Petition — Liotta v. National Forge Co.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

JAMES J. LIOTTA,

Petitioner,

Vv.

NATIONAL FORGE COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

STAUGHTON LYND

Northeast Ohio Legal Services

~ 804 Metropolitan Tower

Youngstown, Ohio 44503

MICHAEL CARR

127 West 6 Street

Erie, Pennsylvania 16501

Counsel for Petitioner

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTION PRESENTED

In a §301 action brought by employees under Hines v. An-

chor Motor Freight, Inc., 424 U.S. 554 (1976), and filed subse-

quent to an arbitration award, is the applicable statute of limita-

tions that governing contract actions or that governing suits to

vacate arbitration awards?

iii

TABLE OF CONTENTS

Question Presented ..........eeee cece cere ee eeenees

Opinions Below .........-- cece cece rece eee eeeeees

Jerladbetioe i < cas cccde ieee ar eete cs be ecavenerecces

Statutory Provisions Involved .........-+++++eeeeees

Statement of the Case ........cccecccececcececececs

Reasons for Granting the Writ ...........-eeeeeeeees

Combe cocci skate dee ese Petes sara eres ccceees

Appendix A - Memorandum Opinion and Order of Dis-

phen COE ci ican 5b Sab SOREN Seesaw s ee cloce

Appendix B - Opinion of U.S. Court of Appeals for

the Third Circuit .... ccc ccccc scenes sccscene

Appendix C - Judgment of U.S. Court of Appeals for

the Third Cisemit ..icccccscdecscscccveyecccse

TABLE OF CASES CITED

Auto Workers v. Hoosier Corp., 383 U.S. 696, 707 n.9

CIDGGY w. «ca ncaxvadendadevnpenedens seeeeee ee

Fannie v. Chamberlain Mfg. Corp., 455 F. Supp. 65

(W.D. Pa. 1977) 2... ccc cccccccescisicccccccese

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554

tL, PEPPER eee er rer tee ee eee

Mitchell v. United Parcel Service, Inc., 624 F. 2d 394

(2d Cir. 1980), cert granted, 49 U.S.L.W. 3270

(Oct. 14, 1980) (No. 80-169, 1980 Term) .........

PREVIOUS PAGE WAS BLANK |

Page

A-l

A-5

A-14

3,6,7

iv

Smart v. Ellis Trucking Co., Inc., 580 F. 2d 215 (6th

Cir. 1978), cert. den., 440 U.S. 958 (1979) ........

United Parcel Service v. Mitchell, No. 80-169 .........

Miscellaneous Cited

PE OES oe ie ke a ae tions

42 Pa. Cons. St. Ann. § 5527 (Purdon)...............

> Pa. Cons. %. Ann. § 173: (Purdon)... ........0.000-

5,6

aie

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

JAMES J. LIOTTA,

Petitioner,

Vv.

NATIONAL FORGE COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

OPINIONS BELOW

The opinion of the United States District Court for the

Western District of Pennsylvania on the question presented is

not officially reported, but is reprinted as App. A to this peti-

tion. The opinion of the Third Circuit Court of Appeals, revers-

ing the district court on the question presented, is not officially

reported but is reprinted as App. B to this petition.

JURISDICTION

‘The judgment of the Third Circuit Court of Appeals was issued

on September 10, 1980 (App. C). This Court has jurisdiction

pursuant to 28 U.S.C. §1254(1).

ie MO gl

STATUTORY PROVISIONS INVOLVED

Section 301(a) of the Labor Management Relations Act of

1947, 29 U.S.C. §185(a), provides in pertinent part as follows:

fe

Suits for violation of contracts between an employer and «

a labor organization representing employees in an industry

affecting commerce . . . may be brought in any district

court of the United States having jurisdiction of the par-

ties, without respect to the amount in controversy or

without regard to the citizenship of the Parties.

The Pennsylvania statute of limitations for actions on a writ- .

ten contract, 42 Pa. Cons. St. Ann. §5527 (Purdon), provides in

pertinent part as follows:

§5527. Six year limitation

The following actions and proceedings must be com-

menced within six years:

(2) An action upon a contract, obligation or liability

founded upon a bond, note or other instrument in writ-

Me. < e's

(42 Pa. Cons. St. Ann. §5527 was enacted on July 9, 1976 and

became effective on June 27, 1978. Predecessor statutes dating

back to 1713 also provided a year-six statute of limitations for

actions on a written contract.)

