EEOC v. Local 350, Plumbers and Pipefitters

• Decision Date: 30 May 1990
• Docket Number: No. CN-N-89-359-ECR.,CN-N-89-359-ECR.
• Citation: 741 F. Supp. 199
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. LOCAL 350, PLUMBERS AND PIPEFITTERS, Defendant.
• Court: U.S. District Court — District of Nevada

741 F. Supp. 199

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. LOCAL 350, PLUMBERS AND PIPEFITTERS, Defendant.

No. CN-N-89-359-ECR.

United States District Court, D. Nevada.

May 30, 1990.

Robert T. Olmos, Ralph D. Fertig, Daniel C. Preciado, E.E.O.C., Los Angeles, Cal., for plaintiff.

William J. Flynn, San Francisco, Cal., and Michael Langton, Reno, Nev., for defendant.

ORDER

EDWARD C. REED, Jr., Chief Judge.

Before this Court are defendant's Motion for Summary Judgment, or in the alternative, Motion for Partial Summary Judgment and Motion to Strike (# 9), and plaintiff's Cross-Motion for Partial Summary Judgment (# 16). These Motions are directed towards plaintiff's Complaint (# 1) which was filed in this Court on June 20, 1989.

Plaintiff's Complaint is on behalf of Donald Pilot (Pilot) and all similarly situated protected age-group members, and alleges violations of the Age Discrimination in Employment Act of 1967 (ADEA). Pilot is a retired member of the Local 350 of the Plumbers and Pipefitters Union (Local 350 or defendant), having voluntarily retired in 1983. At least as early as April, 1984, defendant adopted a policy that members who were retired and receiving a pension could not use the hiring hall in order to obtain work unless they first relinquished their retirement benefits. In March and April, 1984, and in November, 1987, defendant refused to allow Pilot to use the hiring hall unless he first relinquished retirement benefits for the time that he wished to be registered on the "out of work" list. In June, 1984, Pilot filed charges with the National Labor Relations Board (NLRB) protesting the defendant's policy. The NLRB found that defendant's rule did not appear to be inherently unfair or discriminatory, and refused to issue a complaint in the matter. Pilot subsequently filed similar charges with the NLRB which were likewise rejected.

On December 24, 1987, Pilot filed a discrimination charge with the Nevada Equal Rights Commission and the plaintiff, EEOC. The plaintiff then filed its Complaint on June 20, 1989. Defendant filed its Motion for Summary Judgment on January 17, 1990, and an Amended Motion on February 2, 1990. On February 5, 1990, plaintiff filed its Cross-Motion for Partial Summary Judgment which also served as an Opposition to defendant's Motion for Summary Judgment. Defendant filed its Reply on February 20, 1990 to plaintiff's Opposition which also served as an Opposition to plaintiff's Cross-Motion for Partial Summary Judgment. Finally, on February 28, 1990, plaintiff filed its Reply.

Under Federal Rule of Civil Procedure 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The parties moving for summary judgment have the burden of establishing that there is no genuine issue of material fact; once this burden is met the burden shifts to the opposing party to set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986). "Summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Trial courts should act with caution in granting summary judgment and may deny summary judgment where there is reason to believe that the better course would be to proceed to trial. Id. at 255, 106 S.Ct. at 2513-14.

In this case, there does not appear to be any genuine dispute with regard to the material facts necessary to decide the Motion for Summary Judgment and the Cross-Motion for Partial Summary Judgment. In both Motions, plaintiff and defendant raise several arguments, however, this Court need only consider one issue to dispose of this case: whether the defendant's policy of excluding pension receiving retirees from using the hiring hall violates the ADEA.

Plaintiff's Complaint essentially alleges that the defendant's hiring hall practices constitute a violation of § 4(c) of the ADEA, 29 U.S.C. § 623(c). More specifically, plaintiff argues in its Cross-Motion that defendant's practices constitute a per se violation of 29 U.S.C. § 623(c)(2). 29 U.S.C. § 623(c)(2) states:

It shall be unlawful for a labor organization —

(2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's age....

In its Motion for Summary Judgment, defendant argues that its policy does not violate § 623(c)(2), and is based upon a reasonable factor other than age pursuant to 29 U.S.C. § 623(f)(1). 29 U.S.C. § 623(f)(1) states:

It shall not be unlawful for an employer, employment agency, or labor organization —

(1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located....

In considering allegations of age discrimination in violation of the ADEA, this Court applies the "burden shifting" test expressed in McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985). Consequently, plaintiff must establish a prima facie case of age discrimination. The burden then shifts to the defendant to demonstrate that an exception to the statute applies.¹ See Equal Employment Opportunity Commission v. Borden's, Inc., 724 F.2d 1390, 1394 (9th Cir. 1984).

Plaintiff has arguably established a prima facie case of age discrimination. Plaintiff appears to be relying on a disparate treatment theory rather than a disparate impact theory.² A disparate treatment theory requires that the defendant act with discriminatory intent. Equal Employment Opportunity Commission v. Borden's, Inc., 724 F.2d 1390, 1393 (9th Cir. 1984). This discriminatory intent may be proved by showing that the policy in question was enacted to deny a benefit to persons based upon their age. Id. The discrimination in this case was arguably intentional in that defendant's policy was intended to not allow persons who were retired and receiving pensions from using the hiring hall. Although the Ninth...