Petition — AAA Trucking Corp. v. Green

—

In THE

Supreme Court of the United States

Octroser TERM, 1980

AAA TRUCKING CORPORATION and

EUGENE C. BONACCI,

Petitioners,

VS.

LEROY GREEN and DIRECTOR OF THE

DIVISION ON CIVIL RIGHTS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY, APPELLATE

DIVISION

HeErBert BurstTEeIN

of the New York Bar

Counsel for Petitioners

One World Trade Center

Suite 2373

New York, New York 10048

(212) 432-0940

Russo, Tumuutty & NesTER

921 Bergen Avenue

Jersey City, N.J. 07306

(201) 653-2090

HERBERT BURSTEIN

of the New York Bar

Attorneys for Petitioners

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

Questions Presented

1. Whether there is a federal labor law which estab-

lishes standards binding upon State courts in the deter-

mination of cases involving alleged violations of State

laws against discrimination in employment so that con-

flicts with federal law may be avoided and rights granted

to employers by Congress may not be frustrated.

2. Whether the New Jersey Law Against Discrimination

(“Act”) [N.J.S.A. 10:5-1 et seq], as interpreted by the

New Jersey courts, imposes such onerous, harassing and

conflicting conditions on an interstate carrier’s right to

discharge or discipline an employee as to hamper it in the

conduct of its interstate trucking business.

3. Whether a charge of a discriminatory discharge may

be purged by an offer of reinstatement, reserving to the

employee and the employer the right of recourse to later

arbitration under a collective bargaining agreement.

Parties to the Proceeding

Petitioners-A ppellants

AAA Trucking Corporation and Eugene C. Bonacci

The Respondents-A ppeliees

Leroy Green and the Director of the Division on Civil

Rights of New Jersey

[i]

TABLE OF CONTENTS

QUESTIONS PRESENTED «...------o-oscesseseneoesstmessnnsensneenetesamenns

PARTIES TO THE PROCEEDING .«..-------c+eseceeeee=+ Peper pene WS

STATEMENT OF JURISDICTION .........----- LR TT RTS

STATUTE INVOLVED ....cccsescoceese------

STATEMENT OF THE CASE .....---.-.—------

REASONS FOR GRANTING THE WRIT .......---------cccceeeeeeeeeeeees

CoNnCLUSION

APPENDIX:

A—Opinion of the Superior Court of New Jer-

sey, Appellate Division .............--------s-s-s-ss-s00

B—Order of the Supreme Court of New Jersey

Denying Petition for Certification ..................

C—N.J.S.A. 10:5-1 and 10:5-12a. .................---.-0+

Cases Cited

Alexander v. Gardner-Denver eee 415 U.S. 36

CNTR) carn nnnnnnsnsnnnnnnnsecnsenenncereroonree ae

Bradford v. Sloan Paper Co., 383 F. Supp. 1157

(ND. Ala. 1974) -....-.-.-.csceccscecescscescssosesessncnsssssencensneensneee

Furneco v. Waters, 438 U. S. 567 (1978) .....-.----.-------0+

Hampton v. Mon Sun Wong, 426 U.S. 88 $7) aoe

la

20a

li TABLE OF CONTENTS

PAGE

International Brotherhood of Teamsters v. United

Pare, SE, Fe. BERR. CR 6 Pin siccienscinsensecesecocinbanicieniion 7

Kunda v. Muhlenberg College, 621 F. 2d 532 (8d Cir.

UI, hetsnsnbellls-ccnacessictieneenstalienichudinadhcesetatiactiasiitaanaibsbabasdiaatasies 8

Local 174 Teamsters v. Lucas Flour Co., 369 U. S.

BP NT acti ctincanacersaicecinssutcbstlahibiabauntanenitidanaiaddantendasadiacen 6

McDonald v. Sante Fe Trail Transportation Co., 427

i Rt Fk. | PRGA Tenceeoe morn deieiieaidninomeans 7

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

EE ios sic i ialessehda toa losdvencnlconbabidacaneibdabida tbeasnaseaenikatadaiiadle bce 9)

Pearson v. Borden Metal Products Company, 434 F.

RR Ce Eis. MAM TCE) cicniiceersseteiecicsebpsiniictiiscces 9

Peper v. Princeton University Board of Trustees,

A rs He I bncccteaieescecesennie ; 7

The Colorado Anti-Discrimination Commission v.

Continental Air Lines, Inc., 372 U. S. 714 (1963) 6, 10

Textile Workers Union vy. Lincoln Mills, 353 U. S.

Oe SED. paca tiveniasatcsendaunthe eiddadecduatecincasdanabtdae as 6

United Steelworkers of America v. Enterprise Wheel

and Car Corp., 363 U.S. 593 (1960) 2.2... .eecseceeeeee 6

United Steelworkers of America v. Warrior and Gulf

Navigation Co., 363 U. S. 574 (1960)...

Worthy v. U. S. Steel Corp., 616 F. 2d 698 (1980) ....

~]

United States Constitution Cited

eek ee

TABLE OF CONTENTS iii

PAGE

Statutes Cited

N.J.S.A. 10:5-1 (New Jersey Law Against Discrimi-

nation Act) ............- i, 2, 10

ee Se eon , REG aaa 2

28 U.S.C.:

See. 1257(3) e ; peerene- av ae 2

42 U.S.C. (Cvil Rights Act of 1964, Title VII):

ee ghh NE Ne ea OPO leet eRe 5-7, 10

No.

IN THE

Supreme Court of the United States

October Term, 1980

i,

—

AAA TRUCKING CORPORATION and

EUGENE C. BONACCI,

Petitioners,

VS.

LEROY GREEN and DIRECTOR OF THE

DIVISION ON CIVIL RIGHTS,

Respondents.

.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY, APPELLATE

DIVISION

Statement of Jurisdiction

On July 14, 1979, the New Jersey Division on Human

Rights entered an order which found that the petitioners-

appellants (“petitioners”) violated the Act by discharging

a black employee and had engaged in a pattern and prac-

tice of discrimination (A 2a). An appeal from this order

was taken to the Superior Court of New Jersey, Appellate

Division which, on February 28, 1980, affirmed so much

thereof as determined that the discharge of the Respond-

ent-Appellee Leroy Green (“Green”) was unlawful and re-

versed and remanded to the Division of Human Rights

of New Jersey that part which found a pattern and prac-

tice of discrimination (A la-19a). <A timely petition for

certification of the aforesaid judgment was filed with the

Supreme Court of New Jersey. The petition was denied

on July 8, 1980 and the order of denial was filed on July

10, 1980 (A 20a).

