Grant v. Bethlehem Steel Corp., No. 824

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore LUMBARD, MANSFIELD and KEARSE; MANSFIELD; Knapp
Citation635 F.2d 1007
Decision Date26 November 1980
Docket NumberNo. 824,D
Parties24 Fair Empl.Prac.Cas. 798, 24 Empl. Prac. Dec. P 31,376 Roysworth D. GRANT and Willie C. Ellis, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, and Louis Martinez, Plaintiff-Intervenor-Appellant, v. BETHLEHEM STEEL CORPORATION, James Deaver, Eugene R. Driggers, and Thomas C.Connolly, individually and as agents of Bethlehem Steel Corporation et al., Defendants-Appellees. ocket 79-7225.

Page 1007

635 F.2d 1007
24 Fair Empl.Prac.Cas. 798,
24 Empl. Prac. Dec. P 31,376
Roysworth D. GRANT and Willie C. Ellis, on behalf of
themselves and all others similarly situated,
Plaintiffs-Appellants,
and
Louis Martinez, Plaintiff-Intervenor-Appellant,
v.
BETHLEHEM STEEL CORPORATION, James Deaver, Eugene R.
Driggers, and Thomas C.Connolly, individually and
as agents of Bethlehem Steel Corporation
et al., Defendants-Appellees.
No. 824, Docket 79-7225.
United States Court of Appeals,
Second Circuit.
Argued April 2, 1980.
Decided Nov. 26, 1980.

Page 1009

Richard A. Levy, New York City (Lewis M. Steel, Eisner, Levy, Steel & Bellman, P.C., New York City, of counsel), for plaintiffs-appellants.

Wayne Cross, New York City (Ralph L. McAfee, Cravath, Swaine & Moore; Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City, of counsel), for defendants-appellees.

Michael D. Ratner, New York City, for plaintiff-intervenor-appellant.

John S. Martin, Jr., U. S. Atty., for the Southern District of New York, New York City (Barbara L. Schulman, Dennison Young, Jr., Asst. U. S. Attys., New York

Page 1010

City, Drew S. Days, III, Asst. Atty. Gen., Civ. Rights Div., U. S. Dept. of Justice, Washington, D. C., of counsel), for amicus curiae United States.

Leroy D. Clark, Gen. Counsel, Equal Employment Opportunity Commission, Washington, D. C., for amicus curiae Equal Employment Opportunity Commission.

McGuiness & Williams, Washington, D. C. (Robert E. Williams, Douglas S. McDowell, Edward E. Potter, Washington, D. C., of counsel), for amicus curiae Equal Employment Advisory Council.

Before LUMBARD, MANSFIELD and KEARSE, Circuit Judges.

MANSFIELD, Circuit Judge:

Appellants, two black and one dark-skinned Puerto Rican ironworkers, brought this class action against Bethlehem Steel Corporation and three of its supervisory employees in the District Court for the Southern District of New York, alleging that it had discriminated against blacks and Hispanics in its selection of ironwork foremen, thereby violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., 42 U.S.C. § 1981 and Executive Order 11246, and as a remedy sought backpay. After a bench trial Judge Whitman Knapp on December 27, 1978, entered a Memorandum and Order dismissing the complaint. We reverse and remand for further proceedings. Contrary to the conclusions reached by the district court, appellants made out a prima facie case of both discriminatory treatment, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972), and discriminatory impact from a facially neutral selection procedure, see Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1970); Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 349, 97 S.Ct. 1843, 1861, 52 L.Ed.2d 396 (1977).

Bethlehem Steel Corporation's Fabricating Steel Construction Division (Bethlehem), until it ceased operations in March 1976, was engaged in construction of steel framework for bridges, skyscrapers, hospitals, air terminals and other structures. For this work, which is hazardous, it employed ironworkers who performed jobs ranging from such unskilled tasks as carrying planks to be laid down for flooring, to the more skilled operations of welding or bolting up steel structures. The ironworkers worked together in groups or "gangs" of three to six, each under the leadership of a foreman or "pusher." No special education or training was required for the job of ironworker. To become a foreman, however, an ironworker, because of the dangerous nature of the work, should possess safety consciousness, leadership qualities and productiveness.

