Parker v. Baltimore & Ohio R. Co.

• Decision Date: 16 April 1981
• Docket Number: No. 80-1095,80-1095
• Citation: 652 F.2d 1012,25 F.E.P. Cases 889,209 U.S.App.D.C. 215
• Parties: 25 Fair Empl.Prac.Cas. 889, 25 Empl. Prac. Dec. P 31,791, 209 U.S.App.D.C. 215 Karl PARKER, Jr., Appellant, v. The BALTIMORE AND OHIO RAILROAD COMPANY t/a The Chessie System The B & O Railroad, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1012

652 F.2d 1012

25 Fair Empl.Prac.Cas. 889,

25 Empl. Prac. Dec. P 31,791, 209 U.S.App.D.C. 215

Karl PARKER, Jr., Appellant, v. The BALTIMORE AND OHIO RAILROAD COMPANY t/a The Chessie

System The B & O Railroad, Appellee.

No. 80-1095.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 9, 1981.

Decided April 16, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-0158).

Robert L. Cohn, Washington, D.C., was on the brief for appellant.

Morgan D. Hodgson with whom Peter L. Wellington, Washington, D.C., was on the brief for appellee.

Before BAZELON, Senior Circuit Judge, and TAMM and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

Opinion filed by Circuit Judge TAMM, concurring in the result.

MIKVA, Circuit Judge:

The overt and blatant bigotry that marked the leading civil rights cases of an earlier year seldom supplies the gravamen of cases which now reach the appellate courts. Rather, the appeals are from decisions involving the more difficult problems in this field, none more difficult than the delicate balance of interests necessary in adjudicating the claims of "reverse" discrimination that sometimes accompany an employer's efforts to improve the record of his hiring practices. This case presents such claims, but in a form as yet ill-suited for final determination.

Karl Parker, Jr. (Parker), a white male, has been employed as a conductor and trainman on the Baltimore & Ohio Railroad (B&O) since 1974. From 1975 to 1978, he actively sought transfer or promotion (the hierarchical relationship is unclear) to the job of locomotive fireman. To date, the only fruit of his efforts is the present lawsuit, charging B&O with race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1976). Parker appeals from an order of the district court, granting summary judgment for B&O, denying him leave to amend, and dismissing his complaint. Finding the district court's actions unduly precipitous, we reverse and remand for further proceedings.

I. THE PROCEEDINGS BELOW

Parker filed his original complaint in January 1979. It alleged discriminatory acts in 1976, 1977, and 1978, on bases of race, gender, national origin, and religion; its theory was essentially that affirmative action constituted unlawful reverse discrimination. Discovery proceeded through the spring. On June 27, 1979, the Supreme Court decided United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), holding that affirmative action programs do not necessarily violate Title VII. Parker's counsel was permitted to withdraw on July 30, and on September 14 new counsel sought to file an amended and supplemental complaint.

This new complaint continued to deny the lawfulness of B&O's affirmative action, urging that B&O had gone beyond the bounds suggested by the Supreme Court in Weber. It also added claims under 42 U.S.C. § 1981 (1976) and charged that B&O had retaliated against Parker for his opposition to discriminatory employment practices, a protected activity under Title VII. The complaint was accompanied by arguments and exhibits in opposition to a pending motion for summary judgment in favor of B&O.

On December 13, 1979, in an order terse enough to be quoted here in its entirety, the district court denied leave to file the amended complaint, and granted summary judgment. The court stated its reasons as follows:

ORDER

Upon consideration of plaintiff's motion for leave to file an amended and supplemental complaint, defendant's opposition thereto, defendant's motion for summary judgment, and plaintiff's opposition thereto, it appearing that plaintiff has alleged in his original complaint that defendant has subjected him to reverse-racial employment discrimination, and it further appearing that the proffered amended and supplemental complaint does not substantially alter the nature of plaintiff's original cause of action, and it further appearing that the operative facts of the above-captioned case are substantially the same as those in United Steelworkers of America, AFL-CIO v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), wherein the Supreme Court held that voluntary affirmative action plans granting preference to black employees over white employees with more experience (were) not violative of 42 U.S.C. § 2000e et seq., and it further appearing that defendant's actions did not require plaintiff's discharge, did not permanently bar plaintiff's possible employment advancement, and did not constitute an intentional maintenance of racial balance, and it further appearing that plaintiff has not raised any genuine issues of material facts, it is this 13th day of December, 1979,

ORDERED That plaintiff's motion for leave to file amended and supplemental complaint be and it is hereby denied, and it is further

ORDERED That defendant's motion for summary judgment be and it is hereby granted, and it is further

ORDERED That the complaint in the above-captioned case be and it is hereby dismissed.

