Dickerson v. United States Steel Corp.

• Decision Date: 02 August 1978
• Docket Number: 74-2689.,Civ. A. No. 73-1292
• Citation: 472 F. Supp. 1304
• Parties: Moses DICKERSON et al. v. UNITED STATES STEEL CORP. et al. Curtis C. WORTHY et al. v. UNITED STATES STEEL CORP. et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

472 F. Supp. 1304

Moses DICKERSON et al. v. UNITED STATES STEEL CORP. et al.

Curtis C. WORTHY et al. v. UNITED STATES STEEL CORP. et al.

Civ. A. Nos. 73-1292, 74-2689.

United States District Court, E. D. Pennsylvania.

August 2, 1978.

COPYRIGHT MATERIAL OMITTED

Prather G. Randle, PILCOP, Alice Ballard, Philadelphia, Pa., for plaintiffs.

Henry T. Reath, Duane, Morris & Heckscher, Philadelphia, Pa., S. G. Clark, Gen. Counsel, U. S. Steel Corp., Pittsburgh, Pa., for defendants.

Robert Weinberg, Julia Penny Clark, Washington, D. C., for union.

MEMORANDUM AND ORDER

NEWCOMER, District Judge.

After a protracted 85-day trial, this Court has finally reached the conclusion of the liability stage of this employment discrimination case. Plaintiffs, a class of production and maintenance (P & M) workers, are suing their employer, United States Steel (USS) and their unions (Union) for alleged violations of Title VII, 42 U.S.C. §§ 1981, 1985(3), and 2000e et seq. At the close of plaintiffs' evidence, the Court issued a lengthy opinion dated July 25, 1977. Dickerson v. United States Steel, 439 F.Supp. 55 (E.D.Pa.1977). In that opinion, the Court dismissed certain class claims and enunciated certain factual and legal conclusions in support. Those dismissals are incorporated by reference into this final opinion. There remain for decision four class claims of discrimination: initial assignment, access to management, access to crafts, and transfer to new facilities. Furthermore, the Court must decide the claims of the two named class representatives, Moses Dickerson and Eddie Williams, as well as the related case of Curtis Worthy.

Since many of the procedural issues were discussed in July, and no significant new facts or arguments presented, the Court need not reiterate all the cases and legal arguments here. Defendant USS has moved for the fourth time since the class was certified for decertification. The Court will deny this without further discussion other than to refer to its numerous previous opinions.

In the July opinion, the Court also made findings of facts and conclusions of law concerning the issues of jurisdiction and standing to represent the class. The Court has examined the arguments of defendants on these issues and finds no persuasive new argument raised. Therefore, the Court includes the discussion on jurisdiction from that opinion in its final findings and conclusions for purposes of this opinion. However, a recent decision by this circuit's Court of Appeals has shed further light on these issues. On the issue of standing, the Court notes that the holding of the Court of Appeals in Hicks v. Abt, Inc., 572 F.2d 960 (3d Cir. 1978), supports this Court's earlier conclusion that the individual plaintiffs can represent all the claims presented in the class action. In Hicks, the appellate court ruled that the scope of a Title VII action is controlled not only by the charges actually included in an EEOC charge, but those which could have "reasonably been expected to grow" out of the charges made. Since the charges of Eddie Williams and Moses Dickerson involved a large number of issues, this Court finds that the EEOC could reasonably have been expected to launch a full-scale investigation of all of USS' employment practices as regards race, as well as the Union's possible involvement in them. Therefore, even as to areas not the subject of specific charges by Williams and Dickerson, this Court concludes that Hicks sanctions the plaintiffs' role as representatives in this broad-ranging class action. Furthermore, Hicks lends support to the Court's allowance of the equitable tolling concept on jurisdiction. Hicks had filed a complaint with another federal agency. The appellate court equated this complaint with a "charge" under § 704(a) of Title VII, which protects an employee from being fired for seeking a remedy for violations of the Act. This Court believes that under Hicks, as read with the cases relied upon earlier, 439 F.Supp. at 68-69, it has equitable jurisdiction over this case for the period dating from Dickerson's March, 1970 letter to the Department of Labor.