The Pennsylvania arbitration Statute, 5 Pa. Con. St. Ann.

§173 (Purdon), provides:

§ 173. Notice of motions, service, Stay of proceedings

Notice of a motion to vacate, modify, or correct an

award shall be filed in the prothonotary’s office of the

court in which the application is made, and to be served

|

wing es

upon the adverse party, or his attorney, within three

months after the award is filed, or delivered, as prescribed

by law for service of notice of a motion in an action. The

court may in all proper cases, upon the filing of the mo-

tion, grant a stay of proceedings pending the determina-

tion of the motion. 1927, April 25, P.L. 381, No. 248, §

13.

STATEMENT OF THE CASE

Petitioner was discharged on March 16, 1976. Arbitration

proceedings were had, and an adverse award issued on August

3, 1976. The instant action was filed March 16, 1978, under Sec-

tion 301 of the Labor Management Relations Act as amended,

29 U.S.C. §185.'

Defendant moved to dismiss the §301 claim on the ground

that the 90 day statute of limitations for an action to vacate an

arbitration award applied.

On May 22, 1978, the district court denied the motion to

dismiss. Citing Hines v. Anchor Motor Freight, Inc., supra, and

Fannie v. Chamberlain Mfg. Corp., 455 F.Supp. 65 (W.D. Pa.

1977), the court held that the applicable statute was Penn-

sylvania’s 6 year statute of limitations for actions on a written

contract. See App. A.

Subsequently, defendant moved for summary judgment, and

the district court granted the motion. Petitioner appealed this

decision to the court of appeals, and defendant cross-appealed

the district court’s previous decision on the statute of limitations

issue.

' Count Il of the complaint alleged that plaintiff's discharge

violated 42 U.S.C. $1981, and is not relevant to this appeal.

ae a

On September 10, 1980, the Third Circuit Court of Appeals

affirmed the district court’s grant of summary judgment on the

§301 claim on statute of limitations grounds. See App. Band C.

This appeal followed.

pau gd

REASONS FOR GRANTING THE WRIT

1. Two federal courts of appeals have rendered decisions in

conflict with the decision of the Third Circuit Court of Appeals

on the question presented. In Smart v. Ellis Trucking Co., Inc.,

580 F.2d 215 (6th Cir. 1978), cert. den., 440 U.S. 958 (1979), the

Sixth Circuit Court of Appeals held as follows:

Ellis argued below that the wrongful discharge claim was

time barred. The argument was based on the contention

that Appellant is actually seeking to set aside an arbitration

award, and that the statute of limitations applicable to a

claim for such relief is either three months under the

United States Arbitration Act, 9 U S.C. § 12, or twenty

days under Michigan General Court Rules 769 dealing with

arbitrations. 409 F.Supp. at 131. The District Court found

it unnecessary to reach the issue, but Ellis presses it again

before this Court. The simplest answer to Ellis’ argument

is that Appellant’s action for wrongful discharge is not in

the nature of a motion to vacate or modify an arbitration

award, at least to the extent that it states a claim under §

301. Although the effect of a judgment for Appellant

would be to nullify the arbitral decision, the § 301 action is

‘tindependent”’ of the grievance process. See Hines v.

Anchor Motor Freight, 424 U.S. at 554, 96 S.Ct. at 1048,

47 L.Ed.2d at 231. Indeed, such a claim can be brought

even before an arbitral decision where a union refuses in

bad faith to process a grievance. Vaca v. Sipes, 386 U.S.

171, 186, 87 S.Ct. 903, 17 L.Ed.2d 842°(1967). The fact

that the plaintiff must show a flaw in the grievance process

as a prerequisite to recovery does not alter the basic focus

of the § 301 claim on the propriety of the discharge itself.

Since Michigan applies a three year limitation period to

wrongful discharge claims such as the one here raised (see

Glowacki, supra), the action was not time-barred.

580 F.2d at 219 (footnotes omitted).

a Gees

In Mitchell v. United Parcel Service, Inc., 624 F.2d 394 (2d

Cir. 1980), cert. granted, 49 U.S.L.W. 3270 (Oct. 14, 1980) (No.