Parker v. Baltimore & Ohio Railroad Co., Civ.No. 79-158 (D.D.C. Dec. 13, 1979). Parker appeals from this order of the district court.

II. SUMMARY JUDGMENT AND THE APPLICABILITY OF WEBER

In United Steelworkers v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 2730, 61 L.Ed.2d 480 (1979), the Supreme Court observed that it was not "defin(ing) in detail the line of demarcation between permissible and impermissible affirmative action plans." The Court distinguished, but did not overrule, McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), in which a unanimous court had affirmed that Title VII extends its protections to white workers as well as black. The Court has thus made clear that recitation of a benign purpose for disparate treatment based on race will not necessarily immunize a private employer from liability to the disadvantaged class of employees.

In the present case, the district court found that B&O's actions did not require Parker's discharge, did not permanently bar his possible employment advancement, and did not constitute an intentional maintenance of racial balance. These features had also characterized the affirmative action plan upheld in Weber, and had entered into the Court's conclusion that "the plan does not unnecessarily trammel the interests of the white employees." 443 U.S. at 208, 99 S.Ct. at 2730. The district court apparently accepted B&O's argument that such findings always compel the conclusion that the rights of white workers are not unduly trammeled. We do not believe that Weber supports the proposition that no purported affirmative action plan is ever unlawful unless it requires discharge, permanently bars advancement, or maintains racial balance, and, as we explain below, we find that the record simply does not contain enough information to demonstrate whether B&O's policies unnecessarily trammel the interests of white employees. We therefore conclude that a crucial fact remained disputed, and that summary judgment was premature.

A. B&O's Hiring Decisions

Parker claims that his efforts to become a locomotive fireman were defeated by illegal preferences given to black and female applicants. ¹ B&O agrees that in 1976 the six fireman openings were filled by two white men, one white woman, two black men, and one black woman. In 1977, all nine positions went to white men. In 1978, eight positions went to white men, and a ninth job was taken by a black man. Thus, 1976 and 1978 are the periods in dispute for Parker's claims of race and gender discrimination. ²

B&O relies on an affidavit acknowledging that the company "has engaged in affirmative action .... to overcome the underutilization of minorities and women in various jobs," and that this action "has included using race and sex as factors in the selection of some applicants in December 1976 for transfer to locomotive fireman positions." Affidavit of Robert E. Upton, Ass't to the Senior Vice President, (hereinafter cited as Upton Affidavit), Joint Appendix (J.A.) at 96-97. In particular, the record contains evidence of "Seniority Modification Agreements" between B&O and unions representing its employees, permitting preferential transfer without loss of seniority by eligible minority and female employees. ³ The agreement apparently governing the decisions in this case was signed on November 6, 1975 by B&O's multiemployer bargaining representative and the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees (BRAC).

The record indicates that eligibility for transfer under the BRAC agreement was limited to workers continuously employed by B&O since August 31, 1971. No copy of any Seniority Modification Agreement itself, however, appears in the record. In fact, it was Parker who introduced the only document that sheds light on the theoretical workings of this aspect of B&O's affirmative action efforts, an "Explanation of Rights of Minority and Female Employees under Seniority Modification Agreements" addressed to B&O employees. Exhibit 1 to Plaintiff's Memorandum of Points and Authorities, J.A. 154-58. ⁴ In arguing its entitlement to summary judgment, B&O points to no further details concerning its methods of considering race and sex as factors in hiring decisions, except by its assertion that "(o)ther than in connection with B& O's affirmative action, race and sex have not been used as factors in the selection of applicants for positions at B&O." Upton Affidavit, J.A. 97.

It appears from the record that the two black workers who transferred to the position of locomotive fireman in 1976 were eligible for preference under the BRAC agreements, but that the two women had joined the company after the eligibility date. ⁵ Counsel for B&O suggested at oral argument that the time limit for...