Allen v. U.S. Steel Corp.

• Citation: 665 F.2d 689
• Decision Date: 11 January 1982
• Docket Number: No. 80-7515,80-7515
• Parties: 27 Fair Empl.Prac.Cas. 1293, 27 Empl. Prac. Dec. P 32,338 Dorothy ALLEN, et al., Plaintiffs-Appellants Cross-Appellees, v. UNITED STATES STEEL CORP., et al., Defendants-Appellees Cross-Appellants. . Unit B *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 689

665 F.2d 689

27 Fair Empl.Prac.Cas. 1293,

27 Empl. Prac. Dec. P 32,338

Dorothy ALLEN, et al., Plaintiffs-Appellants Cross-Appellees, v. UNITED STATES STEEL CORP., et al., Defendants-Appellees Cross-Appellants.

No. 80-7515.

United States Court of Appeals Fifth Circuit.

Unit B ^*

Jan. 11, 1982.

Susan W. Reeves, Edward Still, Birmingham, Ala., for plaintiffs-appellants cross-appellees.

Thomas, Taliaferro, Forman, Burr & Murray, D. Frank Davis, Joseph W. Letzer, Cooper, Mitch & Crawford, Jerome A. Cooper, Birmingham, Ala., for defendants-appellees cross-appellants.

Appeal from the United States District Court for the Northern District of Alabama.

Before TUTTLE, RONEY and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

In this gender discrimination case, plaintiffs-appellants-cross-appellees Dorothy Allen, Eloise Lankford, Lorene Nolen, Doris Green, Hazel Byram, and Vera Globetti sued their employer, defendant-appellee-cross-appellant United States Steel Corporation ("U.S. Steel"), their national union, defendant-appellee United Steelworkers of America, AFL-CIO-CLC ("Steelworkers"), and their local union, defendant-appellee United Steelworkers of America, Local No. 2122 ("Local"). In their original complaint, plaintiffs alleged that in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., and of the Equal Pay Act of 1963, 29 U.S.C.A. §§ 206(d), 215(a)(3), defendant U.S. Steel discriminated against women in several ways, including its policies and practices concerning recruitment, hiring, initial job assignments, transfers, promotions, layoffs, recalls, wages and fringe benefits. In addition, plaintiffs alleged that the Steelworkers and the Local participated in U.S. Steel's gender discrimination. Plaintiffs also alleged that the Steelworkers and the Local have not represented the grievances of female workers as well as they have represented the grievances of male workers. Plaintiffs sought to proceed as a class under Fed.R.Civ.P. 23(b)(2) on behalf of all past, present and future female employees at U.S. Steel's Fairfield Works in Alabama. Plaintiffs do not appeal the district court's denial of class certification. After a pretrial conference, plaintiffs agreed to limit their claims to three major groups: (1) layoffs and recalls; (2) promotions; and (3) unequal pay. By the time of trial, plaintiffs further restricted their claims to layoffs and recalls in violation of Title VII. At some point thereafter, the plaintiffs again limited their claims to layoffs and recalls prior to May, 1973. ¹ Plaintiffs contend that because of U.S. Steel's discriminatory layoff and recall policies, plaintiffs suffered layoffs lasting longer than two years, thus reducing the pension benefits and vacation time to which the plaintiffs would be entitled had U.S. Steel not discriminated against them. The district court ruled (1) that the complaints of all six plaintiffs were time-barred; (2) that from March, 1969 to May, 1973, the Steelworkers and the Local had not in any way failed to adequately represent plaintiffs' grievances; and (3) that U.S. Steel was entitled to recover from plaintiffs certain deposition costs. We affirm.

I. ISSUES

This case presents six issues: (1) whether the three plaintiffs who filed complaints with the Equal Employment Opportunity Commission ("EEOC") are time-barred from pursuing their Title VII claims; (2) whether the three nonfiling plaintiffs are also time-barred; (3) whether the district court properly refused to consider plaintiffs' claims of sexually discriminatory restroom facilities; (4) whether the district court properly excluded certain exhibits as containing large amounts of inadmissible material; (5) whether the district court properly dismissed plaintiffs' claims against the Steelworkers and the Local, relating to discrimination in the grievance process; and (6) whether the district court properly awarded deposition costs and denied paralegal costs to U.S. Steel.