80-169, 1980 Term), the Second Circuit Court of Appeals came

to the same conciusion as the Sixth Circuit. The court offered

the following reasons for its holding:

The effect of applying the statute of limitations for suits to

vacate arbitration awards to a §301 action filed subsequent to an

arbitration proceeding would be to create one limitations periud

for §301 actions filed prior to an arbitration award, and another

limitations period for §301 actions filed after an arbitration

award. ‘We do not believe that such a fractionalized approach

to §301 wrongful discharge actions is warranted.’’ 624 F.2d at

397.

To limit employee §301 actions following an arbitration

award to a 90 day period following the adverse arbitral decision

would severely restrict the Supreme Court’s decision in Hines v.

Anchor Motor Freight, Inc., supra. Id.

§301 actions cannot be equated with direct attacks on arbitra-

tion awards, nor can they be viewed as the same threat to the

finality of arbitration awards. Post-arbitral actions under §301

require a plaintiff to carry a heavier burden than an action

challenging an arbitration award. ‘‘There is no need to increase

this burden by requiring the employee to commence the action

in an unduly short period of time after his discharge.’’ Jd.

Far from suggesting that a 90 day period was needed to reach

the goal of relatively rapid disposition of disputes, the Supreme

Court in Auto Workers v. Hoosier Corp., 383 U.S. 696, 707 n. 9

(1966), indicated that ‘‘unusually short’’ limitation periods such

as a 60 day New Mexico statute should not be applied to §301

actions. 624 F.2d at 398.

Regardless of the merits of the arguments of the Sixth Circuit

in Smart v. Ellis, supra, of the Second Circuit in Mitchell v.

United Parcel, supra, and of petitioner herein, the existing con-

ey pee

flict among the circuits creates confusion and uncertainty for

aggrieved workers, for unions, for employers, and for their

respective attorneys.

2. Had the holding of the Third Circuit Court of Appeals in

the instant case been law at the time plaintiffs in Hines v.

Anchor Motor Freight, Inc., supra, filed their complaint, the

case would have had to be dismissed as out of time and the in-

justice done to the workers in that situation would never have

been corrected. In Hines, arbitration was had in July 1967. 424

U.S. at 557. A year later a motel clerk admitted that he rather

than the discharged employees had been guilty of dishonesty.

506 F.2d at 1156, quoted 424 U.S. at 559 n. 4. In June 1969,

almost two years after the arbitration award, suit was filed in

federal district court. 424 U.S. at 558. Although the statute of

limitations does not appear to have been pleaded as an affir-

mative defense in Hines, this Court impliedly concluded that a

§301 suit filed two years subsequent to an arbitration pro-

ceeding was consistent with national labor policy.

3. In United Parcel Service v. Mitchell, No. 80-169, this

Court granted a petition for certiorari to consider the same

question as that presented here. Accordingly, the Court should

either grant this petition for consideration together with No.

80-169, or hold this petition for disposition in light of the

Court’s decision in that case.

CONCLUSION

For the reasons set forth above, this Court should grant cer-

tiorari to decide the important question presented herein.

Respectfully submitted,

STAUGHTON LYND

Northeast Ohio Legal Services

804 Metropolitan Tower

Youngstown, Ohio 44503

MICHAEL CARR

127 West 6 Street

Erie, Pa. 16501

Counsel for Petitioner

APPENDIX

a

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JAMES J. LIOTTA ’

v. ‘ Civil Action No. 78-25 Erie

NATIONAL FORGE CO. |

Dated: May 22, 1978.

Memorandum Opinion

Plaintiff’s complaint alleges two causes of action: first, under

section 301 of the Labor Management Relations Act (29 USCA

185) claiming that the union breached its duty of fair representa-

tion in processing grievances of the plaitiff. The second count

charges a violation of the Civil Rights Act 42 USCA 1981.

Defendant has moved to dismiss.

In approaching a motion to dismiss we must always bear in

mind what has been said by the Supreme Court in many cases

most recently in Scheuer v. Rhodes, 416 US 232, 40 L Ed 9, 94

S Ct 1683 (1974) where the court quotes Conley v. Gibson, 355

US 41 (1957) as holding ‘‘the accepted rule (is) that a complaint

should not be dismissed for failure to state a claim unless it ap-

pears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief’’.