The jurisdiction of this Court is invoked under 28 U.S.C.

$1257 (3).

Statute Involved

The following statute which is involved in this case is

set forth in Appendix C infra:

N.J.S.A. 10:5-1 and 10:5-12a

Statement of the Case

The facts, as disclosed by the record on appeal to the

Appellate Division of the Superior Court of New Jersey

and to the Supreme Court of New Jersey and in Ap-

pendix A hereto, show that petitioner AAA Trucking Corp.

(“AAA”) is a New Jersey based interstate motor com-

mon carrier (A 6a). In 1958, AAA employed respondent

Green, a black driver, subject to the terms of a labor

contract (“Contract”) with Teamster Local 701 (“Union”)

(A 5a). In 1965, Green was elected shop steward of

AAA’s Trenton, New Jersey terminal (A 5a) and con-

tinued in that capacity until his discharge.

On March 16, 1973, when Green reported to work, he

found a note on the steering wheel of the tractor as-

signed to him, reading “clean this truck, pig”. He be-

lieved that one James Holman (“Holman”) a white em-

ployee, authored it (A 6a-7a). Green accused Holman

of placing the note in his tractor. Holman steadfastly

denied this charge and alleged that Green had threatened

and, in fact, assaulted him. (A 7a). The incident was

ultimately reported to petitioner-appellant Eugene C. Bon-

acei (“Bonacci”) who investigated the matter by inter-

viewing five co-workers who were witnesses and who con-

firmed, in writing, the verbal abuse and threats to Hol-

man (A 8a). Bonacci then consulted the independent labor

relations expert who had negotiated the Contract and was

advised that Green should be dismissed for a violation

of the Contract (A 9a). As required by the Contract

grievance procedures, Bonacci wrote to Green informing

him and the Union of the dismissal (A 9a). Green was

then asked by Bonacci to arrange for a meeting at the

terminal with John Dolan (“Dolan”), a Union representa-

tive, to discuss the discharge (A 10a). Green thereupon

filed a grievance, claiming that he had been dismissed

because he was a shop steward; he did not charge racial

discrimination, even though he knew that the Contract

proscribed such discrimination.

At the informal conference attended by Green, Dolan,

Holman and Bonacci, Dolan requested Bonacci to offer

reinstatement to Green. Bonacci agreed to change the

dismissal to a two-week suspension without pay (a remedy

frequently employed under the Contract) but with a re-

servation to Green of the right to arbitrate a claim for

the two weeks’ pay (A 10a). Further, since the two

weeks had elapsed, Green would have been returned to

work immediately. Green rejected this offer on the ground

that accepting the suspension would constitute an admis-

sion of “guilt” (A 10a). Indeed, he refused reinstate-

4

ment before any conditions were stated by Bonacci. When

his offer was rejected, Bonacci dismissed Green and the

Union demanded formal arbitration under the labor con-

tract.

In July 1973, Green’s grievance was submitted to, and

heard by, an impartial arbitrator designated by the New

Jersey State Board of Mediation. The impartial arbi-

trator decided that Green had been terminated for just

cause (A 15a). Green never sought to vacate the award.

After his discharge, namely on March 19, 1973, Green

filed a complaint with the New Jersey Division on Civil

Rights (“Division”) alleging a violation of the Act. One

year and seven months later, the Director of the Divi-

sion (“Director”) issued a Finding of Probable Cause;

four years and two months after the complaint was filed,

Green’s complaint was amended to add the Director as

a complainant and to include a pattern and practice charge;

four years and fovr .-onths after the original complaint

was filed, hearings »ommenced before a Hearing Officer

of the Division; five years after the complaint was filed

by Green, the Hearing Officer issued his Recommended

Findings of Fact and Conclusions of Law (“Recommenda-

tions”) sustaining the complaints by Green and the Di-

rector; and on July 14, 1978 the Director, as a party

to the proceedings, adopted the Recommendations and is-

sued his Findings, Determination and Order (“order”)

thereby sustaining his own complaint (A 2a).

AAA and Bonacci appealed from the order to the Ap-

pellate Division of the Superior Court of New Jersey.

On February 28, 1980, the Appellate Division affirmed

the order in favor of Green but vacated that part which

sustained the Director’s complaint, and directed a remand

to the Division (A 19a).

5

A timely petition for certification, filed with the Su-

preme Court of New Jersey, was denied on July 8,

1980 and an order of denial was filed on July 10, 1980

(B 20a).

Reasons for Granting the Writ

1. The issue raised in question 1 is of paramount im-

portance in that it involves an overriding national in-

terest, namely a construction of a State anti-discrimina-

tion law which imposes unconstitutional burdens on inter-

state commerce and conflicts with the decisional prece-

dents of this Court under Title VII of the Civil Rights

Act of 1964 [42 U. S. C. §2000e et seg.] upon which

the Act is based; and will affect the rights of employers

and employees throughout the United States who operate

in interstate commerce and are parties to national labor

agreements.

9. The issues raised in questions 2 and 3 are equally

significant because employers who have relied upon de-

cisions of this Court in fashioning their employment prac-

tices are exposed to the vagaries of state law and a mul-

tiplicity of sanctions under State anti-discrimination sta-

tutes which depart from, and subvert, decisional prece-

dents enunciated by this Court and are denied and de-

prived of due process by reason thereof and by reason

of long and unconscionable delays in processing discri-

mination claims by State agencies, delays over which em-

ployers have no control.

1. Petitioners submit that there are overriding national

interests which justify intervention by this Court because

the Act, identical with the federal Civil Rights Act, has

been construed by the New Jersey courts in a manner

which violates the due process clause of the Fifth Amend-

6

ment to the Constitution. Hampton v. Mon Sun Wong,

426 U.S. 88 (1976).

(A) A decision by this Court on the issues presented

here is not foreclosed by The Colorado Anti-Discrimina-

tion Commission vy. Continental Air Innes, Inc., 372 U. S.