As the district court found, "(p)rior to the enactment of Title VII there had been a long history of discrimination against blacks in the hiring of ironworkers in the New York Metropolitan area." In the late 1960's, as a result of a building boom which led to a shortage of ironworkers, and a certain amount of community pressure, blacks were admitted into the ironworker trade, working on permits issued by the union. Until 1970, however, blacks were underrepresented in the trade. During the period from 1970 to 1975, which is a crucial time-frame for purposes of this appeal, blacks filled approximately 10% of the 1,018 ironworker jobs on 10 representative Bethlehem projects. 1 During this same period approximately 126 ironworkers, of whom 97 had had prior experience as Bethlehem foremen, were appointed foremen on the 10 projects. Of these only one was black (Nolan Herrera).

The method used for selection of foremen on Bethlehem's steel projects was at best rather haphazard. On each steel construction project Bethlehem employed a project superintendent who chose the foreman for

Page 1011

the project. The superintendents, all of whom were white, were given uncontrolled discretion to hire whom they pleased. As the district court found, "It is not disputed that the superintendents hired by word of mouth on the basis of wholly subjective criteria." No foremen's jobs were posted and no list of eligible foremen was kept. Instead, upon hearing informally of an upcoming Bethlehem project, of which the superintendent would learn as much as eight months to a year in advance, he would communicate with persons whom he knew in the trade or who were recommended to him by others and line them up as prospective foremen for the project. Under this practice of pre-job hiring those interested in the job of foreman would rarely have the chance to apply for the job on any given project, since only persons solicited by the superintendent would know of the project in advance. By the time the project became known generally and notice of it was posted in the union hiring hall, there would usually no longer be any openings available for the job of foreman.

By the early 1970's the three appellants had all had extensive ironworker experience. Martinez, a 53-year-old dark-skinned Puerto Rican, started as a permit-man, became a union member in 1969 and had worked as foreman on projects for other companies. In 1969 he became a foreman on a large Bethlehem project (Astor Plaza), where he earned an excellent reputation, despite which he was never again chosen as a foreman. Grant, a 51-year-old black, had been an ironworker since age 14, had mastered almost every aspect of the trade, had served as a supervisor on many jobs in Trinidad, and had worked on many structural steel jobs in New York, including the World Trade Center and the Celanese Corporation building. For 10 years he had worked as an ironworker for Bethlehem. Ellis, a black American in his 40's, likewise had wide ironwork experience, engaging in such skilled operations as bolting, fabricating and welding. He had served as a foreman for Harris Structural Steel Corporation and Koch Construction Company before going to work for Bethlehem.

Despite their qualifications and their repeated requests to Bethlehem for assignment to the position of foreman, none of the appellants was ever appointed to that job. Their efforts were frustrated principally by two Bethlehem project superintendents, James Deaver and Eugene Driggers, who were responsible for hiring most foremen on 10 representative Bethlehem projects in the New York Metropolitan area. Deaver, who was a superintendent on many Bethlehem projects for 14 years prior to 1976, never appointed a black or Puerto Rican. His practice was to appoint white foremen by word of mouth from among friends and those recommended by other foremen, union officials or superintendents. His attitude toward appointment of blacks as foremen was summarized by Judge Knapp, "There is no question in my mind ... that a black man had a much higher threshold of acceptability than a caucasian in Mr. Deaver's mind." Similarly Driggers, who had been a Bethlehem superintendent for many years on some 35 projects, 90% of which were in the New York Metropolitan area, had never appointed a black or Puerto Rican. He likewise appointed white foremen by word of mouth from among friends or persons known to him or those referred to him by others. Although he conceded that some minority ironworkers, including Martinez, had performed satisfactorily and were capable of being foreman, he excused his failure to make appointments of blacks or Puerto Ricans on the grounds that he "didn't know any" and that "nobody (had) ever worked with me to become one." Neither Deaver nor Driggers ever kept any lists of ironworkers qualified to become foreman.

