Rios v. Enterprise Ass'n Steamfitters Local Union 638 of U.A.

• Citation: 860 F.2d 1168
• Decision Date: 01 December 1988
• Docket Number: 291,Nos. 290,D,s. 290
• Parties: 48 Fair Empl.Prac.Cas. 433, 48 Empl. Prac. Dec. P 38,419, 57 USLW 2322 George RIOS, Eugene C. Jenkins, Eric O. Lewis and Wylie B. Rutledge, Plaintiffs-Appellants, v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL UNION 638 OF U.A., Mechanical Contractors Association of New York, Inc., and Joint Steamfitting Apprenticeship Committee of the Steamfitters Industry Educational Fund, Defendants-Appellees. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL UNION 638 OF U.A., Mechanical Contractors Association of New York, Inc. and Joint Steamfitting Apprenticeship Committee of the Steamfitters Industry Educational Fund, Defendants-Appellees. ockets 87-6043, 87-6045.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1168

860 F.2d 1168

48 Fair Empl.Prac.Cas. 433,

48 Empl. Prac. Dec. P 38,419, 57 USLW 2322

George RIOS, Eugene C. Jenkins, Eric O. Lewis and Wylie B.

Rutledge, Plaintiffs-Appellants, v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL UNION 638 OF U.A.,

Mechanical Contractors Association of New York, Inc., and

Joint Steamfitting Apprenticeship Committee of the

Steamfitters Industry Educational Fund, Defendants-Appellees.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL UNION 638 OF U.A.,

Mechanical Contractors Association of New York, Inc. and

Joint Steamfitting Apprenticeship Committee of the

Steamfitters Industry Educational Fund, Defendants-Appellees.

Nos. 290, 291, Dockets 87-6043, 87-6045.

United States Court of Appeals, Second Circuit.

Argued Oct. 19, 1987.

Decided Nov. 3, 1988.

As Amended Dec. 1, 1988.

Michael Foreman, Atty., E.E.O.C., Washington, D.C. (Charles A. Shanor, Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Susan Buckingham Reilly, Asst. Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, Karen MacRae Smith, Atty., Rynthia M. Rost, Atty., E.E.O.C., Washington, D.C., of counsel), for plaintiff-appellant E.E.O.C.

Barbara A. Morris, Nat. Employment Law Project, Inc., New York City (Richard A. Goldberg, Nat. Employment Law Project, Inc., New York City, of counsel), for individual plaintiffs-appellants.

Richard S. Brook, Mineola, N.Y., for defendant-appellee Enterprise Ass'n Steamfitters Local Union 638 of U.A.

Before OAKES, CARDAMONE and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

This is an appeal by private plaintiffs and the Equal Employment Opportunity Commission ("EEOC") in a consolidated class action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982). Plaintiffs-appellants appeal from a final judgment of the United States District Court for the Southern District of New York, Dudley B. Bonsal, Judge, affirming and adopting the Final Report of an appointed Administrator Designee determining various class members' eligibility for backpay and computing backpay awards. Plaintiffs-appellants challenge the district court's refusal to disqualify the Administrator Designee, its dismissal of six backpay claims because of the claimants' immigration status, the dismissal of another claim on the ground that the claimant failed to establish his application for union membership, and the calculation of backpay awards. We affirm as to the disqualification issue, and reverse and remand as to the others.

Background

This appeal is the fourth in the long history of a Title VII class action commenced in 1971 and consolidated in 1972 with a Title VII action brought by the EEOC against the same parties. Familiarity with previous opinions is assumed. See Rios v. Enterprise Ass'n Steamfitters Local 638 of U.A., 501 F.2d 622 (2d Cir.1974) (affirming and modifying district court's affirmative relief order); Rios v. Enterprise Ass'n Steamfitters Local Union # 638 of U.A., 520 F.2d 352 (2d Cir.1975) (white applicants denied intervention as of right); EEOC v. Enterprise Ass'n Steamfitters Local No. 638 of U.A., 542 F.2d 579 (2d Cir.1976) (affirming in part and modifying in part district court's backpay eligibility order, affirming award of attorney's fees), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977). The case stems from the pattern and practice of Enterprise Association Steamfitters Local No. 638 of U.A. (the "Union") of discriminating against black and Hispanic applicants for admission into its A Branch, consisting of union members who have the status of journeymen and work on construction projects. The current appeal concerns only the backpay stage of the litigation.

