Smith v. Cotton Bros. Baking Co., Inc., 78-1267

• Decision Date: 09 January 1980
• Docket Number: No. 78-1267,78-1267
• Parties: 24 Wage & Hour Cas. (BN 456, 92 Lab.Cas. P 34,108 Walter Monroe SMITH, Plaintiff-Appellant, v. COTTON BROTHERS BAKING CO., INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 738

609 F.2d 738

24 Wage & Hour Cas. (BN 456, 92 Lab.Cas. P 34,108

Walter Monroe SMITH, Plaintiff-Appellant, v. COTTON BROTHERS BAKING CO., INC., Defendant-Appellee.

No. 78-1267.

United States Court of Appeals, Fifth Circuit.

Jan. 9, 1980.

Daniel E. Broussard, Jr., Alexandria, La., for plaintiff-appellant.

Kullman, Lang, Inman & Bee, Ernest R. Malone, Jr., New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before AINSWORTH, INGRAHAM and GARZA, Circuit Judges.

INGRAHAM, Circuit Judge:

This appeal arises from a dispute over the circumstances surrounding plaintiff's discharge from employment. The district court, sitting without a jury, held a hearing on November 21, 1977, and found that plaintiff had failed to comply with the court's order entered on March 10, 1977, and, accordingly, dismissed plaintiff's complaint. From a take-nothing judgment in favor of the defendant, plaintiff perfected his appeal to this court. For the reasons hereinafter set out, we affirm.

Defendant Cotton Brothers Baking Co., Inc., was a party to a collective bargaining agreement with Local No. 370, Bakery and Confectionery Workers' International Union, AFL-CIO, which provided, Inter alia, that employee union members could not be terminated without just cause. Plaintiff Walter Monroe Smith was employed by defendant as an apprentice maintenance mechanic in November 1975. At the time in question, he was a union member in good standing.

Sometime around January 1976, plaintiff's wages were garnished by one of his creditors. Subsequently, on January 31, 1976, plaintiff's employment was terminated. The reasons for his termination were disputed. Defendant claimed that plaintiff's job performance was unsatisfactory after repeated warnings; plaintiff claimed that he was discharged because his wages had been garnished.

On April 1, 1976, plaintiff instituted this action in the district court seeking reinstatement to his former position, reimbursement for lost wages since the time of his discharge, attorney's fees and costs. Plaintiff's complaint included one cause of action for wrongful discharge in violation of the union contract, and a second cause of action for unlawful discharge in violation of Subchapter II of the Consumer Credit Protection Act (CCPA), 15 U.S.C. § 1674(a).

During discovery, a question arose as to whether or not plaintiff was a probationary employee, and thus subject to discharge without the protection of the union grievance procedure. One portion of the union contract purported to allow unilateral termination of plaintiff's employment while other portions appeared to guarantee to plaintiff the security of procedures enjoyed by all union members, including the security of the grievance procedure. The district court found that since the collective bargaining agreement contemplates use of the grievance procedure, and there was an ambiguity in the agreement as to whether plaintiff, an apprentice, enjoyed the rights of other union members, then plaintiff should be referred to the grievance procedure before the the court would rule on the merits of his claim.

On March 10, 1977, the district court entered an order staying its proceedings and granting plaintiff fifteen days in which to file his grievance with the union to determine whether there was just cause for the termination of his employment, and to determine whether he was terminated because of garnishment. The court granted an additional ten days thereafter, or ten days after completion of the grievance proceeding, whichever occurred first, in which to reapply to the court for any further relief.

Plaintiff completed the required written form and personally delivered the signed document to one Lonzo Lee Terrell, the shop steward, whose duty it was to file the grievance with the appropriate company official. It is undisputed that plaintiff timely gave the grievance to Terrell. The dispute centers around whether or not Terrell properly filed the grievance within the time limits set forth in the district court's March 10, 1977 order.

