Petition — Johnson Bronze Co. v. Ostapowicz

Bupteme Court. J. *

f * III. E Nn

| NOV 2 4976

IN THE | MICHAEL RODAK, R. CLERK |

Supreme Court of the United States

OCTOBER TERM, 1976

5

JOHNSON BRONZE 1 V.

Petitioner,

V

ANGELINE R. OSTAPOWICZ,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

LEONARD L. SCHEINHOLTZ

JONATHAN L. ALDER

C. ARTHUR DIMOND

REED SMITH SHAW & McCLAY

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Counsel for Petitioner,

Johnson Bronze Company

HERBICK & HELD PRINTING COMPANY, PITTSBURGH, PA. 15233

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Reasons For Granting The Writ 7

1. The Burden Of Proof Rule Adopted By The

Court Of Appeals Conflicts With The Prior

Holding Of This Court In McDonnell Douglas

ß e 7

2. The Scope Of The Civil Action Approved By

The Court Of Appeals Exceeded That Permis-

sible Under Title VII And Numerous Circuit

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y Table of Citations.

CASES

PAGE

Bittar v. Air Canada, 512 F.2d 582 (5th Cir. 1975). 10

Causey v. Ford Motor Co., 516 F.2d 416 (5th Cir.

D ..ctellamenisGhuademeaticniaade kadai 10

ie ere ee 10

Franks v. Bowman Transportation Co.. US.

ra , 44 U.S. L. W. 4356 (U.S. March 24, 1976) 8

Gilmore v. Kansas City Terminal Ry., 509 F.2d 48

r 10

McDonnell Douglas Corp. v. Green, 411 U.S. 792

K Ao Dene 3, 5, 7-13. 18

Rodriquez v. East Texas Motor Freight System,

Inc., 505 F.2d 40 (5th Cir. 1974), cert. granted,

3 USS. ........, 44 U.S. L. W. 3670 (U.S. May 24,

C ˙ I itortiir.s hate CRN TMT ne ETS 9

Sabbatino v. Curtiss Nat’] Bank, 446 F.2d 1046 (5th

D / 10

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th

r ˙————TTT 15

United States v. International Union of Elevator

Constructors, .... .... > = , (No. 75-2134,

Se ele HI TINE BTID .. 8

Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239,

259 (3d Cir.) , cert. denied, 421 U.S. 1011 (1975) 8

OTHER

McCormick, Handbook Of The Law Of Evidence,

5 TUB (CHR OE, BOGE) .nn..ccccccccccccccccccssceccccccceeese 10

IN TAE

Supreme Court of the United States

OCTOBER TFRM, 1976

JOHNSON BRONZE COMPANY,

Petitioner,

v.

ANGELINE R. OSTAPOWICZ,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Johnson Bronze Company, Petitioner herein, prays

for a Writ of Certiorari to review the judgment of the

United States Court of Appeals for the Third Circuit

entered in this case on August 27, 1976, as amended on

September 29, 1976.

Statute Involved.

OPINIONS BELOW

The opinion of the Court of Appeals (App. A, infra)

and the amendment thereto (App. B, infra) have not

yet been officially reported. They are set forth in the

Appendix, as is the Court of Appeals’ order denying

rehearing (App. C, infra). The opinion of the district

court is reported at 369 F. Supp. 522 (App. D, infra).

JURISDICTION

The judgment of the Court of Appeals was entered

on August 27, 1976. Johnson Bronze Company’s timely

petition for rehearing was denied by the Court of

Appeals on September 27, 1976. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

This case involves the interpretation and applica-

tion of Section 706(f)(1) of the Civil Rights Act of

1964, as amended, 42 U.S.C. S 2000e-5(f) (1) (Supp. III,

1973), which is set forth in the Appendix (App. E,

infra) and the same statute prior to the 1972 amend-

ments thereto, 42 U.S.C. § 2000e-5(e) (1970) (App.

F, infra).

Questions Presented.

QUESTIONS PRESENTED

1. Whether, in an employment discrimination case

brought under Title VII of the Civil Rights Act of 1964,

as amended, the defendant, contrary to this Court’s

decision in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), must bear the burden of disproving plain-

tiff’s prima facie case by a preponderance of the evi-

dence.

2. Whether, in a private civil action brought under

Title VII of the Civil Rights Act of 1964, as amended,

plaintiff may raise allegations contained in charges

which she filed with the Equal Employment Oppor-

tunity Commission (‘EEOC’) subsequent to the charge

upon which the action is jurisdictionally premised (1)

where said allegations were not within the scope of the

original charge, and (2) in the absence of a showing

that the EEOC either issued a right to sue letter con-

cerning the later charges or contemplated the later

charges in its processing of the original charge.

Statement.

STATEMENT

This action was brought by Angeline R. Ostapowicz

as a private civil class action against Johnson Bronze

Company. The suit alleged sex discrimination in viola-

tion of Title VII of the Civil Rights Act of 1964, as

amended.

On April 11, 1968, Local 69 of the United Auto-

mobile Aerospace and Agricultural Implement Workers

of America (“Union”) filed a charge with the Equal

Employment Opportunity Commission (“EEOC”). The

charge arose out of complaints by female members

employed in the Shipping Department at the Johnson

Bronze Company plant in New Castle, Pennsylvania.

On August 6, 1970, following its investigation of the

Union’s Shipping Department charge, the EEOC found

reasonable cause to believe that Johnson Bronze Com-

pany excluded females as a class from one of the job

classifications in the Shipping Department, i.e., the

“heavy packer” position.

On October 13 and 27, 1970, Angeline R. Ostapowicz

filed charges with the EEOC alleging, inter alia, that

Johnson Bronze Company had discriminated against

her by excluding women from certain jobs in the

Machine Shop at the Company’s plant.

On March 29, 1971, the EEOC issued, to all female

members of the Union, a “right to ue“ notice concern-

ing the Union’s 1968 Shipping Department charge.

On April 28, 1971, upon receipt of the notice of

right to sue on the Union’s charge, Ostapowicz filed this

civil class action in the United States District Court for

the Western District of Pennsylvania.

Statement.

On May 11, 1971, the EEOC, without engaging in an

investigation or conciliation of the Machine Shop

charges filed by Ostapowicz, issued right to sue letters

to Ostapowicz on those Machine Shop charges.

On May 14, 1971, Plaintiff filed an amendment to

her complaint in her civil action. The amendment at-

tempted to include the Machine Shop allegations within

the scope of the civil action previously filed concerning

the Union’s Shipping Department charge. The District

Court approved the amendment.

Following a trial on the merits, the District Court

held that Johnson Bronze had not successfully rebutted

the prima facie case presented on behalf of Ostapowicz

and the plaintiff class.

The amount of damages awardable to the class

members was determined by a special master and

eventully approved by the District Court.

Johnson Bronze appealed the District Court’s

liability and damages determinations to the United

States Court of Appeals for the Third Circuit. The Third

Circuit upheld the District Court except insofar as the

relief granted included hiring quotas.

On appeal Johnson Bronze Company argued, inter

alia, that the District Court erred by (1) misapplying

the burden of proof for employment discrimination

cases as estabiished in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) and (2) concluding that the

Court had subject matter jurisdiction over Ostapowicz’s

allegations concerning the Machine Shop.

The Third Circuit rejected these two arguments

stating that (1) under McDonnell Douglas Corp v.

Statement.

Green a defendant in an employment discrimination suit

must disprove plaintiff’s prima facie case by a pre-

ponderance of the evidence (App. B., infra at pp. 19a-

20a), and (2) the District Court had jurisdiction over

the Machine Shop allegations merely because Ostapowicz

had filed Machine Shop charges prior to the conciliation

of the Union’s Shipping Department charge (App. A,

infra at pp. 10a-11a)

Reasons for Granting the Writ.

REASONS FOR GRANTING THE WRIT

1. The Burden of Proof Rule Adopted by the Court

of Appeals Conflicts With the Prior Holding of This

Court in McDonnell Douglas Corp. v. Green.

This Court should grant the instant Petition be-

cause the Court of Appeals has misstated and misap-

plied this Court’s rule for allocation of burden of proof

in employment discrimination cases.

In rejecting Johnson Bronze Company’s burden of

proof argument the Court of Appeals held:

„. . . once a prima facie case of a Title VII violation

has been established, the burden shifts to the de-

fendant to articulate legitimate nondiscriminatory

reasons for the unequal treatment shown in the

prima facie case. The defendant must prove its

justification by a preponderance of the evidence.“

The rule stated thusly departs from the rule previously

established by this Court. In McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), this Court set up a three

part burden of proof for Title VII actions:

“The complainant in a Title VII trial must

carry the initial burden under the statute of estab-

lishing a prima facie case of race discrimination.

* * *

The burden then must shift to the employer

to articulate some legitimate nondiscriminatory

reason for the [facts encompassing plaintiff’s prima

facie showing}.

1. Order Amending Opinion, App. B, infra at p.

* The Court of Appeals' discussion of the burden of

proof was altered slightly in response to Johnson Bronze

Company’s Petition for Rehearing. Compare App. A,

infra at p. 1la, with App. B, infra at pp. 19a-20a.

Reasons for Granting the Writ.

“(The complainant must] be afforded a fair

opportunity to show that petitioner’s stated reason

for [the facts encompassed by plaintiffs prima facie

showing] was pretext.”

411 U.S. at 802-04.

It is clear that the burden of proof rule adopted by

the Court of Appeals in this case significantly alters the

rule adopted in McDonnell Douglas.2

2. The Court of Appeals cited two of its own

decisions and one decision of this Court in support of

its holding.

The two Third Circuit decisions, United States v.

International Union of Elevator Constructors, ...... F.2d

aid , (No. 75-2134, 3d Cir. July 21, 1976) and Wetzel v.

Liberty Mutual Ins. Co., 508 F.2d 239, 259 (3d Cir.),

cert. denied, 421 U.S. 1011 (1975), indicate that the

burden of proof rule has been misstated by the Third

Circuit prior to the instant case. The fact that the Court

of Appeals has been wrong in the past does not diminish

the importance of the issue which Petitioner is asking

this Court to decide. To the contrary, it shows the

necessity of reviewing this case before the misstatement

of the burden of proof becomes entrenched in the Third

Circuit or spreads to the case law of other circuits.

The opinion of this Court cited by the Court of

Appeals is Franks v. Bowman Transportation Co., ......

USS. ......, 44 U.S. L. W. 4356 (U.S. March 24, 1976). First,

the discussion apparently referred to, (44 U.S.L.W. at

4363 & n. 32), is dictum. Second, the discussion relates

to the establishment of an individual right to relief by

an individual class member after a discriminatory em-

ployment practice had already been proved; the question

involved in the instant case deals with the initial ques-

tion, i.e., whether the defendant was guilty of a dis-

criminatory employment practice. Third, to the extent

that the discussion in Franks conflicts with the burden

of proof rule set out in McDonnell Douglas, it must be

viewed as incorrect.

— TC A 6

Reasons for Granting the Writ.

A comparison of the two rules points up the signifi-

cant difference. Under both the McDonnell Douglas rule

and the rule adopted by the Court of Appeals, a Title

VII plaintiff must first establish a prima facie case.

After the establishment of the prima facie case, how-

ever, the two rules diverge. Under McDonnell Douglas,

the plaintiff may recover on the basis of the prima facie

case alone if the defendant offers no explanation for the

prima facie case. If the defendant offers an explanation,

however, plaintiff must show that the explanation is

pretext in order to recover. Under the rule adopted by

the Court of Appeals, plaintiff recovers if defendant

cannot disprove the prima facie case by a preponderance

of the evidence. The response of the defendant to plain-

tiff’s prima facie case is different under each rule. Under

McDonnell Douglas, the defendant need only articulate

a legitimate explanation, whereupon it becomes the

burden of the plaintiff to prove that the explanation is

pretext. Under the rule adopted by the Court of Appeals,

the defendant must not only articulate its legitimate

explanation but must also prove the explanation by a

preponderance of the evidence.

The Court of Appeals adopted a two part burden of

proof whereas this Court’s McDonnell Douglas rule in-

3. The elements of the prima facie case were de-

tailed in the McDonnell Douglas case. This Court re-

cently has granted certiorari in Rodriquez v. East Texas

Motor Freight System, Inc., 505 F.2d 40 (5th Cir. 1974),

cert. granted, ........ a , 44 U.S. L. W. 3670 (U.S.

May 24, 1976). One of the issues to be heard in that

case relates to the elements of a prima facie case. Peti-

tioners believes that it would be appropriate to grant

the instant Petition dealing with the burden of proof

holding in McDonnell Douglas to concurrently clarify

the burden of proof and the prima facie case questions

in Title VII cases.

10

Reasons for Granting the Writ.

volves a three part burden. The Court of Appeals’ rule

effectively eliminates the third part of the McDonnell

Douglas scheme for burden cf proof, i.e., plaintiff’s bur-

den to show that the legitimate non-discriminatory ex-

planation of the prima facie case offered by defendant

is pretext. The opinion of the Third Circuit thus places

an unduly heavy burden on defendants in employment

discrimination cases.‘ It also renders the plaintiff’s bur-

den in such cases ridiculously light.

4. The current burden of proof controversy is

easily discussed in terms of the difference between the

burden of persuasion and the burden of proceeding with

the evidence. Under the McDonnell Douglas v. Green

rule, the burden of going forward with the evidence

shifts to defendant upon the establishment of plaintiff’s

prima facie case—the burden of persuasion on the

existence of a Title VII violation, however, remains with

the plaintiff. Under the decision of the Third Circuit,

once a prima facie case has been established, the de-

fendant must bear the burden of persuasicn on the

absence of a Title VII violation. This is not only con-

trary to this Court’s holding in McDonnell Douglas Corp.

v. Green, but it is also contrary to traditional notions of

jurisprudence, i.e., that a plaintiff normally bears the

burden of persuasion in establishing a right to recovery.

