Lazard v. Boeing Company

• Decision Date: 01 February 1971
• Docket Number: Civ. A. No. 70-2880.
• Citation: 322 F. Supp. 343
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: Lloyd E. LAZARD v. The BOEING COMPANY.

322 F. Supp. 343

Lloyd E. LAZARD v. The BOEING COMPANY.

Civ. A. No. 70-2880.

United States District Court, E. D. Louisiana, New Orleans Division.

February 1, 1971.

Benjamin E. Smith, New Orleans, La., for plaintiff.

Frederick Kullman, New Orleans, La., for defendant.

CHRISTENBERRY, District Judge.

This matter came on for hearing on a former day on motion of defendant, The Boeing Company, to dismiss.

Now, after considering the pleadings, the memoranda and arguments of counsel, it appears to the court that the motion to dismiss is without merit and should be denied for the reasons given below.

In this suit plaintiff alleges that he was discharged by the defendant because he is a Negro, all in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Civil Rights Act of 1866, 42 U.S.C. § 1981. As originally brought, defendant's motion sought relief in the alternative either to dismiss the action or to consolidate it with another action presently allotted to another section of this court.

At the hearing in this matter and upon oral motion of the defendant it was ordered that the portion of defendant's motion which sought to consolidate this matter with the other action be withdrawn. Likewise, upon oral representation of counsel for plaintiff that the class action aspects of the action were being abandoned, it was stipulated between counsel and ordered by the court that the portion of defendant's motion to dismiss dealing with the propriety of class motion procedures in this matter be withdrawn.

Only two issues raised in defendant's motion to dismiss remain to be decided by the court. The first is whether the complaint is barred under the doctrine of election of remedies by plaintiff having submitted his grievance to arbitration under the existing collective bargaining agreement. The arbitrators' award upheld the discharge. The second issue is whether plaintiff's complaint is barred by the running of prescription. Defendant contends that either Louisiana's one year prescriptive period for personal injuries, La.R.C.C. Art. 3536, or the one year prescriptive period for the payment of wages, La.R.C.C. Art. 3534, is applicable.

The recent Fifth Circuit decision in Hutchings v. United States Industries, Inc., 428 F.2d 303 (5th CCA 1970) involved a factual situation similar to the instant action. In Hutchings, supra, the plaintiff had unsuccessfully pursued his contractual remedies. Subsequently, he filed his Title VII action. The court noted that in such cases "the matters in dispute were subject to the concurrent jurisdiction of the federal courts under the scheme of Title VII and of the grievance-arbitration machinery established by the bargaining contract." Supra, 311.

The court noted however that although jurisdiction is concurrent, the basic orientation of each proceeding is essentially different:

"We begin by recognizing that determinations under a contract grievance-arbitration process will involve rights and remedies separate and distinct from those involved in judicial proceedings under Title VII. These dissimilarities are clearly seen through a comparison of the role of the federal court in Title VII cases and the role of the arbitrator in the grievance-arbitration process.

The trial judge in a Title VII case bears a special responsibility in the public interest to resolve the employment dispute, for once the judicial machinery has been set in train, the proceeding takes on a public character in which remedies are devised to vindicate the policies of the Act, not merely to afford private relief to the employee. See Pettway v. American Cast Iron Pipe Company, 5 Cir., 1969, 411 F.2d 998; Bowe v. Colgate-Palmolive Company, 7 Cir., 1969, 416 F.2d 711; cf. N.L.R.B. v. George E. Light Boat Storage, Inc., 5 Cir., 1967, 373 F.2d 763, 767-768; United Steelworkers v. American Internation'l Aluminum Corp., 5 Cir., 1964, 334 F.2d 147, 152. At issue in the Title VII proceeding is the statutory right of employees or prospective employees not to be discriminated against on racial or other unlawful grounds regarding matters of their employment. In formulating relief once a violation has been found, the trial judge is invested with wide discretion in modeling his decree to ensure compliance with the Act. Local 53 of Int. Ass'n of Heat & Frost I. & A. Wkrs. v. Vogler, 5 Cir., 1969, 407 F.2d 1047.

The arbitrator's role in the grievance-arbitration process, on the other hand, is to carry out the aims of the agreement that he has been commissioned to interpret and apply, and his role defines the scope of his authority. Brotherhood of Railroad Train v. Central of Ga. Ry. Co., 5 Cir., 1969, 415 F.2d 403, 412."

Pp. 311-312

In view of these dissimilarities, the court held that pursuing one's contractual remedies would not bar subsequent relief under Title VII.

The issue of prescription is two-pronged. The Title VII portion of the suit is covered by the rule announced in Miller v. International Paper Co., 408 F.2d 283, 5th CCA 1968 that the aggrieved person need only file suit within 30 days after notice of the failure to achieve voluntary compliance has been sent by the E.E.O.C. and received by the aggrieved person. In the instant action the complaint was filed within the 30 day period and therefore no recourse need be made to any state prescriptive period.

The situation is otherwise with regard to the action brought under 42 U.S.C. § 1981. The act itself provides no statute of limitations. In such cases the limitation period is the analogous state period which would be enforced for a similar action brought in state court. Beard v. Stephens, 372 F.2d 685, 5th CCA 1967; 28 U.S.C. § 1652; 42 U.S.C. § 1988. No determination has ever been made as to which of the various Louisiana prescriptive periods is applicable to an action under 42 U.S.C. § 1981.

The applicability of a particular prescriptive period depends on the...