Finally, the Court incorporates by reference its discussion of the burden of proof in this action. As noted below, in a specific discussion of proof on the testing issue, the Court has carefully considered the arguments presented at this stage by all the parties. In choosing to remain with the July statement of law, the Court specifically rejects USS' argument that Title VII requires proof of discriminatory intent. In support of this position, the Court cites Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); General Electric v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976) and Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Recent decisions of circuit courts also support this conclusion. Richardson v. Penna. Dept. of Health, 561 F.2d 489 (3d Cir. 1977); Rule v. Int'l Association of Bridge Workers, 568 F.2d 558 (8th Cir. 1977); Davis v. County of Los Angeles, 566 F.2d 1334 (9th Cir. 1977); United States v. City of Chicago, 573 F.2d 416 (7th Cir. 1978); James v. Stockham Valves, 559 F.2d 310 (5th Cir. 1977). The Court feels that these cases, many of which refer to the Congressional purpose not to require plaintiffs to prove intent, adequately deal with USS' argument on the legislative history of Title VII in general. Furthermore, they all support the proposition of Griggs v. Duke Power, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), that facially neutral practices having a disparate impact are violations of Title VII. The Court has not found a single case holding to the contrary.

Defendant USS, in a last-minute brief, has argued that the recent Supreme Court decisions in Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) and University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1976), compel this Court to hold that Title VII requires a showing of intent. This Court cannot find any language in those cases which would lead to such a holding. Bakke, decided under Title VI, did not reach the question of intent on the part of the employer. In Furnco, the Supreme Court dealt with the burden of proof in an individual suit under McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Court described what is included in a prima facie case. The Supreme Court's opinion, in fact, supports this Court's conclusion that the plaintiffs need not prove intent.

"A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors . . . And we are willing to presume this largely because we know from our own experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, whom we generally assume acts only with some reason, based his decision on an impermissible consideration such as race." 438 U.S. at 577-578, 98 S.Ct. at 2949-2950.

Since the prima facie case need only raise an inference of discrimination, which can be rebutted by showing a permissible reason for the employment decision, it is clear that proof of intent need not enter into a Title VII case. The inference of impermissible motive which is shown by a disparity of treatment or impact is clearly enough to prove plaintiffs' case, if not met by defendants with rebuttal evidence.

The Court will now, in narrative form, present its findings of facts and conclusions of law on the remaining class and individual actions.

INITIAL ASSIGNMENT

The plaintiffs' first remaining claim is that blacks at Fairless are disproportionately assigned to certain jobs. This is not a claim of absolute segregation, but of stereotypical assignment to certain allegedly unpleasant or undesirable jobs. In the July opinion, the Court opined that, at that point, plaintiffs had established a prima facie case on this issue. Their case is primarily based on statistical analyses, the Matched Pair Study (MPS) and related corroborative and substantive studies. At that time, of course, the defendants had not yet presented any expert testimony attacking the statistics. Plaintiffs have argued that the defendants now have the burden of disproving plaintiffs' statistics with affirmative evidence, such as complete studies of their own. While doing this certainly would have simplified the Court's task, as in Presseisen v. Swarthmore College, 442 F.Supp. 593 (E.D.Pa.1977), the plaintiffs' statistics need only be shown incompetent and unreliable to defeat them. Markey v. Tenneco Oil Co., 439 F.Supp. 219 (E.D.La. 1977). Defending statistical proof is part and parcel of plaintiffs' prima facie case; the burden does not shift to a defendant for affirmative proof if the prima facie case is defeated by defendant's evidence. The plaintiffs' case does not become invulnerable after they complete their case-in-chief and survive a motion to dismiss. The Court must reexamine it at the close of all evidence to ascertain if it still meets the prima facie test. Croker v. The Boeing Co. (Vertol Division), 437 F.Supp. 1138, 1183 (E.D. Pa.1977); Neloms v. Southwestern Elec. Power Co., 440 F.Supp. 1353 (W.D.La.1977); EEOC v. E.I. duPont de Nemours and Co., 445 F.Supp. 223 (D.Del.1978). This point of view is also supported by the very recent decision of the Fifth Circuit Court of Appeals in EEOC v. Datapoint Corp., 570 F.2d 1264 (5th Cir. 1978). There, the EEOC presented a statistical comparison of the defendant's workforce with that of the surrounding community. That was the only evidence in...