EEOC v. Costello

• Decision Date: 24 March 1994
• Docket Number: Civ. A. No. 91-11572-RGS.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. Bernard S. COSTELLO and Steamship Clerks Union, Local 1066.
• Court: U.S. District Court — District of Massachusetts

850 F. Supp. 74

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. Bernard S. COSTELLO and Steamship Clerks Union, Local 1066.

Civ. A. No. 91-11572-RGS.

United States District Court, D. Massachusetts.

March 24, 1994.

James L. Lee, Ann Thacher Anderson, EEOC, N.Y. Dist. Office, New York City, for plaintiff.

Joseph F. McEvoy, Office of Joseph F. McEvoy, Jr., Boston, MA, Thomas F. Birmingham, Feinberg, Charnas & Birmingham, Boston, MA, for defendants.

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

STEARNS, District Judge.

The Equal Employment Opportunity Commission (EEOC) brought this Complaint¹ alleging that Bernard S. Costello, Inc. (Costello) and Steamship Clerks Union, Local 1066 (Local 1066) violated Title VII of the Civil Rights Act by discriminating against blacks and Hispanics on the basis of race and national origin in the hiring of steamship clerks. Costello ceased doing business in 1990. Prior to that, Costello was engaged in stevedoring operations in the Port of Boston and was a member of the Boston Shipping Association. The Association has a collective bargaining agreement with Local 1066 under which Local 1066 refers steamship clerks for employment to Association members.

The EEOC claims that Local 1066 discriminated by adhering to a membership policy that required new union members to be sponsored by an existing member. The members typically sponsored only family members. The entire membership of Local 1066 is white. The EEOC further alleges that Costello discriminated by relying solely on referrals from Local 1066 which Costello knew or should have known excluded blacks and Hispanics from membership.

This matter is before the court on the EEOC's motion for partial summary judgment² and Local 1066's cross motion for summary judgment. Costello did not file an opposition to the EEOC's motion or statement of undisputed facts. For the following reasons, the EEOC's motion is ALLOWED in part and Local 1066's motion is ALLOWED in part.

FACTS

The material facts seen in the light most favorable to the defendants are as follows.

The job of steamship clerk entails the checking of cargo against lists provided by shipping companies and consignees during the loading and unloading of cargo vessels. The work requires an ability to read and write and to do simple arithmetic.

From October 1, 1980, until June 30, 1990, Costello conducted stevedoring operations at Moran Terminal, Charlestown. Until June 30, 1990, Costello regularly employed more than 15 employees, including steamship clerks. Costello never hired a black or Hispanic clerk.

From October 1, 1980, until June 30, 1990, Costello was a member of the Boston Shipping Association. As such, Costello conducted its stevedoring operations in accord with a series of collective bargaining agreements between the Boston Shipping Association and Local 1066. Pursuant to the agreements, Costello hired steamship clerks through a hiring hall maintained by Local 1066. As a member of the Association, Costello agreed not to hire non-union clerks to do steamship work unless Local 1066 failed to supply a sufficient number of qualified personnel. As a consequence, Costello rarely hired non-members of Local 1066.

Local 1066 is a local labor organization affecting commerce. The union has 124 members. There are eighty active members. From October 1, 1980, until up to the time the lawsuit was filed,³ Local 1066 had a policy requiring that applicants seeking admission (other than injured longshoremen) be sponsored by a member of the union.⁴ The sponsored applicants were always members' relatives. Local 1066 has no black or Hispanic members and has never had a black or Hispanic sponsored for membership. No black or Hispanic has even been formally denied admission to Local 1066 or formally denied the opportunity to work as a steamship clerk in the Port of Boston.

DISCUSSION

Summary judgment is appropriate when, based upon pleadings, affidavits, and depositions, "there is no genuine issue as to any material fact and where the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Gaskell v. Harvard Coop Society, 3 F.3d 495, 497 (1st Cir.1993). Under the evidentiary framework first developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the plaintiff has the burden of presenting a prima facie case of discrimination. If accomplished, the burden shifts to the defendants to articulate a legitimate nondiscriminatory reason for their actions.

The EEOC alleges in its Complaint that Local 1066 unlawfully restricted its membership on the basis of race by requiring that members be referred by an already admitted union member. The EEOC argues that this policy of membership referral created a disparate and adverse impact on blacks and Hispanics.⁵ In a disparate impact case, the plaintiff must show that a "facially neutral employment practice has a significantly discriminatory impact. If that showing is made, the employer must then demonstrate that `any given requirement has a manifest relationship to the employment in question,' in order to avoid a finding of discrimination." Connecticut v. Teal, 457 U.S. 440, 446-47, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982), quoting Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). If the defendant does not meet its burden of articulation, the court should find in favor of the plaintiff.

As evidence of adverse impact, the EEOC relies on the fact that statistically no black or Hispanic has ever been made a member of Local 1066. In Fudge v. City of Providence Fire Dept., 766 F.2d 650, 658 (1st Cir.1985), the First Circuit addressed the issue of statistical evidence in an adverse impact case involving admission tests to a fire fighters' training academy. The test articulated in Fudge is applicable to the instant case.

In cases involving a narrow data base, the better approach is for the courts to require a showing that the disparity is statistically significant, or unlikely to have occurred by chance, applying basic statistical tests as the methods of proof.... When statistical tests sufficiently diminish chance as a likely explanation, it can be presumed that an apparently substantial difference in pass rates is attributable to discriminatory bias, thus shifting the burden to defendants to show job relatedness. If the probability is sufficiently high that the disparity resulted from chance, the plaintiff must present additional evidence of disproportionate impact in order to establish a prima facie case. The test for chance would determine the competency and validity of exclusively statistical proof in a far more reliable manner than wholly intuitive response. citations omitted.

Id.

Prior training or specialized skills are not required to perform steamship clerk tasks. As the EEOC pointed out in its Decision after the investigation of the charge, the general population statistics for the relevant Boston area labor market show that blacks comprise 21% of the available labor force and Hispanics 6%.⁶ Statistically, the union's membership referral policy has never produced a black or Hispanic member. Chance is not a likely explanation for this result.⁷ Plaintiff, therefore, has carried its burden of presenting a prima facie case of discrimination against the union.

The burden thus shifts to Local 1066 to justify its employment practices. "The explanation defendant provides must be `clear and reasonably specific.' ... The defendant must offer more than vague, general averments of good faith." Oliver v. Digital Equipment Corp., 846 F.2d 103, 109 (1st Cir.1988), citations omitted. Local 1066, however, has failed to articulate a job related rationale for its membership policy. The purported justification offered by the union is that "most recently inducted members have joined the union for...