714 (1963). On the contrary, this case poses the very

questions which were not resolved by (because not pre-

sented to) this Court (Id. at 721-722). The Act, as con-

strued by the New Jersey courts, does impose “onerous,

harassing and conflicting conditions on” an interstate motor

carrier and imposes “a constitutionally prohibited burden

ou interstate commerce” (Id. at 721-722). Equally sig-

nificant, the Act, as interpreted by the New J ersey courts

“stands as an obstacle to the full effectiveness of” Title

VII of the Civil Rights Act of 1964 (42 U. 8. C. §2000-e

et seq.)

Employment by interstate motor carriers is exclusively

in interstate commerce. There is, accordingly, the same

need for uniformity of standards and for a federal law

of employment discrimination as there was, and is, for

a federal labor law in the area of collective bargaining

and arbitration. Textile Workers Union v. Lincoln Mills,

303 U. S. 448, 456 (1957); Local 174 Teamsters v. Lucas

Flour Co., 369 U. S. 95 (1962); United Steelworkers of

America v. Warrior and Gulf Navigation Co., 363 U.S.

574 (1960); United Steelworkers of America v. Enter-

prise Wheel and Car Corp., 363 U. 8. 593 (1960).

An employer, with terminals in several States, who must

respond to the varieties of ciffering State anti-discrimina-

tion statutes and a whole congery of State court construc-

tions of those statutes is, and will be, exposed to massive

liability under State anti-discrimination laws even though

he has fashioned an employment policy guided by deci-

7

sions of this Court. Indeed, the construction of the Act by

the New Jersey courts means that a member of a minority

class must always be hired and must never be fired. This

result was adumbrated by the decision in Peper v. Prince-

ton University Board of Trustees, [77 N. J. 55 (1978)"

which held that the New Jersey courts are not bound by

the standards which this Court has enunciated.

Collective bargaining agreements will be rendered irrele-

vant if the decision by the New Jersey courts is not re-

versed. In International Brotherhood of Teamsters v.

United States, 431 U. S. 324, 336 (1977), this Court held

that where discrimination is alleged, the complainant “had

to establish by a preponderance of the evidence that racial

discrimination was the company’s standard operating pro-

ecedure—the regular ratner than the unusual practice”.

No such test was adopted by the New Jersey courts in the

ease at bar. An isolated incident, involving one black

driver, who had been employed since 1958, had been a

shop steward and had never registered a complaint of dis-

crimination until 1973 when he was disciplined under a

national Teamsters contract, became the occasion for a

theory of discrimination which frustrates the objectives of

the federal Civil Rights Act and rejects the lessons of this

Court’s decisions.

(B) Under the rubric of disparate treatment, State

courts will be free, if the decision of the New Jersey courts

is not reversed, to establish ad hoc tests of comparability

when, as the Court of Appeals for the Third Circuit

pointed out in Worthy v. U. S. Steel Corp., 616 F. 2d 698

(1980), an employer is not obliged “to impose on the

minority employee the minimum... sanction... .” [Id.

at p. 704).

While “precise equivalence” is not required, McDonald

v. Sante Fe Trail Transportation Co., 427 U. S. 273, 283

fn 11 (1976), there must be a demonstration that the cir-

'*»~

8

cumstances which occasioned the discharge of a minority

class employee were sufficiently parallel to those involving

white workers to support an inference of comparability.

In the case at bar, the finding of disparate treatment

was based on two incidents which occurred in the fifty year

history of AAA. These were clearly distinguishable from

the cireumstances of Green’s discharge (A10a). Here, the

so-called proof consisted of two prior instances of fights

among white employees (which occurred in 1970 and 1973),

when AAA imposed no disciplinary sanctions.

The first incident, in 1970, involved two drivers who en-

gaged in an altercation which took place outside the Tren-

ton terminal and was not witnessed by AAA’s manager

and was not reported to management. The second inci-

dent, in 1973, involved a white dock worker and a terminal

manager, who initiated an assault on the employee. This

was not evidence of pro-white bias, but rather managerial

justice: it was the manager who was the aggressor. And

the New Jersey court acknowledged that “more warnings

were sent to whites than blacks for violations of regula-

tions” (Al4a).

On the exiguous evidence of two alleged comparable

situations in fifty years, the New Jersey courts found dis-

parat treatment, contrary to the teaching of Kwnda v.

Muhlenberg College, 621 F. 2d 532 (3d Cir. 1980).

What the New Jersey Court did was to create a fictive

presumption, without requiring a showing of a prima facie

case by the complainant, that the dismissal of a black em-

ployee by a white manager is racially motivated and that

discriminatory intent must be disproved by the employer.

This stands the burden of proof standard, approved

by this Court, on its head. It means, in effect, that an

employer has the initial burden of proof that he is not

9

motivated by racial animus. If anything, in this case,

Green’s employment since 1958 without any claim of dis-

crimination until 1973, creates a presumption in favor of

AAA, which the New Jersey courts disregarded. This

was not an instance of past discrimination memoralized by

a labor contract.

The federal law is clear that a discharge of a minority

class employee does not implicate discrimination unless

it is deliberate, rather than accidental. Green utterly failed

to show, either directly or by rational deduction, any in-

tent on Bonacci’s part to discriminate against him on the

basis of his race. Suspicion and surmise, urged by Green

and the Division and adopted by the New Jersey courts,

do not satisfy the criterion of “clear and convincing” proof

that Green’s dismissal was racially motivated.

(C) The New Jersey courts also disregarded the letter

and spirit of anti-discrimination statutes which recognize

that an employer remains free to terminate an employee,

white or black, for whatever reason, absent proof of racial

motivation or that alleged business necessity is pretextual.

There is “nothing ... in the record to give eredence” to

Green’s “claim of racially motivated discharge.” Bradford

y. Sloan Paper Co., 383 F. Supp. 1157, 1162 (N.D. Ala.

1974); Pearson v. Borden Metal Products Company, 434

F. Supp. $41, 850 (N.D. Ala. 1977). It is palpable that the

New Jersey courts rejected the standards enunciated in

McDonnell-Douglas Corp. v. Green, 411 U. S. 792 (1973)

and Furnco v. Waters, 438 U. S. 567 (1978).