See Causey v. Ford Motor Co., 516 F.2d 416, 421 & n. 6

(5th Cir. 1975) ; Bittar v. Air Canada, 512 F.2d 582 (5th

Cir. 1975); Gilmore v. Kansas City Terminal Ry., 509

F.2d 48, 52 (8th Cir. 1975); Franklin v. Troxel Mfa. Co.,

501 F.2d 1013 (6th Cir. 1974). See also Sabbatino v.

Curtiss Nat’l Bank, 446 F.2d 1046, 1055 (5th Cir. 1971);

McCormick, Handbook of the Law of Evidence, S 336

(Cleary ed. 1972).

Because the Third Circuit’s decision places the ulti-

mate burden of persuasion by a preponderance of the

evidence upon defendant, it creates a conflict with the

Fifth Circuit’s decision in Causey, supra. The instant

Petition should be granted by reason of that conflict.

11

Reasons for Granting the Writ.

In McDonnell Douglas this Court held that plaintiff

had established a prima facie case of race discrimination

arising out of defendant’s refusal to hire plaintiff. The

Court also held that defendant had carried its burden

by articulating a legitimate reason for refusing to hire

plaintiff, i.e., plaintiff’s prior unlawful conduct. Finally,

the Court held that plaintiff should be given the oppor-

tunity to show that defendant’s decision not to hire him

was not based on the articulated reason, i.e., that plain-

tiff's unlawful conduct was merely a pretext used by

defendant to obscure its discriminatory intent.

With respect to the statement of the McDonnell

Douglas rule by the Court of Appeals in this case, two

factors should be noted. First, this Court did not hold

that defendant had to prove, by a preponderance of the

evidence or otherwise, that the reason for its refusal to

hire plaintiff was plaintiff's prior unlawful conduct; this

Court held that defendant need only articulate a legiti-

mate reason for its conduct. Second, this Court held

that the opportunity must be given to plaintiff to dis-

prove (i.e., show as pretext) defendant’s articulated

reason for not hiring plaintiff. Neither of these two

factors comports with the Court of Appeals’ holding

that upon establishment of a prima facie case a de-

fendant must prove by a preponderance of the evidence

that plaintiff's prima facie showing is due to nondis-

criminatory reasons.

The question posed in the present litigation in-

volves what the District Court in McDonnell Douglas

Corp. v. Green should have done on remand. Pursuant to

this Court’s holding, the District Court should have given

Green the opportunity to prove that McDonnell Douglas’

refusal to hire him was not based on his unlawful con-

duct. Pursuant to the Third Circuit’s holding in this

12

Reasons for Granting the Writ.

case, on remand in McDonnell Douglas the employer

should have borne the burden of proving by a preponder-

ance of the evidence that its refusal to hire Green was

based on his unlawful conduct, not upon his race—a

significantly greater burden than that anticipated by

this Court.

Johnson Bronze Company argued on appeal that

the District Court erred in not finding that the Com-

pany had articulated a legitimate explanation for plain-

tiff's prima facie showing. By requiring proof by a

“preponderance of the evidence” rather than requiring

merely an articulation of a legitimate reason, the Court ,

of Appeals, like the District Court, failed to address

Johnson Bronze Company’s burden of proof argument

in the terms dictated by this Court in the McDonnell

Douglas case.

The erroneous allocation of the burden of proof by

the courts below resulted in an incorrect finding of lia-

bility in the instant case.5 More importantly, however,

5. The “preponderance rule“ adopted by the Court

of Appeals significantly impacted the liability determi-

nation against Johnson Bronze Company. For example,

determination of liability was based in part on plaintiff’s

showing that “[i]n 1970 a man was made a mail clerk

while many women with greater seniority were laid off.”

(App. A, infra at p. 6a) Assuming that this fact estab-

lished a prima facie case of sex discrimination, Johnson

Bronze Company submitted evidence which showed that

(1) there was only one mail clerk position at the Com-

pany, (2) no females had applied for the position, and

(3) the mail clerk position was not within the bargain-

ing unit and therefore the appointment was not governed

by seniority. Under the McDonnell Douglas standard,

Johnson Bronze had thereby articulated a legitimate ex-

planation for the appointment of the male to the mail

clerk position, i.e., the statistical insignificance of the

singular position combined with the irrelevancy of

seniority to that appointment. Under the rule adopted

13

Reasons for Granting the Writ.

the Court of Appeals’ not so subtle alteration of the

McDonnell Douglas rule for burden of proof will seri-

ously impact all current and future Title VII litigation.

The rule for allocation of burden of proof is a matter

of utmost importance to all litigants under Title VII of

the Civil Rights Act of 1964. Any confusion over the

interpretation of this Court’s holding in McDonneli

Douglas Corp. v. Green should be resolved with dis-

patch. It is thus appropriate, indeed necessary, that

this Court grant the instant Petition for Writ of Cer-

tiorari.

2. The Scope of the Civil Action Approved by the

Court of Appeals Exceeded That Permissible Under

Title VII and Numerous Circuit Court Holdings.

This Court should grant the instant Petition because

the Court of Appeals erroneously decided an important

question of federal Jaw which has not been, yet should

be, settled by this Court.

In rejecting Johnson Bronze Company’s jurisdic-

tional argument the Court of Appeals held that the scope

of a private civil action under Title VII of the Civil

Rights Act of 1964 may properly include allegations of

discrimination made in charges filed subsequent to the

5. (Cont'd.)

by this Court, however, Johnson Bronze had not dis-

charged its burden of proving by a preponderance of the

evidence that the selection of a male for the mail clerk

position was not a product of sex discrimination. Under

the preponderance rule Johnson Bronze has been held

liable for failure to carry its burden; under the McDon-

nell Douglas rule, however, the Company’s articulation

of the legitimate explanation shifted the burden to

plaintiff to show that defendant’s explanation was pre-

text, a burden which was not undertaken or carried by

plaintiff.

14

Reasons for Granting the Writ.

charge upon which the civil action is jurisdictionally

founded despite the absence of a showing that the EEOC

had taken any action with respect to the subsequent

charges.

A brief recounting of the pertinent facts is neces-

sary to an understanding of this reason for granting the

instant Petition. In 1968, Ostapowicz’s union filed a sex

discrimination charge against Johnson Bronze Com-

pany. The charge related to employment practices in

the Company's Shipping Department. The EEOC’s in-

vestigation related to practices in the Shipping Depart-

ment only, and in August 1970 the EEOC determined

that there was reasonable cause to believe that the Com-

pany had discriminated in its Shipping Department.

In October and November 1970, plaintiff Ostapowicz

filed charges with the EEOC alleging sex discrimination

in the Company’s Machine Shop.

Conciliation of the 1968 Shipping Department

charge and the August 1970 Shipping Department rea-

sonable cause determination was attempted by the

EEOC. These conciliation efforts failed and in March

1971 Ostapowicz received a right to sue notice from the

EEOC on the 1968 Shipping Department charge. Ostapo-

wicz then filed her court action. At the time suit was

filed, Ostapowicz had not received from the EEOC right

to sue notices for her 1970 Machine Shop charges.“

6. Subsequently, Ostapowicz received right to sue

letters in her 1970 charges and amended her civil com-

plaint to incorporate them. The Court of Appeals, how-

ever, never reached Johnson Bronze Company’s chal-

lenge to the validity of the amendment because of its

holding that the Machine Shop allegations were proper-

ly within the scope of the Complaint as originally filed.

15

Reasons for Granting the Writ.

These Machine Shop charges had not been investigated

by the EEOC, nor had the Company ever been notified

of the charges. Further, and most importantly, the

record does not reflect that these 1970 Machine Shop

charges had been considered in the EEOC’s conciliation

efforts which had been taken place concerning the Ship-

ping Department charge.

Title VII is designed to afford the EEOC the first

opportunity to resolve employment discrimination dis-

putes and charging parties should not be permitted to

avert the administrative process by resorting directly

to the courts. By concluding that the District Court had

jurisdiction over allegations of discrimination in the

Machine Shop when the original complaint was filed,

the Court of Appeals in effect short-circuited the

EEOC’s opportunity to resolve the Machine Shop allega-

tions and sanctioned Ostapowicz’s avoidance of the ad-

ministrative process.

The courts of appeals which have considered the

question of the scope of the Title VII civil action vis a

vis the administrative proceedings which preceded it

have limited the scope of the civil court action. The

limitation is appropriate to avoid burdening the courts

with controversies which could have been resolved

through the administrative process.

The Fifth Circuit has been the leading court in set-

ting the parameters of a civil action based on an EEOC

charge. The generally accepted rule was declared in

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.

1970). The Court held that the civil action “may encom-

pass any kind of discrimination like or related to allega-

tions contained in the charge and growing out of the

case before the Commission,” and also that the civil

16

Reasons for Granting the Writ.

action should be limited to the scope of the EEOC in-

vestigation which can “reasonably be expected to grow

out of the charge of discrimination.”

The Court of Appeals in the instant case held that

the Machine Shop allegations “grew out of” the Ship-

ping Department charge because the Machine Shop

charges were filed during the pendency of the Shipping

Department charge (App. A, infra at p. 10a). In the ab-

sence of record evidence that the EEOC considered the

Machine Shop charges as growing out of the Shipping

Department charges and thus attempted conciliation on

those charges, the Third Circuit’s holding below frus-

trates the purpose of Title VII, deprives the employer of

the opportunity to conciliate, and fosters the avoidance

of the administrative process.

The Court of Appeals’ reliance upon the mere filing

of the Machine Shop charges frustrates the conciliatory

purpose of Title VII where, as here:

(1) no EEOC investigation of the Machine

Shop charges had taken place;

(2) no EEOC reasonable cause determination

upon those Machine Shop charges had been made;

(3) no EEOC conciliation efforts upon the

Machine Shop charges had been attempted; and

(4) no EEOC right to sue letter had issued

upon the Machine Shop charges.

A clearer avoidance of the administrative process and

frustration of Title VII’s purpose can hardly be imag-

ined.

The consequences of the Third Circuit’s decision are

far reaching and extremely unreasonable. Assume that

— — — —

17

Reasons for Granting the Writ.

an employer has one plant in New York and one in Cali-

fornia. A sex discrimination charge is filed by a New

York female employee at the New York local EZOC

office. That charge is investigated by the New York

EEOC office and reasonable cause is found concerning

the New York plant. After the finding of reasonable

cause on the New York charge, a female employee at

the California plant files a sex discriminaiion charge at

the local California EEOC office. The California office

takes no action upon the latter charge. The New York

office, completely unaware of the California charge, at-

tempts to conciliate the New York charge, but fails. The

New York office issues a right to sue notice on the New

York charge. The New York charging party files a civil

class action in New York including allegations of dis-

crimination at the California plant. Pursuant to the de-

cision below, the New York class action properly in-

cludes the California allegations because the California

charge was filed during the pendency of the New York

charge before the EEOC. The facts that (1) the Cali-

fornia charge was never investigated, (2) the EEOC

never reached a reasonable cause determination with re-

spect to the California charge, (3) the EEOC never

conciliated the California charge, and (4) the EEOC

never issued a right to sue notice on the California

charge, are apparently irrelevant under the decision

below.

Johnson Bronze Company believes that this Court

should review the decision be!»w because of its far

reaching and unreasonable consequences.

The prerequisites to filing a Title VII action are (1)

the filing of a timely charge with the EEOC and (2)

receipt of a statutory notice of a right to sue from the

18

Reasons for Granting the Writ.

EEOC. 42 U.S.C. § 2000e-5(e) (1970), as amended, 42

U.S.C. §2000e-5(f) (1) (Supp. III, 1973), (Apps. E & F,

infra) (the controlling language of the statute remains

the same after the 1972 amendment) ; McDonnell Doug-

las Corp. v. Green, 411 U.S. 792, 798 (1973). Although

Ostapowicz had filed charges concerning the Machine

Shop she had not received a right to sue notice. Yet

the Court of Appeals erroneously permitted her to

raise in court issues as to which no right to sue letter

had ever been received.

Another disturbing aspect of the decision below is

its impact on the back pay period applicable to the

claims of Ostapowicz and the class of female machine

operators. Ostapowicz filed her Machine Shop charge in

1970. Had she filed a civil class action based merely on

the 1970 charges, the two year back pay period would

have extended only to 1968.7 Because of the Court of

Appeals’ holding that her 1970 allegations were to be

considered under the 1968 charge filed by the Union,

Ostapowicz and the class of machine operators were

gratuitously awarded an additional two years’ back pay.

It should be noted that the jurisdictional argument

made by Johnson Bronze Company in the Court of Ap-

peals was not lightly rejected by the Court of Appeals

in its August 27 opinion (App. A, infra at p. 8a). In fact,

the Court noted that Johnson Bronze Company’s position

“has appeal” and that it has “some force” absent the

filing of the 1970 charges by Ostapowicz (App. A, infra

at p. 8a & 10a).

7. Although the two year period was not literally

applicable until 1972, the District Court and the Court

of Appeals have sanctioned the use of the two year

period in this case. (App. A, infra at p. 13a & n. 8).

—— ce EL

19

Conclusion.

Johnson Bronze Company respectfully submits that

the mere filing of the 1970 Machine Shop charges is not

sufficient to establish the District Court’s jurisdiction

over the original complaint’s Machine Shop allegations

and, for that reason, submits that this Court should

grant the instant Petition for Certiorari.

