Green v. United States Steel Corp.

• Decision Date: 29 August 1979
• Docket Number: Civ. A. No. 76-3673.
• Citation: 481 F. Supp. 295
• Parties: Elbert G. GREEN et al. v. UNITED STATES STEEL CORPORATION et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

481 F. Supp. 295

Elbert G. GREEN et al. v. UNITED STATES STEEL CORPORATION et al.

Civ. A. No. 76-3673.

United States District Court, E. D. Pennsylvania.

August 29, 1979.

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COPYRIGHT MATERIAL OMITTED

Prather G. Randle, Philadelphia, Pa., for plaintiffs.

Henry T. Reath, Philadelphia, Pa., for U. S. Steel.

Julia Penny Clark, Washington, D. C., for Union.

MEMORANDUM AND ORDER

NEWCOMER, District Judge.

This is an action brought by three individual plaintiffs who allege that the defendants, United States Steel Corporation and the International United Steelworkers of America (AFL-CIO) and International and Local Unions Nos. 4889, 5092, 5030, 5116, 2670, 7246, 507, 510 (hereafter, the union or the union defendants), have engaged in employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. The defendants have moved to dismiss or for summary judgment on all of the plaintiffs' claims. For convenience, the Court will treat each plaintiff's claims separately, although certain issues appear in two or more of the cases.

DIANE DURANT

United States Steel has moved to dismiss the Title VII claim of Diane Durant. The company argues that Ms. Durant's claim is barred by the statute of limitations because she did not file a complaint with the Equal Employment Opportunities Commission (EEOC) within 180 days of the discriminatory act which forms the basis of her complaint. 42 U.S.C. § 2000e-5(e). For the reasons set forth below United States Steel's motion is denied.

Diane Durant is a black employee of United States Steel who applied for and was rejected for a position as a Physical Tester in the company's Fairless Hills, Pennsylvania, plant. She alleges that she was discriminated against on the basis of race when she was denied the promotion she was seeking.

Ms. Durant received notice that she was rejected for the Physical Tester position on or before April 4, 1974. She filed her complaint with the EEOC on January 6, 1976, some twenty-one months later.

At the time Ms. Durant was rejected for the Physical Tester position the case of Dickerson v. United States Steel et al., 472 F.Supp. 1304 (E.D.Pa.1978), was pending in this Court. Dickerson was filed as a class action on behalf of all black employees at the Fairless Hills plant. The complaint alleged generally that United States Steel engaged in a pattern and practice of discrimination in many areas of personnel management and relations, including hiring, firing, assignments and promotions.

On September 16, 1974, the Court certified a class in that case consisting of:

"all blacks now employed or who might be employed in the future by United States Steel Corporation at its Fairless Hills, Pennsylvania, plant; all blacks who were employed by the company from July 2, 1965 to the present date, but who are no longer employed there; and all blacks who unsuccessfully sought employment at the Fairless Hills plant at any time between July 2, 1965 and the present date . . ."

64 F.R.D. at 353 (E.D.Pa.1974).

Nearly two years later, on August 21, 1976, the Court decertified a part of that broad class on the grounds that the claims of management employees, Clerical and Technical employees, and rejected applicants for employment were not sufficiently related to the claims of Production and Maintenance workers to support the inclusion of all of the groups in a single class. The claims of Production and Maintenance workers proceeded to trial in 1976 and 1977.

As a rule, the filing of a class action complaint tolls the statute of limitations on the filing of individual claims for all purported members of the class. If the class is later decertified, the statute begins to run again and the individual class members must either file new law suits or timely requests to intervene in the original suit, or be barred by the statute. American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); Haas v. Pittsburgh National Bank, 526 F.2d 1083 (3d Cir. 1975).

United States Steel argues that Title VII cases—at least those involving "pattern and practice" complaints—are not governed by the American Pipe rule. To prevail on such an argument the company must meaningfully distinguish that case.

