Gonzalez v. Firestone Tire & Rubber Co.
Decision Date | 24 April 1981 |
Docket Number | Civ. A. No. B-76-471-CA. |
Citation | 512 F. Supp. 1101 |
Court | U.S. District Court — Eastern District of Texas |
Parties | Herman GONZALEZ v. The FIRESTONE TIRE & RUBBER COMPANY et al. |
David T. Lopez, David T. Lopez & Associates, Houston, Tex., for Herman Gonzalez.
Earl S. Hines, Brown & Hines, Beaumont, Tex., Hugh E. Hackney, Fulbright & Jaworski, Houston, Tex., R. K. Lewis, Jr., Firestone Tire & Rubber Co., Akron, Ohio, for Firestone Tire & Rubber Co.
Marlin Thompson, Stephenson, Thompson & Dies, Orange, Tex., for Oil, Chemical and Atomic Workers, Local 4-836.
This case is here on remand from the Court of Appeals for the Fifth Circuit and is currently before the Court on the defendants' motions for summary judgment. This Court has previously dismissed Herman Gonzalez's Title VII claim for failure to file suit within 90 days of the first of two right to sue letters. The plaintiff's Section 1981 claim was dismissed for failure to prosecute. On appeal, the Fifth Circuit reversed and remanded, holding that the Title VII claim was not barred because it was instituted within 90 days of the second right to sue letter, and that it was an abuse of discretion to dismiss the plaintiff's Section 1981 claim because his neglect did not amount to a "`clear record of delay or contumacious conduct.'" Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 248 (5th Cir. 1980).
The plaintiff has agreed to dismiss his class allegations and his claim under 42 U.S.C. § 1981. With respect to the Title VII claim, the defendant urges two motions for summary judgment. The first seeks dismissal on the grounds that the plaintiff did not file a charge with the EEOC within 180 days of the alleged discrimination. The second motion attacks the merits of the plaintiff's claim.
A complete discussion of the facts appears in the Court of Appeals' decision and will not be repeated here except as necessary to the current motions. Herman Gonzalez, a Firestone employee, filed a discrimination charge with the EEOC in September, 1973, alleging that Firestone refused to transfer him into the Maintenance Training Program in August 1972, and refused to transfer him into the plant protection or lab sampler jobs in October, 1972. He also alleged that in September 1973 "8 temporary mechanics were hired from outside the plant" and that he was "not even asked to be upgraded to these temporary openings." EEOC Charge at 3.
The EEOC eventually found reasonable cause to believe that Firestone violated Title VII because Firestone continued to use unvalidated tests for the purpose of a validation study, and this had a chilling effect on minority applicants. Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d at 243.
Firestone argues that since Herman Gonzalez was denied transfer to the Maintenance Training Program in August, 1972, but did not file a charge with the EEOC until September, 1973, and is therefore barred by the 180 day limitation. The plaintiff argues that he was the victim of a continuing violation, or, in the alternative, that his claim should be equitably tolled.
The Fifth Circuit addressed the 180 day limitation issue stating that "Gonzalez's complaint sufficiently alleged a continuing violation" of Title VII.
On remand the district court should determine whether Firestone continued to base its selection of employees to receive job opportunities upon scores from an unvalidated battery of tests. If Firestone ceased to utilize such a testing system more than 180 days prior to the filing of Gonzalez's charge with the EEOC, then his Title VII complaint would be barred for failure to comply with 42 U.S.C. § 2000e-5(e) unless he could show either that Firestone's continuing to administer the tests for the purpose of a validation study had a disparate effect upon the ability of Spanish-surnamed employees to obtain job opportunities or that Firestone denied him a promotion or transfer within the 180 day period on the basis of the prior testing. A failure to promote Gonzalez more than 180 days prior to the filing of his charge based on his prior test scores would not constitute a continuing violation.
On remand, the plaintiff dismissed his class allegations and this fact may undermine the Fifth Circuit's conclusion that a continuing violation has been sufficiently alleged. Assuming the sufficiency of the complaint, however, the defendant's motion for summary judgment has merit and should be granted.
Affidavit of Marvin Waddell, p. 1-2.
The plaintiff's response to the motion consists of a four page memorandum and a copy of Herman Gonzalez's EEOC charge. The plaintiff argues that the "EEOC charge shows sufficient facts to apply the theory of `continuing effect of past discrimination'" Plaintiff's Memorandum at 3. The plaintiff also argues that the defendant's affidavit is contradicted by the defendant's own exhibits, specifically, copies of the collective bargaining agreements in effect. Lastly, the plaintiff urges the Court to apply the doctrine of "equitable tolling" because "the plaintiff held back on his charge while he was being told by company officials that he was being considered for other transfer opportunities and on the fear that the filing of a charge could lead to his dismissal." Id. at 3.
See Federal Deposit Insurance Corp. v. Dye, 642 F.2d 837, 841 (5th Cir. 1981); Ferguson v. National Broadcasting Co., 584 F.2d 111, 114 (5th Cir. 1978).
This Court is bound by the Fifth Circuit's opinion in this case. If there is no genuine question of fact as (1) "whether Firestone continued to base its selection of employees to receive job opportunities upon scores from an unvalidated battery of tests;" (2) "that Firestone's continuing to administer the tests for the purpose of a validation study had a disparate effect upon the abilities of Spanish-surnamed employees to obtain job opportunities;" or (3) "that Firestone denied him a promotion or transfer on the basis of prior testing" then summary judgment is proper.
Based on the pleadings, deposition, and affidavits on file, there is no question that Firestone ceased using the test scores in selecting applicants for the training program in October, 1971, more than 180 days prior to the filing of the EEOC charge. The plaintiff has not provided affidavits to the contrary, nor does he even allege that Firestone used the scores. The plaintiff's EEOC charge, attached as an exhibit to the plaintiff's response, does not even suggest that the tests were considered. Upon scrutinizing...
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English v. Ware County Dept. of Family & Children
...Title VII. Id. at 1302-1303; see Nilsen v. City of Moss Point, Miss., 621 F.2d 117, 120 (5th Cir. 1980); Gonzalez v. Firestone Tire & Rubber Co., 512 F.Supp. 1101, 1104 (E.D. Tex. 1981). Although the issue here does not concern a time requirement, the circumstances of the case fall neatly i......
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