Hollander v. Sears, Roebuck & Co.

• Decision Date: 14 April 1978
• Docket Number: Civ. No. H-74-398.
• Citation: 450 F. Supp. 496
• Court: U.S. District Court — District of Connecticut
• Parties: Alan Roy HOLLANDER v. SEARS, ROEBUCK & CO.

450 F. Supp. 496

Alan Roy HOLLANDER v. SEARS, ROEBUCK & CO.

Civ. No. H-74-398.

United States District Court, D. Connecticut.

April 14, 1978.

Alan Roy Hollander, pro se.

William S. Rogers, Louis R. Pepe, Alcorn, Bakewell & Smith, Hartford, Conn., Robert F. Maxwell and Joseph M. Kehoe, Jr., St. Davids, Pa., of counsel, for defendant.

MEMORANDUM OF DECISION

BLUMENFELD, District Judge.

In this pro se action Alan Roy Hollander, a white male, alleges that because of his race Sears, Roebuck & Co. excluded him from consideration for a position in its Summer Internship Program for Minority Students. In an earlier ruling on defendant's Motion to Dismiss, it was held that 42 U.S.C. § 1981 provided a cause of action for the plaintiff who alleged that he was the victim of racial discrimination. Hollander v. Sears, Roebuck & Co., 392 F.Supp. 90 (D.Conn.1975). See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). The case has now been submitted to the court for decision based on a stipulation of facts and a number of exhibits including correspondence, affidavits, a deposition of the plaintiff and other documents. Some of the facts included in the stipulation are as follows:

1. The defendant, Sears, Roebuck & Co., is a corporation organized and existing under the laws of the State of New York with an office and principal place of business in Chicago, Illinois.

2. At all times mentioned herein, Sears was and is a "federal contractor," as that term is used in certain Executive Orders and regulations.¹ Sears instituted an affirmative action program on a national basis in 1968.

3. Immediately prior to the summer of 1969, the Eastern Territorial Office of Sears adopted and implemented a Summer Internship Program.² The purpose of this program was to stimulate applicant flow from minority groups to Sears' regular management training programs and management positions. Although some participants in the Summer Internship Program were asked to join the regular Sears Management Training Program upon graduation from college, the program was a prerequisite neither to a regular management training program nor to permanent managerial employment with Sears.³

4. The Summer Internship Program was an eleven-week summer program for qualified college juniors. Admission to the program was restricted to minority students, defined to be Black, Oriental, Indian, or Spanish-surnamed persons. The program provided a weekly payment of $130 for participants.

5. No similar program was available to non-minority students while the Summer Internship Program was in existence. Other employment, both permanent and summer, was available at all such times on an equal basis to all persons regardless of race.

6. Plaintiff, Alan Roy Hollander, was a junior at Wesleyan University in Middletown, Connecticut, in December 1973,⁴ when he attempted to register for an on-campus interview with the Personnel Manager of the Sears Connecticut Valley Group, W. E. Rittmeyer, who was then scheduled to recruit at Wesleyan for Sears' Summer Internship Program.

7. Sears refused to consider plaintiff for the Summer Internship Program for the sole reason that, as a white male, he was not a minority student as defined in paragraph 4 above.

8. On or about December 11, 1973, the plaintiff filed complaints with both the Connecticut Commission on Human Rights and Opportunities ("CCHRO") and the Equal Employment Opportunity Commission ("EEOC"), claiming that, by restricting admission to its Summer Internship Program to minority students, Sears had violated his rights under the Connecticut Fair Employment Practices Law, as amended, and Title VII of the 1964 Civil Rights Act, as amended.

9. On June 19, 1974, the CCHRO dismissed plaintiff's complaint for "lack of sufficient evidence" to support the charge. On July 16, 1974, plaintiff appealed that decision to the Connecticut Court of Common Pleas. The appeal was terminated on November 20, 1974, when that court sustained a plea in abatement filed by the defendant, the Chairman of the CCHRO.