CONCLUSION

For the reasons stated, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

LEONARD L. SCHEINHOLTZ

JONATHAN L. ALDER

C. ARTHUR DIMOND

REED SMITH SHAW & McCLay

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Counsel for Petitioner,

Johnson Bronze Company

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

JOHNSON BRONZE COMPANY,

Petitioner,

Vv

ANGELINE R. OSTAPOWICZ,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Appendix A—Opinion of the Court of Appeals, August

27, 1976.

Appendix B—Order Amending Opinion of the Court of

Appeals, September 29, 1976.

Appendix C—Order Denying Petition for Rehearing,

September 27, 1976.

Appendix D—Opinion of the District Court, 369 F.Supp.

522.

Appendix E—Section 706(f) (1), Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5

(f) (1) (Supp. III, 1973).

Appendix F—Section 706(e), Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-5(e) (1970).

2a

Opinion of the Court of Appeals.

APPENDIX A

Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 75-2435

ANGELINE R. OSTAPOWICZ,

Plaintiff-A ppellee

v.

JOHNSON BRONZE COMPANY,

Defendant-Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 71-404)

Argued June 22, 1976

Before: KALODNER, ADAMS and WEIS, Circuit Judges.

JONATHAN L. ALDER, Esq.

C. ARTHUR DIMOND, Esq.

REED SMITH SHAW &

McCLay !

747 Union Trust Building

Pittsburgh, Pa. 15219

Attorneys for Appellant

ABNER W. SAL, Esq. ROBERT N. HACKETT, Esq.

General Counsel BASKIN, BOREMAN, WILNER,

JOSEPH T. EppINs, Esq. SACHS, GONDELMAN &

Associate General Counsel CRAIG

10th Floor, Frick Building

Pittsburgh, Pa. 15219

Attorneys for Appellee

BEATRICE ROSENBERG, Esq.

CHARLES L. REISCHEL, Esq.

MARY-HELEN MAUTNER, Esq.

Attorneys

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

2401 E Street, N.W.

Washington, D.C.

As Amicus Curiae for Appellee

— ter et eee

3a

Opinion of the Court of Appeals.

Opinion of the Court

(Filed August 27, 1976)

WEIS, Circuit Judge.

In a lengthy and stoutly contested class action, the

district court turned aside a jurisdictional attack and

determined that the defendant had been guilty of sex

discrimination in its employment practices. The court

ordered relief in the form of back pay and other mea-

sures designed to prevent future discrimination. Al-

though we affirm in all other respects, the portion of the

order establishing a hiring quota is vacated because

of a lack of support in the record.!

The dispute centered on a contention that defendant

Johnson Bronze Company had violated Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e. Plaintiffs

argued that the defendant had engaged in discrimina-

tion which resulted in women being laid off while men

with less seniority were either retained or recalled at an

earlier date.

Defendant manufactured bushings and bearings in

a plant organized into ten divisions. Approximately one-

half of the hourly workers were employed in Division 1,

the machine shop comprised of some 225 machine

centers. Most of the testimony was devoted to conditions

existing there.

Each machine operation generally requires a “set-

up” which entails placing fixtures and tools in the

machine at proper positions, angles and distances so

that the bushings or bearings produced comply with

1. The opinion of the district court determining

liability is reported at 369 F. Supp. 522 (W. D. Pa. 1973).

4a

Opinion of the Court of Appeals.

exacting customer specifications. The ability to perform

a “set-up” is an important factor in classifying a ma-

chine operator as first or second class. The first class

operators set up the machines as well as operate them,

but second class operators only run the machines, the

set-up being performed by a machine setter. However,

on occasion a machine setter will set up a first class

operator’s machine.

There were two means by which a second class oper-

ator could become first class: “bidding” or “bumping.”

In the former situation, if an opening for a first class

operator occurred, employees could “bid” for the job,

with seniority as the sole criterion. After a five-day

qualifying period on tho machine, the employee was re-

quired to demonstrate his ability to both set-up and

operate the machine. In the latter, if an employee’s job

was eliminated, he could “bump” another employee who

had less seniority and take his job. However, when a

bump occurred, the bumping employee had to pass the

test for becoming a first class operator immediately—

no qualification period was allowed. Further, if, upon

being laid off, an employee refused to bump a certain

job, he could not be recalled to that position if an open-

ing later occurred.

Qualification as a first class operator without ex-

perience was not possible. The company did not have a

formal program for training second class operators to

become first class, and an employee could only learn

how to make the set-ups by watching machine setters,

asking questions and attempting to do the work. The

skills and experience an employee acquired working on

one machine usually were not transferable to another

mechanism. The machines were so diverse that one ob-

5a

Opinion of the Court of Appeals.

tained the ability to become first class only on those

which he had operated as a second class operator or

which were related in their manner of operation.

The gravamen of Ostapowicz’s allegations was that

women were discriminated against because they were

employed only as second class operators and were never

promoted to first class. Although there was a slight

difference in the wage scales for the two classifications,

the major impact of the classification was felt when

layoffs occurred. Under the collective bargaining agree-

ment, the company was generally obliged to lay off

second class operators before first class operators re-

gardless of the individuals’ seniority. Thus, a decline in

business would affect a female before a male first class

operator with far less seniority.

In April, 1968, the union which represented the em-

ployees filed a charge with the Equal Employment Op-

portunity Commission alleging that the company main-

tained sex-segregated job classifications which resulted

in women being laid off while men with less seniority

were both retained and recalled from layoffs before

women. Attached to the charge, which was docketed at

YCL9-079, was a grievance from a.woman in the

shipping department. The resulting investigation and

EEOC findings were limited to the shipping department,

and in August, 1970, the Commission found reasonable

cause to believe that the allegations were true. Plaintiff

Ostapowicz, who was not connected with the shipping

department, filed two additional sex discrimination

charges, TCL1-0558 and TCL1-0802, in October and

November, 1970.

The EEOC conciliation efforts began in December,

1970 but were unsuccessful. On March 29, 1971 the Com-

6a

Opinion of the Court of Appeals.

mission sent “right-to-sue letters” to Ostapowicz and

others referring to charge YCL9-079. Based on that let-

ter, she instituted this action on April 27, 1971, within

the then applicable thirty-day period. Without further

investigation, on May 11, 1971, EEOC issued additional

letters citing the charges filed in October and November,

1970, and Ostapowicz promptly amended her complaint

to include them.

The district court certified the case as a class action?

and found that plaintiffs established a prima facie case

of discrimination. Finding that strength was not a de-

terminative factor for positions in either the shipping

department or Division 1, the court concluded that the

company was hostile to women who wanted to become

first class operators or heavy packers and had intimi-

dated them at least to a degree.

The court detected a pattern of intentional dis-

crimination. In 1970 a man was made a mail clerk while

many women with greater seniority were laid off. Women

had never been employed in five of defendant’s ten di-

visions, and in 1965 and 1966 sixty-five men were hired

in Division 1 and only one woman. Because of the decline

in business, there were few bids open for first class

positions, aad women had to rely mainly on bumping to

achieve that classification. However, their progress was

hindered because they had not been given the opnor-

2. We note that the definition of the class includes

all past employees. On remand the district court should

modify this determination so as to include only those

whose claims were not time barred. See Wetzel v. Liberty

Mutual Ins., Co., 508 F.2d 239, 246 (3d Cir.) , cert. denied,

421 U.S. 1011 (1975).

7a

Opinion of the Court of Appeals.

tunity to observe difficult set- ups being made and were

thus deprived of the primary means of acquiring the

necessary skills. Moreover, the court found that the first

class test was subjective, not objective, and was ad-

ministered entirely by men.

Out of an average of fifty women working in Divi-

sion 1, only one nad ever been made a first class operator

although many had over twenty years’ experience in the

shop. Plaintiffs’ statistical evidence showed that, because

of the classification and recall system, many women were

laid off while men with less seniority remained working.

Finally, machine setters, foremen and assistant foremen

were recruited from first class operators and, therefore,

women had been excluded from consideration for this

additional advancement.

On these facts, the district court determined that

the plaintiffs had established a prima facie case of dis-

crimination. It rejected defendant’s proffered justifica-

tions and ordered relief which included establishment of

a training program administered by an outside agency;

adjustment in seniority because of discriminatory lay-

offs; an affirmative action program including future

hiring of males and females in equal numbers; and back

pay. The last matter was referred to a magistrate for

hearing and submission of findings of fact.

3. The district court found, for example, that on

May 25, 1971 there were twenty-six male first class op-

erators who were junior in seniority to Ostapowicz work-

ing while she was laid off.

Opinion of the Court of Appeals.

I.

Defendant contends that the district court lacked

jurisdiction because the first right to sue letter upon

which Ostapowicz relied cited the EEOC docket number

of a charge applicable only to employees in the shipping

division. The company argues that since the plaintiff

was not a member of that department, she was not “ag-

grieved”’ by any discrimination occurring there and could

not “piggyback” her claim onto the first letter. While

defendant’s position has appeal, we cannot accept it in

the circumstances of this case.

The Equal Employment Opportunity Act’s format

provides that after a person claiming to be aggrieved

files a charge with EEOC, the agency must notify the

respondent and conduct an investigation. If, after the

investigation, the Commission finds reasonable cause to

believe that the charge is true, conciliation procedures

are instituted. If the Commission is unable to resolve the

matter informally, it notifies the aggrieved party of his

right to file a civil action in the district court within

ninety days. 42 U.S.C. S 2000e-5.

The jurisdictional prerequisites to a suit under Title

VII are the filing of charges with the EEOC and the re-

ceipt of the Commission’s statutory notice of the right

to sue. McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). These preliminary steps are essential parts of

the statutory plan, designed to correct discrimination

through administrative conciliation and persuasion if

possible, rather than by formal court action. While pre-

liminary requirements for a Title VII action are to be

interpreted in a nontechnical fashion, Love v. Pullman

4. At the time suit was filed, the relevant period

was thirty days.

9a

Opinion of the Court of Appeals.

Co., 404 U.S. 522 (1972); Hackett v. McGuire Brothers,

Inc., 445 F.2d 442 (3d Cir. 1971), the aggrieved person

is not permitted to bypass the administrative process.

Conciliation rather than formal court proceedings re-

mains the preferred method of settling disputes. Equal

Emp. Op. Com'n v. E. I. duPont de Nemours c Co., 516

F.2d 1297 (3d Cir. 1975); Fekete v. U. 8. Steel Corp.,

424 F.2d 331 (3d Cir. 1970) .°

In order to comply with the spirit of the Act, there

must be some limitation on suits in the district court so

that the Commission will have the first opportunity to

examine the allegations of discrimination. Courts have

generally determined that the parameters of the civil

action in the district court are defined by the scope of

the EEOC investigation which can reasonably be ex-

pected to grow out of the charge of discrimination,

Gamble v. Birmingham Southern R.R. Co., 514 F.2d 678

(5th Cir. 1975); Sanchez v. Standard Brands, Inc., 431

F.2d 455 (5th Cir. 1970), including new acts which oc-

curred during the pendency of proceedings before the

Commission, Oubichon v. Nort), American Rockwell

Corp., 482 F.2d 569 (9th Cir. 1973) .®

5. See also the Conference Report on the Equal

Employment Opportunity Act of 1972, 118 Cong. Rec.

7166, 7168 (1972).

6. Although EEOC must be given the opportunity,

it is not necessary that it actually investigate and con-

ciliate a charge before a right to sue letter is issued.

Fekete v. U.S. Steel Corp., supra, Belton, Title VII of the

Civil Rights Act of 1964: A Decade of Private Enforce-

ment and Judicial Developments, 20 Sr. Louis U. L.J. 225

(1976).

10a

Opinion of the Court of Appeals.

The original charge, YCL9-079, filed by the union on

April 11, 1968, alleged that the employer had discrimi-

nated against female members of the bargaining unit.

The grievance attached referred only to the shipping

department, and the EEOC report of August, 1970 simi-

larly was confined to that division. If this had marked

the end of the EEOC’s involvement, there would be some

force to the defendant’s contention that Ostapowicz

could not bring herself within the scope of the EEOC

charge and subsequent suit letter. However, the ad-

ditional charges of sex discrimination filed by her in Oc-

tober and November, 1970, numbered TCL1-0558 and

TCL1-0802, implicated the seniority rights of women in

the machine shop division where she worked. It was

after the filing of these additional charges that concilia-

tion discussions and proposals took place between the

Commission and the employer.

On March 19, 1971, after EEOC’s settlement efforts

had failed, it received a letter from Ostapowicz stating

her desire, and that of other female employees, to sue

the employer. She referred to charge YCL9-079, said

she had testified in that case, and had also filed cases

TCL1-0558 and TCL1-0802. The first right to sue letter

was issued ten days later. Thus, before suit was insti-

tuted and before EEOC’s role had been terminated, three

separate charges had been filed, each alleging specific

instances of the same form of sex discrimination by the

same employer. The additional charges filed during the

pendency of the administrative proceedings may fairly

be considered explanations of the original charge and

growing out of it.’ Under these circumstances, we can-

7. The mere fact that the Commission assigned

differing docket numbers to the various charges has no

real significance since they all related to the same gen-

eral charge originally filed.

lla

Opinion of the Court of Appeals.

not say that the district court erred in concluding that

it had jurisdiction over the suit as originally filed and

that it encompassed all the instances of sex discrimina-

tion. See Gamble v. Birmingham Southern R.R. Co.,

supra. Cf. E. E. O. C. v General Electric Co., 532 F.2d 359

(4th Cir. 1976).

II.

