White v. Ed Miller & Sons, Inc.

• Decision Date: 20 September 1978
• Docket Number: No. CIV. 76-0-399.,CIV. 76-0-399.
• Citation: 457 F. Supp. 148
• Parties: Billy R. WHITE, Plaintiff, v. ED MILLER & SONS, INC., Defendant.
• Court: U.S. District Court — District of Nebraska

457 F. Supp. 148

Billy R. WHITE, Plaintiff, v. ED MILLER & SONS, INC., Defendant.

No. CIV. 76-0-399.

United States District Court, D. Nebraska.

August 2, 1978.

On Request September 20, 1978.

Benjamin Wall, Wall & Wintroub, Omaha, Neb., for plaintiff.

Randall W. Owens, Young, White, Ramsey, Wieland & Owens, Omaha, Neb., for defendant.

On Request For Attorney Fees September 20, 1978.

SCHATZ, District Judge.

Plaintiff, Billy Ray White, brought this suit pursuant to 42 U.S.C. §§ 1981 and 2000e, et seq., alleging that he was discharged from employment by the defendant as a result of racial discrimination. The matter was tried to the court sitting without a jury. This memorandum opinion shall constitute the court's findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a).

The plaintiff, who is black, was employed by defendant as an engineer on a dredge being used on a construction project at the Eppley Airfield near Omaha, Nebraska. Having previously worked for defendant in a different capacity, plaintiff was referred to the job through his union's hiring hall on or about April 14, 1975. Plaintiff's duties at the job included lubricating the various engines, pumps, etc., on the dredge, keeping the dredge clean, assisting in the addition of pipe to the dredge and performing any tasks assigned by the person in charge of the dredge, known as a stickman or leverman.

Over the weekend of May 31—June 1, 1975, two mechanics checking the dredge and changing the oil in the engines discovered that there was no grease in one of the auxiliary pumps. Although they added lubricant, the pump broke down two days later. Plaintiff was discharged by the defendant the same day. Neither the engineer on the night shift nor the mechanics who checked the dredge on weekends were terminated. These employees are white.

Title VII of the Civil Rights Act of 1964 prohibits the discharge of "any individual" because of "such individual's race," § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1).

McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 278, 96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976).¹

Title 42, United States Code, Section 1981, also provides a federal remedy for discrimination in private employment on the basis of race. Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).

To prevail on either claim, plaintiff must demonstrate that his discharge was based on race, i. e., that he adequately performed his job but was replaced by another person of a different race, or that he was singled out for discharge while others who were similarly situated, but of a different race, were retained. If the defendant can articulate a legitimate non-discriminatory reason for plaintiff's discharge, plaintiff must show that the stated reason is merely pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

The dredging operation at which plaintiff was employed was undertaken to relocate the Missouri River levee, thus permitting certain runways at Eppley Airfield to be extended. The dredge consisted of a floating platform or hull containing various engines and pumps which removed material from the river bed and transferred it to the shore. Duties on the dredge were divided between a stickman or leverman, who controlled the operation of the dredge, and an engineer who saw to lubrication, maintenance, fueling, etc. These same two positions were filled on both the day and the night shift. By custom in the trade, most major changes in operation such as relocating the dredge, adding pipe, and major maintenance work, were done during the day shift if practical, since working conditions were better and additional support personnel available. However, these operations could be done at night if necessary.

This litigation has focused on the proper care of the dredge. Defendant claims to have terminated plaintiff for failure to adequately lubricate the pumps on the dredge and for failure to keep the dredge clean and shipshape. Plaintiff, pointing out that all other employees connected with the dredge were white, contends that he alone was singled out for blame when a problem occurred although others were equally responsible. Plaintiff also suggests that complaints about his general job performance have been resurrected and distorted as an afterthought in an attempt to bolster the defendant's case.

