Jones v. Cassens Transport

• Decision Date: 07 May 1982
• Docket Number: Civ. A. No. 78-73078.
• Citation: 538 F. Supp. 929
• Parties: Frances JONES, Beverly Harder, Eleanor Murray, Linda Nickel, and Mary Ruane, Jointly and Severally, Plaintiffs, v. CASSENS TRANSPORT and Local 299, I.B.T., Jointly and Severally, Defendants.
• Court: U.S. District Court — Western District of Michigan

538 F. Supp. 929

Frances JONES, Beverly Harder, Eleanor Murray, Linda Nickel, and Mary Ruane, Jointly and Severally, Plaintiffs, v. CASSENS TRANSPORT and Local 299, I.B.T., Jointly and Severally, Defendants.

Civ. A. No. 78-73078.

United States District Court, E. D. Michigan, S. D.

May 7, 1982.

COPYRIGHT MATERIAL OMITTED

Ronald Reosti, Detroit, Mich., for plaintiffs.

A. Read Cone, Bloomfield Hills, Mich., for defendant Cassens.

Ted J. Cwiek, Detroit, Mich., for defendant Union.

MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

Plaintiffs, five female office employees of the Square Deal Cartage Company until it was purchased by defendant Cassens Transport in August, 1977, filed their complaint in this matter in Wayne County Circuit Court for the State of Michigan on November 16, 1978. They claimed that both defendants had discriminated against them because of their sex in violation of the laws of Michigan, in refusing to permit plaintiffs to bid or apply for jobs at Cassens because they were women. The complaint further charged the union with breach of its duty to fairly represent plaintiffs, either in negotiations with defendant Cassens concerning the job rights of Square Deal employees, or in a grievance against defendant Cassens' refusal to hire the plaintiffs.

Defendant Local 299 petitioned for removal to this court on November 30, 1978, because the claim of breach of a duty of fair representation presented a federal question under § 301 et seq. of the Labor Management Relations Act, 1947, 29 U.S.C. § 185, et seq., and because a federal question of the violation of Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., had been raised. Removal was proper, and this court's jurisdiction is appropriate. 28 U.S.C. § 1441.

Both defendants thereafter answered, raising affirmative defenses which will be discussed below. An amended complaint was filed February 27, 1979, claiming defendants' violations of Title VII, 42 U.S.C. § 2000e et seq. Plaintiffs Jones, Harder, Murray and Ruane had obtained Right-to-Sue letters from the United States Equal Employment Opportunity Commission dated January 22, 1979, on the basis of charges which they had filed against Cassens, but not against Local 29, on January 18, 1978. Plaintiff Linda Nickel had filed no charge and received no letter.

Plaintiffs had also filed charges with the National Labor Relations Board in January, 1978, that unfair labor practices had been committed by Cassens Transport in its alleged refusal to hire them because of their union membership. Those charges were later resolved by a settlement which included plaintiffs' waiver of any right to office jobs at Cassens as one of its terms. This court, nevertheless, took evidence at trial herein concerning Cassens' failure and refusal to hire plaintiffs into its office. That evidence is relevant to the issues of sex discrimination and fair representation presented herein, despite the settlement's preclusion of a grant of office work at Cassens to plaintiffs as a remedy here available.

Trial was held from January 2 through 20th, 1982, on the issue of liability alone. The issue of a remedy, if any, was bifurcated and deferred. Both defendants moved to dismiss at the close of plaintiffs' case, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The motion of defendant Cassens was denied, inasmuch as plaintiffs had made a prima facie case of intentional sex discrimination under both Title VII and under Michigan's Elliott-Larsen Act, M.C.L.A. § 37.2101 et seq., pursuant to which the same standards are to be applied. See Michigan Civil Rights Commission ex rel. Boyd v. Chrysler, 80 Mich.App. 368, 263 N.W.2d 376 (1977).