The defendant contends that the distriet court erred

in allocating the burden of proof and argues that plain-

tiff failed to prove sex discrimination or to rebut the

company’s articulated justifications. After careful re-

view of the district court’s opinion incorporating find-

ings of fact and conclusions of law, we do not find re-

versible error.

The court cited McDonnell Douglas Corp. v. Green,

supra, and carefully followed its guidelines in ruling on

burden of proof at various stages of the case. The Mc-

Donnell case holds that once a prima facie case of a

Title VII violation has been established, the burden

shifts to the defendant to prove by a preponderance of

the evidence that there are legitimate nondiscriminatory

reasons for the unequal treatment shown in the prima

facie case. See also United States v. International Union

of Elevator Constructors, — F.2d — (No. 75-2134, 3d

Cir. July 21, 1976); Wetzel v. Liberty utual Ins. Co.,

508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011

(1975).

The district court held that the plaintiff had estab-

lished a prima facie case of discrimination by the use of

statistical evidence and other testimony. The judge in-

cluded in his findings that:

“A woman who desired to become first class was

told by the personnel manager that she couldn't get

Opinion of the Court of Appeals.

it even if’ she bid and that she couldn’t have it.

Plaintiff Ostapowicz was told it was foolish to try

to qualify on a certain machine despite four years

experience.”

and that:

“A foreman in the shipping department stated he

would ‘take every girl machine operator in the ship-

ping department off and replace them with men’ if

a woman became a heavy packer.”

After the plaintiff had made out a prima facie case,

the burden of proof then shifted to the defendant. The

company then argued that women lacked interest in be-

coming first class operators. The district judge rejected

this testimony, and wrote: “The court frankly in the

light of all the testimony in the case does not believe

the disclaimers of lack of intent to discriminate.” After

summarizing the evidence, he concluded, “This court has

no hesitation in finding that there has been intentional

discrimination at defendant’s plant.”

The findings of fact which support these conclu-

sions must be shown to be clearly erroneous in order to

be overturned. Fed. R. Civ. P. 52(a). As we stated in

Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972) :

In reviewing the decision of the District Court,

our responsibility is not to substitute findings we

could have made had we been the fact-finding tri-

bunal; our sole function is to review the record to

determine whether the findings of the District Court

were clearly erroneous, i.e., whether we are left

with a definite and firm conviction that a mistake

has been committed.“

13a

Opinion of the Court of Appeals.

See also Government of Virgin Islands v. Gereau, 523

F.2d 140 (3d Cir. 1975), cert. denied, 44 U.S.L.W. 3472

(U.S. Feb. 23, 1976). Defendant has not met this burden

and the imposition of liability will be affirmed.

III.

As part of the relief which he felt to be necessary,

the district judge awarded back pay and referred that

phase to a United States Magistrate who held several

hearings. This part of the case proved to be complicated

for two reasons: the claims were based upon depriva-

tions of opportunities to acquire skills on diverse jobs

and thus secure promotions to better paying positions;

and, during the years in question, there had been numer-

ous strikes and layoffs because of economic conditions.

Absolute precision in ascertaining plaintiffs’ loss

under such circumstances cannot be expected: the court

must make reasonable awards based on the available

data. Pettway v. American Casi Iron Pipe Co., 494 F.2d

211 (5th Cir. 1974). Here, the district judge determined

that the period for computing the back pay award

would begin two years before the date on which the

first charge was filed, making the starting date April

18, 1966. The award was composed of three elements:

(1) the wage differential between first and second class

operators for the periods during which plaintiffs work-

8. Because we have previously determined that the

charge filed in 1968 encompassed all phases of discrim-

ination, even those revealed by later charges, we agree

that the 1966 date was correct. Although the amend-

ments to the Act passed in 1972, of course, were not in

effect at the time the discrimination occurred, we be-

lieve the court’s utilization of that period was proper

under the circumstances.

14a

Opinion of the Court of Appeals.

ed; (2) wages lost through discriminatory layoffs; and

(3) an amount representing lost fringe benefits.

The court determined that, based on seniority, the

women who had worked as machine operators would all

have been promoted to first class status by April 18,

1966, had discrimination not occurred.“ The first portion

of the award was measured by the difference between

the average weekly wage for first class operators and

that actually received by the individual plaintiffs. How-

ever, the amount attributable to discriminatory layoffs

was not as easy to compute.

The company’s business declined during the years in

question and many employees were laid off for nondis-

criminatory reasons. The magistrate had to determine

which of the individual layoffs were due to discrimina-

tion and which were due to purely economic forces. It

was extremely unlikely that anyone could ever qualify

as a first class operator on each of the 200 different

machines, but some of them were so similar in operation

that experience on one would allow easy transition to

another. For example, the operation of a small drilling

machine might be quite similar to another larger drill,

but both would be quite dissimilar to a chamfer ma-

chine. To make appropriate adjustments, the magistrate

determ:ned that the company’s machines could be group-

ed into ten classifications. Utilizing these categories, she

considered a woman discriminatorily laid off during the

time a male with less seniority was working as a first

class operator and a plaintiff had experience on his or a

related machine. Further a plaintiff was discriminatorily

9. See Gamble v. Birmingham Southern R.R. Co.,

514 F.2d 678, 686 (5th Cir. 1975) ; Bing v. Roadway Eæ-

press, Inc., 485 F.2d 441, 453 (5th Cir. 1973).

15a

Opinion of the Court of Appeals.

laid off if a male with less seniority was working on a

replaceable job or as a mail clerk or chauffeur, unless

the plaintiff had been offered that position. On the as-

sumption that no employment was available at a time

when a male junior to a woman was not working as a

first class operator, allowances were thus made for the

numerous nondiscriminatory layoffs which occurred.

The award included interest at the rate of 6%.

From the above sums were deducted: (1) amounts

which a plaintiff could have reasonably earned during

layoff periods or which were actually earned or received

from unemployment compensation and (2) allowances

for periods when a plaintiff was unemployable because

of illness.

We do not find the composition of the formula or

its application to be erroneous. It represents a conscien-

tious effort to calculate reasonable and equitable awards

under conditions which do not allow for absolute preci-

sion.

Among the remedies the court ordered was a provi-

sion that the company institute a training program ad-

ministered by an outside firm to assist women in be-

coming first class machine operators, machine setters

(the next higher category of skilled labor) , and foremen.

In addition, the defendant was required to submit peri-

odic reports on affirmative action to plaintiffs’ counsel

and to establish a three member board as assurance

against discrimination in future operations. The court

also ordered “that any hiring in the future shall be in

equal numbers of males and females.”

Defendant strongly objects to the imposition of this

open-ended hiring quota. We need not consider at length

16a

Opin on of the Court of Appeals.

the troublesome question of reverse discrimination,

DeFunis v. Odegaard, 416 U.S. 312 (1974), and the

language of Title VII, SS 703-706, see Franks v. Bowman

Transportation Co., ...... U.S. 44 US.L.W. 4356

(U.S. March 24, 1976); United States v. International

Union of Elevator Constructors, supra, 10 because the

record contains no support for this sweeping order.

A district court is granted wide discretion in

formulating corrective measures for discriminatory

conduct. Franks v. Bowman Transportation Co., supra,

but the basis for its actions must be expressed to allow

effective review. Albemarle Paper Co. v. Moody, 422

U.S. 405 (1975). The order for a hiring quota does not

pass muster because the court did not articulate factual

findings and its reasons for this action.

Quotas are an extreme form of relief and, while

this court has declined to disapprove their use in narrow

and carefully limited situations, United States v. Inter-

national Union of Elevator Constructors, supra; Erie

Human Relations Commission v. Tullio, 493 F.2d 371

(3d Cir. 1974), certainly that remedy has not been

greeted with enthusiasm. Pennsylvania v. O’Neill, 473

10. See also Equal Employment Opportunity Com-

mission v. Local 638,532 F.2d 821 (2d Cir. 1976) ; Rios v.

Enterprise Assn. of Steamfitters Local 638. 501 F.2d 622

(2d Cir. 1974); Morrow v. Crisler, 491 F.2d 1053 (5th

Cir.)., cert. denied, 419 U.S. 895 (1974); cf. Patterson

v. American Tobacco Co., 535 F.2d 257, 274 (4th Cir.

13978) DeFunis Symposium, 75 CoL_um. L. Rev. 483

17a

Opinion of the Court of Appeals.

F.2d 1029 (3d Cir. 1973).11 The order in this case is

open-ended in that it specifies no expiration date and

applies across-the-board to all employees and all de-

partments of the defendant company.

While it may be presumed that approximately half

the population in a given area is female, that does not

justify the conclusion that the available work force

presents a similar ratio. No evidence on this point was

introduced in the district court. Moreover, the court

made no findings of whether females were qualified in

all departments of the defendant’s plant nor did it state

whether the quota applied to each department or the

co..pany as a whole. Factual findings of this nature are

vital, for in some respects there are significant differ-

ences in cases involving racial, as contrasted with

sexual, discrimination, see 42 U.S.C. § 2000e-2(e) (1);

29 C.F.R. § 1604.2 (bona fide occupational qualifications

based on sex, but not race, are permissible), and prece-

dents from one area may not be freely interchangeable

with those of the other. Cf. Vorchheimer v. School Dist.

of Philadelphia, 532 F.2d 880 (3d Cir. 1976). Since these

crucial factors have not been established in the record,

this portion of the district court’s order must be vacated.

Moreover, the district court’s creation of a super-

visory committee to oversee compliance with nondis-

criminatory practices appears to be an effective method

11. For a discussion of the philosophical and prac-

tical difficulties inherent in the use of quotas, see Blum-

rosen, Quotas, Common Sense and Law in Labor Re-

lations: Three Dimensions of Equal Opportunity, 27

Rutcers L. Rev. 675 (1974). See also, Sape, The Use of

Numerical Quotas to Achieve Integration in Employ-

ment, 16 Wm. & Mary L. Rev., 481 (1975); Note, Race

Quotas, 8 Harv. Civ. Ricuts-Crv. Lis. L. Rev. 128 (1973).

18a

Opinion of the Court of Appeals.

to prevent future discrimination while at the same time

permitting employment to be based on ability and

availability. Because of the absence of support in the

record for the hiring quota, we will vacate that portion

of the district court’s order. In all other respects, the

judgment of the district court will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit.

19a

Order Amending Opinion of the Court of Appeals.

APPENDIX B

Order Amending Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 75-2435

ANGELINE R. OSTAPOWICZ,

Plaintiff-Appellee

V.

JOHNSON BRONZE COMPANY,

Defendant-Appellant

Present: KALODNER, ADAMS AND WEIS, Circuit Judges.

Order Amending Opinion

It is ORDERED that the second paragraph on page 9

of the slip opinion filed August 27, 1976 in the above en-

titled case is amended to read as follows:

“The court cited McDonnell Douglas Corp. v. Green,

supra, and carefully followed its guidelines in ruling

on burden of proof at various stages of the case.

The McDonnell case holds that once a prima facie

case of a Title VII violation has been established,

the burden shifts to the defendant to articulate

20a

Order Amending Opinion of the Court of Appeals.

legitimate nondiscriminatory reasons for the un-

equal treatment shown in the prima facie case. The

defendant must prove its justification by a pre-

ponderance of the evidence. Franks v. Bowman

Transportation Co, 1 44 U.S. L. W.

4356 (U.S. March 24, 1976) ; United States v. Inter-

national Union of Elevator Constr:ciors, ........ F. 2d

Ne. , (No. 75-2134, 3d Cir. July 21, 1976). See also

Weitzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 259

(3d Cir.) , cert denied, 421 U.S. 1011 (1975).”

BY THE COURT,

JOSEPH F. WEIS, JR.

Circuit Judge

Dated: September 29, 1976

21a

Order Denying Petition for Rehearing.

APPENDIX C

Order Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 75-2435

ANGELINE R. OSTAPOWICZ,

Plaintiff-Appellee

Ve

JOHNSON BRONZE COMPANY,

Defendant-Appellant

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, KALODNER, VAN DUSEN,

ALDISERT, ADAMS, GIBBONS, ROSENN, WEIS AND

GARTH, Circuit Judges.

The petition for rehearing filed by Defendant-Ap-

pellant in the above entitled case having been submitted

to the judges who participated in the decision of this

court and to all the other available circuit judges cf the

circuit in regular active service, and no judge who con-

curred in the decisicn having asked for rehearing, and

22a

Order Denying Petition for Rehearing

a majority of the circuit judges of the circuit in regular

active service not having voted for rehearing by the

court in banc, the petition for rehearing is denied.

By THE Cour,

/s/ JOSEPH F. WEIS, JR.

Judge

Dated: September 27, 1976

23a

Opinion of the District Court.

APPENDIX D

Opinion of the District Court

ANGELINE OSTAPOWICZ

v.

JOHNSON BRONZE COMPANY

Civ. A. No. 71-404.

UNITED STATES DISTRICT COURT,

W. D. PENNSYLVANIA.

Dec. 28, 1973.

ROBERT HACKETT,

Pittsburgh, Pa.,

for plaintiff.

JONATHAN L. ALDER,

Pittsburgh, Pa.,

for defendant.

Opinion

RKNox, District Judge.

This is a class action case brought on behalf of

plaintiff and other members of a class alleging that sex

discrimination exists in the plant of Johnson Bronze

Company, defendant, at New Castle, Pennsylvania. It is

another of the cases described by Judge Dumbauld of

this court in Bradford v. Peoples Natural Gas Company

(W.D.Pa.1973), 60 F.R.D. 432, as resulting from the

efforts of the “suave and subtle Southerners in Congress

who put sex into the Civil Rights Act of 1964” when a

giant step was taken towards “women’s lib”. The Sec-

tion of the Act with which we are concerned is Section

703 (a) (1) which reads:

“Tt shall be an unlawful employment practice

for an employer—

24a

Opinion of the District Court.