The evidence indicates that when plaintiff began working for defendant, there was some disagreement as to whether a second person was needed on the dredge with the leverman and, if so, what his job classification should be. This dispute between the employer and the union focused on the plaintiff, who was the only engineer working on the dredge at that time. However, the issue was whether any engineer was required, not whether plaintiff individually was qualified to serve in that position. The issue was ultimately resolved in favor of a second person remaining on the crew with the status of engineer, and when a second shift was added, it, too, consisted of a leverman and an engineer.

It also appears that some discussions were held between plaintiff and the job supervisors regarding the manner in which plaintiff performed his job, particularly with regard to whether he was spending too much time off the dredge on the river bank and whether he kept the dredge properly cleaned. No formal complaints were ever filed with the union regarding these matters. From all the evidence, and particularly from the testimony of Mr. Robert Holman, the leverman on the day crew, this court concludes that these complaints were not sufficiently serious to dictate a ruling that plaintiff did not satisfactorily perform his job in general. With respect to the question of whether plaintiff was satisfying the normal requirements of his work,

The plaintiff need not show perfect performance or even average performance . . .. He need only show that his performance was of sufficient quality to merit continued employment, thereby raising an inference that some other factor was involved in the decision to discharge him.

Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1283 (7th Cir. 1977).

Maintaining proper lubrication of the dredge was an important ongoing duty of the engineers on both shifts, day and night, and to some extent of the mechanics employed by defendant. The major mechanical components of the dredge consisted of three large internal combustion engines operating a main pump and two auxiliary pumps and supplying electricity to the dredge, and a hydraulic pressure system for moving the various pipes, braces, etc. All of these items required some combination of grease and oil to be maintained at appropriate levels in order to reduce friction of moving parts and to prevent breakdowns. A large wall chart on the dredge indicated the appropriate time intervals for checking lubrication levels, making oil changes, and greasing. Some fittings had to be greased as frequently as every twelve hours, some as infrequently as every five hundred hours or longer, and others at various intervals in between. As most intermittent lubrication, i. e., greasing less frequently than once every twelve or twenty-four hours, was ordinarily done while the dredge was shut down during the daytime for other reasons, most of this work was performed by plaintiff. The engineer on the night shift was to do what greasing was necessary for his shift and to check other parts as needed. The engine oil was changed and the pumps checked on weekends by Mr. Louis Prescott, a mechanic employed by defendant.

While Mr. Prescott was changing the engine oil on the dredge the Saturday before plaintiff was terminated, Mr. Anderson, the chief mechanic employed by defendant, checked the pumps. These two individuals discovered one of the auxiliary pumps needed grease. Mr. Prescott testified that he observed a seal on the pump appeared to be leaking grease and that the pump could have gone dry in as little as two hours or it could have been leaking for as long as three or four days before becoming dry. He also testified that if run without lubrication, the pump could fail in less than twenty hours of operation.

The auxiliary pump was greased on Saturday. The following Tuesday some breakdown occurred which necessitated repairs to the pump. Defendant would have the court infer that the breakdown resulted solely from a lack of lubrication although there is no direct evidence of such a causal relationship. Defendant also contends that plaintiff as the engineer on the day shift was primarily responsible for seeing to the lubrication of this particular pump, and that failure to do so with resulting damage justifies his discharge. This contention, if supported by the evidence, would constitute a nondiscriminatory reason for discharge sufficient to rebut plaintiff's charge of discrimination. Compare Flowers v. Crouch-Walker Corp., supra.

However, the evidence does not support the conclusion that plaintiff alone was responsible for the pump being dry or for its breakdown. It is equally reasonable to conclude from Mr. Prescott's testimony that the pump might have gone dry during the night shift the Friday before it was discovered (although Stanley Borst, the engineer on the night shift, testified that he experienced no particular problems that night). As indicated, there is no evidence that the pump failed because of a lack of lubrication. Plaintiff testified that too much grease in the pump could also cause it to fail. Or the failure could have resulted from any of a variety of causes unrelated to lubrication. There is no indication that the engineers were told on Monday to watch the pump for signs of trouble or that any was expected as a result of the discovery the previous Saturday. While the evidence does suggest that greasing the pump was to be done by the engineers on the day shift in most instances, it is also clear that such greasing could be...