Rodgers v. Peninsular Steel Co.

• Decision Date: 24 June 1982
• Docket Number: No. C77-930.,C77-930.
• Citation: 542 F. Supp. 1215
• Parties: Gilbert RODGERS, Plaintiff, v. PENINSULAR STEEL COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

542 F. Supp. 1215

Gilbert RODGERS, Plaintiff, v. PENINSULAR STEEL COMPANY, Defendant.

No. C77-930.

United States District Court, N. D. Ohio, E. D.

June 24, 1982.

Eugene Sidney Bayer, Roy M. Kaufman, Cleveland, Ohio, for plaintiff.

Donald F. Woodcock, Michael A. Pohl, Calfee, Halter & Griswold, Cleveland, Ohio, for defendant.

ORDER

BATTISTI, Chief Judge.

Plaintiff Gilbert Rodgers brought suit in this Court alleging instances of employment discrimination cognizable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. He invoked jurisdiction without opposition pursuant to 28 U.S.C. §§ 1331, 1343, 2201, and 2202. Plaintiff alleged essentially that defendant Peninsular Steel Company ("the Company") had discriminated against him in its hiring and promotion of a foreman in 1973 and a working foreman in 1974, and that he had endured discriminatory discipline and suspension for his failure to wear safety glasses on the job. Defendant now brings a motion for summary judgment, arguing that plaintiff's Title VII allegation concerning the 1973 incident is barred by the statute of limitations; that the allegations of discriminatory hiring and promotion fail to make out the necessary prima facie case of discriminatory treatment under either Title VII or 42 U.S.C. § 1981; and that, for various reasons, the allegation of discriminatory harassment on the job fails to raise a genuine issue. The Court today concludes that defendant's limitations argument is meritorious, and that plaintiff indeed fails to articulate a prima facie case for the discriminatory promotion of a working foreman in 1974. Accordingly, the Court grants defendant's motion to the extent that it restricts the claim of discriminatory promotion in 1973 to plaintiff's 42 U.S.C. § 1981 allegation, and dismisses the 1974 discriminatory promotion claim under both statutes. In all other respects defendant's motion is hereby denied.

The essential facts of this controversy may be summarized as follows. Plaintiff is a black male who commenced work with the Company in April of 1969. He was employed successively as a day laborer and as a saw operator — both positions of a manual nature. Deposition of Gilbert Rodgers, 6-8. On July 9, 1973, defendant hired a white male with no prior relationship to the Company as a foreman. The foreman position was supervisory in nature and provided a higher salary than plaintiff enjoyed under his then-existing classification. Deposition, 30-31; Defendant's Answers to Interrogatories, 1. Plaintiff never applied for foreman but alleges that defendant never notified its own employees of the vacancy. Deposition 30.

During the next year, in 1974, the Company posted a vacancy for lead man. The lead man is a "production worker" and not a part of management. Deposition, 25. One of the applicants for lead man, Jose Gonzales, was a Hispanic male with greater seniority and experience than plaintiff. Deposition, 25-26. As the union steward, plaintiff was therefore obligated per union contract to grieve for Mr. Gonzales to obtain the position. Affidavit of Gilbert Rodgers, 1. Plaintiff himself did not apply for lead man. Upon the bidding for lead man, the Company eliminated the vacancy and posted a new notice for working foreman. Deposition, 26. The working foreman position was essentially supervisory but entailed occasional manual labor as well; like the foreman position, it offered a higher salary than did plaintiff's post as saw operator. Deposition, 23 and 31; Defendant's Answers to Interrogatories, 1. Hiring for working foreman was apparently not regulated by union contract, and the management could hire at will. Deposition, 26. Mr. Gonzales was again among the applicants for this position; plaintiff, on the other hand, again failed to apply. Deposition, 26. Defendant subsequently promoted a white male with five months' seniority in the Company to be working foreman. Defendant's Answer to Interrogatories, 1.

Later in 1974, plaintiff was disciplined and suspended for refusing to wear safety glasses while on the job. Without disputing his failure to wear the glasses, plaintiff alleges that three white employees of the Company also failed to wear them, but nonetheless were not subjected to disciplinary action. Affidavit, 1.

