Harris v. Anaconda Aluminum Co.

• Decision Date: 30 March 1979
• Docket Number: Civ. A. No. C75-289A.
• Citation: 479 F. Supp. 11
• Parties: Henry HARRIS and Johnnie C. Hillman, on behalf of themselves and all others similarly situated, and Equal Employment Opportunity Commission v. ANACONDA ALUMINUM COMPANY, Shopmen's Local Union No. 616 of the International Association of Bridge, Structural & Ornamental Iron Workers, International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO.
• Court: U.S. District Court — Northern District of Georgia

479 F. Supp. 11

Henry HARRIS and Johnnie C. Hillman, on behalf of themselves and all others similarly situated, and Equal Employment Opportunity Commission v. ANACONDA ALUMINUM COMPANY, Shopmen's Local Union No. 616 of the International Association of Bridge, Structural & Ornamental Iron Workers, International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO.

Civ. A. No. C75-289A.

United States District Court, N. D. Georgia, Atlanta Division.

March 30, 1979.

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Donald P. Edwards of Kennedy & Sampson, Atlanta, Ga., for plaintiffs.

Abner W. Sibal, Gen. Counsel, E.E.O.C., William L. Robinson, Assoc. Gen. Counsel, E.E.O.C., Washington, D. C., Theodore T. Grove and Floyd C. Hale, Trial Attys., E.E. O.C., Atlanta, Ga., for E.E.O.C.

Harris Jacobs and James T. Langford of Jacobs, Jacobs & Davis, Atlanta, Ga. (for Unions—local and intl.)

Cleburne E. Gregory, Jr., Jeffrey B. Berg and Simon A. Miller, Atlanta, Ga. (for Anaconda).

ORDER

NEWELL EDENFIELD, District Judge.

This civil action, alleging racial discrimination in employment, is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Labor Management Relations Act, 29 U.S.C. §§ 151, et seq., with respect to the plaintiffs' claim for alleged violations of the duty of fair representation by the defendant unions. The two individual plaintiffs, Henry Harris and Johnnie C. Hillman, are black hourly employees at defendant Anaconda Company's (hereinafter "Anaconda") facility in Fulton County, Georgia and members of defendant Shopmen's Local Union No. 616 (hereinafter "Local Union"). They filed their original EEOC charges of racial discrimination against Anaconda and the Local Union on April 18, 1969. On July 20, 1970, plaintiffs filed substantially identical EEOC charges against defendant International Association of Bridge, Structural and Ornamental Iron Workers (hereinafter "International Union"). The Equal Employment Opportunity Commission (hereinafter "Commission") rendered its reasonable cause determination on February 6, 1973 and attempted to conciliate the matter until July 19, 1974. No conciliation agreement having been reached, plaintiffs received their notice of right to sue on November 11, 1974 and filed the instant action seeking declaratory and injunctive relief on February 19, 1975. They allege, on behalf of a class of similarly situated individuals, that Anaconda has discriminated against them because of their race in promotions and transfers, job assignments, training opportunities, and other terms and conditions of employment and that the unions have discriminated against Anaconda's black employees by limiting the employment and promotional opportunities of these persons and by breaching the duty fairly to represent those employees. The Commission was permitted to intervene in this action, pursuant to sections 705(g)(6) and 706(f)(1) of Title VII, 42 U.S.C. §§ 2000e-4(g)(6), -5(f)(1), on September 15, 1976.

By order of March 31, 1978, the court granted motions by the private plaintiffs and the Commission for class certification, the class to include all past, present and future black employees at Anaconda's Fulton County facilities after July 2, 1965. At this time, it designated the Commission as the class representative but amended this order on July 21, 1978, to permit both the individual plaintiffs and the Commission to represent the class. The March order also granted the Commission's motion to separate the issues of liability and individual relief for purposes of trial. The liability portion of this case was tried to the court, sitting without a jury, from July 10, 1978 through July 27, 1978 and from August 21, 1978 through August 24, 1978, and all five parties presented witnesses and documentary evidence in support of their positions. This order contains the court's findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R.Civ.P.

