Calloway v. Westinghouse Elec. Corp.

• Decision Date: 04 August 1986
• Docket Number: Civ. A. No. 77-34-ATH.
• Citation: 642 F. Supp. 663
• Parties: Major D. CALLOWAY, et al., Plaintiffs, and Walter M. Culbreath, Sr., et al., Plaintiffs-Intervenors, v. WESTINGHOUSE ELECTRIC CORP., Defendant.
• Court: U.S. District Court — Middle District of Georgia

642 F. Supp. 663

Major D. CALLOWAY, et al., Plaintiffs and Walter M. Culbreath, Sr., et al., Plaintiffs-Intervenors, v. WESTINGHOUSE ELECTRIC CORP., Defendant.

Civ. A. No. 77-34-ATH.

United States District Court, M.D. Georgia, Athens Division.

August 4, 1986.

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David R. Sweat, Joseph P. Nelson, III, Athens, Ga., for plaintiffs.

Edward Katze, Atlanta, Ga., for defendant.

OWENS, Chief Judge:

I. History of the Case

On May 28, 1969, twenty black employees of the Westinghouse Electric Corporation's Athens, Georgia, plant signed a petition alleging that Westinghouse discriminated against them because of their race. Plaintiffs Major D. Calloway and James Moses were among those signing the petition. The petition was mailed to the Equal Employment Opportunity Commission (EEOC), which treated the petition as an EEOC charge. The claimants wrote that: "We have been denied the right to advance from our present positions to other higher ones for which we are well qualified for. We have been told that we are qualified, but due to discriminatory practices in this plant we are yet denied these advancements." Calloway and Moses also submitted individual charges to the EEOC.

On April 13, 1973, the EEOC issued a five-page determination letter finding that Westinghouse did in fact discriminate against blacks. On April 27, 1977—eight years after the charge was filed—the EEOC issued a notice of right to sue. The notice of right to sue stated that "the Commission has found reasonable cause to believe your charge of employment discrimination is true but has not entered into a conciliation agreement to which you would have been a party because attempts to achieve such a voluntary settlement with the respondent(s) have been unsuccessful."

On July 6, 1977, Major D. Calloway and James Moses filed this lawsuit against Westinghouse and the International Brotherhood of Electrical Workers, Local 2109, alleging that the defendants discriminated against them because of their race. The court subsequently allowed the plaintiffs to add the International Brotherhood of Electrical Workers as a defendant. However, the plaintiffs withdrew all claims against the union prior to trial.

The two named plaintiffs have sought from the beginning to have the complaint certified as a class action. A hearing on class certification was held on June 9, 1978. At the hearing, Walter M. Culbreath, Sr., William Goss, Jimmy Byrd, and Robert Freeman filed a motion to intervene as plaintiffs. On October 11, 1978, the court granted the motion to intervene and preliminarily certified the case as a class action under Fed.R.Civ.P. 23(b)(2), whose class members are:

all black persons who have been employed by Westinghouse Electric Corp. at its Newton Bridge Road, Athens, Georgia facility since November 20, 1968; all black persons in the Athens metropolitan area or otherwise within the labor pool area from which the above named facility draws employment applications from prospective employees willing to commute who have unsuccessfully applied for employment with Westinghouse Electric Corp. since November 20, 1968; and all black persons who will apply for work or will be employed by Westinghouse Electric Corporations's Newton Bridge Road facility in the future.

However, as contemplated by the Federal Rules of Civil Procedure, the court agreed to reexamine the question and scope of class certification following the presentation of evidence at trial.

The nonjury trial on the issue of liability was held in Macon on February 5-8, 1985, during which both sides presented expert statistical testimony, testimony by employees and former employees of Westinghouse, and voluminous documents. The plaintiffs contend that the defendant engaged in the widespread practice of racial discrimination with regard to (1) initial job assignment, (2) upgrading and transferring within the hourly bargaining unit, (3) promotion to supervisor and other salaried positions, (4) acceptance into skilled trades apprentice programs, and (5) employee discipline. Plaintiffs' proposed findings of fact and conclusions of law at 2-3.

Each side has submitted proposed findings of fact and conclusions of law, which the court has considered along with the trial transcript and all other documents in the record.