Plaintiff filed charges concerning alleged discrimination in the two hiring and promotion incidents with the Equal Employment Opportunity Commission ("the EEOC") on August 3, 1974. Deposition, Plaintiff's Exhibit 1. He appears to have filed with the Ohio Civil Rights Commission at about the same time. Deposition, Plaintiff's Exhibit 1; Deposition, 37. The EEOC found reasonable cause to believe that defendant had engaged in unlawful employment practices which discriminated against black and Spanish-surnamed workers as a class. Plaintiff's Reply to Defendant's Motion, Exhibit A. Following the failure of its efforts at conciliation with defendant, the EEOC issued plaintiff a right to sue notice on June 24, 1977. Deposition, Plaintiff's Exhibit 2. Suit was then filed in this Court on August 26 of that year.

Plaintiff filed a grievance concerning the safety glasses incident with his union, the International Association of Bridge, Structural, and Ornamental Iron Workers, Local 468, at some point in 1974. Deposition, 20. The grievance was processed and appealed according to the procedure authorized in the collective bargaining agreement between the union and defendant. Ultimately, however, the union refused to take it to arbitration. Deposition, 21-22.

I.

At the outset, the Company argues that plaintiff's Title VII allegation concerning the 1973 incident is barred by the statute of limitations. Title 42 U.S.C. § 2000e-5(e) expressly requires that charges be filed with the EEOC within 300 days after the alleged discriminatory employment practice, in cases where the plaintiff has initially instituted proceedings with the relevant state or local agency. Plaintiff apparently concedes, as he must, that he failed to satisfy the 300-day filing requirement. The 1973 incident occurred on July 9, 1973; plaintiff filed with the EEOC on August 3, 1974. Defendant's Answers to Interrogatories, 1; Deposition, Plaintiff's Exhibit 1. Accordingly, plaintiff's Title VII allegation concerning this incident is barred by the statute of limitations.

Plaintiff also alleges, however, that the Company's hiring and promotion of a foreman in 1973 violated his civil rights under 42 U.S.C. § 1981. An action under that section is not barred by an employee's failure to pursue his EEOC remedies in a timely fashion. Long v. Ford Motor Co., 496 F.2d 500, 503-04 (6th Cir. 1974); Mason v. Owens-Illinois, Inc., 517 F.2d 520, 522 (6th Cir. 1975).

Title 42 U.S.C. § 1981 itself has no specifically stated or otherwise relevant federal limitations period. The controlling period for a cause of action under this statute is ordinarily the most appropriate one provided by state law. In actions brought in the federal district courts in Ohio under 42 U.S.C. § 1981, the applicable statute of limitations is Ohio Rev.Code Ann. § 2305.07 (Page), which provides that an action upon a liability created by statute must be brought within six years from the accrual of the cause of action. Mason v. Owens-Illinois, Inc., 517 F.2d at 522. Plaintiff filed his cause in this Court in 1977, well within the six-year period. Thus plaintiff's 1973 allegation of employment discrimination survives within the ambit of 42 U.S.C. § 1981.¹

II.

The Company next argues that plaintiff's allegation concerning the 1973 incident fails to establish a prima facie case of employment discrimination. The basic prerequisites for such a case are (i) that plaintiff belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that he was rejected despite his qualifications; and (iv) that the position remained open after his rejection, and the employer continued to seek applicants from people with his qualifications. McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824. Mr. Rodgers did not apply for the 1973 position. As defendant concedes, however, this does not necessarily doom plaintiff's claim. The Supreme Court has established an alternative prima facie case for non-applicants. Where a plaintiff has failed to apply, the Court requires him to satisfy an initial burden of demonstrating that his application would have been futile. International Brotherhood of Teamsters v. United States, 431 U.S. at 367-68, 97 S.Ct. at 1870-71. Specifically, the plaintiff must bring forth evidence to show that he would have applied but for discrimination, and that he would have been discriminatorily rejected had he applied. International Brotherhood of Teamsters, 431 U.S. at 368 n. 52, 97 S.Ct. at 1871 n. 52.

Defendant argues that this plaintiff has produced no evidence of his desire to apply for foreman or his qualifications for the position, and that therefore plaintiff fails to carry his initial burden of proof. The argument is without merit. An analysis of the circumstances reveals that the case at bar presents an entirely distinguishable situation from Teamsters for which the federal courts would and do permit a different prima facie case to be made.

The crucial factor in the Teamsters formulation was that the plaintiff in that case alleged that he had been deterred from applying for the position in question because discrimination would have rendered it futile for him to do so. In refusing to enact an automatic bar from Title VII relief for all plaintiffs who had not applied, the Court reasoned:

The denial of Title VII relief on the ground that the claimant had not formally applied for the job could exclude from the Act's coverage the victims of the most entrenched forms of discrimination. Victims of gross and pervasive discrimination could be denied relief precisely because the unlawful

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