II. FILING PLAINTIFFS

The district court ruled that the three plaintiffs who had filed EEOC complaints were time-barred from pursuing their Title VII claims. Title VII requires persons claiming discrimination to file a complaint with the EEOC within 180 days after the allegedly discriminatory practice occurs. 42 U.S.C.A. § 2000e-5(e) (West 1974). This limitations period begins to run from the time that the complainant knows or reasonably should know that the challenged act has occurred. McWilliams v. Escambia County School Board, 658 F.2d 326, 328 & n.1 (5th Cir. 1981); see Delaware State College v. Ricks, 449 U.S. 250, 256-58, 261-262, 101 S.Ct. 498, 503-04, 506, 66 L.Ed.2d 431, 439-40, 442 (1980). Here, Lankford filed her EEOC complaint on December 15, 1969; Nolen filed on March 25, 1971; and Allen on May 30, 1974. In order to determine whether any of these filings were timely, we must identify the challenged discriminatory acts.

The plaintiffs all worked in the Tin Mill plant of U.S. Steel's Fairfield Works. The jobs in the Tin Mill are organized into lines of progression or promotion ("LOPs"). Until mid to late 1962, employees were laid off from their LOP in sequence, with layoffs from the bottom job in the LOP determined by the earliest point in time that the employee had served in the bottom job. In late 1962 and into 1963, U.S. Steel modified the LOP system by creating a "pool." All jobs in the three lowest pay grades within each plant, including the Tin Mill, and some of the jobs in the fourth lowest pay grade, were removed from the LOP system and placed into the pool. From the employees' perspective, the pool feature was more flexible than the former LOP-only system. Employees laid off from the revised LOPs could continue to work by accepting a pool job, which could be a job formerly unavailable to them under the LOP-only system. Pool jobs frequently were quite dirty and strenuous. Because of this, plaintiffs argued, U.S. Steel improperly assumed that only men were interested in pool jobs. Consequently, when a male employee was laid off from his revised LOP, he was offered a pool job. A similarly laid-off female employee, however, was not offered a pool job but was sent home. Thus, plaintiffs contend that their layoffs resulted from gender discrimination.

Once an employee was laid off, he or she could exercise recall rights. Part of those recall rights included the right to a pool job, depending upon the employee's seniority. Plaintiffs argued that again because of the dirty, strenuous nature of many pool jobs the company continually refused to recall women to those jobs and the defendant unions actively discouraged women from seeking those jobs.

For purposes of determining the timeliness of the EEOC complaints, we will focus on the allegedly discriminatory failure to recall the plaintiffs after layoff. Because recall necessarily occurs after layoff, the challenged failure to recall constitutes the most recent discriminatory act from which the 180-day filing period of Title VII could run. We assume arguendo-for the benefit of the plaintiffs-that throughout each layoff, pool jobs were available and were denied to the plaintiffs solely on the basis of their sex. As to when the plaintiffs were reasonably aware of the denial of any specific recall position, the district court ruled that the plaintiffs had "adequate opportunities" to ascertain which pool jobs were available to those on layoff. On appeal, the plaintiffs do not contest this ruling, such as by arguing that during their layoff periods they were reasonably unaware that they were being denied recall positions. Thus, under our assumption as to denial of recall positions, and the district court's ruling on reasonable awareness of those denials, the most recent point from which the 180-day filing period of Title VII would run as to each layoff would be the last day of the layoff.

None of the three filing plaintiffs filed an EEOC complaint within 180 days from the last day of her most recent contested layoff. Lankford's most recent contested layoff ended in March, 1969. She did not file her EEOC complaint until December 15, 1969. Nolen's most recent contested layoff ended in February, 1969. She did not file her EEOC complaint until March 25, 1970. Allen's most recent contested layoff ended in April, 1973. She did not file her EEOC complaint until May 30, 1974. Thus, each filing plaintiff failed to submit an EEOC complaint within 180 days of her most recent challenged layoff.

Plaintiffs contend that because their desired pension and extended vacation benefits do not accrue until well after their layoffs, an EEOC complaint need not be filed until the benefits are due. In effect, plaintiffs argue that their discriminatory layoffs and recalls are continuing violations of Title VII, simply because the contested effects of those violations persist throughout an employee's career, through denial of extended vacations, and even until death, through reduced pension benefits. In United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the Supreme Court squarely rejected the plaintiffs' continuing violation theory.

The facts of Evans are difficult to distinguish from this case. In Evans, the employee failed to file her EEOC complaint within the then-required 90-day period after her allegedly discriminatory discharge. Id. at 554-55, 97 S.Ct. at 1887. Here, plaintiffs failed to file a timely complaint within 180 days after their contested layoffs. In Evans, although the employee was rehired, her earlier discharge had long-lasting effects on valuable employment rights such as wages, the timing and duration of vacations, rights to retention in the event of layoffs, recall rights and rights to preferential selection of particular work within the company. Id. at 555 n.5, 97 S.Ct. at 1887 n.5. Here, although the plaintiffs were rehired, their earlier layoffs and delayed recalls now have...