In the last appeal in this case, we affirmed Judge Bonsal's backpay eligibility order, Rios v. Enterprise Ass'n Steamfitters Local 638 of U.A., 400 F.Supp. 988, 993 (S.D.N.Y.1975) ("Rios I "), with certain modifications. EEOC v. Enterprise Ass'n Steamfitters Local No. 638 of U.A., 542 F.2d 579 (2d Cir.1976), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977) ("Rios II "). The backpay eligibility criteria approved by this court were as follows:

1) the claimant must establish that he applied, either orally or in writing, for and was denied membership in the Union's A Branch, or was otherwise discriminatorily denied work referrals by the Union, Rios II , 542 F.2d at 586-87;

2) the claimant must prove that he was discriminatorily denied admission after October 15, 1967, which discrimination, for backpay purposes, is deemed to commence on the date that the next non-class member was admitted following the rejection of the claimant and terminate on the date when the claimant was admitted to the A Branch, Rios II, 542 F.2d at 590-91, and Rios I, 400 F.Supp. at 993;

3) the claimant must establish that he resided within the geographical jurisdiction of Local 638, i.e., New York City, Nassau and Suffolk counties, and that he was qualified for admission, Rios II, 542 F.2d at 591, and Rios I, 400 F.Supp. at 993; and

4) the claimant must prove monetary damages (less any other employment income or public assistance) to be "computed on the basis of the average monthly wage paid to members who were admitted to the A Branch on or after October 15, [1967]," Rios I, 400 F.Supp. at 993, and Rios II, 542 F.2d at 590-92.

On remand, the district court implemented the backpay order in two phases, and followed the suggestion of this court, see Rios II, 542 F.2d at 588, that the backpay matters be referred to a special master pursuant to 28 U.S.C. Sec. 636 (1982 and Supp. IV 1986) and/or Fed.R.Civ.P. 53. Vincent McDonnell, a partner in Shea & Gould, was initially appointed as Administrator. He resigned in 1979 because of the press of other duties. At his recommendation, an associate in the same firm, Marshall E. Lippman, was appointed his successor, with the title "Administrator Designee." Prior to that appointment, a copy of Mr. Lippman's resume was circulated to the parties, none of whom objected to his appointment.

Phase I of the backpay proceedings, which commenced in 1979, dealt with the eligibility of individual claimants for backpay awards. In 1983, the Administrator Designee recommended that the claims of six individuals--Edward St. Hill, Claude S. Polidore, Fitzroy Callender, Vibert Caesar, Eric Campbell and Eric Forbes--be dismissed because those claimants were undocumented aliens at the time they were denied admission to the A Branch. It is undisputed that resident alien status was never a requirement for union membership and that each of the six claimants had actually been admitted to the union as a result of the affirmative relief ordered by the district court. Administrator Designee Lippman recommended the dismissal of another claimant, Isidro Diaz, on the ground that his oral request for employment, made to a union clerk at a union office, did not constitute an oral application for membership in the union. The district court adopted the Administrator's report as to Phase I "in all respects" in 1984.

At this juncture, the EEOC and the private plaintiffs moved for Mr. Lippman's disqualification on the ground of conflict of interest. The EEOC claimed that it had only recently discovered that Mr. Lippman was representing another union, the Newspaper and Mail Deliverer's Union, that was a defendant in an unrelated Title VII case brought by the EEOC. Mr. Lippman had been counsel for that union since 1978, although the resume that he had previously circulated to the parties made no reference to this representation. Judge Bonsal held a hearing concerning this matter and denied the motion for disqualification. He denied a similar motion upon renewal in 1986.

Accordingly, Phase II of the proceedings, to determine individual backpay awards, was also conducted by the Administrator Designee. In order to determine the date for commencement of backpay for each claimant, the Administrator chose a specific "triggering person," i.e., a specific non-class member admitted to the union at some time after the claimant was denied admission. Generally, under this so-called "one-for-one" approach, where more than one claimant was denied admission before the triggering person was admitted, the triggering person could only trigger backpay for a single claimant.

In order to determine the average monthly wage upon which the backpay award was to be based, see Rios I, 400 F.Supp. at 993, the Administrator chose to use the earnings of those same specific triggering persons, rather than a random representative group of union members admitted after October 15, 1967, for a data base. Four of twenty-seven triggering persons had zero income from steamfitting during the entire backpay period, and several others had years of zero earnings from steamfitting. There were no findings concerning whether these zero income year included in the data base were the result of voluntary or involuntary unemployment at steamfitting. In 1986, the district court approved the Administrator's method of backpay calculation and the awards based thereon. 651 F.Supp. 109.

On appeal, the EEOC and the private claimants assert numerous errors pertaining to both Phase I and Phase II of the backpay proceedings. With respect to Phase I, appellants assert error in the dismissal of backpay claims solely on the ground of the claimants' immigration status and the dismissal of Isidro Diaz's claim on the ground that he failed to establish that he made an oral application for union membership. With respect to Phase II, appellants assert error in the use of the "one-for-one" method and in the inclusion of a substantial number of zero income years in the average wage data base. Appellants also challenge the district court's denial of their motion to disqualify the Administrator Designee.

We affirm the district court's decision to deny the disqualification motion...