(1) to fail or refuse to hire or to discharge

any individual, or otherwise discriminate against

any individual with respect to his compensation,

terms, conditions, or privileges of employment, be-

cause of such individual’s race, color, religion, sex or

national origin.“ (42 U.S.C.A. § 2000e-2(a) (1).

This action was brought on April 28, 1971, based

upon a previous finding of reasonable cause entered July

10, 1970, by the Equal Employment Opportunities Com-

mission (EEOC) YCL-079 in which a thirty-day letter

authorizing suit was issued March 29, 1971, which suit

was thereafter duly commenced within the thirty days

on April 28, 1971. On May 14, 1971, the complaint was

amended to include two other thirty-day letters dated

May 11, 1971, Nos. TCL-10558 and TCL-10802, Exhibits

B and C attached to the Amendment to the Complaint,

respectively.

After two days of hearings, the court concluded not

to issue a preliminary injunction which had been sought,

because no irreparable harm had been shown, although

the court did determine tentatively that a prima facie

case of sex discrimination had been made out. The evi-

dence taken on the preliminary injunction is before us

now under Rule 65(a). Despite protests by the defend-

ant, the case was permitted to proceed as a class action

and notices were duly sent to members of the class,

certain of whom decided to opt out. Despite further at-

tacks by the defendant, the court refused to deny the

case the right to proceed as a class action.

After four more days of hearings, the case is now

efore the court for decision on the merits with respect

to the issue of liability only. The issue of damages was

deferred. The complexity of the issues in this bitterly

25a

Opinion of the District Court.

fought litigation is shown by the fact that defendant’s

brief contains 99 pages plus appendices and the parties

have together requested 226 findings of fact. Most of

these are unnecessary, being directed at minutiae of

details of evidence of individual witnesses. We proceed

to make what the court regards as the essential findings

as follows:

FINDINGS OF FACT

(A) PROCEDURAL AND JURISDICTIONAL

1. Defendant Johnson Bronze Company is a Penn-

sylvania business corporation with its principal offices

and only production plant which it owns and operates in

New Castle, Lawrence County, Pennsylvania.

2. The plaintiff and other members of the class

are individuals and residents of the Western District of

Pennsylvania.

3. A charge was filed with the EEOC by Local 69,

United Automobile, Aerospace and Agricultural Imple-

ment Workers of America (the union) on April 18, 1968,

at Case No. YCL9-079 (hereinafter “YCL charges“).

The union represented approximately 750 of the defend-

ant’s production and maintenance employees. The charge

alleged that the defendant was maintaining job classi-

fications segregated on the basis of sex, which segre-

gation resulted in unequal lay-off and recall rights by

female employees within the bargaining unit (our em-

phasis). Specifically, the charges related to the jobs of

heavy packer in the shipping department, division 4 of

the defendant’s New Castle plant. The EEOC investi-

gated this charge, and issued a decision on July 10, 1970,

finding probable cause to believe the charge (Plaintiff's

Exhibits A, UU).

26a

Opinion of the District Court.

4. On March 29, 1971, the EEOC mailed to all

members of the union interested in the charge, a letter

stating that conciliation had failed at Case No. YCL9-

079, and that all members of the class were entitled to

sue in federal district court within 30 days of the receipt

of the letter.

5. The plaintiff, Angeline Ostapowicz, on behalf

of the class, instituted this suit on April 28, 1971, within

the thirty days after receipt of the EEOC “right to sue“

letter. The complaint as originally filed included as an

exhibit to the complaint the “right to sue“ letter, where-

in Angeline R. Ostapowicz was named as a member of

the class (Plaintiff’s Exhibit UU).

6. The amended complaint in this action also al-

leges two further charges: TCL1-0558 and TCL1-0802

(Appendices 2 and 3). On May 10, 1971, the EEOC issued

thirty-day “right to sue” letters on these two additional

charges and on May 14, 1971, the plaintiff amended her

complaint to include these additional charges referred

to as the 1970 charges, filed October 16, and 27, respec-

tively.

7. On March 10, 1972, the court determined that

this action should proceed as a class action.

8. By order of March 10, 1972, the description of

the class was revised to read as follows: “All past, pres-

ent and future female employees of defendant Johnson

Bronze Company at its New Castle, Pennsylvania, plant

including all females who may in the past have sought

and been denied employment because of sex discrimina-

tory practices, with subclasses as follows: (a) all

present female employees; (b) all past female em-

ployees; (c) all future female employees; (d) all fe-

27a

Opinion of the District Court.

males who have sought and been denied employment

because of sex discriminatory practices.“

(B) ON THE MERITS

9. The defendant’s plant operates in divisions as

follows: (See Stipulation of Facts attached as Appendix

A to Pretrial Stipulation. )

(1) Machine Shop

(2) Strip Manufacturing Department

(3) Foundry, Cleaning Room and Core Room

(4) Packaging and Shipping

(5) Maintenance

(6) Tool Room

(7) Safety and Sanitation

(8) Inspection

(9) Timekeepers and Expediters

(10) Pattern Shop

10. Mrs. Angeline R. Ostapowicz was one of the

class of complainants in EEOC Case No. YCL9-079,

having received a “right to sue“ letter as a member of

the class from the EEOC dated March 29, 1971.

11. As determined by the McBee personnel cards

(Stip. Ex. 56) supplied by the defendant and the senior-

ity list from the years 1960 to 1972 (Stip. Ex. 57), there

have never been any females employed in the following

divisions: (1) Foundry Division; (2) Tool Room Divi-

sion; (3) Division 2 or Plant 2; (4) Maintenance Divi-

sion and (5) Pattern Shop Division.

12. No woman ever operated as a department

trucker in Division 1.

28a

Opinion of the District Court.

13. Lawrence Chiarini, seniority date May 27, 1952,

was made a mail clerk in 1970 when many women senior

to him were laid off; no female was ever made a mail

clerk after 1960.

14. Rose Fortuna, hired October 25, 1948, and

seven other women senior to Lawrence Chiarini, would

not have had their employment terminated in 1972 if

they would have been called back as mail clerks (Pltf's

Ex. AA, Stip. Ex. 57).

15. In the year 1965, the defendant hired thirteen

men in Division 1 and no females.

16. In 1966, the defendant hired 52 men in Division

1 and one female.

17. The only female hired in 1966 in Division 1 was

Rose Curry, who was a relative of the former chief

electrician of the defendant, Alex Pazsint. During the

years 1963-1966, William Wise, personnel manager of the

defendant, could recall hiring only one woman (Rose

Curry) in Division 1.

18. During the years 1966 to 1972, the total em-

ployment of the defendant varied from 1,100 empioyees

to 604 employees. There were extensive decreases in the

number of employees during these years as the result

of decline in business.

19. Of the total work force of employees slightly

less than 50°: are employed in Division 1.

20. According to the EEO-1 Reports filed by the

defendant in 1966, there were 147 female semi-skilled

operatives (Pltf's Ex. WW); in 1967, there were 150

female semi-skilled operatives (Pltf's Ex. VV); in 1968,

there were 119 female semi-skilled operatives (Pltf's

29a

Opinion of the District Court.

Ex. XX); in 1969, there were 51 female semi-skilled

operatives (Pltf's Ex. YY); in 1970, there were 53 fe-

male semi-skilled operatives (Pltf's Ex. ZZ); in 1971,

there were 46 female semi-skilled operatives (Pltf's Ex.

AAA); in 1972, there were 73 female semi-skilled opera-

tives (Pltf's Ex. BBB).

21. In Division 1, there are four departments: alu-

minum, strip bushing, thin wall bearing and brass shops

and in the four departments in Division 1, there are 320

machine centers. (Stip. Facts #19)

22. In the machine operations of the defendant in

Division 1, there are two separate classifications of ma-

chine operators: first class and second class. (Stip. Facts

No. 21)

23. In the years from 1960 until the end of 1972,

there have been only two female employees who have

been made first class machine operators in Division 1

and on only two classifications of machines. They were

Norma Ferrante and Theresa Trivilino.

24. A second class operator makes approximately

ten cents per hour less than a first class operator under

the wage scale.

25. Strength is not a determinative factor in be-

coming a first class operator and females are physically

capable of making set-ups.

26. The manufacturing by the machines in Division

1 must meet precise specifications with very close toler-

ances.

27. The defendant’s witness, William Wise, per-

sonnel manager, stated that to become first class, one

30a

Opinion of the District Court.

must learn by tear-downs, watching machine setters,

asking questions and attempting to make set-ups.

28. It is not possible to qualify for first class

without experience, and you get the ability to be first

class on machines only where you were second class. If

you know how to set-up one type of machine in one

machine center, this does not mean that you know how

to set-up another machine in another machine center.

29. An employee who bumps! another employee on

a machine has to be able to operate the machine and

qualify as a first class operator immediately upon mak-

ing the bump.

30. The defendant has no formal training program

to help second class operators in the first division become

first class operators.

31. Male machine operators were promoted to first

class with no training and much less experience than

females. Women were sent to the restroom and hence

could not watch setters setting up their machines. The

foreman of the defendant did not allow women to wait

and watch machine setters set up the machines. This

prevented women from acquiring the necessary skills.

32. In an average month, there are approximately

1,600 set-ups made by first class operators and 1,450

made by machine setters.

33. First class operators spend about 1,900 hours

on set-ups and the machine setters spend about 2,000

hours on set-ups.

1. Bump- to oust, usually by virtue of seniority

right.“ Webster’s Seventh New Collegiate Dictionary.

31a

Opinion of the District Court.

34. Machine setters, in fact, do make difficult set-

ups for first class machine operators and set-ups on long

runs.

35. The management of the defendant, which de-

termines whether or not a woman is promoted to first

class, is all made up of males; there are no women in the

management.

36. As of May 25, 1971, there were 26 men junior

to plaintiff Ostapowicz working while she was laid off.

All 26 of the men were first vlass operators.

37. Many men who were junior to female em-

ployees were laid off after female employees had been

laid off and were recalled while senior female employees

were still in lay-off status (Pltf's Ex. L).

38. Some women who were second class and were

going to be laid off in 1967 had the desire to become first

class so that they would not be laid off. Other women

indicated no desire for such advancement.

39. No women were ever promoted to machine

setters, foremen or assistant foremen.

40. No females have ever been paid on a wage

scale of over $2.32 per hour. (Pitf’s Ex. M and P)

41. The highest male wage earner makes a base

wage of $4.51, based upon the base wage rate of March

27, 1972. (Pltf's Ex. M and P).

42. A woman who desired to become first class was

told by the personnel manager that she “couldn’t get it

even if“ she bid and that she couldn't have it. Plaintiff

Ostapowicz was told it was foolish to try to qualify on a

certain machine despite four years experience.

32a

Opinion of the District Court.

43. No record was kept by defendant of applicants

who were turned away, so that it cannot be determined

how many were women.

44. A foreman in the shipping department stated

he would “take every girl machine operator in the ship-

ping department off and replace them with men“ if a

woman became a heavy packer.

45. Whether a person is promoted to a machine

setter or an assistant foreman or foreman or to manage-

ment is solely up to the discretion of management, as

there are no contract provisions and no objective tests

are given. The tests were all subjective.

46. Machine setters were taken exclusively from

the ranks of the first class machine operators; ipso facto,

if there are no first class machine operators that are

women, there can be no machine setters that are women.

47. The application of the defendant company for

employment contains a sex indication on it, indicating

female or male sex (Pltf's Ex. I); and the sex indication

of those employees hired before the Civil Rights Act of

1964 went into effect in July, 1965, has not been obliter-

ated from their employment records, i.e., McBee per-

sonnel cards.

48. If female employees who were laid off had not

previously bumped a certain job classification, they were

automatically not recalled to that classification ai any

time in the future; therefore, this increased their lay-off

time so that they were eventually terminated.

49. The court adopts and incorporates by reference

the facts contained in paragraphs 5 through 38, both

inclusive, of Pretrial Stipulation of Facts attached as

Exhibit A to the Pretrial Stipulation.

Opinion of the District Court.

DISCUSSION

The discussion in this case falls naturally into two

categories: (A) Procedural and Jurisdictional, and (B)

The Merits of the Case.

(A) PROCEDURAL AND JURISDICTIONAL MATTERS

(1) Extent of Charges and Jurisdiction of the Court

The defendant strenuously claims that the com-

plaints of the plaintiff and the other members of the

class are not properly before the court since charges

were never properly filed before the Equal Employment

Opportunities Commission, hereinafter referred to as

EEOC. The facts are that on April 11, 1968, plaintiff’s

union, Local 69, International Union of United Auto-

mobile, Aerospace and Agricultural Implement Workers

of America, as charging party filed a charge before the

EEOC claiming violation of the law from December 1,

1967 “and continuing”. This was assigned Case No.

YCL9-079 by the Commission. The charge was served

June 20, 1968.

The Commission handed down a decision on this

dated August 6, 1970, in which it was determined that

reasonable cause existed to believe the charges are true.

In the decision, it is stated: “Charging party, herein-

after called the Union, alleges that respondent is engag-

ing in unlawful employment practices in violation of

Title VII of the Civil Rights Act of 1964 by maintaining

job classifications segregated on the basis of sex which

segregation results in unequal layoff and recall rights

for female employees within the bargaining unit“. The

Commission further found: “The alleged violations are

of a continuing nature, and therefore the filing was

within the jurisdictional time limits of Title VII.”

Opirion of the District Court.

