Patterson v. General Motors Corp.

SWYGERT, Circuit Judge,

concurring in part and dissenting in part.

Although I concur with Part II of the majority’s opinion, affirming denial of class certification, I respectfully dissent from sections A and B of Part III, in which the majority affirms summary judgment denying plaintiff’s claims concerning transfers in 1971 and 1974. I also dissent from Part IV, in which the majority affirms the dismissal under Rule 41(b) of plaintiff’s claims regarding the locker room incident.

Summary judgment “is never warranted except on a clear showing that no genuine issue as to any material fact remains for trial.” Mintz v. Mathers Fund, Inc., 463 F.2d 495, 498 (7th Cir. 1972). “[A]ll reasonable doubts touching the existence of a genuine issue as to material fact must be resolved against the movant.” United States v. Farmers Mutual Insurance, 288 F.2d 560, 562 (8th Cir. 1961). Before we conclude that no genuine issue of fact exists concerning the 1971 transfer, we should be precise as to the content of plaintiff’s claim, the facts supporting it, and the facts put forward by defendant in support of its summary judgment motion.

Plaintiff’s claim is that General Motors violated his civil rights by

Replacing the plaintiff on his job with a white worker of lesser seniority and experience.

(Second Amended Complaint, March 5, 1974, A. 74.) Plaintiff’s pretrial submission of November 6, 1975 specifies two such instances, the first on September 13, 1971, and the second on February 1, 1974. Plaintiff states that on September 13, 1971

. the Plaintiff was replaced by a less senior Caucasian in Department 7031; that this was never the custom and represented a violation of seniority rights of the Plaintiff; that several of the fellow workers in Department 7031, with comparable seniority to the Plaintiff, had never been reassigned and replaced with a fellow employee of lesser seniority. .

This claim was the subject of grievance No. 938774. On September 17, 1971, plaintiff filed EEOC charge number TCH2-0641. This became EEOC case No. YCH3-075. According to the EEOC findings,

Charging Party’s co-workers state that they know of no other such instance where an employee with as much seniority as the Charging Party has even been moved from their [sic] work stations.

Although plaintiff was unable to name the person by whom he was replaced, the affidavit of Ernest Mielke, the union shop committeeman, confirms that he was in fact transferred on that date. (R. 70, p. 2.) The defendant states, in response to plaintiff’s request for discovery, that it has no record of the name of the employee who replaced Patterson on September 13, 1971.

The affidavit of Roger Kaspar submitted by the defendant in support of its motion for summary judgment states that under the collective bargaining agreement transfer of employees is the sole responsibility of management, and is not governed by seniority rights. Kaspar states that the company was “unable to discover anything which occurred on the date alleged affecting plaintiff’s seniority rights.” (A. 96.) If this affidavit fully responded to plaintiff’s claims, summary judgment would be proper unless the affidavit were controverted. But the affidavit addresses itself only to a possible violation of contractual seniority rights. The company has no record of any such violation, and there may well have been none. But as the defendants acknowledge in their brief (at 13), the affidavit constituted a complete defense to Plaintiff’s claim that his seniority rights were violated, unless it could be established that the custom and practice was different than the provision of the contract. Plaintiff alleged just such a custom, but the defendant asserts that plaintiff failed to set forth specific facts in support of such a custom and practice claim. Plaintiff’s counter-affidavit, adopting his pre-trial submission, asserts that such transfer “was never the custom,” and that similar workers were not similarly transferred. The EEOC findings, which are part of the record, indicate that his co-workers said they knew of *489 no other such transfer. Although not precise, these statements and findings are specific facts supporting plaintiffs claim of the negative custom of not transferring employees with seniority.

The Kaspar affidavit submitted by defendant is in no way addressed to plaintiff’s claim that the transfer violated rights due by custom to his seniority. The affidavit therefore does not establish facts defeating plaintiff’s claim, and does not entitle the movant to summary judgment.

The 1974 transfer involved similar facts. In the pretrial submission which plaintiff adopted as his counter-affidavit, he stated only:

That on 2/1/74 Plaintiff’s seniority was violated by being replaced with a white employee of lesser seniority; that at this time the Foreman was cook; that at this time Plaintiff was employed in Department 7031,

and further,

That such violation of seniority had its basis in racial discrimination.

I agree with the majority that plaintiff’s Title VII claim on .these facts is barred by his failure to file a timely charge with the EEOC. However, I believe that his Section 1981 claim was sufficient to withstand summary judgment. In moving for summary judgment, the defendant relied on the same affidavit of Roger Kaspar it employed with regard to the 1971 transfer. As I have already indicated, that affidavit denies any violation of contractual seniority rights, but is not addressed to any possible violation of customary rights.. If the plaintiff stated a sufficient claim in that regard, it stands unrefuted, and should not have been disposed of by summary judgment. Although the assertion that transfer such as occurred in 1971 “was never the custom” is not repeated in referring to the 1974 transfer, the transfers are clearly presented as similar, and the statements regarding custom should be understood as applying to both. Accordingly, as to this claim also I dissent.

Plaintiff’s only claim which did go to trial, a section 1981 claim of discriminatory discipline in 1969, was dismissed under Rule 41(b) at the close of plaintiff’s evidence. On a Rule 41(b) motion “the trial court is not required to consider the evidence in the light most favorable to the plaintiff,” Woods v. North American Rockwell Corp., 480 F.2d 644, 646 (10th Cir. 1973), and in review “we must view the findings [of the trial court] in the same way as those entered at the close of all the evidence, determining only whether they are clearly erroneous.” Ibid. Even under that severe standard, however, I believe that dismissal was improper.

