Phillips v. Columbia Gas of West Virginia, Inc., 1330.

• Decision Date: 12 September 1972
• Docket Number: No. 1330.,1330.
• Citation: 347 F. Supp. 533
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Joseph W. PHILLIPS, Plaintiff, v. COLUMBIA GAS OF WEST VIRGINIA, INC., a corporation, et al., Defendants.

347 F. Supp. 533

Joseph W. PHILLIPS, Plaintiff, v. COLUMBIA GAS OF WEST VIRGINIA, INC., a corporation, et al., Defendants.

No. 1330.

United States District Court, S. D. West Virginia, Bluefield Division.

September 12, 1972.

Michael H. Lilly, Bluefield, W. Va., for plaintiff.

Thomas E. Morgan, Charleston, W. Va., for defendant Columbia Gas of West Virginia, Inc.

Stanley M. Hostler, Hostler, Logsdon & Shinaberry, Thomas P. Maroney, Charleston, W. Va., for defendant Unions.

CHRISTIE, Chief Judge:

The plaintiff, Joseph W. Phillips, instituted this action against his former employer, Columbia Gas of West Virginia, Inc. (Columbia), and his local and international unions, Local No. 3-581, Beckley District, Oil, Chemical, and Atomic Workers International Union (Local No. 3-581) and The Oil, Chemical, and Atomic Workers International Union (International Union), alleging racially discriminatory practices on the part of both the defendant employer and the defendant unions, in violation of plaintiff's rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and Section 1 et seq. of the Labor Management Relations Act, 29 U.S.C. § 151 et seq. Jurisdiction is based upon Section 706(f) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f), 28 U.S.C. § 1343(4) and 28 U.S.C. §§ 2201 and 2202. The complaint seeks declaratory relief, injunctive relief and damages. The defendants each have filed motions to dismiss the complaint for failure to state a claim upon which relief can be granted. Defendants also assert that the various claims are barred by applicable statutes of limitation. Since matters outside the pleadings have been presented by all the parties with respect to defendants' motions, they will be treated as motions made for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, as authorized by Rule 12(b) of such Rules.

FACTUAL BACKGROUND

Viewing the facts in the light most favorable to plaintiff, as the courts are required to do on motions for summary judgment, the relevant facts not subject to dispute may be summarized as follows:

On September 11, 1969, plaintiff was suspended indefinitely from work by Columbia, which suspension was made permanent on September 25, 1969. The stated reason for this termination was that plaintiff had allegedly violated Columbia's policy prohibiting its employees from engaging in work outside their regular working hours as well as the company policy prohibiting an employee from placing himself "under actual or apparent obligation to anyone by accepting gifts or other personal favors which one might believe or even suspect were given for the purpose of influencing his business judgment." This latter charge was based on a claim by the company that plaintiff had borrowed $1,000 from a foreman of a pipeline contractor installing lines for Columbia and that he had borrowed another $400 or $500 from the contractor.

On September 22, 1969, while suspended from work but prior to the termination of his employment, plaintiff initiated grievance procedures as provided for in the collective bargaining agreement between his union and his employer. The grievance procedure was pursued subsequent to the termination of plaintiff's employment and the grievance was finally submitted to arbitration, the final step of a four-step procedure. At the arbitration hearing, plaintiff took the position that: (1) the rule prohibiting employees from working during off-hours was invalid, (2) the rule was not consistently enforced in that the company had not cited other employees who engaged in work during off-hours, (3) ratification by the company of his loan by continuing to do business with the contractor after having learned of the transaction was evident (4) the evidence established that Columbia was prejudiced against him,¹ and (5) he had not engaged in off-hours work on the dates charged by Columbia. The prejudice asserted by plaintiff as a defense to the charges against him does not relate to racial prejudice, but relates to alleged prejudice arising out of unequal enforcement of the off-hours work rule as well as alleged spying on plaintiff by employees of Columbia during plaintiff's off-hours. No mention was made in the arbitration proceedings of any alleged racial prejudice.