Defendant claims that the plaintiff’s first cause of action is

barred by the Pennsylvania Statute of Limitations providing for

an appeal within three months as provided by the Pennsylvania

Arbitration Act 5 PS 173 and the U.S. Arbitration Act 9 USC 1,

et seq.

There are it is true certain decisions prior to Hines v. Anchor

Motor Freight Inc. 424 US 554, 96 S Ct 1048, 47 L Ed 2d 231

sie A de

(1976) to the effect that in a fair representation case the state

statute of limitations of 3 months for an appeal from an award

of arbitrator should apply. However, since the case of Hines it

has been clearly held as noted by Judge Teitelbaum of this court

in Fannie v. Chamberlain Mfg. Corp., 455 FS 65 (W.D.Pa.

1977) that ‘‘an arbitration decision is not binding on employees

where the union has breached its duty of fair representation.’’

In other words the fair representation action is an entirely

separate action from the arbitration of the discharge or

discipline.

Judge Teitelbaum further went on the hold as we do that the

Pennsylvania 6 year contract statute of limitations applies to a

breach of the duty of fair representation. Therefore, count 1

must stand.

With respect to count 2 under 1981, there is no question as

alleged in the complaint that plaintiff is a white. He alleged that

he was discriminated against in his discharge for espousing the

cause of blacks at National Forge Company. No state action is

involved, however, there is no requirement for such under 1981.

While at first blush 1981 would seem to apply only to minority

groups such as blacks who are discriminated against, in view of

the language that all persons shall have the same right to make

and enforce contracts and to the full and equal benefit of all

laws and proceedings for the security of persons and property as

is enjoyed by white citizens, nevertheless, it is obviously clear

that if a white working for a negro enterprise is discriminated

against he has standing to sue under 1981.

It has further been held in Sullivan v. Little Hunting Park,

396 US 229, 24 L Ed 2d 386, 90 S Ct 400 (1969) that a white per-

son who has been punished for trying to vindicate the rights of

non-white minorities has standing to sue under 1981 and 1982.

This is the allegation contained in piaintiff’s complaint.

To the same effect is the holding of the Second Circuit affir-

ming a suit from the Western District of New York in DeMatteis

“a ~ ae

v. Eastman Kodak Co., 511 F 2d 306 (1974) wherein the court

followed the Sullivan case and held that a claim that Eastman

Kodak forced a man into retirement solely becau-~ he had sold

his house to a black person and thereby precipitated his retire-

ment prematurely stated a cause of action under 1981.

With respect to the statute of limitations under 198 lit is clear

that the Pennsylvania 6 year statute of limitations also applies to

this cause of action. See Wilson v. Sharon Steel Corp., 549 F 2d

276 (3d cir 1977). and subsequent decision of Judge McCune.

For the above reasons, we will deny the motion to dismiss.

/s/ William Knox

U.S. District Judge

Counsel of ‘record.

aaa eee

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JAMES J. LIOTTA 7

Vv. > Civil Action No. 78-25 Erie

NATIONAL FORGE CO. j

Order

AND NOW, to wit, May 22, 1978, for reasons set forth in the

accompaiiying memorandum,

IT IS ORDERED that defendant’s motion to dismiss be and

the same hereby is denied.

/s/ Illegible

U.S. District Judge

CC:

M.L. Carr, Esq.

218 Marine Bank Bldg 16501

Staughton Lynd, Esq.

PO Box 849, Youngstown 44501

Richard Zamboldi, Esq.

Commerce Bldg 16501

oy ee

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 79-2124 and 79-2252

JAMES J. LIOTTA, an individual,

Appellant in No. 79-2124

v.

