# Equal Employment Opportunity Commission v. McCall Printing Corp.

> Court of Appeals for the Sixth Circuit · October 24, 1980 · 633 F.2d 1232

URL: https://www.frixlaw.com/law-library/cases/8912348

## Case

- **Full name:** EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. McCALL PRINTING CORPORATION, Dayton Press Incorporated, and International Brotherhood of Bookbinders, Local 199
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** October 24, 1980
- **Citations:** 633 F.2d 1232; 24 Fair Empl. Prac. Cas. (BNA) 437; 24 Empl. Prac. Dec. (CCH) 31,349; 1980 U.S. App. LEXIS 12870
- **Precedential status:** Published
- **Opinion:** Concurring in part by Keith
- **Judges:** Keith, Kennedy
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8912348

## Opinion text

KEITH, Circuit Judge,
concurring in part and dissenting in part.
I concur in the first section of the majority opinion which holds that a district court is not deprived of jurisdiction regarding a Title VII claim solely because the EEOC’s letter of determination does not explicitly contain the claim. I also agree that a conciliation agreement may not be considered an independent act of discrimination unless there are allegations of bad faith in making the agreement. However, I dissent from the majority’s holding that summary judgment was properly granted by the trial court because the EEOC failed to state a Title VII violation.
The EEOC does not allege that McCall’s good faith conciliation agreement with female employees was an independent act of discrimination in violation of Title VII. Such an agreement obviously does not violate Title VII. The EEOC alleges that the conciliation agreement, along with other actions of the Company, was evidence of the Company’s failure to give its Black male employees the same benefits given to White male and female employees. The EEOC does not attempt to attack the validity of the conciliation agreement granting a class of female employees an opportunity to transfer seniority but rather it specifically alleges that the Company has maintained its seniority system in a discriminatory manner vis-a-vis its Black male employees. The Amended Complaint reads:
“11. ... Defendants individually and in concert did intentionally engage in unlawful employment practices at the McCall-Dayton facility in Dayton, Ohio, in violation of Section 703(a)(c) and (d) of Title VII in that they did: maintain a system of hiring, job classification and job assignment which discriminates against Blacks on the basis of race.”
*1239 It is true that a neutral seniority system which perpetuates the effects of an employer’s pre-Act discriminatory conduct is immunized from a finding of illegality by reason of Section 703(h) of Title VII, 43 U.S.C. § 2000e-2(h). Teamsters v. United States, 431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977). See also United Airlines, Inc. v. Evans, 431 U.S. 553 , 97 S.Ct. 1885 , 52 L.Ed.2d 571 (1977). But Teamsters also held that 703(h) does not immunize a seniority system which has been negotiated or maintained for illegal purposes. Id. at 356 , 97 S.Ct. at 1865.
Paragraph 11 of the Amended Complaint clearly alleges that McCall Company has a seniority system which has been maintained so as to produce a discriminatory effect on its Black employees.
The EEOC has not proven that the seniority system has been maintained in a racially discriminatory manner in violation of Title VII. It need not so prove in order to survive a summary judgment motion. Smith v. Hudson, 600 F.2d 60 (6th Cir. 1979). Summary judgment is appropriate only where there is no genuine issue as to material facts. In determining whether a genuine issue as to material facts exists, a court must decide if the movant has established his right to summary judgment with such clarity as to leave no room for controversy and that the other party is not entitled to judgment under any circumstances. A court must view the facts most favorably to the party opposing the motion and give that party the benefit of any reasonable inferences to be drawn from the facts. Adickes v. Kress & Co., 398 U.S. 144, 157 , 90 S.Ct. 1598, 1608 , 26 L.Ed.2d 142 (1970); United States v. Diebold, 369 U.S. 654, 655 , 82 S.Ct. 993, 994 , 8 L.Ed.2d 176 (1962) (per curiam); Equal Employment Opportunity Commission v. Keco Industries, Inc., 617 F.2d 443 (1980); United States v. Articles of Device, etc., 527 F.2d 1008, 1011 (6th Cir. 1976).
The uncontroverted evidence does present a genuine issue of material facts. Black employees complained to the Ohio Civil Rights Commission in 1965. The Ohio Commission issued a Complaint which resulted in a settlement between the Commission, the Union and McCall, The settlement did not include any provision allowing Black employees to keep their seniority if they sought entry into the previously closed lines of progression. Local 199 had rejected, by unanimous vote of. all white members present, a proposal by the Black carloader members that they enter the lines of progression on an individual basis according to their departmental seniority dates. Subsequently, in 1970, McCall and Local 199 arranged for a group of White male employees in one department, who had previously been employed in one of the lines of progression closed to Blacks, to transfer back to the previously racially-closed department with seniority calculated from their original dates of employment. The Black employees again requested permission to transfer seniority and it was again denied. Then, in 1972, McCall granted a group of employees (women, mostly White) the opportunity to transfer to the previously closed department with full original departmental seniority. The Black employees made a third formal request to also be allowed to retain their seniority on transfer.
Assuming that the reasonable inferences the EEOC draws from these facts are correct, as we must to properly review a summary judgment motion, the injustice here glares at us. Essentially, these Black employees remain lumped together at the bottom of the seniority hierachy while retroactive seniority has been given to White male and female employees. The EEOC alleges that McCall’s actions were calculated to obtain this horrendous result. Viewing the facts most favorable to the EEOC, I cannot conclude that summary judgment was properly granted. To do so, I would have to find that the EEOC is not entitled to judgment under any circumstances. I do not suggest that the EEOC would be successful on remand with the facts presented here. But the EEOC should have an opportunity to show that McCall’s seniority system is not bona fide because it has been maintained to produce a discriminatory effect on Black employees.
*1240 One of the major purposes of Title VII relief, putting discriminatees in their rightful places to the extent possible, has been frustrated here. If the EEOC’s allegations are well-founded, we cannot allow employers like McCall to give deserved benefits with one hand and snatch away those benefits with the other hand, albeit in a genteel manner.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8912348. Public record. Not legal advice.