On May 29, 1970, the arbitrators rendered a decision in a written opinion, setting forth facts and conclusions, denying plaintiff's claim. The provisions in the collective bargaining agreement between Columbia and the defendant unions provided that the decision of a majority of the board of arbitration "shall be final and binding on all parties involved in such controversy or grievance and shall conclusively determine the same." On July 7, 1970, following the final decision of the arbitrators denying plaintiff's grievance, Columbia employed a Negro to fill the vacancy created by the termination of plaintiff's employment. Plaintiff is a Caucasian.

By letter dated February 10, 1971, received February 17, 1971, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission. His letter of complaint was accompanied by a sworn affidavit in which he alleged that he had been harassed by his employer, such harassment consisting of pushing him in his work, overloading him with work, and attempting to force him to work during an illness in 1960. The affidavit recited the facts leading up to plaintiff's discharge and alleged that, while he had been discharged for working off-hours, other employees also engaging in off-hours work had not been so discharged. The concluding paragraph in this affidavit is as follows:

"I feel that my rights under the new civil rights act have been violated by the action of the United Fuel Gas Company in terminating my employment without cause. I further feel that even had I done off-hour work (which I did not) after the August 11, 1969 letter, I was further discriminated against by the company terminating me and refusing to take similar action against other employees of the company who are continuing to do the off-hour work."²

On April 20, 1971, plaintiff was informed by the Director of the Washington District Office of the Equal Employment Opportunity Commission that the Commission had concluded that it did not have jurisdiction to process plaintiff's charge. This denial of jurisdiction was stated to be based upon the fact that plaintiff had failed to file the discrimination charges with the West Virginia Human Rights Commission and had further failed to file charges with the Equal Employment Opportunity Commission within 210 days of the alleged discriminatory act. The Director further stated that the allegations in plaintiff's charge failed to allege discrimination on the basis of race, color, religion, sex, or national origin and, therefore, did not invoke the jurisdiction of the Equal Employment Opportunity Commission under the provisions of Title VII of the Civil Rights Act of 1964. Plaintiff was informed of his right to appeal this decision through proper administrative channels and of his right to request a "right-to-sue" letter affording him access to relief in the United States District Court. Thereafter, by letter dated December 15, 1971, received by plaintiff on December 18, 1971, the Equal Employment Opportunity Commission notified plaintiff that it had been unable to obtain an agreement in settlement of his charge and informed him that he was entitled to institute suit in the Federal District Court within thirty days of receipt of the letter. On January 17, 1972, plaintiff timely instituted this action in this court alleging in his complaint that Columbia and the defendant unions maintained a policy of limiting employment and promotional opportunities of employees on the basis of race or color.

The defendants urge dismissal of the Title VII claim, the Section 1981 claim, and the Section 151 claim, asserting numerous grounds in support of their position.

THE 1964 CIVIL RIGHTS ACT

It is clear that plaintiff is precluded from pursuing his Title VII claim of discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, sex, religion, or national origin by both employers and unions. To enforce the prohibitions of this Act, Congress created the Equal Employment Opportunity Commission and set forth in the Act procedures for invoking the jurisdiction of that Commission, as well as the jurisdiction of the district courts in the event that discrimination charges could not be settled at the administrative level. Section 706(b) of the Act, 42 U.S.C. 2000e-5(b), provides that where an alleged unlawful employment practice occurs in a state which has a statute or local law prohibiting it and establishing or authorizing a state or local authority to seek or grant relief with regard thereto, no charge may be filed with the Equal Employment Opportunity Commission before the expiration of sixty days after proceedings have been commenced under the state law or until such state proceedings have terminated, whichever event occurs earlier. Section 706(d), 42 U.S. C. § 2000e-5(d), provides that a charge with the Equal Employment Opportunity Commission must be filed within ninety days of the alleged unlawful employment practice except in instances in which a charge has been filed with a state agency. In the latter event, the Act provides that an aggrieved party must file his charge with the Equal Employment Opportunity Commission within 210 days after the alleged unlawful employment practice occurs or within thirty days after receiving notice that the state or local agency has terminated the proceedings, whichever event occurs first.

Defendants first assert that this court lacks jurisdiction of plaintiff's claim because of his failure to file charges with the West Virginia Human Rights Commission prior to filing...