Miller v. Miami Prefabricators, Inc.

• Decision Date: 09 September 1977
• Docket Number: No. 75-2177-Civ-SMA,76-758-Civ-SMA.,75-2177-Civ-SMA
• Citation: 438 F. Supp. 176
• Parties: Ezekiel MILLER et al., Plaintiffs, v. MIAMI PREFABRICATORS, INC., et al., Defendants. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. LENNAR CORPORATION et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

438 F. Supp. 176

Ezekiel MILLER et al., Plaintiffs, v. MIAMI PREFABRICATORS, INC., et al., Defendants.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. LENNAR CORPORATION et al., Defendants.

Nos. 75-2177-Civ-SMA, 76-758-Civ-SMA.

United States District Court, S. D. Florida.

September 9, 1977.

Roger J. Schindler, Miami, Fla., Roger J. Martinson, EEOC, Atlanta, Ga., for plaintiffs.

Charles Kelso, Atlanta, Ga., Joseph H. Kaplan, Miami, Fla., for defendants.

MEMORANDUM OPINION

ARONOVITZ, District Judge.

The parties have requested a pretrial ruling in this cause, pursuant to Rule 16, Federal Rules of Civil Procedure, to facilitate discovery and pretrial preparation, as well as to assist the parties in their efforts to settle this litigation. The main controversy concerns the correct application of Section 706(d), 42 U.S.C. § 2000e-5(e) and Section 706(g), 42 U.S.C. § 2000e-5(g) to the relief available to the Plaintiffs, assuming that a violation of Title VII¹ can be shown at trial.

The Plaintiffs in Case No. 75-2177 are nineteen (19) individual black employees who were employed by the Defendant employer, Miami Prefabricators, Inc. (hereinafter referred to as "PREFAB"). The Defendants, Carpenters District Council and Local 1554 (hereinafter referred to collectively as "UNIONS"), represented the Plaintiff employees. While Case No. 75-2177 is not a class action, all nineteen (19) Plaintiffs having filed charges with the EEOC, the companion case is an action brought by the EEOC on behalf of other black employees of PREFAB.

PREFAB was engaged in the manufacture of trusses used in the construction of buildings, primarily single family and multi-family dwellings.² Since a single family dwelling usually requires several trusses of identical proportions, and since a truss built to standard dimensions may be used in many different buildings, trusses are built to a given standard size and shape. To some degree, therefore, the actual fabrication of trusses is repetitious and involves placing the precut lumber in a predesigned jig and producing from one to hundreds of identical trusses.

Considered horizontally, PREFAB is divided into two main functions to accomplish its truss building task.³ Fork lift drivers and truck drivers are employed to physically move the raw materials (mostly lumber) from the delivery area to the storage area; from storage to the saw area for precutting; and from the saw area to the jig. As the individual trusses are completed, they are taken from the fabrication point by fork lift drivers to the loading area for delivery to the job site.

The actual fabrication of trusses is accomplished by carpenters and material handlers, whose main function is to place the precut lumber on the jig and fasten the lumber together, thereby creating the truss. Although the difference, if any, between the function of the material handler and the carpenter at PREFAB is in sharp dispute, it is undisputed that carpenters were paid higher wages than were material handlers. The gravaman of the Plaintiffs' Complaints is that at PREFAB all carpenters were white, and material handlers were overwhelmingly black.

The Plaintiffs assert that blacks simply never moved higher on the horizontal scale at PREFAB than the very bottom rung: blacks were material handlers, and whites were carpenters.

The Defendants, PREFAB and UNIONS, assert that, assuming that the Plaintiffs can prove their allegations at trial, the 180 day limitation contained in 42 U.S.C. § 2000e-5(e) forecloses consideration of any promotion occurring prior to August 9, 1972, for purposes of back pay. They assert that the recent decision by the Supreme Court in United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (decided May 31, 1977) and Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (decided May 31, 1977) mandate this result.

The Plaintiffs' Complaint asserts a broad pattern or practice of racial discrimination at PREFAB, which constituted a continuing violation of Title VII in several respects. They assert, for example, that some material handlers were doing the same or similar work as white carpenters, yet receiving lower pay. They also assert that promotions from material handler to carpenter were made by the all-white foremen, without regard to seniority or any other objective criteria; that blacks were never considered for these promotions; and that less qualified whites were promoted to the position of carpenter because of a policy at PREFAB designating higher paying carpenter jobs as "white only".⁴ They also allege the existence of racial harassment, slurs, and other disparate treatment throughout their period of employment.