The time limits referred to are those contained in

42 U.S. C. A. S 2000e-5(d) as contained in the original

Act of July 7, 1964.2 This time was extended to 180 days

by the 1972 amendments.

On March 29, 1971, conciliation efforts having failed,

the EEOC sent to plaintiff Angeline Ostapowicz a so-

called thirty-day letter which is found as plaintiff's

Exhibit UU and is also attached to the complaint in this

case as Exhibit A. This letter in the heading refers to

“Case No. YCL9-079 (member of class)”. It advised that

conciliation efforts having failed, she had the privilege

within thirty days of receipt of the letter to institute a

civil action in the appropriate federal district court. This

action was instituted April 27, 1971, and hence was in

time.

It is true that the bulk of the decision of the EEOC

is concerned with exclusion of females from heavy pack-

ing positions in the shipping department because of sex,

but it is also true that the charge as filed was a general

charge of sex discrimination.

2. “Time for filing charges after occurrence of

unlawful practices or termination of State or

local enforcement proceedings; filing of charges

by Commission with State or local agency.

(d) A charge under subsection (a) of this section

shall be filed within ninety days after the alleged unlaw-

ful employment practice occurred, except that in the

case of an unlawful employment practice with respect

to which the person aggrieved has followed the proce-

dure set out in subsection (b) of this section, such

charge shall be filed by the persor aggrieved within two

hundred and ten days after the alleged unlawful employ-

ment practice occurred, or within thirty days after re-

ceiving notice that the State or local agency has ter-

minated the proceedings under the State or local law,

whichever is earlier, and u copy of such charge shall be

filed by the Commission with the State or local agency.”

35a

Opinion of the District Court.

We are cautioned by the United States Supreme

Court in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616,

30 L.Ed.2d 679 (1972) that in cases of this type we

should not re re “the creation of an additional pro-

cedural technicality.

“Such technicalities are particularly inappropriate

in a statutory scheme in which laymen, unassisted by

trained lawyers, initiate the process.” It has been further

held that the fact that all acts complained of did not

occur within ninety days prior to the filing of the charge

does not prevent consideration of the charge if a pattern

of discrimination is shown and it is alleged that these

are continuing practices of discrimination. See Fekete

v. United States Steel, 353 F.Supp. 1177 (W.D.Pa.1973-

Judge Scalera); Hecht v. Co-Operative for American

Relief, 351 F.Supp. 305 (S.D.N.Y. 1972); Bartness v.

Drewrys, 444 F.2d 1186 (7th Cir. 1971). In such case any

member of the class may bring the action. Oatis v.

Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968).

We therefore hold that the charges as contained in

YCL9-079 and in the complaint and covered by the evi-

dence in this case are properly before this court. See also

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.

1970).

(2) Effectiveness of Charges TCL1-0558 and 1-0802 in-

cluded in the Amendment.

Defendant vigorously contends that the additional

charges of discrimination contained in the above case

before the EEOC are not properly before ‘he court

because the thirty-day letter giving right to sue was

issued by the Commission in each case on May 11, 1971,

and it is claimed that the charges were not filed in

court until August 12, 1971, when they should have

36a

Opinion of the District Court.

been brought within thirty days under 42 U.S.C.A.

$ 2000e-5(e).

It is true that the Commission issued its thirty-day

letters on these additional charges on May 11, 1971.

The record in the case, however, shows that an amend-

ment to the complaint containing the additional thirty-

day letters at the above numbers was filed May 14,

1971, well within the thirty-day period. It is true that

on August 12, 1971, at the time of the second hearing

on preliminary injunction, the court entered an order

allowing the amendment to be filed. But this order ap-

pears to have been surplusage. The original complaint

was filed April 28, 1971, and the Answer was not filed

until May 28, 1971, and therefore plaintiff had a right

to amend her complaint without leave of court under

Rule 15(a) of the Federal Rules of Civil Procedure

and include the additional charges on May 14, 1971.

In view of the fact that the additional charges

covered by the two additional thirty-day letters per-

tain to sex discrimination at this very plant, there

appears to be no good reason to the court why such

amendments should not be allowed rather than forc-

ing plaintiff to file a separate action based thereon

which would probably have been consolidated with this

case. The plaintiff, Angeline Ostapowicz, had to file

her complaint in court within thirty days of the first

thirty-day letter issued March 29, 1971, which she did,

filing a complaint in this court on April 28, 1971. At

that time, she had no thirty-day letter covering TCLI-

0558 and 0802. If she attempted to include these charges

at that time, she would have obviously been met

with a motion to strike by the defendant. She filed

them promptly on May 14, 1971. Under McDonnell-

37a

Opinion of the District Court.

Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (May 14, 1973) it has been determined

that the only two requisites to court action are: (1)

timely filing of charges and (2) receiving and acting

upon the statutory notice of the right to sue. Defend-

ant’s complaints of the failure of the EEOC to at-

tempt to conciliate are therefore without merit.

The original complaints filed with the Commission

at cases 0558 and 0802 are in evidence in this case, Stipu-

lation Exhibits 13 and 14, and are clearly broad enough

to cover all matters covering sex discrimination which

have been brought to this court’s attention during the

hearings in the suit. We therefore hold these matters are

all properly before the court.

(3) Failure to File Charges With the Pennsylvania Hu-

man Relations Commission.

Early in the course of this litigation, defendant

claimed that the court was without jurisdiction in the

matter because the case had not first been taken to

the Pennsylvania Human Relations Commission, which

is charged with jurisdiction over sexual discrimina-

tion under 43 Purdon’s Pa. Stats. § 955, Act July 9,

1969, P.L. 133. The facts concerning this are set forth

in the Court’s memorandum order of September 22,

1971. It appears that the charges here involved were

first filed with the EEOC, which referred this charge

to the Pennsylvania Commission on September 29, 1970,

and plaintiff wrote the Pennsylvania Commission on

October 6, 1970, offering to make any further informa-

tion available to it. However, on October 15, 1970, the

Pennsylvania Commission waived jurisdiction over the

case, as they were doing with all cases at that time, and

referred the matter back to the EEOC. We held that

38a

Opinion of the District Court.

this was substantial compliance with the requirements

of the Act, 42 U.S.C. § 2000e-5(b).

This holding of the court is in accord with the

later decision of the United States Supreme Court in

Love v. Pullman Company, 404 U.S. 522, 92 S.Ct. 616,

30 L.Ed.2d 679 (1972) holding that such procedure

was sufficient compliance with the federal Act.

(4) Failure to Join the Union as an Indispensable Party.

Plaintiff in her 1970 complaints 0558 and 0802, did

claim that the union contract operated to discriminate

against women. Particular complaints are made with

reference to Article XXI as to bumping rights (Stip.

Ex 35, being the agreement between the defendant and

Local Union No. 69, International Union of United

Automobile, Aerospace and Agricultural Implement

Workers of America of which plaintiff was a member).

Local Union 69 was not named as a respondent in the

proceedings before the EEOC and is not named as a

defendant in this case. On the other hand, the de-

fendant has made no motion at any time during the

course of this litigation to require plaintiff to join the

union as a party. Most of the cases upon which the

defendant relies are cases revolving around the mo-

tion to require the union to be joined. In the present

posture of the case, without a motion to require joinder

of the union, we have a question as to whether the

union is an indispensable party under Rule 19 of the

Federal Rules of Civil Procedure.

We agree with the decision of Judge Weiss, now

Circuit Judge, of this court in Torockio v. Chamberlain

Manufacturing Company, 51 F.R.D. 517 (W.D.Pa. 1970),

that the fact that the union was not joined in the

39a

Opinion of the District Court.

proceedings before the EEOC does not prevent joinder

under Rule 19. It is noted, however, that in Torockio,

the court did not rule on the question as to whether

the union should be joined as a necessary party but

merely indicated that joinder might be desirable.

Considerable reliance is placed by the defendants

also upon Window Glass Cutters League v. American

St. Gobain Corp., 47 F.R.D. 255 (W.D.Pa.1969), aff'd

428 F.2d 353 (3d Cir. 1970). That case, however, in-

volved claims of rival unions where a decree enforcing

the alleged rights of one union would necessarily ef-

fect the rights of others. Defendant also relies upon

Hodgson v. New Kensington School Board in this court,

Civil Action No. 71-1199 (unreported), wherein Judge

Teitelbaum held that in an action under the Equal Pay

Act, 29 U.S.C. § 201, by certain employees, the union

should be joined. Again, what was before the court

was a motion to compel joinder, and the employees by

enforcing their alleged rights to equal pay were bound

to cause the restructuring of the contract between the

union and the school district.

In the reverse situation, in United States v. Sheet

Metal Workers International Association, 416 F.2d 123

at 132 (8th Cir. 1969), in a suit against the union,

the court recognized that the employers with whom

the locals had collective bargaining agreements were

not parties to the suit but held that they assumed that

an agreement would be made to comply with the court’s

decree; if not, a decree against the union would be

sufficient, or a question of joinder of the employers could

be left for a later time.

In the instant case, it is true that plaintiff claimed

there was discrimination as the result of the provisions

40a

Opinion of the District Court.

of the collective bargaining agreement. In examining

these provisions in detail, however, it does appear to the

court that the complaint is not so much over the lan-

guage in the agreement as over the fact that, given the

setting of sex discrimination in this plant, the provisions

of the contract then operate to the disadvantage of

women. If the sex discrimination is eliminated as the

result of orders of this court, then it would appear that

the provisions as to bumping rights and so forth will

work themselves out without any revision of the con-

tract necessarily being involved. See also United States

v. Bethlehem Steel Corporation, 312 F.Supp. 977 (W.D.

N.Y. 1970), aff’d as modified 446 F.2d 652 (2d Cir. 1971).

We adopt plaintiff's argument as set forth in page

ten of her reply brief where she says:

“Factually, the plaintiffs are unable to determine

if the contract itself is discriminatory, or if it is

the defendant’s policy of not promoting the sec-

ond class operators to first class operators which

has caused the problem. It would seem that the

provision in the contract perpetuates past discrimi-

nation, but if the females are made first class op-

erators, the whole question of the contract is moot.”

We also note that Article 7 of the contract“ gives

the company broad management powers which would

3. “The right to hire; promote; discharge or

discipline for cause; and to maintain discipline and effi-

ciency of employees, is the sole responsibility of the

Company except that Union members shall not be dis-

criminated against as such. In addition, the products to

be manufactured, the direction of personnel, the meth-

ods, processes and means of manufacturing and the de-

cision on matters affecting the conduct of the business of

the Company, are solely and exclusively the responsibil-

ity of the Company, provided the above does not conflict

with any other Articles in this Contract.”

4la

Opinion of the District Court.

be sufficient to eliminate discrimination in the opinion

of the court.

In summary, the court at this time is unable to

see how the union would be affected by a decree re-

quiring the employer to end sex discrimination, and

therefore we hold that the union is not an indispensable

party under Rule 19.

(5) Election of Remedies as a Result of Arbitration

Award.

It is noted that the right to sue letters name the

plaintiff Ostapowicz as a member of the class and give

her the right to sue. Defendant claims that she can-

not bring this suit in court because at various times

in the past she had submitted grievances growing out

of her alleged discriminatory treatment to arbitration.

The court finds that there is no merit in this contention

and agrees with what was said about this in Hutchings

v. United States Industries, Inc., 428 F.2d 303 (5th

Cir. 1970), at page 313:

“But the arbitrator’s determination under the con-

tract has no effect upon the court’s power to adju-

dicate a violation of Title VII rights.”

The court holds that the ultimate determination of

Title VII rights is a matter for the court.

In Hackett v. McGuire Brothers, Inc., 445 F.2d

442 (3d Cir. 1971), the court held that election of

remedies did not apply to Title VII discrimination pro-

ceedings and said:

“The national public policy reflected both in

Title VII of the Civil Rights Act of 1964 and in

42a

Opinion of the District Court.

Section 1981 may not be frustrated by the develop-

ment of overly technical judicial doctrines of stand-

ing or election of remedies. If the plaintiff is suf-

ficiently aggrieved so that he claims enough injury

in fact to present a genuine case or controversy in

the Article III sense, then he should have standing

to sue in his own right and as a class representa-

tive.”

See also Fekete v. United States Steel Corp., 424 F.2d

331 (3d Cir. 1970).

Having now discussed the procedural and juris-

dictional arguments raised by the defendant, we will

turn to the merits of the case.

(B) MERITs.

(1) General Considerations.

The trail which the court must follow through the

labyrinth of facts presented in this case has recently

been plainly marked by the United States Supreme

Court in McDonnell-Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court

there said:

“The Act does not restrict a complainant’s right

to sue to those charges as to which the Commission

has made findings of reasonable cause, and we will

not engraft on the statute a requirement which

may inhibit the review of claims of employment

discrimination in the federal courts. The Commis-

sion itself does not consider the absence of a ‘rea-

sonable cause’ determination as providing employer

immunity from similar charges in a federal court,

29 CFR § 1601.30, and the courts of appeal have

43a

Opinion of the District Court.

held that, in view of the large volume of com-

plaints before the Commission and the nonadver-

sary character of many of its proceedings, ‘court

actions under Title VII are de novo proceedings

and . . a Commission’s ‘no reasonable cause’ find-

ing does not bar a lawsuit in the case.’”

The court further quoted from Griggs v. Duke

Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158

(1971), as follows:

“Congress did not intend Title VII, however, to

guarantee a job to every person regardless of quali-

fications. In short, the Act does not command that

any person be hired simply because he was formerly

the subject of discrimination, or because he is

a member of a minority group. Discriminatory

preference for any group, minority or majority, is

precisely and only what Congress has proscribed.