NATIONAL FORGE COMPANY,

Appellant in No. 79-2252

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF PENNSYLVANIA

(D.C. Civ. No. 78-0025)

Argued: July 8, 1980

Before: SEITZ, Chief Judge, VAN DUSEN,

and HIGGINBOTHAM, Circuit Judges

(Filed: September 10, 1980)

STAUGHTON LYND (Argued)

804 Metropolitan Tower Building

Youngstown, Ohio 44501

M. L. CARR

127 West 6 Street

Erie, Pennsylvania 16501

Attorneys for Appellant

in No. 79-2124 and

Cross-Appellee in

No. 79-2252

stche Al in

RICHARD H. ZAMBOLDI (Argued)

RICHARD W. PERHACS

Elderkin, Martin, Kelly,

Messina & Zamboldi

800 Commerce Building

Erie, Pennsylvania 16501

Attorneys for Appellee

in No. 79-2124 and

Cross-Appellant in

No. 79-2252

Opinion of the Court

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

The appellant, James J. Liotta, formerly President of the

Local 1573 of the United Steelworkers of America. AFL-CIO

(the Union), was discharged from his employment with the Na-

tional Forge Company (the Company) on March 16, 1976. This

followed his participation in a work stoppage at the Company’s

Erie, Pennsylvania plant which began on March 3, 1976 and

ended on March 11, 1976. Liotta filed a grievance pursuant to

the terms of the collective bargaining agreement then in effect.

His grievance was denied by an arbitrator on August 3, 1976.

On March 16, 1978, he filed this action alleging first that his

discharge violated the collective bargaining agreement in viola-

tion of Section 301 of the National Labor Relations Act, 29

U.S.C. §185 and that the arbitrator’s contrary decision resulted

from the Union’s breach of its duty of fair representation. Se-

cond, he claimed that the Company discharged him because of

his espousal of the rights of the Company’s black employees,

discriminating against him in violation of 42 U.S.C. §1981.

Liotta appeals from the entry of summary judgment for the

Company. The Company cross appeals on the ground that Liot-

ta’s complaint is barred by the applicable statutes of limitations.

We conclude that his claim under Section 301 is time barred,

aX,

. that his claim under 42 U.S.C. §1981 is not time barred, and

that summary judgment was inappropriate on his Section 1981

claim because of the existence of material issues of fact. We will

therefore affirm in part and reverse in part.

I.

The first question we must answer is whether Liotta’s Section

301' cause of action was untimely and therefore whether the

Company’s motion to dismiss should have been granted. The

Company’s motidn was based on the ground that Liotta’s

claims were barred by the three-month statute of limitations of

the Pennsylvania-General Arbitration Act, Pa. Stat. Ann. tit. 5

§173 (Purdon 1963). The district court held that the six-year

limitations period for actions upon a contract applied.

We believe the district court erred. In UAW v. Hoosier Car-

dinal Corp., 383 U.S. 696, 704-05 (1966), the Supreme Court

held that ‘‘the timeliness of a §301 suit. . .is to be determined, as

a matter of federal law, by reference to the appropriate state

statute of limitations.’ Courts within this circuit have con-

sistently applied the three-month limitations period to suits

seeking to vacate an arbitrator’s award. Cole v. United

Steelworkers, 441 F.Supp. 1346, 1351 (M.D. Pa. 1977), aff'd

mem., 588 F.2d 819 (3d Cir. 1978); Siskey v. General

Teamsters, Chauffeurs, 419 F. Supp. 48, 50 (W.D. Pa. 1976);

UMWA v. Jones & Laughlin Steel Corp., 378 F.Supp. 1206,

' Section 301(a) provides, in relevant part:

(a) Suits for violation of contracts between an employer and a

labor organization representing employees in an industry affec-

ting commerce as defined in this chapter, or between any such

labor organizations, may be brought in any district court of the

United States having jurisdiction of the parties, without respect

to the amount in controversy or without regard to the citizenship

of the parties.

29 U.S.C. §185.

7 ae

1211-12 (W.D. Pa. 1974); International Brotherhood v. Motor

Freight Express, 356 F.Supp. 724, 726 (W.D. Pa. 1973).

It is important to identify the nature of Liotta’s first cause of

action since the three-month statute of limitations of Penn-

sylvania’s General Arbitration Act would apply only where one

seeks to vacate an arbitrator’s award. A fair reading of Liotta’s

complaint demonstrates that he seeks to vacate the arbitrator’s

decision. Paragraph 22 of his complaint alleges that he ‘‘was un-

fairly represented before, during and after Arbitration by the’’

attorney for the International Union. App., at 10. Paragraph 23

alleges that the ‘‘Arbitration itself was improper and unfair.’’

App., at 12. Indeed, he sought to litigate before the district

court the same claim he presented for arbitration, that of im-

proper discharge.