(D) The New Jersey courts misread the decision in

Alexander v. Gardner-Denver Company, 415 U. 8S. 36

(1974) when it accorded no weight at all to the arbitration

award. Concededly, Green did not claim discrimination

10

when he submitted his grievance and, it is clear that an

adverse arbitration award or a determination by the Na-

tional Labor Relations Board does not foreclose a civil

rights agency from acting. But this Court did not order

State agencies and courts to disregard an arbitration

award, even one which did not address the issue of racial

discrimination. On the contrary, it suggested the appro-

priate guidelines for the State courts and civil rights agen-

cies in their assessment of the weight to be acorded to an

arbitration award when the issue of racial motivation is

not litigated in arbitration. Certainly, this Court did not

mandate summary disregard of an arbitrator’s findings of

act (Id. at p. 60, fn. 21). While not determinative, Green’s

acceptance of the arbitration award, knowing his right to

challenge it, is an admission that at least under the labor

contract which proscribed discrimination, his dismissal was

proper. Relevant, too, are the contract provisions which

“conform substantially with Title VII.” (Id. at p. 60, fn. 21).

2. The Act (N.J.S.A. 10:5-1) is unconstitutional as con-

strued by the New Jersey courts.

(A) We do not contend that Title VII preempts State

anti-discriminatory laws The Colorado Anti-Discrimination

Commission v. Continental Air Lines, Inc., supra, at 722

but we do argue that while the Act is “identical in purpose

with” the federal statute (Id. at p. 722), a construction

accorded to a state statute which frustrates the federal

statute by imposing conditions 1ejected by this Court im-

poses unconstitutional burdens on employers and denies

them due process. Thus, to hold that all the evidence in

a discrimination case must be construed “in the light more

favorable” to the complainant (A 13a) is bizarre, unrea-

sonable and unconstitutional because it denies due process

by distorting the rule that the burden of proof by a pre-

ponderance of the evidence rests with the complaining party

11

when discrimination is alleged. Green utterly failed to

show any intent on Bonacci’s part to discriminate against

him on the basis of his race or discriminatory treatment

that was deliberate rather than accidental.

The New Jersey courts, relying on a disputed question

whether Green had physical contact with Holman, found

that this dispute “supported at least an inference that

Green was discharged because of his race and activities

associated with his race” (A 14a) and that discrimination

was proved as a matter of law. This is Orwellian law: an

inference of the kind relied upon by the New Jersey courts

does not create a prima facie case; it is only when the ini-

tial burden of establishing a prima facie case is satisfied by

the complainant that an inference of discrimination “bot-

tomed on impermissible considerations” is raised [F’wrnco

Construction Corp. v. Waters, supra, at 580].

It is respectfully submitted that this case presents the

occasion for clarification of the inter-relationships between

federal and state anti-discriminatory laws and the quantum

and quality of proof required to establish employment

discrimination. These issues have never been submitted

to, or resolved by, this Court.

12

CONCLUSION

For the foregoing reasons, this Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

Hersert Burstern

ZELBY, Burstein, Hartman & Burstein

2373 One World Trade Center

New York, New York 10048

New York, New York 10048

(212) 482-0940

HersBert BurstTEIN

Of Counsel

APPENDIX A

Opinion of the Superior Court of New Jersey,

Appellate Division

A-5084-77

Leroy Green and Director or THE Division on Crvim Rieuts,

Complainants-Respondents,

Vv.

AAA Trucxrne Corporation and Everns C, Bonaccti,

Respondents-Appellants.

+

Argued—September 24, 1979.

Decided February 28, 1980.

Before Judges Bischoff, Botter and Dwyer.

On appeal from Findings, Determination and Order of

the Division on Civil Rights.

Herbert Burstein argued the cause for appellants

(Russo, Tumulty & Nester attorneys; Herbert Bur-

stein and James F. Maher, each of the New York

Bar, pro hac vice, of Counsel).

Gerald R. Stockman argued the cause for respondent

Leroy Green (Stockman, Mancino, Marinari, Smith-

son & O’Donnell attorneys; Maria Marinari Sypek

on the brief).

‘[la]

2a

Appendix A

Katherine L. Suga, Deputy Attorney General argued

the cause for respondent Director of the Division on

Civil Rights (John J. Degnan, Attorney General of

New Jersey, attorney; Erminie L. Conley, Assistant

Attorney General, of Counsel).

The opinion of the court was delivered by

Dwyer, J.A.D.

AAA Trucking Corporation (“AAA”) and Eugene C.

Bonacci (“Bonacci”) appeal from the findings, determina-

tion and order made by the Director of the Division on

Civil Rights based upon the record, the recommended find-

ings of fact and conclusions of law of the hearing examiner

at the end of his 110 page report and, in addition, the Di-

rector ordered further proceedings to determine what in-

dividuals had been discriminated against by AAA in its

hiring practices and procedures and what remedies would

be appropriate to grant relief to such individuals.

Leroy Green (“Green”) filed a complaint for individual

relief because of his discharge based on race in alleged

violation of N.J.S.A. 10:5-12(a). The Division found prob-

able cause. After hearing, the filing of the hearing exam-

iner’s recommendations, and exceptions thereto, the Divi-

sion ordered that Green be reinstated by AAA with the

seniority rights which he had on March 16, 1973, the date

of discharge, and that Green be awarded back pay at sim-

ple interest and receive coverage under the pension plan

as if he had not been terminated. The order further di-

rected payment of $850 for pain and humiliation suffered

as a result of AAA’s act of discrimination. The order also

contained certain monitoring provisions as to the relation-

ship between AAA and Green.

3a

Appendix A

Shortly before the proceedings on Green’s complaint

commenced, the Division amended the complaint to assert

Division’s charge that AAA discriminated against minor-

ities in violation of N.J.S.A. 10:5-4. Following the hearing

on the Division’s charges, the filing of the hearing officer’s

recommendations and exceptions thereto, the Division en-

tered an order that directed AAA to set up more objec-

tive standards for hiring and that further hearings should

be held to determine which individuals had been discrim-

inated against and what remedies would be appropriate.