Sometime around July 11, 1977, plaintiff's counsel wrote and requested defendant's position regarding the handling of plaintiff's grievance. Defendant replied that since the grievance had not been given to Jimmy Burgin, the only official in the maintenance department authorized to accept grievances, until April 7, 1977 at the earliest, then it had been untimely filed and would not be processed. Nothing further occurred until November 11, 1977, when plaintiff again took the matter to the district court.

The district court held a hearing on November 21, 1977, in which several witnesses testified. Plaintiff's sole witness, Terrell, testified that he had attempted to serve the grievance on one Ralph Mingee, a company superintendent. He also testified that he attempted to serve the grievance on one James Paul, a high ranking employee in the maintenance department, who refused to accept it and told Terrell that the grievance had to be given to Jimmy Burgin. All of defendant's witnesses testified that March 26, 1977, was the earliest date that any alleged service attempt could have been made. Moreover, there was testimony that Terrell did not give the grievance to Jimmy Burgin until April 7, 1977. Defendant's witnesses also testified that each one had told Terrell that Burgin was the only person to whom the grievance could be given. There was also testimony that Burgin had been out of the office on April 7th, but had returned on April 8th.

At the conclusion of the hearing, and following oral arguments by counsel, the district court ruled that Terrell, who had been entrusted with the duty of filing the grievance, had failed to so file it within the fifteen day time limit set out by the court in its order. The court then dismissed plaintiff's entire complaint, including his second cause of action under the CCPA, for failure to comply with the March 10, 1977 order.

Plaintiff appeals to this court, arguing that the district court erred in two respects. First, plaintiff argues that the district court's finding of noncompliance with the March 10, 1977 order was clearly erroneous. Second, plaintiff argues that he has a private civil remedy under Subchapter II of the CCPA that is independent of his action under the union contract, and the district court therefore erred in dismissing the entire complaint. ¹

Plaintiff's first argument is that the loss from any alleged company confusion that may have prevented the grievance from timely reaching the proper company official should not be visited on him. His contention is that he timely filed the grievance. It was the company's delay, in particular, the absence of Jimmy Burgin and the failure of the company to appoint an alternate official to receive grievances, that permitted the time limit to expire prior to the proper official being served with the grievance.

The testimony throughout the hearing was conflicting and many of the material dates and facts were disputed. Plaintiff argues that even if the actual service was untimely, the attempt to serve was not. Defendant disputed this contention and several of defendants witnesses testified that to their knowledge no attempt to serve the grievance on a company official was made prior to April 7, 1977. Plaintiff is asking us to disregard all the testimony except that of Terrell, his sole witness, who testified that he did attempt timely to serve the grievance on Ralph Mingee. The district judge had the opportunity to observe the demeanor and candor of the witnesses, and his decision as to the credibility and weight of the testimony must be affirmed absent clear error. We conclude that on the record as a whole the district court finding of noncompliance with its March 10, 1977 order was not clearly erroneous.

In arguing that the district court erred in dismissing his § 1674(a) claim, plaintiff relies heavily on Stewart v. Travelers Corp., 503 F.2d 108 (9th Cir. 1974), which concludes that a private civil remedy is implied in § 1674(a). There is no question that Subchapter II provides no express private civil remedy. ² However, plaintiff notes that "courts are free to fashion appropriate civil remedies based on the violation of a penal statute where necessary to ensure the full effectiveness of the congressional purpose," Burke v. Compania Mexicana de Aviacion, S.A., 433 F.2d 1031, 1033 (9th Cir. 1970), and he asks us to adopt the Ninth Circuit rule that an implied right of action exists.

Neither the Supreme Court nor the Fifth Circuit has spoken definitely on this issue; however, district courts from Louisiana, Iowa, Kansas and West Virginia have ruled that no private right of action exists. ³ Moreover, the language in Stewart must now be viewed as modified somewhat by Cort v. Ash,422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). That case establishes several factors that are deemed relevant in determining whether a private remedy ought to be implied under a federal statute not expressly providing one. Those factors are 1) whether the plaintiff is a member of the class of persons for whose benefit the statute was enacted; 2) whether the legislature has implicitly or explicitly manifested any intent to create or deny such...