Superintendents Deaver and Driggers defended their subjective hiring practices by pointing to the dangerousness of ironwork and asserting that no objective method of evaluation would have let them effectively determine individuals' competence to handle the heavy responsibility of foremanship. In selecting foremen they tended to call back men who had worked before as Bethlehem foremen; since ironwork is project-

Page 1012

oriented, with laborers and foremen from a completed project returning to the same pool until opportunities at a new project became available, superintendents frequently had ready access to experienced Bethlehem foremen from within the ironworkers' ranks. Of the 126 foreman positions at issue here, 97 went to men who had worked as foremen on previous Bethlehem projects. Several of the remaining hirees had worked as foremen for other ironwork companies. Others had served as ironworkers at Bethlehem before becoming foremen.

Appellants attack the superintendents' word-of-mouth hiring system as discriminatory in both treatment and impact. They assert that friendship and nepotism rather than assessment of ability formed the basis for the superintendents' selections, and that since blacks tended to be excluded from the all-white superintendents' friendship, they were also unlawfully excluded from jobs as foremen. In support of these allegations, appellants point out that the supervisors often went to...

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67 practice notes
  • Harris v. Marsh, No. 81-60-CIV-3
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • December 28, 1987
    ...Coser v. Moore, 739 F.2d 746 (2d Cir. 1984); Zahorik v. Cornell University, 729 F.2d 85 (2d Cir.1984); Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Wilmore v. City of Wilmington, 699 F.2d 667 (3d Cir.1983); R......
  • U.S. v. Margiotta, No. 1238
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 27, 1982
    ...v. Mandel, supra, 591 F.2d at 1362. This principle applies to the question of fiduciary duty as well. In United States v. Barta, supra, 635 F.2d at 1007, we stated that an employee's duty to disclose material information to his employer need not be imposed by state or federal statute. Rathe......
  • United States v. Napout, Nos. 18-2750 (L)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 22, 2020
    ...conceal, and in fact to reveal, information he has reason to believe is material to the conduct of his employer's business. Von Barta , 635 F.2d at 1007 ; see also United States v. Bronston , 658 F.2d 920, 926 (2d Cir. 1981). This understanding of the fiduciary duty requirement, moreover, w......
  • Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30, No. 9
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 2, 1982
    ...they rely contain language supporting their position, but are clearly distinguishable on the facts. In Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1016-17 (2d Cir. 1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981), the Second Circuit reversed a judgment of the dist......
  • Request a trial to view additional results
67 cases
  • Harris v. Marsh, No. 81-60-CIV-3
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • December 28, 1987
    ...Coser v. Moore, 739 F.2d 746 (2d Cir. 1984); Zahorik v. Cornell University, 729 F.2d 85 (2d Cir.1984); Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Wilmore v. City of Wilmington, 699 F.2d 667 (3d Cir.1983); R......
  • U.S. v. Margiotta, No. 1238
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 27, 1982
    ...v. Mandel, supra, 591 F.2d at 1362. This principle applies to the question of fiduciary duty as well. In United States v. Barta, supra, 635 F.2d at 1007, we stated that an employee's duty to disclose material information to his employer need not be imposed by state or federal statute. Rathe......
  • United States v. Napout, Nos. 18-2750 (L)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 22, 2020
    ...conceal, and in fact to reveal, information he has reason to believe is material to the conduct of his employer's business. Von Barta , 635 F.2d at 1007 ; see also United States v. Bronston , 658 F.2d 920, 926 (2d Cir. 1981). This understanding of the fiduciary duty requirement, moreover, w......
  • Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30, No. 9
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 2, 1982
    ...they rely contain language supporting their position, but are clearly distinguishable on the facts. In Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1016-17 (2d Cir. 1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981), the Second Circuit reversed a judgment of the dist......
  • Request a trial to view additional results

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