What is required by Congress is the removal of

artificial, arbitrary, and unnecessary barriers to

employment when the barriers operate invidiously

to discriminate on the basis of racial or other

impermissible classification.”

The court further held that the complainant in a

case such as this must carry the initial burden of es-

tablishiag a prima facie case of discrimination! which

may be done by showing: (1) that she belongs to

the protected group, (2) that she applied for and

was qualified for a job for which the employer was

seeking applicants, (3) that despite her qualifications

4. McDonnell-Douglas Corp. involved racial dis-

crimination, but the same rules would apply to sex dis-

crimination.

a

44a

Opinion of the District Court.

she was rejected and (4) that the employer sought

applications of other persons of equal qualifications.

The court then held that the burden thereupon

shifts to the employer to articulate some legitimate

non-discriminatory reason for respondent’s rejection.

The court went on further to hold that even if the em-

ployer articulates a facially ligitimate non-discrimina-

tory reason for rejection of the employee or proposed

employee, it must further appear that the rejection

was bona fide and that the conduct of the employee

was not used as a pretext for discrimination. It ap-

pears that the burden of showing pretextual rejection

is upon the employee once a legitimate reason has been

articulated. With respect to statistics, the court went

on to say:

“Other eviden’> that may be relevant to any

showing of pretextuality includes facts as to the

petitioner’s treatment of respondent during his

prior term of employment, petitioner’s reaction,

if any, to respondent’s legitimate civil rights ac-

tivities, and petitioner’s general policy and prac-

tice with respect to minority employment. On the

latter point, statistics as to petitioner’s employ-

ment policy and practice may be helpful to a de-

termination of whether petitioner’s refusal to re-

hire respondent in this case conformed to a gen-

eral pattern of discrimination against blacks.”

The court further commented with respect to

Griggs, supra, that:

It dealt with standardized testing devices which,

however neutral on their face, operated to exclude

many blacks who were capable of performing ef-

45a

Opinion of the District Court.

fectively in the desired positions. Griggs was right-

ly concerned that childhood deficiencies in the ed-

ucation and background of minority citizens, re-

sulting from forces beyond their control, not be

allowed to work a cumulative and invidious burden

on such citizens for the remainder of their lives.”

The latter quotation is particularly apt with respect

to the claim of the plaintiff that the so-called tests

for advancing women to machine operator first class

were a sham in view of the fact that no training pro-

gram was provided to train women for such advance-

ment and that women were not allowed to look on

and observe while complicated setups were being made

but instead were told to go to the ladies’ room, whereas

men were allowed to stand around and observe by

observation.

We have the further principle involved with respect

to sex discrimination under Title VII that “equality

of footing is established only if employees otherwise

entitled to the position whether male or female are

excluded only upon a showing of individual incapacity

.... This alone accords with the Congressional purpose

to eliminate subjective assumptions and traditional

stereotyped conceptions regarding the physical ability

of women to do particular work.” Rosenfeld v. Southern

Pacific Co., 444 F.2d 1219 (9th Cir. 1971).

Our Third Circuit has likewise recognized that

statistics may give rise to an inference or prima facie

case of discrimination. See Jurinko v. Edwin L. Wiegand

Co., 477 F.2d 1038 (3d Cir. 1973). In that case, the

court pointed out that the company had operated un-

der an assumption that women were physically unable

462

Opinion of the District Court.

to perform each and every production job.5 In the

present case, the court asked the personnel director

whether it was the company’s position that women

were physically unable to perform the tasks of setting

up these machines when it appeared that the amount

of weight to be lifted was minimal. It was apparent

this was not the explanation for having scarcely any

women as first class machine operators in division one.

The court then asked if it was the company’s position

that women, while physically capable of performing

these operations, were nevertheless intellectually in-

ferior and unable to master these operations, which

would be a serious charge against approximately one-

half the human race. The only explanation offered as to

the substantial lack of women in these jobs was that

women didn’t want them which, of course, is disproved

by the fact that this suit is brought.

(2) Weight to be Given EEOC Findings.

The parties have spent considerable time arguing

about the effect of the EEOC findings.

It seems that the trial in the district court is de

novo, McDonnell-Douglas Corp., supra; Cox v. Bab-

cock & Wilcox Co., 451 F.2d 13 (4th Cir. 1972). It

has been held that the EEOC findings may be admitted

into evidence in the trial in the district court, although

the report is in no sense binding, and it has been said

5. The order in Jurinko, was vacated, 414 U.S. 970,

94 S.Ct. 293, 38 L.Ed.2d 214, on October 23, 1973, and

remanded “for further consideration in the light of

McDonnell-Douglas Corp. v. Green,” supra. With respect

to the making out of a prima facie case, however,

Jurinko appears to be in harmony with McDonnell-

Douglas.

N —— . — . >

47a

Opinion of the District Court.

that they should be given no more weight than any

other testimony at trial. We agree with the reasoning

of the Fifth Circuit in Smith v. Universal Services, Inc.,

454 F.2d 154 (5th Cir. 1972), wherein it was said:

“Certainly, these are determinations that are to

be made by the district court in a de novo proceed-

ing. We think, however, that to ignore the man-

power and resources expended on the EEOC in-

vestigation and the expertise acquired by its field

investigators in the area of discriminatory employ-

ment practices would be wasteful and unnecessary.”

It has been further held that the admission of the

EEOC findings is a matter of discretion for the court.

Heard v. Mueller Company, 464 F.2d 190 (6th Cir. 1972).

It is also true that in Griggs v. Duke Power Co., supra,

the United States Supreme Court indicated that admin-

istrative interpretation of the Act by the Commission

is entitled to great deference. This, however, appeared to

apply to the guidelines interpreting the Act (referred

to hereafter) and not necessarily to the findings of fact

in a specific case.

In the instant case, it makes very little difference.

We only have distinct findings and conclusions with

reference to the heavy packers in the shipping depart-

ment, Division No. 4, and while we have pointed out

there were general charges made before the Commission

at that time, the discussion is entirely devoted to the

heavy packing question.

The defendant claims that discrimination in the

shipping department has ceased since 1968, and there-

fore these findings should not be considered, since it is

claimed that all discrimination has ended. We hold that

48a

Opinion of the District Court.

the evidence does sustain that at various times there

has been discrimination in the shipping, this evidence

being entirely aside from the findings of the EEOC; and

the fact it may have ceased does not militate against the

court issuing injunctive relief as to the future because

this is all one plant and there is no safeguard against

such discrimination being renewed.

With respect to the other charges made in TCL1-

0558 and 0802, the Commission made no specific findings

with respect to discrimination charged in those com-

plaints but instead merely issued thirty-day letters. We

therefore have no findings by the Commission which are

in evidence in this case.

In other words, we consider this a matter of little

or no importance. We have admitted the findings by the

EEOC into evidence in this case along with all the other

evidence but are giving these findings very little if any

weight in our ultimate determination.

(3) Prima Facie Case of Discrimination.

After the hearing on the application for preliminary

injunction, the court made a tentative finding of sex

discrimination, although the preliminary injunction was

refused for lack of showing of irreparable harm.

Now that the testimony has been completed, it

appears under the rules in McDonnell-Douglas, there has

been a definite prima facie showing of discrimination.

A reference to the findings of fact makes this amply

clear. They show that there was discrimination in ad-

vancement of women from second class machine opera-

tor to first class machine operator in Division 1; there

has been discrimination with respect to females becom-

ing heavy packers, certain divisions have no female

—

49a

Opinion of the District Court.

employees, the hiring in certain divisions has been

heavily loaded in favor of males, women with seniority

have been terminated while males with junior rating

were kept on, and no females have ever been promoted to

management positions.

Defendant apparently claims that the decrease in

number of females has been due to attrition as the result

of decrease in employment at the plant, but despite the

attrition, the fact that females have been discharged at a

greater rate would indicate sex discrimination in the

discharges. While defendant claims that the discrimina-

tion which previously existed in the shipping depart-

ment was ended in 1968, the record indicates that it was

still existing in 1970. There has been no proof that the

job of heavy packer must be filled by males by reason of

bona fide job qualifications or business necessity as a

result of a requirement to do heavy work. We have testi-

mony to the contrary from Donna Sieminowski, who

said (Tr-287): “In your estimation, will you say that it

is very clear that females could always have done the

heavy packer’s jobs in the shipping department?

Answer: I believe they could have without intimidation.”

The evidence further shows that no females have

ever been employed in the foundry division, toolroom

division, Division No. 2— (strip department), the main-

tenance division, nor has any female ever been employed

as a department trucker in division 1, nor as a mail

clerk since 1960. The evidence further shows that in

division 1, in various years, a large number of men were

hired and either none or one female. The one female

hired in 1966 appears to have been a relative of a former

chief electrician. The personnel manager indicated that

in the years 1963-1966, he could recall hiring only one

50a

Opinion of the District Court.

woman in this division. There are women working in

division 1. There are on the average of fifty females em-

ployed therein, but only one woman was permitted to

qualify as a first class operator. The first class positions

were those where it was necessary for a woman to

qualify to set up a machine, either immediately in case

of a bump or within five days in case of bidding on an

opening. The only inference to be derived from the fact

that only one woman ever was accepted as a first class

machine operator is that it is a result of sex discrimina-

tion.

It is true that it appears that there were tests given,

and a foreman giving a test testified that the women

could not qualify, but these were all subjective tests,

no objective tests were ever given. The record further

shows that no training program was ever provided so

they could qualify. As a matter of fact, training appears

to have been given by observation only and yet, when

machines were being set up, women were told to go to

the ladies’ restroom instead of being permitted to stand

and observe the setups.

The court is very conscious that a company should

not be mandated to employ unqualified people on ma-

chines and that it is not the purpose of the Act to force

employment where there is a bona fide disqualification.

See 42 U.S.C. S 2000e-5(g).

The evidence, however, showed that there was no

particular amount of strength required in setting up the

machines since the articles that had to be lifted weighed

from one to twelve ounces and there is further testimony

about actual hostility against women being expressed

by the personnel director of the defendant’s plant.

a

Paine 3

8 51a

Opinion of the District Court.

As further evidence of the fact that women were

unnecessarily disquaiified as first class machine opera-

tors is the fact that first class machine operators

the men, did not always set up their own machines.

As a matter of fact, approximately half of the setups,

i.e., putting the machine in position to do the next job,

were performed by machine setters instead of by the

machine operator himself.

With respect to the layoffs as the result of decrease

in the defendant’s business, it appears there was further

discrimination in that the women who were second class

machine operators, but senior to first class machine

operators, were laid off before the first class operators

and if a woman had once turned down a chance to bump

for a certain job, she would not be re-called if laid off

because she had turned down this bump.

As previously pointed out, it further appears that no

women were ever promoted to machine seiters, foremen,

or assistant foremen, and all the people in management

who made the decisions were male.

Keeping minority members in menial jobs has been

held to establish a violation of Title VII of the Civil

Rights Act of 1964. Parham v. Southwestern Bell Tele-

phone Company, 433 F.2d 421 (8th Cir. 1970). Again, in

Rowe v. General Motors Corporation, 457 F.2d 348 (5th

Cir. 1972), the court said:

“All we do today is recognize the promotion/trans-

fer procedures which depend almost entirely upon

the subjective evaluation and favorable recom-

mendation of the immediate foremen are a ready

mechanism for discrimination against Blacks much

of which can be covertly concealed and, for that

52a

Opinion of the District Court.

matter, not really known to management. We and

others have expressed a skepticism that Black per-

sons dependent directly on decisive recommenda-

tions from Whites can expect non-discriminatory

action.”

Classifying women into a separate division so as to

establish separate seniority rights has been held a viola-

tion of the Act. Glus v. G. C. Murphy Company, 329

F. Supp., 563 (W. D. Pa. 1971).

It is also claimed that the defendant has carried

through on its personnel records notations of the sex of

the individuals, thus enabling them to determine whether

a person was male or female for the purpose of bumping,

promotions, and so forth. Such listing has been held

improper. Pittsburgh Press Company v. Pittsburgh Com-

mission of Human Relations, 413 U.S. 376, 93 S.Ct. 2553,

37 L.Ed.2d 669 (1973).

It is true that the defendant is not necessarily re-

sponsible for actions of all its employees in expressing

or actively carrying out feelings of hostility towards

women, but the defendant is responsible for acts of

supervisory personnel. Fekete v. United States Steel

Corporation, supra.

(4) Rebuttal of Prima Facie Case.

Following the course marked for us by McDonnell-

Douglas Corporation, supra, having determined that the

statistics and other evidence in this case show a prima

facie case of sex discrimination, the burden then shifts

to the employer “to articulate some legitimate non-dis-

criminatory reason for respondent’s rejection“. While

defendant has produced a large amount of testimony

indicating that certain women were happy in the plant

——< see

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—

—ää——— — — —

53a

Opinion of the District Court.

and thought there was no discrimination and while

various officials disclaimed any intention of sex dis-

crimination, nevertheless, we weigh this evidence in

the light of the principle that actions speak more loudly

than words. The court frankly in the light of all the

testimony in the case does not believe the disclaimers of

lack of intent to discriminate.

The defendant has attempted to justify its actions

upon the grounds that there was a bona fide occupational

qualification, that whatever discrimination appeared

was a matter of business necessity, and further that

females did not want these jobs and did not want to be

advanced, for example, to machine operator first class.

It is true that certain females testified they did not

want the responsibility which went with the job of

machine operator first class even though this meant

more money, and the same, of course, might be true of.

many men. In the view of the court, however, this ap-

pears to be a type of warrantless assumption based on

generalizations or stereotyped characterizations of the

sexes, illustrations of which are given in the guidelines

adopted by the EEOC. See 29 CFR 751, part 1604.2.

