De Malherbe v. INTERN. U. OF ELEVATOR CONSTRUCTORS
| Decision Date | 16 July 1979 |
| Docket Number | No. C-76-1668-CBR.,C-76-1668-CBR. |
| Citation | 476 F. Supp. 649 |
| Court | U.S. District Court — Northern District of California |
| Parties | John R. DE MALHERBE, Plaintiff, v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, International Union of Elevator Constructors Local No. 8, National Elevator Industry, Inc., Defendants. |
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Dennis John Woodruff and David R. Lipson, San Francisco, Cal., for plaintiff.
Carter, Cook & Voltz, Charles E. Voltz, San Francisco, Cal., Putney, Twombly, Hall & Hirson, Charles O. Strahley, New York City, for defendant National Elevator Industry, Inc.
Plaintiff John R. De Malherbe brought this suit against the International Union of Elevator Constructors ("IUEC") the International Union of Elevator Constructors Local No. 8 ("Local 8"), and National Elevator Industry, Inc. ("NEII"), alleging that defendants had violated his rights under 42 U.S.C. § 1981 and the Fifth Amendment of the United States Constitution.1 Plaintiff, a permanent resident alien, claims that he was denied admission to the Elevator Industry National Recruitment and Training Program ("EINRTP") because he was not a United States citizen.2 EINRTP is a national program that recruits, trains, and hires minorities and other workers to become probationary employees and subsequently to become elevator constructor helpers and mechanics. It was created by an Agreement and Declaration of Trust entered into by NEII and IUEC on May 31, 1973. Prior to the formal creation of EINRTP, NEII, as bargaining representative of certain employers in the elevator construction and repair industry, and IUEC, on behalf of the local unions, entered into a collective bargaining agreement in which they resolved to establish such a program.
From June 1973 until May 1975, one requirement for admission to EINRTP was that the applicant be a United States citizen. Plaintiff alleges in the second amended complaint not only that he was denied participation in the training program but also that his name was removed from Local 8's hiring list because he was not a United States citizen and that this removal from the hiring list "was a direct and proximate result of the aforedescribed United States citizenship requirement for entry into the job recruitment and training program."3
In an earlier memorandum of opinion, this Court granted defendants' motion to dismiss plaintiff's § 1981 claim on the ground that Congress had not intended § 1981 to apply to claims of private discrimination against aliens. De Malherbe v. International Union of Elevator Constructors, 438 F.Supp. 1121, 1136-1142 (N.D.Cal.1977). Plaintiff, therefore, must now rely solely on his Fifth Amendment claim. Since the Fifth Amendment's restrictions do not apply to wholly private conduct,4 plaintiff must establish that the federal government was sufficiently involved with EINRTP that the exclusion of aliens from the program may be characterized as "federal action."
Defendants previously moved to dismiss plaintiff's Fifth Amendment claim for failure to state a claim on the ground that the allegations of the complaint failed to establish the requisite federal action. In the second amended complaint, plaintiff alleged on information and belief that EINRTP had been created in response to governmental pressure, as various agencies of the United States government had "expressed their interest and concern to IUEC and NEII about the paucity of ethnic minority employees in the elevator construction industry."5 Plaintiff further alleged that EINRTP was funded by the Manpower Administration of the United States Department of Labor and that the United States Office of Federal Contract Compliance ("OFCC") regularly monitored the program and closely scrutinized the performance of IUEC and NEII to ascertain whether the federal goals for minority employment were being met.
Although plaintiff's complaint did not provide detailed factual allegations pertaining to federal action, the Court concluded that dismissal on the pleadings would be inappropriate, for a Rule 12(b)(6) motion should not be granted unless "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" De Malherbe, supra, 438 F.Supp. at 1134, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court noted, however, that the federal action issue might well be resolved through a motion for summary judgment. 438 F.Supp. at 1135.
Plaintiff has moved for summary judgment on the issue of liability and has requested a separate trial on damages.6 The parties' briefs on the motion for partial summary judgment focus primarily on the issue of federal action. Plaintiff contends that the undisputed facts warrant a finding of federal action for two independent reasons: (1) the federal government's involvement in EINRTP was so significant that defendants and the federal government should be considered "joint participants" in EINRTP, under the state action test set forth in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); and (2) the federal government directly approved and fostered EINRTP's citizenship requirement, thereby meeting the "nexus test" of Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Defendants concede that the federal government participated in establishing EINRTP, provided federal funding, and monitored the progress of the program, yet they contend that the government's involvement was not substantial enough to meet the standards established in Burton. Furthermore, defendants vigorously contest plaintiff's conclusion that the citizenship requirement was condoned, approved, or supported by the federal government. The Court agrees that the Jackson test has not been met in this case. However, under controlling Ninth Circuit case law, the undisputed facts in this case compel a finding of federal action under the Burton doctrine.
Plaintiff's motion for summary judgment is supported by numerous documents concerning the government's involvement in the creation and implementation of EINRTP7 and by the deposition testimony of Rodger Coyne, who served as the federal representative for EINRTP on behalf of the Manpower Administration of the Department of Labor during the first two years EINRTP was in operation. Many of the factual matters plaintiff seeks to establish through these documents and through the deposition testimony are not contested by defendants. Yet the parties draw different conclusions from the underlying facts.
In support of his contention that EINRTP was created in response to governmental pressure, plaintiff has submitted a memorandum concerning a meeting held on September 22, 1971, attended by representatives of NEII, IUEC, and OFCC. The memorandum states that OFCC's Assistant Director in charge of construction compliance "advised that it was OFCC's opinion that there was a dearth of minority employees in the Elevator Industry and that this Industry was a target of OFCC," so that if voluntary plans to increase the number of minority employees were not adopted, "the Federal Government would step in and impose a Plan on the Industry where trouble arises * * *."8
Defendants are unwilling to concede that EINRTP was created as an alternative to a plan being imposed on the industry. In rebuttal, they rely primarily on the affidavit of Francis X. McBride, who, as a member of NEII, had been active in the development of EINRTP and who served on EINRTP's Board of Trustees from June 1973 to October 1974. In November or December 1971, McBride was asked by the Executive Director of NEII to help draft an affirmative action program that might be operated jointly by NEII and IUEC. It appears from McBride's affidavit that he was then unaware of the September 1971 meeting with OFCC officials and believed that NEII and IUEC had spontaneously initiated the development of an affirmative action plan for the industry. However, McBride's affidavit also states that at a February 1972 meeting of the NEII-IUEC Subcommittee on Equal Employment Opportunity, "discussions centered on the urgency of developing an Industry affirmative action program so as to avoid possible citation of various member companies by various Governmental agencies for noncompliance on affirmative action matters."9
Defendants argue that EINRTP was a voluntary program, freely adopted by NEII and IUEC. Although it may well be that EINRTP would have been developed even in the absence of governmental pressure, the undisputed facts indicate that OFCC pushed for adoption of a "voluntary plan." This circumstance is not a critical factor in the Court's analysis of the federal action issue, yet it does lend support to a finding of significant governmental involvement.
EINRTP was ultimately approved by OFCC as an acceptable affirmative action plan. The formal notification of approval, issued in April 1974, stated:10
"The national office of OFCC has worked for approximately three (3) years with the National Elevator Industry NEII to develop an acceptable affirmative action program designed to correct the underutilization of minority workers in the industry."11
Plaintiff has...
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