Plaintiff was discharged on January 27, 1969 (later reduced to a six week suspension) for changing clothes in the locker room before quitting time, in violation of Shop Rule 38. That violation, coupled with prior violations of rules against falsification of records and lateness, also constituted a violation of Rule 39, against repeated rules violations. Plaintiff’s claim focuses on the locker room incident. His claim that the discipline as to that incident was racially discriminatory is based on two different arguments. First he claims that whites who were in the locker room at the same time were not disciplined. If there were evidence to support that claim dismissal would clearly have been inappropriate, but the district court found, and I agree, that such evidence was entirely lacking. His second claim, however, is that the rule against changing clothes early was by custom not enforced on Saturday nights and early changing on Saturday night had never before given rise to a violation. The rule was enforced on this Saturday night, he claims, as part of a pattern of harassment for his activity as a racial organizer.

The district court found that

the evidence is that plaintiff and five other black [sic] were caught in the locker room and were-disciplined. There is no evidence of any whites who were caught and who were not disciplined. No matter what the past practice, therefore, there is no evidence of the rule being enforced in a racially disparate manner.

Enforcement of the rule may not have been racially disparate, but it may still have been *490 discriminatory if it was selectively enforced against plaintiff. The district court found, however, that “the evidence established that there was no past practice of condoning violations of Rule 38 for going to the locker room early.” First the district court noted that plaintiff’s claim that it was regular practice to go to the locker room early on weeknights as well as Saturday nights had been discredited, since on weeknights the locker room was locked until two minutes before quitting. As for the existence of the practice on Saturday, the district court relied on the findings of the arbitration umpire, who found it “obviously rather unlikely that the Rule should find enforcement as to straight time work and nonen-forcement as to overtime work.” The umpire also noted that the men found in the locker room had acknowledged being caught, and had not protested their disciplinary action.

The district court’s reasoning will not support its conclusions. First, plaintiff’s claim as to practice on Saturday nights is not significantly discredited by proof of a contrary practice on weekdays. Second, the umpire’s assumption that practice on Saturday is “unlikely” to differ from practice during the week is based only on conjecture. Finally, the acknowledgement of wrongdoing by the men caught only confirms what was never denied, that there was a rule against early changing. Their behavior does not imply there was no contrary practice.

Furthermore, the district court’s findings ignore the manifest weight of the evidence. Each of plaintiff’s witnesses testified that he was accustomed to changing early on Saturday and had never before been reprimanded for it. 1 The Union shop committeeman, Mr. Williamson, did testify, as the district court notes, that on one occasion in 1968 the Company “cracked down” on violations of Rule 38. Far from refuting the plaintiff’s claim, however, the exceptional nature of this “crack down” clearly implies that violations of Rule 38 were not customarily disciplined. Thomas Dallas did say that “I had been going in there on several occasions more than once, changing clothes and coming out, and on some occasions I would get run out by supervision. . .” (160) Since he also testified that he had never been reprimanded in the past, the implication is that even when the supervisors enforced the rule they treated violations leniently, and did not issue reprimands.

The district court’s conclusion that no practice existed of condoning changing early on Saturday can be sustained only by discrediting the testimony of all the witnesses. Although on a Rule 41(b) motion to dismiss “the trial court is not required to consider the evidence in the light most fa *491 vorable to the plaintiff,” Woods, supra, 480 F.2d at 646 , it is bound to “take an unbiased view of all the evidence.” Allred v. Sasser, 170 F.2d 233, 235 (7th Cir. 1948). The findings suggest that the court did not do so. I believe they are clearly erroneous, that the grant of the motion to dismiss was an abuse of discretion, and I would therefore vacate the dismissal of this claim and remand for further proceedings.

. Regarding custom, the testimony was:

Aaron Heard: . . when it comes to Saturday, the doors were open, people have completed their jobs assigned and in most buildings went to the locker room and changed clothes'. ... it was something they had condoned in the past.” (74.)

John Stephens: “I knew I was breaking the rule, I knew that, but, you know, we had done this all of the time. We had been doing that ever since I had been there. . mostly on weekends, just on Saturdays.” (177.)

Dolphas Thomas: “1 knew that you weren’t supposed to go into the locker room early, but under the circumstances I would have gone anyway. . . . Because the lights was going out. . . . ”

Q. Was it customary for the company to shut off the lights at the end of the shift?

A. Only on Saturday nights. (133-134.) It was not one of the practices of mine but if I got through early I suppose I went before tjie whistle blew. (136.)

Thomas Dallas: “I was violating the company rules because the law forbids you to go in there before the whistle, but it was one of those things, it was open and I had finished my work, I decided I would go in and change clothes which I did more than one time . on previous occasions.” (146.)

Regarding absence of prior reprimands, the testimony was:

Stephens: Q. Prior to this time you never received any reprimands? A. No. (118.)

Thomas: Q. You had gone to the locker room early on Saturday night without receiving a reprimand, is that true? A. I have. (137.)

Dallas: Q. Did you ever go to the locker room early on a Saturday night on any previous shift? A. I had on many occasions. Q. Did you ever receive a reprimand for that?

A. Not to my knowledge. (151.)