Moreover, the fact that Liotta alleges that the arbitration

award is invalid due to the Union’s breach of its duty of fair

representation does not change the limitations period because

the suit here is against the Company and not the Union. Thus, it

is clear that Liotta was dissatisfied with and simply seeks to

upset the arbitrator’s decision that the Company did not

wrongfully discharge him.

The result we reach comports with the general federal policy

favoring arbitration as a means of resolving labor disputes,

United Steel Workers of America v. Warrior & Gulf Navigation

Co., 363 U.S. 574, 578 (1960), and with the federal labor policy

that favors the application of shorter limitations period. In Jn-

ternational Union, UAW v. Hoosier Cardinal Corp., 383 U.S.

696, 707 (1966), the Supreme Court stated:

[Relatively rapid disposition of labor disputes is a goal of

federal labor law. Since state statutes of limitations gover-

ning contracts not exclusively in writing are generally

shorter than those applicable to wholly written

agreements, their applicability to §301 actions comports

with that goal.

on Mae

Courts in other jurisdictions have consistently applied the

statute of limitations pertaining to appeals from arbitration

awards rather than the longer statute of limitations governing

actions bottomed on written contracts when such actions seek to

vacate arbitration awards. E.g. Barbarino v. Anchor Motor

Freight, Inc., 421 F.Supp. 1003 (W.D.N.Y. 1976); DeLorio v.

United Parcel Service, Inc., 401 F.Supp. 408 (D.Mass. 1975);

Hill vy. Aro Corp., 275 F.Supp. 482 (N.D. Ohio 1967); contra,

Smart vy. Ellis Trucking Co., 580 F.2d 215 (6th Cir. 1978), cert.

denied, 440 U.S. 958 (1979).

We therefore conclude that Liotta’s first cause of action seek-

ing review and vacation of the arbitration award was untimely

and that the Company’s motion to dismiss should have been

granted.

II.

The next issue we must consider concerns Liotta’s claim

under 42 U.S.C. §1981.? As a threshold matter, however, we

must first address the Company’s assertion that this claim is

also time barred.

As with Section 301, 42 U.S.C. §1981 provides no explicit

period of limitations and courts are bound to apply the most ap-

propriate limitations period provided by state law. Johnson v.

*Section 1981 provides:

All persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and en-

force contracts, to sue, be parties, give evidence, and to the full

and equal benefits of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens, and shall be

subject to like punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

42 U.S.C. §1981

— A-10 —

Railway Express Agency, 421 U.S. 454, 462 (1975). This court

in Davis v. U.S. Steel Supply, 581 F.2d 335 (3d Cir. 1978), held

that the six-year statute of limitations for contracts under Penn-

sylvania law applied to a Section 1981 claim of unlawful

discharge. We therefore conclude that Liotta’s second cause of

action under 42 U.S.C. §1981 is not barred as untimely.

With regard to the merits of Liotta’s Section 1981 claim, the

district court granted the Company’s motion for summary judg-

ment for the following reasons:

The only evidence which plaintiff has submitted to the

court in support of his allegations is a letter from Bobby

Kaigler, Compliance Officer of the Erie Human Relations

Commission (EHRC), which states that plaintiff testified

before the EHRC on behalf of black complainants who

were discharged by defendant and that ‘‘It is the belief of

this office that Mr. James Liotta was terminated from his

job because of his contant fight for ‘Equal Rights’ of all

men.’’ (Plaintiff’s summary judgment exhibit 7n). This let-

ter is not an affidavit and it has not been notarized. Conse-

quently, the conclusory ‘‘belief’’ expressed in the letter,

which is not based on personal knowledge, is insufficient

to create or support an inference that racial discrimination

played any part in plaintiff’s discharge. Olympic Junior,

Inc. v. David Crystal, Inc., 463 F. 2d 1141 (3rd Cir. 1972).

No genuine issue of material fact supporting plaintiff’s

claim has been presented by plaintiff’s evidence.

Liotta v. National. Forge Company, Civ. No. 78-0025 (W.D.

Pa. July 11, 1979) at 11-12, reprinted in App., at 45-46.