Respondents have urged a number of grounds for re-

versal of both portions of the order without organizing them

into specific categories.

We first consider the charges that the hearing examiner’s

conduct prevented a fair development of the record for that

attack goes to the whole proceeding, Then we shall con-

sider the appeal from that portion of the order pertaining

to Green’s individual relief and thereafter that portion

granting the relief requested by Division.

I

We agree that “[a] hearing before an administrative

agency exercising judicial, quasi-judicial, or adjudication

powers must be fair, open and impartial .. .”, 2 Am. Jur.

2d, Adm. Law $412, and that this rule applies in our courts.

See Zahorian v. Russell Fitt Real Estate Agency, 62 N.J.

399, 407-408 (1972) ; Mazza v. Cavicchia, 15 N.J. 498 (1954).

We also agree that a hearing examiner, like a judge, should

be patient and impartial.

Appellants point to thirteen examples of unfair conduct

of bias by the hearing examiner. We consider separately

4a

Appendia A

the charge that Gerald Stockman, Esq., the attorney for

Green, should have been disqualified because his firm had

represented AAA.

The hearing examiner ruled that Gerald R. Stockman,

Esq. was not disqualified from representing Green even

though several years prior his law firm had been involved

in workmen’s compensation matters on behalf of AAA.

The objection was made on the first day of the hearings

in July 1977 although Stockman had advised the attorneys

for AAA of his representation of Green in November 1975.

AAA’s attorneys responded to that notice in the same

month in 1975. Stockman, himself, had not handled any

matters for AAA but he had represented a guardian ad

litem who had sued AAA. Stockman and four witnesses

testified before the ruling was made. The record shows

that Stockman’s law firm was the successor to a prior firm.

However, the two partners who had handled the workmen’s

compensation cases for AAA had left and taken that ac-

count with them, plus the then active files, before Stockman

undertook representation of Green. After the challenge

was made, Stockman located some transferred inactive

closed files that showed his firm had represented AAA.

Stockman testified that he had never been to AAA’s prem-

ises, had never seen any of its files, nor had he had any

contact with AAA’s personnel.

The inquiry into this matter took almost an entire day.

The hearing examiner did not make his ruling quickly as

contended by respondents. He made it after a full and thor-

ough inquiry. On this record we find no error in the rul-

ing that Stockman was not disqualified.

We have reviewed the other alleged errors specified un-

der Point F of Appellants’ brief and find them to be with-

out merit. R, 2:11-3(e)(1)(E).

oa

Appendix A

II

Green’s complaint alleges that AAA and Bonacci dis-

criminated against Green in discharging him on March

16, 1973, contrary to the provisions of N.J.S.A. 10:5-12(a)

as then in effect.

Respondents urge reversal because:

(1) the evidence does not support a finding that Bonacci

“intended” to discriminate against Green on grounds

of race in discharging him; hence, the Division

lacked jurisdiction and the case should have been

dismissed on motion at the end of Green’s case;

(2) the hearing examiner in disregarding the arbitra-

tion award under the collective bargaining agree-

ment which concluded that Green had assaulted an-

other employee, James Holman (“Holman”), and,

therefore, under the terms of the collective bar-

gaining agreement there was just cause for the

discharge of Green by AAA; and,

(3) the evidence does not support a finding that Green

was treated differently than other employees.

The evidence on questions 1 and 3 is interrelated and

hence those questions will be dealt with together.

The hearing examiner, without considering credibility,

was warranted in finding the following:

Green was employed by AAA in 1958 and was an over-

the-road driver. He was a shop steward for Local 701

from 1965 to this termination. He is black. He operated

out of AAA’s terminal in Trenton, New Jersey.

Pin,

6a

Appendia A

AAA is a trucking company that engages in carrying

less-than-truckload shipments (LTL) between Maryland

and Massachusetts. It operates two terminals in New

Jersey—Trenton and Pine Brook. The latter formerly

was located in Linden, New Jersey.

AAA is a family owned business. Bonacci is a part

owner of AAA. He is Executive Vice-President and has

been employed by AAA in various positions since 1963.

In 1973 he was operations manager. His office was at

Trenton, New Jersey.

On March 16, 1973, Green reported for work at his

regular time of about 3:00 A.M. He picked up the way

bills for his regular run to Thomsonville, Connecticut.

On March 16, 1973, Green was using a different truck

than the day before.

Holman had the job of hooking-up the tractors to the

trailers on the line. The tractors were cleaned by spe-

cial crews on weekends according to Green.

When Green arrived at the tractor he was to use, he

found a large piece of paper on the steering wheel on

which was written “Clean this truck, pig.” Green testi-

fied: “On that morning, the morning I came in to get

in the truck, to be called a pig, I felt badly and I re-

sented it. I did feel he was calling me as a person, and

I did resent it.”

Based on his experience, Green knew that Holman was

the jockey for the tractors on duty and went to the lunch-

room to find him.

There were five employees in the lunchroom besides Hol-

man when Green entered. Green confronted Holman. Ac-

7a

Appendix A

cording to Green, Holman denied that he wrote the note,

but admitted that he left it on the steering wheel after he

had driven the tractor some 500 feet.

There is no dispute that Green used a loud voice to dis-

play his anger and used language which one would expect

an angcred and powerful truck driver to ure.

The critical dispute turns upon whether Green physically

assaulted Holman. Green categorically denied that he did.

Four of the others denied that Green struck Holman in any

manner. Schwed stated that Green struck Holman.

The incident lasted about five to ten minutes. Green

then left and went on his regular run. He did not report

the incident to his supervisor, Roberts, because Holman

had told Green he had shown the note to Roberts. Roberts

told Holman to put the note back in the tractor because it

was a joke, according to what Green said Holman told him.

Green completed his run in the afternoon, turned in his

logs and went home. He did not see or talk to Bonacci

that day.

When Green did not receive a call to report for work

the next morning, he called. He was told that he no longer

worked there. He called Bonacei who did not ask Green

for his version of the episode, but told him to eall the un-

ion delegate, because Green was discharged.