II. Statute of Limitations for § 1981 Claim¹

Westinghouse contends that the plaintiffs' section 1981 claim is barred by the statute of limitations.² In Georgia, employment discrimination actions under section 1981 are governed by O.C.G.A. § 9-3-22. Howard v. Roadway Express, Inc., 726 F.2d 1529, 1532 (11th Cir.1984); Stafford v. Muscogee County Board of Education, 688 F.2d 1383, 1389 (11th Cir.1982). That code section provides:

All actions for the enforcement of rights accruing to individuals under statutes or acts of incorporation or by operation of law shall be brought within 20 years after the right of action has accrued; provided, however, that all actions for the recovery of wages, overtime, or damages and penalties accruing under laws respecting the payment of wages and overtime shall be brought within two years after the right of action has accrued.

O.C.G.A. § 9-3-22 (1982). It contains two limitations periods: a two-year period for suits for the recovery of wages, overtime, or damages, and a twenty-year statute for suits seeking equitable relief. Stafford, 688 F.2d at 1389. The limitations periods are not tolled by the pendency of a Title VII charge. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 466, 95 S.Ct. 1716, 1723, 44 L.Ed.2d 295 (1975); Jefferson v. H.K. Porter Co., 648 F.2d 337, 339 (5th Cir.1981) (Unit B).

Section 9-3-22 "must be applied in a bifurcated manner so that an action for equitable relief is barred only after 20 years, but an action for back pay is barred after only 2 years." Howard, 726 F.2d at 1532. In the present case, the plaintiffs seek both back pay and injunctive relief. The complaint was filed in this court on July 6, 1977. As to plaintiffs' claims for declaratory and injunctive relief, the complaint is not barred under the controlling twenty-year statute of limitations. However, as to the plaintiffs' claims for damages under 42 U.S.C. § 1981, the two-year statute of limitations bars all damage claims for discrimination that occurred prior to July 6, 1975.

III. Dismissal of Discipline Claim and Constructive Discharge Claim

The rule in this circuit is that:

the allegations in a judicial complaint filed pursuant to Title VII "may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission." In other words, the "scope" of the judicial complaint is limited to the "scope" of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.

Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970) (citation omitted). Therefore, the starting point for determining the permissible scope of the complaint in this case is the EEOC charge and investigation. Griffin v. Carlin, 755 F.2d 1516, 1522 (11th Cir.1985); Eastland v. Tennessee Valley Authority, 714 F.2d 1066, 1067 (11th Cir.1983); Evans v. U.S. Pipe and Foundry Co., 696 F.2d 925, 929 (11th Cir.1983).

The original EEOC charge was filed by named plaintiff Calloway in February, 1969. Plaintiffs' exhibit E. He stated in his charge that "I have been discriminated against by Westinghouse, because I have been denied promotion, on account of my race, while Caucasians with less seniority and qualifications have been promoted ahead of me." Id. (He also alleged discrimination by the union, but because the union has been dismissed as a defendant, all claims against it are no longer relevant.) He further contended in his supporting affidavit that, among other things, Westinghouse requires all blacks to take the job qualification test, but does not require all whites to do so; that most blacks are hired as sweepers and janitors and are very seldom promoted above labor grade six; that there are no blacks in the salaried unit and there are no black foremen; and that blacks are excluded from all training programs. An amended charge was filed in June, 1969, by Calloway and nineteen other Westinghouse employees (including named plaintiff Moses). The letter signed by all twenty employees stated that "we have been denied the right to advance from our present positions to other higher ones for which we are well qualified for." Named plaintiff Moses filed an amended charge on October 7, 1969, which alleged the same discriminatory practices.

The resulting investigation by the EEOC led to the issuance of a determination that there was reasonable cause to believe the charge is true. In its five-page determination letter, the EEOC found that more blacks than whites were placed in labor grades five and below because of the use of an invalidated test; that only whites were employed in technical and clerical positions and salaried and supervisory positions; that there were no blacks in the apprenticeship programs; and that none of the skilled workers were black. Plaintiffs' exhibit E.

Plaintiffs' claims of racial discrimination in initial job assignment, upgrading within the hourly bargaining unit, promotions to supervisor and other salaried-unit positions, and acceptance in the skilled trades apprentice programs are "like or related to" the allegations in the EEOC charge and investigation. However, in this court's judgment, the claim of racial discrimination in discipline and Calloway's and Moses' claims of constructive discharge are not "like or related" and are thus not properly before the court. Accordingly, plaintiffs' claim of discrimination in discipline and Moses' and Calloway's constructive discharge claims are hereby DISMISSED.³

IV. Failure to Prosecute

Westinghouse asks the court to dismiss this action...