Jurisdiction

Anaconda is and has been a business corporation engaged in designing and manufacturing architectural aluminum products in Fulton County and in selling and shipping those products to customers in various other places both inside and outside the United States. It has continuously employed several hundred persons in those operations since prior to July 2, 1965, the effective date of Title VII, and is therefore an employer engaged in an industry affecting commerce within the meaning of section 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000e-1(b), (g) and (h). The Local Union has been an unincorporated association of participating employees which deals with employers concerning terms and conditions of employment continuously since July 2, 1965. It has had more than twenty-five members and has been the certified collective bargaining representative of several hundred of the Anaconda employees since before that date. The International Union chartered the Local Union, has had more than twenty-five members, and has been an unincorporated association of participating employees which deals with employers concerning terms and conditions of employment continuously since July 2, 1965. Both the Local and International Unions are labor organizations engaged in an industry affecting commerce within the meaning of section 701(d) and (e) of Title VII, 42 U.S.C. § 2000e-1(d) and (e). The court has jurisdiction of this action under section 706(f) of Title VII, 42 U.S.C. § 2000e-5(f), and under 28 U.S.C. §§ 1343, 1345, 2201 and 2202 and 29 U.S.C. §§ 151, et seq.

Statute of Limitations

In United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), the Supreme Court held:

A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute Title VII was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.

Plaintiff in Evans had been forced to resign in 1968 because of a marriage policy discriminating against female flight attendants. She did not file an EEOC charge within ninety days as required by Title VII prior to 1972. After reinstatement in 1972 plaintiff filed suit to receive seniority credit for the pre-1968 employment, contending that the seniority system perpetuated an act of past discrimination. In upholding the dismissal of this complaint as time-barred, the Court rejected plaintiff's theory that the refusal to grant her seniority credit constituted a continuing violation having present effects, on two separate grounds. First, a post-1965 unlawful practice which is not made the basis of a timely EEOC charge is the legal equivalent of a pre-1965 act and has no present legal effects. Second, under section 703(h) a neutral seniority system may not be attacked under Title VII because of "the mere fact that a past event which has no present legal significance has affected the calculation of seniority credit, even if the past event might at one time have justified a valid claim against the employer." 431 U.S. at 560, 97 S.Ct. at 1890.

Evans was an individual action, while the present case is a class action. "In a class action, the named plaintiffs can represent all persons who could have filed charges with the Equal Employment Opportunity Commission . . . as of the effective date of a class representative's filing." Dickerson v. United States Steel Corp., 439 F.Supp. 55, 68 (E.D.Pa.1977), rev'd on other grounds, 582 F.2d 827 (3d Cir. 1978), citing Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). Thus, the class can only assert liability against defendants by showing violations with respect to which EEOC charges could have been filed at the same time the named plaintiffs filed their EEOC charges. Croker v. Boeing Co., 437 F.Supp. 1138 (E.D.Pa.1977).

The effect of Evans is that liability under Title VII cannot be predicated upon either pre-Act discrimination or post-Act discrimination which has not been made the subject of a timely EEOC charge. See Swint v. Pullman-Standard, 15 F.E.P. 144 (N.D.Ala.1977). Such post-Act discrimination is, of course, admissible background evidence which may be circumstantially relevant to establishing current unlawful practices, but, standing alone, it cannot support a finding of liability. In the present case, the cut-off date under Evans is January 18, 1969, which is ninety days prior to the filing of the original EEOC charges against Anaconda and the Local Union. Thus, any evidence of alleged unlawful acts prior to that date cannot be evidence of a pattern or practice upon which a finding of liability against these two parties may be predicated. Since the charges against the International Union were not filed until July 20, 1970, its Title VII liability must be based upon discriminatory acts occurring after April 21, 1970.

Plaintiffs and the Commission argue that the statute of limitations delineated in Evans does not apply in cases alleging "a broad systematic pattern of racial discrimination in promotions" since such cases involve, by definition, continuing violations of Title VII in that black employees continue to feel the effects of the alleged discrimination in terms of wages or benefits. They assert that in these cases no limitation period other than the effective date of the statute should be applied. It appears to the court that Evans itself spoke to this question and made no such distinction. The Court stated, "Respondent emphasizes the fact that she has alleged a continuing violation. United's seniority system does indeed have a continuing...