Ralph Aspell, Jr. (“Aspell”’), David Thomas Evans

(“Evans”), James Edward Roberson (“Roberson”), and

Roger A. Roslowski (“Roslowski”’), were employees of

AAA on March 16, 19738, and were present in the lunch-

room. Another person who was present on March 16,

1973 was in the military service and did not testify. Their

testimony on behalf of Green was that there were two

8a

Appendix A

tables in the lunchroom. They were at one table and Hol-

man was at the other. Except for As ell who was not

present throughout the incident, all testified that Green

did not strike Holman. They testified that Holman was

seated throughout the incident. In addition to the afore-

mentioned persons, Albert Schwed (“Schwed”) was also

in the lunchroom. There was conflicting testimony as to

where he was seated. Schwed did not testify. It was

stipulated that he had a special relationship to respondent

AAA which was not disclosed on the record.

These witnesses also testified that the following morn-

ing Bonacci called them into his office together with Schwed.

He questioned them together. He then dictated a state-

ment which his secretary typed for all five to sign. Except

for Schwed, the four others who were present refused to

sign the statement because it contained language that

Green physically assaulted Holman. Bonacci ordered that

language “exed” out. Al! present, including Schwed, signed

it. Bonacci testified that at this gathering he told the men

that he was thinking of suspending Green.

Later that day, Bonacci had his secretary prepare an-

other statement which included the “exed” out language.

Schwed then signed this statement as well.

Bonacci was initially called by Green as a witness. In

respect to March 16, 1973, he testified that Holman came

to him about 8:00 A. M. and told him about the incident.

Bonacci testified that he questioned Holman about the af-

fair. He then dictated a summary statement of what Hol-

man said which his secretary typed up. In that statement

Green was described as having “... verbally assaulted and

grabbed the left shoulder... of Holman.

9a

Appendia A

Bonacci interviewed Celio, another employee, who was

present for part of the affair, at the end of the episode, and

took a statement from him, Bonacci also testified that he

had talked to the supervisor but took no statement from

him. His versions of where and why he talked to the su-

pervisor, Roberts, varied.

Sometime after he had obtained the statements, he talked

to Frank Scoto, a labor consultant for a trucking associa-

tion to which AAA belonged, about what action to take.

He could not recall whether that discussion was by tele-

phone or in person. He told him all the facts which Hol-

man gave him but did not mention the other statements.

Scoto recommended discharge because it was a disciplinary

charge under the collective bargaining agreement.

Thereafter, Bonacci dictated a letter of discharge dated,

March 16, 1973. He sent it to Green ard the union local

on that date. In part it stated: “. .. our company policy

simply will not tolerate physical assault by any one of

our drivers and under the circumstances, our company has

no alternative but to discharge you effective this date,

March 16, 1973...” C-1. This letter was introduced on

Green’s case.

Bonacci testified that when he sent the letter he had no

knowledge of any other fights involving physical force be-

tween AAA’s employees. The only violent incident he

could recall was when Green jumped on an AAA truck

which Bonacci was following during the 1970 strike. When

Bonacei got out of his car, Green left. He admitted that

on the Saturday before the hearing, while working with

the attorneys, he learned of two incidents involving fights

and checked to see if they really happened. He had AAA’s

records searched and could not find any record of such

episodes.

10a

Appendiz A

John A. Mattiolli, a white truck driver, testified that

in 1970 he and another white employee were in a fight on

the parking lot in Linden after stepping out of the term-

inal. The other employees put a knife to Mattiolli’s throat.

Mattiolli hit him with his belt buckle. The police arrested

both and took them off in a police ear. Later the other

employee paid some money to Mattiolli’s attorney. Each

dropped charges. AAA took no disciplinary action.

Edward J. Kelk worked 12 years for AAA in Trenton.

He is white. He testified to an incident where Sam Bonacci,

Jr., grabbed him and he hit Sam Bonacci, Jr. with suffi-

cient force to knock his glasses off and break them. Kelk

confirmed statements in an affidavit that he met with Sam

Bonacci, Jr, and Bonacci’s father, the day after the inci-

dent. AAA took no disciplinary action.

Bonacci also testified that at a meeting on a grievance

filed by Green, Green stated his version. The meeting was

two weeks after the incident. Bonacci offered to reinstate

him with a two week suspension and loss of pay which

would go on Green’s record.

Green refused because it would have been an admission

of guilt and Bonacci would get him later.

Green also testified that he had spoken to Bonacci about

hiring more minority members with little suecess. He re-

lated one episode where he sent a friend for a job as a

platform worker who was not hired. Instead Bonacci

hired a white with a back problem. When Green asked

about this, Bonacci hired his friend. The friend was let

go within three days because his work was not acceptable

Green testified that the dock supervisor told him the friend’s

work was acceptable.

lla

Appendix A

Ronald Gallimore, a black, testified that he had tried to

get Bonacci to hire more minority members at the Pine

Brook terminal after he got a number of employees to sign

a petition. Although a meeting was held, nothing devel-

oped.

In Peper v. Princeton University Board of Trustees, 77

N.J. 55 (1978), the Supreme Court established guidelines

for the burden of proof in discrimination cases involving

both disparate treatment and disparate impact. The Court

said that the complaining party has the burden of proving

by the preponderance of the evidence, even in invidious

discrimination cases, that the charged party has discrim-

inated. Jd. at 80.

The Court said:

Of course, where state law is involved, the test for

a prima facie case of discrimination need not be the

same as that used in the federal cases arising under

Title VII. However, where these standards are use-

ful and fair, it is in the best interests of everyone

concerned to have some uniformity in the law. Un-

der Title VII, the United States Supreme Court has

recognized two separate theories of relief: 1) dis-

parate treatment and 2) disparate impact.

“Disparate treatment” such as alleged in the

present case is the most easily understood type

of discrimination. ‘The employer simply treats

some people less favorably than others because

of their race, color, religion, sex, or national

origin. Proof of discriminatory motive is critical,

although it can in some situations be inferred

from the mere fact of differences in treatment.

See, e.g., Village of Arlington Heights v. Metro-

12a

Appendix A

politan Housing Dev. Corp., 429 U.S. 252, 265-

266, 97 S. Ct. 555, 50 L. Ed. 2d 450. Undoubtedly

disparate treatment was the most obvious evil

Congress had in mind when it enacted Title VII.