6. “The Commission will find that the following

situations do not warrant the application of the bona fide

occupational qualification exception:

(i) The refusal to hire a woman because of

her sex based on assumptions the comparative em-

ployment characteristics of women in general. For

example, the assumption that the turn-over rate

among women is higher than among men.

(ii) The refusal to hire an individual based on

stereotyped characterizations of the sexes. Such

stereotypes include, for example, that men are less

capable of assembling intricate equipment; that

54a

Opinion of the District Court.

As a matter of fact, this characterization sounds like

labels: Men's Jobs“ and Women's Jobs“, which have

been held improper. See Pittsburgh Press Company,

supra. It is the opinion of the court that to justify failure

to advance women because they did not want to be ad-

vanced is a type of stereotyped characterization which

will not stand. The regulations specifically provide that

“individuals be considered on the basis of individual

capacities and not on the basis of any characteristics

generally attributed to the group”.

As previously pointed out, however, a generalization

such as this, that women do not want advancement,

simply will not stand in the face of the numbers of

women who did not opt out in this suit.‘ According

to the Clerk of Court’s records, six females in sub-

class A did not opt out, and in subclass B, nineteen did

not opt out. This certainly indicates that the members of

the class who are still involved in this suit at least

have interest in being advanced and that the facile ex-

cuse that women were not interested in advancement

simply will not stand against the facts.

As to the defense of bona fide occupational qualifi-

cation, this is of no moment in this case since it has been

women are less capable of aggressive salesmanship.

The principle of non-discrimination requires that

individuals be considered on the basis of individual

capacities and not on the basis of any character-

istics generally attributed to the group.”

7. By order dated March 10, 1973, four subclasses

were described: Subclass A—present female employees;

Subclass B—past female employees; Subclass C—future

female employees; and Subclass D—females who have

been denied employment because of discriminatory prac-

tices.

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35a

Opinion of the District Court.

conceded that the matter of weight lifting among ma-

chine operators is of no importance, since the weights to

be lifted are minimal. Insofar as this may have been a

factor in past discrimination among the heavy packers,

the defendant appears to have conceded that women

are able to perform these tasks because the defendant

now claims that any discrimination in the shipping de-

partment has been ended. Certainly, there is no par-

ticular bona fide occupational qualification with respect

to advancement of women to foremen, assistant fore-

men or machine setters.

As to business necessity, it would appear that de-

fendant is attempting to argue that it is bound by the

terms of its agreement with the union with respect to

seniority, and therefore, it cannot give effect to the

anti-sex discrimination regulations. This to the court

appears no defense at all. It has been held that defenses

based upon seniority systems set up with the union,

which are sexually discriminatory, are no defense. See

Glus v. G. C. Murphy Company, 329 F.Supp. 563 (W..

Pa. 1971).

In United States v. Bethlehem Steel Corporation,

446 F.2d 652 (2d Cir. 1971), the court has this to say

at page 662:

“We accept that definition, but in the context of

this case the ‘business necessity’ doctrine must

mean more than that transfer and seniority poli-

cies serve legitimate management functions. Other-

wise, all but the most blatantly discriminatory plans

would be excused even if they perpetuated the ef-

fects of past discrimination. Clearly such a result

is not correct under Title VII. Jones v. Lee Way

Motor Freight, Inc., 431 F.2d 245, 249 (10th Cir.

Opinion of the District Court.

1970). Necessity connotes an irresistible demand.

To be preserved, the seniority and transfer sys-

tem must not only directly foster safety and effi-

ciency of a plant, but also be essential to those

goals. Local 189, United Papermakers v. United

States, supra, 416 F.2d 980, at 989. If the legitimate

ends of safety and efficiency can be served by a

reasonably available alternative system with less

discriminatory effects, then the present policies may

not be continued.”

It appears that the business necessity doctrine

means that there must be an overriding legitimate busi-

ness purpose making the practice necessary to the

safe and efficient operation of the business. United

States v. Chesapeake and Ohio Railway Company, 471

F.2d 582 (4th Cir. 1972). Under the guidelines, further

illustrations are given of a bona fide occupational quali-

fication, such as a need to have an actor or an actress

in a certain role in the theatre. This is certainly not the

type of position. There may also be extreme cases where

a history of rapes during the night hours in dangerous

locations indicate that females should not be exposed

to these hazards, but nothing like that has been shown

in this case.

We should further point out that it may be that de-

fendant’s expressed hostility to females attempting to

qualify as first class machine operators and the results

of subjective tests given by foremen to females who

attempted to qualify would naturally have a chilling

and discouraging effect upon female applicants, who

would naturally conclude that it was no use and would

only get them into more trouble with management than

the difference in pay would be worth. See for example,

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57a

Opinion of the District Court.

Lea v. Cone Mills Corporation, 301 F.Supp. 97, aff’d 438

F.2d 86 (4th Cir. 1971).

It is true that we should not attempt to put un-

qualified women on the job. We are not informed as to

the details of the test given all workers, however, the

record shows that numerous men qualified as machine

workers first class, whereas only one woman was 80

qualified over a period of years. The court, of course,

cannot go into the plant and administer these tests,

and it may be that this will be a difficult matter to su-

pervise. Regardless of the specific nature of these tests

and the specific results as to attempts by individual

applicants to qualify, it appears to the court that the

results of sex discrimination which seem to permeate

this organization are operating in this area, and the

court will have to do the best it can to frame remedies

to insure that future qualifications tests are objective

and not based upon subjective matters coupled with sex

hostility.

(5) Intentional Discriminaton.

Under the provisions of 42 U.S.C.A. § 2000e-5 (g),

the court must find that the respondent “has intention-

ally engaged in or is intentionally engaging in an unlaw-

ful employment practice charged in the complaint” in

order to issue an injunction or order other affirmative

action or reinstatement or hiring with or without

back pay.

The court has no hesitation in finding that there

has been intentional discrimination at defendant’s plant.

Entirely aside from the expressions of management in-

dicating hostility to female employees, we have the

general rule as laid down in Local 189, United Paper-

58a.

Opinion of the District Court.

makers v. United States, 416 F.2d 980 (5th Cir. 1969),

that the word “intentional” in this Act means that the

defendant intended to do what it did, not that there

was necessarily a deliberate and intentional violation of

the law. This reasoning has been followed by the Court

of Appeals for this Circuit in Kober v. Westinghouse

Electric Corporation, 480 F.2d 240 (3d Cir. 1973) af-

firming the decision of Judge Weber of this court in

325 F.Supp. 467 (W.D.Pa.1971). The Court of Anpeals

said: “intentional unfair employment practices are those

engaged in deliberately and not accidentally. No willful-

ness on the part of the employer need be shown to

establish a violation of Section 706 (g).“

(6) Relief to be Granted.

There still remains to be determined by the court

what, if any, relief should be granted in a situation of

this kind. At the present time, we have heard only the

testimony with respect to liability, and the question of

back pay and other relief has been left for subsequent

determination by the court. The court is given broad

powers under Section 706(g) (42 U.S. C. A. S 2000e-5(g) )

quoted. In view of the findings of intentional discrimina-

tion, the remedies available are (1) injunction, (2)

ordering affirmative action, (3) awards of back pay. It

would appear that any affirmative action taken should at

a minimum include a training program whereby women

can secure adequate training to pass the tests for ad-

vancement, and steps must be taken to assure that these

tests are objective tests and not subjective tests de-

pending upon the whim and will cf individual foremen

and other supervisors. It may be that the question of

back pay should be referred to a magistrate for hearing

—

—

59a

Opinion of the District Court.

and recommendation. We will, therefore, assign the case

for further argument with respect to the question of

relief to be granted. See supplemental Pretrial Order

dated October 24, 1972, postponing consideration of

damages and so forth until after determination of

liability.

CONCLUSIONS OF LAW

1. The court has jurisdiction of the parties and

the subject matter of this action under the provisions

of the Civil Rights Act of 1964 as amended, Title VII,

Section 706 (42 U.S.C.A. § 2000e-5).

2. This action has been properly brought by the

plaintiff as a class action on behalf of the classes and

subclasses described in this court’s order of March 10,

1972.

3. The defendant is an employer within the mean-

ing of Section 701 of said Act (42 U.S.C.A. § 2000e)

and plaintiff is an employee of defendant.

4. Defendant has engaged in unlawful employ-

ment practices in violation of Section 703(a) of said

Act (42 U.S. C. A. § 2000e-2(a) in discriminating against

plaintiff and other members of the class because of sex.

5. This proceeding is properly before this court

under Section 706 of said Act (42 U.S.C.A. § 2000e-5).

6. The defendant has intentionally engaged in and

is intentionally engaging in the unlawful employment

practices described in paragraph 4 of these conclusions

of law.

Opinion of the District Court.

7. The prima facie case of sex discrimination

shown by plaintiff’s evidence has not been rebutted by

defendant’s evidence.

8. Plaintiff is not barred from seeking relief in this

proceeding by any grievance procedures, arbitration pro-

ceedings or complaints to the National Labor Relations

Board.

9. The unlawful employment practices in which

defendant has engaged have permeated the entire work

force of defendant’s plant.

10. Under the circumstances of this case, Local

Union No. 69, International Union of United Automobile,

Aerospace and Agricultural Implement Workers of

America, the Collective Bargaining Agent at defendant’s

plant, is not an indispensable party under Rule 19 of the

Federal Rules of Civil Procedure.

11 A decree should be entered in favor of the

plaintiff and against the defendant for the causes of

action declared upon in the complaint.

12. The question of appropriate relief to be

granted in this case whether injunction, affirmative ac-

tion, costs, fees and/or awards of back pay shall be de-

termined after further hearing and argument which is

hereby fixed for Thursday, January 10, 1974, at 3:30

p. m.

6la

Appendix E.

APPENDIX E

Section 706(f)(1), Title VII of the Civil Rights

Act of 1964, as amended, 42 § 2000e-5(f) (1):

(1) If within thirty days after a charge is

filed with the Commission or within thirty days

after expiration of any period of reference under

subsection (c) or (d) of this section, the Commis-

sion has been unable to secure from the respondent

a conciliation agreement acceptable to the Commis-

sion, the Commission may bring a civil action

against any respondent not a government, govern-

mental agency, or political subdivision named in the

charge. In the case of a respondent which is a gov-

ernment, governmental agency, or political subdi-

vision, if the Commission has been unable to secure

from the respondent a conciliation agreement ac-

ceptable to the Commission, the Commission shall

take no further action and shall refer the case to

the Attorney General who may bring a civil action

against such respondent in the appropriate United

States district court. The person or persons ag-

grieved shall have the right to intervene in a civil

action brought by the Commission or the Attorney

General in a case involving a government, govern-

mental agency, or political subdivision. If a charge

filed with the Commission pursuant to subsection

(b) of this section, is dismissed by the Commission,

or if within one hundred and eighty days from the

filing of such charge or the expiration of any period

of reference under subsection (c) or (d) of this

section, whichever is later, the Commission has not

filed a civil action under this section or the Attor-

ney General has not filed a civil action in a case

62a

Appendix E.

involving a government, governmental agency, or

political subdivision, or the Commission has not en-

tered into a conciliation agrecment to which the

person aggrieved is a party, the Commission, or the

Attorney General in a case involving a government,

governmental agency, or political subdivision, shall

so notify the person aggrieved and within ninety

days after the giving of such notice a civil action

may be brought against the respondent named in

the charge (A) by the person claiming to be ag-

grieved or (B) if such charge was filed by a mem-

ber of the Commission, by any person whom the

charge alleges was aggrieved by the alleged un-

lawful employment practice. Upon application by

the complainant and in such circumstances as the

court may deem just, the court may appoint an at-

torney for such complainant and may authorize the

commencement of the action without the payrnent of

fees, costs, or security. Upon timely application, the

court may, in its discretion, permit the Commission,

or the Attorney General in a case involving a gov-

ernment, governmental agency, or political subdivi-

sion, to intervene in such civil action upon certifica-

tion that the case is of general public importance.

Upon request, the court may, in its discretion, stay

further proceedings for not more than sixty days

pending the termination of State or local proceed-

ings described in subsection (c) or (d) of this sec-

tion or further efforts of the Commission to obtain

voluntary compliance.

Appendix F.

APPENDIX F

Section 706(e) of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-5(e) (1970) [since replaced by Section

706 (f) (1) of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e-5(f) (1) (Supp. III. 1973) ]:

If within thirty days after a charge is filed with the

Commission or within thirty days after expiration of

any period of reference under subsection (c) of this

section (except that in either case such period may be

extended to not more than sixty days upon a determina-

tion by the Commission that further efforts to secure

voluntary compliance are warranted), the Commission

has been unable to obtain voluntary compliance with

this subchapter, the Commission shall so notify the

person aggrieved and a civil action may, within thirty

days thereafter, be brought against the respondent

named in the charge (1) by the person claiming to be

aggrieved, or (2) if such charge was filed by a member

of the Commission, by any person whom the charge

alleges was aggrieved by the alleged unlawful employ-

ment practice. Upon application by the complainant and

in such circumstances as the court may deem just, the

court may appoint an attorney for such complainant

and may authorize the commencement of the action

without the payment of fees, costs, or security. Upon

timely application, the court may, in its discretion, per-

mit the Attorney General to intervene in such civil ac-

tion if he certifies that the case is of general public im-

portance. Upon request, the court may, in its discretion,

stay further proceedings for not more than sixty days

pending the termination of State or local proceedings

described in subsection (b) of this section or the efforts

of the Commission to obtain voluntary compliance.