American Pipe was an antitrust decision. There, the State of Utah filed a class action suit against a number of sellers of concrete and steel pipe on behalf of "public bodies and agencies of the state and local government in the State of Utah who are end users of pipe acquired from the defendants." After the expiration of the original time limit for filing a complaint the district court decertified the class for failure to satisfy the numerosity requirement of Rule 23(a)(1), F.R.Civ.P.

The principal basis for the Supreme Court's holding in American Pipe was that a refusal to toll the statute of limitations for individual claims in a class action would induce many of the class members to seek to intervene in the class suit as individual plaintiffs before the end of the limitations period, for fear that their claims would be barred if the class were later decertified for any reason. If such intervention were sought routinely, utility of a Rule 23 class action would be destroyed.¹

American Pipe, however, is distinguishable in certain respects, and the defendant has set forth in its brief a cogent reason not to extend the American Pipe holding to a Title VII case:

"In assessing whether American Pipe has any application to the circumstances of the present case, one must remember that what was involved in American Pipe was a single price-fixing conspiracy. Obviously, in the case of a single conspiracy, the problems referred to in Johnson v. Railway Express Agency, Inc., 421 U.S. 454 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) of `loss of evidence, the disappearance and fading memories of witnesses, and the unfair surprise that could result from a sudden revival of a claim that long has been allowed to slumber' did not exist. The witnesses, the claims, and the evidence would all be the same in the class action as in the individual actions which were brought subsequent to denial of class certification.

To suggest that United States Steel was in any way put on notice that it should begin collecting evidence or witnesses and prepare to defend a claim involving a bid in 1974 for the physical tester position by a member of the clerical and technical local union by the filing of a charge by Moses Dickerson alleging that he had been misled in the Birmingham recruiting process and had been denied the chance to be a welder in 1969 is patently ridiculous."

Defendant United States Steel's Reply Brief at 21-2.

The difficulty with the defendant's argument is that the problems mentioned can arise in a Title VII class action where the statute of limitations is not in issue. Under present law, it is possible for an employer to be faced at trial with claims arising out of events from years past that it may have had no idea occurred.

It is well settled that a plaintiff may bring a class action on behalf of those who have not filed a complaint with the EEOC. Bowe v. Colgate Palmolive Co., 416 F.2d 74 (7th Cir. 1969); Miller v. International Paper Company, 408 F.2d 283 (5th Cir. 1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir. 1971); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir. 1975).

In certain circumstances, a Title VII defendant can be required to litigate the individual claims of discrimination of individual class members who have not filed EEOC charges. That obligation would arise in a case in which individual damage claims were tried after a finding of liability to the class. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974); United States v. Wood Wire & Metal Lathers International Union Local Union No. 46, 328 F.Supp. 429 (S.D.N.Y.1971).

Johnson v. Goodyear Tire & Rubber Co., supra, is particularly illustrative. There, the plaintiffs brought a broad-based class action somewhat similar to the Dickerson case. The Fifth Circuit upheld the trial court's finding of liability to the class, but reversed the trial court for its failure to award class-wide back pay. The court instructed the trial court to consider on remand a procedure whereby individual class members could present their discrimination claims individually. The putative class member would be required to establish his membership in the class. At that point the court recommended shifting the burden of proof to the employer:

"If an employee can show that he was hired into the labor department before April 22, 1971, and was subsequently frozen into that department because of the discriminatory employment practices established here . . . it will be incumbent upon Goodyear to show by convincing evidence that other factors would have prevented his transfer regardless of the discriminatory employment practices. If Goodyear wishes to show that a labor department employee would not be qualified for any other job then its proof must be clear and convincing. . . .

. . . . .

We are not unmindful that in many instances an individual's proving entitlement to back pay will be based on probabilities."

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d at 1379-80.

If this Court had not decertified Clerical and Technical employees, and the broader class had established United States Steel's liability; and further, if this Court had decided to employ the Johnson procedure in the damages portion of the case; Diane Durant would have been permitted to bring her claim of discriminatory refusal of promotion in that stage of the case. She would not have been required to have filed an EEOC complaint, and United States Steel would be searching for witnesses to testify that "other...