The court granted the union's motion to dismiss plaintiffs' Title VII claim, however, for their failure to have presented any charge against the union to the EEOC, or to have complained against union conduct during an EEOC investigation. No such investigation had occurred, in this case. The court considered the requirement of Title VII that a claim first be presented to the EEOC to be a jurisdictional requirement. The United States Supreme Court has ruled on this question subsequent to this trial, however, in Zipes v. Trans World Airlines, Inc., ___ U.S. ___, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). That ruling requires this court to reinstate plaintiffs' Title VII claim against the union herein. The Supreme Court has stated that:

By holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires, we honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer. (At p. ___, 102 S.Ct. at p. 1135)

If there can be a case in which equity requires relief from the filing requirement, this is one. As is fully discussed below, both defendants herein pursued a course of secrecy and concealment in their dealings with the plaintiffs; and plaintiffs each testified that they were told by EEOC personnel that the EEOC could afford them no relief against the union when they filed their charges against the employer. They were misadvised (either wilfully or inadvertently) by every source of representation with which they consulted until they reached the judicial process, and will not be penalized here by a technical requirement. Their Title VII claim is reinstated, against the union.

The court denied defendant union's Rule 41 motion to dismiss plaintiffs' claim of breach of the duty of fair representation, and pendent thereto retained plaintiffs' discrimination claim against the union under the Michigan Elliot-Larsen Act. Accordingly, all proofs appropriate to adjudication of the now-reinstated Title VII claim are of record.

The proofs now having been completed, and post-trial briefs of the parties considered, the court finds for the reasons fully discussed below that judgment must be and hereby is entered for plaintiffs on the issue of liability.

In a claim of disparate and unlawfully discriminatory treatment, plaintiffs under either Title VII or the Michigan Elliot-Larsen Act must prove a prima facie case by a preponderance of all of the evidence which "consists of facts sufficient to sustain the inference that the challenged action of the employer was motivated by impermissible considerations." Mosby v. Webster College, 563 F.2d 901 (8th Cir. 1977). The requirements of the prima facie case on a complaint of discriminatory nonselection, as stated by McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, (1973), are that the plaintiff show that (1) she belongs to a minority or statutorily protected group, (2) that she applied for and was qualified for a job for which the employer was seeking applicants, (3) that despite her qualifications she was rejected, and (4) that after her rejection the job remained open and the employer continued to seek applicants from persons with plaintiff's qualifications. A prima facie case may also be made by "proof of actions taken by the employer from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that those acts were bottomed on impermissible considerations." Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978).

As the court stated in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977):

"Disparate treatment" such as is alleged in the present case is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment .... Claims of disparate treatment may be distinguished from claims that stress "disparate impact." The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. See infra, at 349 97 S.Ct. at 1861. Proof of discriminatory motive, we have held, is not required under a disparate impact theory. Compare, e.g. Griggs v. Duke Power Co., 401 U.S. 424, 430-434 91 S.Ct. 849, 853-855, 28 L.Ed.2d 158, with McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-806 93 S.Ct. 1817, 1824-1826, 36 L.Ed.2d 668. 431 U.S. at 335 n.15, 97 S.Ct. at 1854 n. 15. (Emphasis added.)

When a court concludes that a Title VII (or Elliot-Larsen) plaintiff has proven a prima facie case of disparate treatment or impact, then the court must consider the defendant's explanation or justification for the presumptively discriminatory action or practice. The type of defense that the defendant must then articulate depends upon the type of claim asserted by the plaintiff. In a disparate treatment case, the defendant must articulate "a legitimate nondiscriminatory reason" for its actions. McDonnell-Douglas, supra. In a disparate impact case, the defendant must present evidence that the challenged test, procedure, or requirement, bears "a manifest relation to the employment in question." Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977), quoting Griggs, supra; unless the procedure in question is encompassed within a statutory exception. See Teamsters, supra. In either case, the burden of going forward is then placed upon the defendant to articulate a nondiscriminatory rationale. Thereafter, the disparate treatment plaintiff may still prevail if she can, finally, establish by a preponderance of the evidence that the apparently nondiscriminatory rationale which was articulated by the...