The question presented here is, given that the Plaintiffs' allegations are true, what restrictions are placed upon this Court's broad equitable powers to "make whole" the victims of racial discrimination at PREFAB by either the 180 day limitation contained in 42 U.S.C. § 2000e-5(e) or the two year cap on back pay contained in 42 U.S.C. § 2000e-5(g)?

The first charges of racial discrimination at PREFAB were filed with the EEOC on February 3, 1973.⁵ It has been acknowledged by PREFAB that there was at least one carpenter "vacancy" within the 180 days prior to the Plaintiffs' charges being filed with the EEOC. It has also been acknowledged by PREFAB that there were approximately 12 openings within the two years prior to the charges being filed with the EEOC: February 3, 1971 through February 3, 1973, and additional vacancies between the effective date of Title VII and February 3, 1971, for an aggregate of more than 19 vacancies. If the position asserted by the Defendants, PREFAB and UNIONS is correct, this Court is foreclosed from considering any vacancies occurring prior to August, 1972 and their liability for back pay cannot exceed the amount of back pay accruing by virtue of any and all vacancies which occurred within 180 days of the Plaintiffs filing administrative charges with the EEOC forward to the closing of PREFAB. The Plaintiffs assert that all vacancies occurring after the effective date of Title VII, or July 2, 1965, may be considered by this Court in awarding back pay under the broad "make whole" principles of Title VII. For the reasons set forth in this Opinion, this Court is of the opinion that all vacancies occurring after July 2, 1965 may be considered for purposes of back pay relief.

First, it must be pointed out that Title VII is a bifurcated proceeding. Initially, this Court must determine whether a violation of Title VII has been demonstrated within 180 days of the filing of administrative charges with the EEOC. The failure of the private Plaintiffs to carry their burden of proof on this jurisdictional prerequisite would pretermit any consideration of the second, "remedy phase" of the proceeding. Although the recent Supreme Court decision in Evans v. United Air Lines, supra, reiterates the jurisdictional nature of the "violation phase" inquiry, that decision is not relevant to the "remedy phase" presented here.

Evans dealt, not with a continuing violation of Title VII by United Air Lines, but rather, with the application of a bona fide seniority system which, Ms. Evans asserted, "continued" to deny her seniority lost through her earlier illegal, but unchallenged, termination. The Supreme Court recognized that termination, like failure to hire, is not a continuing violation. See, e. g., Olson v. Rembrandt Painting Co., 511 F.2d 1228 (8th Cir. 1975), East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975). Since Ms. Evans failed to timely challenge her termination, she could not rely upon her termination to satisfy the burden of proof during the "violation phase". Id., 97 S.Ct. 1888, n. 8.

In an effort to satisfy her burden of proof during the violation phase, Ms. Evans asserted that the seniority system of United Air Lines operated to deprive her of her seniority based upon her prior, unlawful dismissal. However, the Supreme Court held that the operation of a seniority system is not unlawful under Title VII, even though it perpetuates post-Act discrimination that has not been the subject of a timely charge by the discriminatee.⁶

Here, however, the charges by the Plaintiffs clearly allege a continuing violation of Title VII. The recent decision of the Fifth Circuit in Clark v. Olinkraft, Inc., 556 F.2d 1219 (5th Cir. 1977)⁷ is, therefore, applicable:

"In the trial court, the defendants argued that the failure to promote does not constitute a continuing violation, relying heavily on cases holding that the failure to hire does not constitute a continuing violation. Citations omitted. As pointed out by the court, however, in Rich v. Martin Marietta Corp. 522 F.2d 333 . . . cases involving the failure to promote are distinguishable. The court in Rich commented as follows:

We finally must take up the factor of timing. The court found that in some instances there were no openings in positions for which the plaintiffs were qualified within the 90 days now 180 days prior to the filing of charges with the EEOC. The court apparently read McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 citation omitted as saying that if an employer has employed no one during the 90 days now 180 days preceding the filing of charges with the EEOC, it is impossible to have an unlawful employment practice committed with the time limitations of 42 U.S.C. § 2000e-5(e). This is in relation to the McDonnell-Douglas criterion requiring that plaintiff show that he applied for a job for which the employer was seeking applicants. Clearly this applies to new employment and is different from an employee who is seeking promotion. The former takes place on a particular day, whereas in the promotion area it invariably arises during a lengthy period of time. Plaintiffs here challenge the entire promotion system maintaining that it continually operated so as to hold them in lower

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