Claims of disparate treatment may be distin-

guished from claims that stress “disparate im-

pact.” The latter involves employment practices

that are facially neutral in their treatment of

different groups but that in fact fall more harshly

on one group than another and cannot be justi-

fied by business necessity. See infra, at 1861.

Proof of discriminatory motive, we have held, is

not required under a disparate impact theory.

Compare, e.g., Griggs v. Duke Power Co., 401

U.S. 424, 430-432, 91 S. Ct. 849, 28 L. Ed. 2d

158, with McDonnell-Douglas Corp. v. Green, 411

U.S. 792, 802-806, 938 S. Ct. 1817, 36 L. Ed. 2d

668. [Intl Brotherhood of Teamsters v. United

States, 431 U.S. 324, 335, 336, 97 S. Ct. 1843,

1854-1855 n. 15, 52 L. Ed. 2d 396, 415 n. 15 (1977) ]

The instant case is concerned solely with disparate

treatment.

Both parties agree that McDonnell-Douglas Cor-

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

L. Ed. 2d 668 (1973) has announced the proper test

for a prima facie case. McDonnell-Douglas was a

Title VII case wherein the critical issue concerned

“the order and allocation of proof in a private, non-

class-action challenging employment discrimination.”

411 U.S. at 800, 93 S. Ct. at 1823, 36 L. Ed. 2d at

676. The specific wording of the holding applied to

racial minorities.

13a

Appendia A

The complainant in a Title VII trial must carry

the initial burden under the statute of establish-

ing a prima facie case of racial discrimination.

This may be done by showing (i) that he belongs

to a racial minority; (ii) that he applied and was

qualified for a job for which the employer was

seeking applicants; (iii) that, despite his qualifi-

cations, he was rejected; and (iv) that, after his

rejection, the position remained open and the em-

ployer continued to seek applicants from persons

of complainant’s qualifications. [411 U.S. at 802,

93 S. Ct. at 1824, 36 L. Ed. 2d at 677 (footnote

omitted) }.

However, the tests are equally applicable to other

forms of employment discrimination, such as dis-

crimination against females on the basis of sex. See

Meyer v. Mo. State Highway Commission, 567 F. 2d

804, 808 (8 Cir. 1977) cert. den. 435 TS. 1013, 98

S. Ct. 1888, 56 L. Ed. 2d 395 (1978). [77 N.J. at 81-

83; footnote omitted].

The Court also recognized that the fourth test would be

inappropriate in a number of situations. Jd. at 83. It is

inappropriate in this case.

Defendants urge that the hearing examiner erred when

he denied defendant’s motion to dismiss at the close of

Green’s case and at the close of the entire case as to Green

because the hearing examiner stated “. . . he must construe

all evidence presented for the complainant-respondent in

the light more favorable to him.” Rb. 34. The hearing ex-

aminer applied standards similar to those set forth in

Dolsen v. Anastasia, 55 N.J. 2, 5-6 (1969). We see no rea-

son why a different standard should apply on such motions

l4a

Appendia A

in an administrative proceeding than apply in a judicial

proceeding, The evidence showed that AAA had never

discharged, let alone disciplined, an employee who was

engaged in a serious fight before the event in question.

Four witnesses to the event testified that there was no

physical contact between Green and Holman. Green was

black.

We conclude that the hearing examiner did not err in

denying the motion at the close of Green’s case.

Respondents’ proofs showed that more warnings were

sent to whites than blacks for violation of regulations. But

respondents did not show any situation where an employee

had been discharged for fighting, Nor did Holman’s tes-

timony on respondents’ case convincingly show a different

version of the event.

At the close of Green’s case, the evidence showed that

Green had been a respected employee for a long period of

time. Green had worked for the interests of minorities.

There was substantial evidence that there was not any phys-

ical contact between Green and Holman. Bonacci dis-

charged Green allegedly for the reason stated in his letter.

The evidence supported at least an inference that Green

was discharged because of his race and activities associated

with his race. We firdggo error in the denial of the motion.

Respondents urge that there must be proof of “intent to

discriminate” under Parker v. Dornbierer, 140 N.J. Super.

185 (App. Div. 1976). In that ease this court reversed an

order entered against the Dornbierers for violating the Law

Against Discrimination where the hearing examiner had

stated “‘. .. intent to discriminate is not required. If the

conduct has a discriminatory effect, it is unlawful diserim-

ination even if there is no express proof of intent to dis-

15a

Appendix A

eriminate.’” Jd. at 189. The complaint was that the Dorn-

bierers had refused to sell their greenhouses to Parker be-

cause he employed Puerto Ricans. This court pointed out

that the hearing examiner had found that the Dornbierers

lacked an intent to discriminate and that there was ample

evidence to support their defense that Parker was a bad

business risk to sell to.

But as pointed out in the quotation above in Peper v.

Princeton University Board of Trustees, supra, where the

court quoted from Int’l Brotherhood of Teamsters v, United

States, supra, the proof of discrimination “‘,.. can in some

situations be inferred from the mere fact of differences

in treatment....’” 77 N.J. at 81.

The hearing examiner’s findings of disparate treatment

concerning Bonacci’s behavior surrounding the discharge

and attempts to establish a reason for the discharge, and

of Bonacci’s actions being intentional are fully supported

by the record. We accept them. State v. Johnson, 42 N.J.

146, 162 (1964).

We consider now the second issue raised by respondents

for reversal of the Green award,

Since the arbitration proceeding made no inquiry into

the charges of racial discrimination, the hearing examiner

did not consider himself bound by the arbitration award

under Alexander v. Gardner-Denver Co., 415 U.S. 36, 94

S. Ct. 1011, 39 L. Ed. 2d. 147 (1974).

We agree.

We affirm the order entered by the Division in favor of

Green for the reason it is amply supported by the record.

l6a

Appendix A

III

Respondents under Point D of their main brief and

Point II of their reply brief attack the statistical basis used

by the Division and urge that the Division never clearly

established the relevant “labor pool.” Respondents urge

that until that base is established there is no sound basis

upon which the data from the Trenton SMSA! and the

Newark SMSA could logically be used.

In Hazelwood School District v. United States, 433 U.S.

