Jewel alleged that Jewel had discriminatorily maintained sex-segregated job classifications and misused an employment ratio of one meat wrapper to four meat cutters to justify the discriminatory layoff of female employees. The charges against the Union alleged that the Union had failed to represent them by agreeing to the 1:4 ratio and by allowing Jewel to maintain sex-segregated job classifications. The Union did not appear at the March EEOC meeting.

The EEOC issued right-to-sue letters to plaintiffs, and they filed their complaint on July 17, 1981. The complaint alleges that Jewel violated Title VII by maintaining sex-segregated job classifications, by failing to recruit, train, transfer, or promote females, by paying plaintiff women less than men who performed comparable work, by discharging women because of their sex, and by instituting a seniority and promotional system to further those practices. The complaint also alleges that both Jewel and the Union violated Title VII by refusing to negotiate a contract that eliminated these disparities. The final allegation is that the Union discriminatorily failed to represent the plaintiffs by allowing Jewel to maintain its discriminatory policies. The Union filed for summary judgment, a motion that Jewel joined. The district court believed that the bulk of the Title VII allegations had not been the subject of the EEOC charge that is a prerequisite to instituting judicial action, and that this incongruency deprived the district court of subject matter jurisdiction. Consequently he dismissed these claims pursuant to FED.R.CIV.P. 12(b)(1), and he granted summary judgment to both defendants on the remainder of the complaint. We have jurisdiction under 28 U.S.C. Sec. 1291, and we consider first the grant of summary judgment to the Union on the Section 301 counts.


Plaintiffs admit that the applicable statute of limitations for filing a complaint

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on the Section 301 claim against the Union is the six-month limitation in Section 10(b) of the National Labor Relations Act (29 U.S.C. Sec. 160(b)). DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476. They also admit that the statute begins to run when the party " 'discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged [violation].' " Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 304 (7th Cir.1983) (quoting Hungerford v. United States, 307 F.2d 99, 102 (9th Cir.1962)), certiorari denied, --- U.S. ----, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984). Summary judgment is appropriate if the court can determine that "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." FED.R.CIV.P. 56(c). At issue in the case at bar is whether summary judgment is appropriate when a deponent contradicts in an affidavit an earlier admission of fact in a deposition that if true would entitle the moving party to a judgment. Summary judgment is intended to avoid a useless trial and is appropriate only where it is quite clear what the truth is. See Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944).

The operative word for determining the correctness of the district court's grant of summary judgment is the word "genuine". Each of the five plaintiffs were deposed, at which time each unequivocally admitted that at the time she filed her EEOC charge against the Union in early January 1981, she did not expect the Union to proceed further in grieving her layoff December 20, 1980. (We have set out the relevant portions of the depositions, relied on by the court below, as an Appendix to this opinion.) The Union relied on these admissions when it moved for summary judgment, whereupon plaintiffs Babrocky, Davis and Ross filed affidavits averring that they were each "confident that [the Union] was processing my grievances along with those of the other grievants between January and March 30, 1981" (Pltfs.' App. C 21, 25, 29). The district court determined that these statements were little more than bald assertions, entirely lacking in any recounting of specific facts such as required by FED.R.CIV.P. 56(e). Because conclusory allegations could not create a conflict with plain admissions in deposition testimony, the district court granted summary judgment.

We agree. Plaintiffs confuse credibility issues with the district court's duty to ignore sham issues in determining the appropriateness of summary judgment. The Eighth Circuit addressed this precise question in Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir., 1983), where it declared that a "party should not be allowed to create issues of credibility by contradicting his own earlier testimony." Id. at 1366. Otherwise, the very purpose of the summary judgment motion--to weed out unfounded claims, specious denials, and sham defenses--would be severely undercut. Id. at 1365. That same analysis applies to the instant situation.

Were the conflict at issue between a deposition and an affidavit given by two separate individuals, then summary judgment would be inappropriate because the district court may not weigh conflicting evidence. See...

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