10. Hollander did not appeal from the decision of the Court of Common Pleas, but, instead, on December 20, 1974, instituted the present action in this court. On January 13, 1975, plaintiff withdrew his complaint before the EEOC.

11. There is presently pending and being actively pursued against Sears a charge of systemic or class discrimination by Sears on a company-wide basis resulting in the denial of employment opportunities, including hiring, retention and promotion, to minorities, particularly blacks and females. That charge was filed by the then Chairman of the EEOC on September 11, 1973.

I. The Contract Right

Title 42, Section 1981, which provides the basis for the present action, reads in relevant part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . ."⁵ A decade ago, in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), the Court first considered whether purely private acts of racial discrimination in the sale of property violated § 1982, and held that the section reached discrimination by private owners as well as by public authorities.⁶ Taking the lead foreshadowed in Jones, the lower federal courts applied its reasoning—principally in the area of employment—to hold that the companion provision § 1981 prohibited racial discrimination in the making of private contracts. Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973); Payne v. Ford Motor Co., 461 F.2d 1107 (8th Cir. 1972); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972); Young v. ITT, 438 F.2d 757 (3d Cir. 1971); Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971); Waters v. Wisconsin Steel Workers of International Harvester Co., 427 F.2d 476 (7th Cir.), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970). In Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), the Court adopted this view, stating that § 1981 affords a federal cause of action against racial discrimination in private employment.

Then in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), the Court declined to impose substantial constitutional limits on the statute's establishment of the right to make and enforce contracts. In Runyon the statute was held to prohibit defendants' refusals to admit black children whose parents sought to enter them in private schools. In holding that the statute prohibited a private racially motivated refusal to contract for their admission, the Court turned aside the schools' contention that the application of § 1981 violated the constitutionally protected rights of free association and privacy, or a parent's right to direct the education of his children. Id. at 175-79, 96 S.Ct. 2586.

In that case the defendants further argued that § 1981's "right to make a contract" demanded narrow construction. Over a strong dissent by Mr. Justice White, the Court ignored the defendant schools' argument that the right to "make and enforce contracts" did not impose on the offeror the reciprocal obligation not to refuse an acceptance on racially motivated grounds.⁷ The Runyon majority chose not to engage in a strict analysis of defendants' asserted justification for refusal, but simply adopted the view as expressed by the Court of Appeals that "the relationship the parents had sought to enter into with the schools was . . . undeniably contractual in nature, within the meaning of § 1981 . . .." Id. at 166, 96 S.Ct. at 2592.

Finally in McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), the Court interpreted § 1981 as creating an obligation not to discriminate against employment of whites upon the same standards as would be applicable to blacks. Id. at 280, 96 S.Ct. 2574.

Armed with the bar against discrimination solidly established by Runyon and McDonald, the plaintiff contends that even affirmative action programs which deny contractual opportunities through use of racial criteria violate § 1981.

As a defense to plaintiff's § 1981 claim, Sears argues that as a federal contractor, it was required by Executive Order 11246 and regulations promulgated by the Office of Federal Contract Compliance Programs ("OFCCP") to implement an affirmative action program.⁸ The executive order and regulations require all government contractors to undertake an evaluation of their pattern of employment of minorities and women in all job categories. 41 C.F.R. § 60-2.11(a). Once the self-analysis is completed, the employer is to identify obstacles to the full utilization of minorities and women that may account for their representation in small numbers in particular categories. Having identified the obstacles, the employer is required to develop a plan to overcome those impediments to equal employment opportunity. 41 C.F.R. § 60-1:40.

The data gathered by Sears in the course of analyzing its employment system demonstrated that there were few minority members employed in management positions with the company.⁹ Sears, having considered the problem as directed by the regulations, determined that the solution lay in attracting greater numbers of qualified minorities to its management training program. Sears points out that the OFCCP regulations make specific suggestions for ways to remedy this problem. Among the suggested techniques to improve recruitment and increase the flow of minority or female applicants are active recruiting programs at schools with predominantly minority or female enrollments, recruiting efforts at all schools emphasizing special efforts to reach minorities, and special employment and summer work programs.¹⁰ Sears explains...