299, 97 S. Ct. 2736, 57 L. Ed. 2d 768 (1977), the Supreme

Court reversed and remanded to the trial court for fur-

ther proceedings a decision of the Court of Appeals for

the Kighth Cireuit. The Court of Appeals reversed a judg-

ment of the District Court which found a school district

had engaged in discriminatory hiring practices where the

ratio of black teachers to black students was unfavorable.

On appeal the Court of Appeals employed a test of com-

paring the racial composition of the teaching staff to the

racial composition of the qualified publie school teachers

in the population of the alleged relevant labor market. But

this action by the Court of Appeals on appeal denied the

school district the opportunity to show that tl> selected

relevant labor pool had special factors which influenced the

statistics. The Court said:

In that case, [International Brotherhood of Team-

sters v. United States], we stated that it is the

Government’s burden to “establish by a preponder-

ance of the evidence that racial discrimination was

1 SMSA is the acronym for Standard Metropolitan Statistical Area.

The Bureau of the Census of the United States Department of Com-

merce determines each such area.

17a

Appendia A

the [employer’s] standard operating procedure—the

regular rather than the unusual practice.” Id., at

336, 52 L. Ed. 2d 396. We also noted that statistics

can be an important source of proof in employment

discrimination cases, since

“absent explanation, it is ordinarily to be ex-

pected that nondiscriminatory hiring practices

will in time result in a work force more or less

representative of the racial and ethnic composi-

tion of the population in the community from

which employees are hired. Evidence of long-last-

ing and gross disparity between the composition

of a work force and that of the general popula-

tion thus may be significant even though §703(j)

makes clear that Title VII imposes no require-

ment that a work force mirror the general popu-

lation.” Id., at 340 n 20, 52 L. Ed. 2d 396.

See also Arlington Heights v. Metropolitan Housing

Dev. Corp. 429 U.S. 252, 266, 50 L. Ed. 2d 450, 97

S. Ct. 55; Washington v. Davis, 426 U.S. 229, 241-

242, 48 L. Ed. 2d 597, 96 S. Ct. 2040. Where gross

statistical disparities can be shown, they alone may

in a proper case constitute prima facie proof of a

pattern of practice of discrimination. Teamsters,

supra, at 339, 52 L. Ed. 2d 396, 97 S. Ct. 1893.

[433 U.S. at 307-308, 57 L. Ed. at 777].

We note that Justice Stewart said in footnote 13 to the

majority opinion that in the case of truck drivers com-

parison to general population statistics may well be appro-

priate because the skill involved is one that many possess

and that others could easily acquire.

18a

Appendix A

Respondents further urge that areas outside of New

Jersey as well as portions of the State other than those in

the Trenton SMSA and Newark SMSA should be included

in determining the relevant labor pool. The former should

alegedly be included because geographically they are close

to Trenton. The latter should allegedly be added because

AAA advertised for applicants.

Our review of the record does not show that the Divi-

sion explained why the data from the Trenton SMSA es-

tablished the “relevant labor pool” for the Trenton ter-

minal and why the data from the Newark SMSA estab-

lished the “relevant labor pool” for the Pine Brook ter-

minal.

Here there was no showing that the terminals would

most likely draw the drivers and other personnel from

the Trenton SMSA and the Newark SMSA. See United

States v. Ironworkers Local 86, 443 F. 2d 544, 551 n. 19

(9th Cir. 1971), cited in Teamsters v. United States, 431

U.S. 324, 340, 97 S. Ct. 1848, 52 L. Ed. 396, 418 n. 20

(1977). Nor, was there a showing of the relevant com-

munity from which employees were hired in fact.

In Ironworkers, swpra, 443 F. 2d at 551 n. 19, the Court

of Appeals noted that the union’s hiring hall and appren-

tice training facilities were in the City of Seattle and

therefore the District Court could properly compare the

minorities in union membership to the census data fro

the City of Seattle. Although the hearing examiner re-

ferred to that case, he made no findings to establish the

foundation for the relevancy of the data. Instead, he ruled

that the defendants had failed to refute it and thereby im-

properly applied the initial burden of proof and therefore

we reverse the determination on this issue.

19a

Appendix A

Accordingly, we do not pass upon other issues tendered

for the reversal of the order in favor of the Division.

We affirm the order in favor of Green. We vacate the

order in favor of the Division and remand for further

proceedings to determine whether AAA did discriminate

in their hiring practices and if so what are appropriate

remedies. We do not retain jurisdiction.

A True Copy

EvizABETH McLAvuGHLIN

Clerk

20a

APPENDIX B

Order of the Supreme Court of New Jersey Denying

Petition for Certification

SuPREME Court oF NEw JERSEY

C-815 SepremMBer Term 1979

in

a

LEROY GREEN, et al.,

Complainants-Respondents,

Vv.

AAA TRUCKING CORPORATION, e¢ al.,

Respondents-Petitioners.

¢

To the Appellate Division, Superior Court:

A petition for certification of the judgment in A-5084-77

having been submitted to this Court, and the Court having

considered the same;

It is OrpErEp that the petition for certification is denied

with costs.

Witness, the Honorable Robert N. Wilentz, Chief Jus-

tice, at Trenton, this 8th day of July, 1980.

STEPHEN W. TownsEND

Clerk

Filed

STEPHEN W. TowNsEND

Clerk

Jul ilu 1980

2la

APPENDIX C

Relevant Statute

[N.J.S.A.]

10:5-1. Short title

This act shall be known as “Law Against Discrimination.”

10:5-12. Unlawful employment practice or

unlawful discrimination

It shall be an unlawful employment practice, or, as the

case may be, an unlawful discrimination:

a. For an employer, because of the race, creed, color,

national origin, ancestry, age, marital status, or sex of any

individual, or because of the liability for service in the

Armed Forces of the United States, of any individual, to

refuse to hire or employ or to bar or to discharge from

employment such individual or to discriminate against

such individual in compensation or in terms, conditions or

privileges of employment; provided, however, it shall not

be an unlawful employment practice to refuse to accept

for employment an applicant who has received a notice of

induction or orders to report for active duty in the armed

forces; provided further that nothing herein contained

shall be construed to bar an employer from refusing to ac-

cept for employment any person on the basis of sex in those

certain circumstances where sex is a bona fide occupational

qualification reasonably necessary to the normal operation

of the particular business or enterprise.