Liotta claims, however, that he also submitted to the district

court the charge he filed with the Equal Employment Oppor-

tunity Commission (EEOC) listing a number of instances where

he encouraged black employees to file charges against the Com-

pany. The affidavit which was attached to his EEOC charge and

which was also before the court, alleged that the Company

—_ oe

discharged him in retaliation for his activities in support of the

rights of black employees. Specifically, he averred:

I have consistently attempted to eliminate discrimination

as practiced by Respondent Employer against Black

members of Local 1573 of the United Steelworkers of

America. The Respondent Company systematically has

violated the non-discrimination clause known as Appendix

I of the collective bargaining agreement between National

Forge and Local 1573. Some of the ways I opposed

discrimination, included the” following: I encouraged a

large number of Union members to report their allegations

of discrimination to the Erie Human Relations Commis-

sion; since I began duties as President of Local 1573 in Oc-

tober, 1975. I encouraged a number of Black workers to

file charges with such Commission, and advised them of

my knowledge of the best way to remedy the specific acts

they were complaining of. I also fought the company on a

day-to-day basis in trying to make conditions fair for all

workers. I helped to take a case to arbitration on behalf of

Black worker, Dennis Toliver. Shortly before my

discharge, I had notified the Respondent tmployer that

two other grievances of Black workers (the grievances of

Troy Johnson and Aaron Clanton) regarding discrimina-

tion claims, were going to be fought through the arbitra-

tion phase of the grievance procedure. I have appeared at a

number of hearings of the Erie Human Relations Commis-

sion regarding the claims of discrimination by Black

workers. Respondent Company has a history of unfair

discharges of Black workers, and I have been active in op-

posing such practices.

App., at 51-52. «

Our review of this document leads us to conclude that ge-

nuine issues of material fact are raised by Liotta’s specific

allegations. These are matters that clearly are in dispute and

— A-12 —

they are material because if proven they could support.a finding

that the Company’s actions against Liotta were motivated bya

racial animus.

In addition, contrary to the Company’s argument, it is clear

that Liotta has set forth specific facts, not merely conclusory

allegations of wrongdoing by the Company. Moreover, the

Company has not denied that these documents were in fact

before the district court as part of the record. Instead, the Com-

pany challenges the EEOC affidavit as not complying with the

technical requirements of Fed. R. Civ. P. 56(e) in that it was not

alleged to be based on personal knowledge. That this argument

is specious is evident from a reading both of the affidavit and of

Rule 56(e). First, Rule 56(e) does not require that the affiant

state affirmatively that the averments are based on personal

knowledge. Rather, the Rule provides:

Supporting and opposing affidavits shall be made on per-

sonal knowledge, shall set forth such facts as would be ad-

missible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.

A reading of Liotta’s EEOC affidavit shows that it was ‘‘made

on personal knowledge,”’ ‘‘set[s] forth . . . facts as would be ad-

missible in evidence,’’ and ‘‘show(s] affirmatively that [he] is

competent to testify to matters stated therein.’’

The fact that these allegations may not be proved at trial if the

jury chooses to believe the Company is irrelevant at this stage.

What is relevant is that the parties have focused on specific, per-

tinent issues of fact and disagree strenuously about them. We

therefore conclude that summary judgment was inappropriate

and that the case should be remanded on the Section 1981 claim.

See Bryson v. Brand Insulations, Inc., No. 79-2042, slip op. at 7

(3d Cir. Apr. 30, 1980).

— A-13 —

III.

Accordingly, we will affirm the district court’s judgment as to

Count I of the appellant’s complaint. We will reverse the district

court’s grant of summary judgment on the appellant’s Section

1981 claim and remand for further proceedings.

A True Copy:

Teste:

Clerk of the United States Court

of Appeals for the Third Circuit

— A-l4 —

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 79-2124 and 79-2252

James J. Liotta, an individual,

Appellant in No. 79-2124

Vv.

National Forge Company,

Appellant in No. 79-2252

(D.C. Civil No. 78-0025 Erie)

On Appeal From The United States District Court

For The Western District Of Pennsylvania

Present: SEITZ, Chief Judge and VAN DUSEN

and HIGGINBOTHAM, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from the United

States District Court for the Western District of Pensylvania

and was argued by counsel on July 8, 1980.

On consideration whereof, it is now here ordered and adjudg-

ed by this Court that the judgment of the said District Court,

filed July 11, 1979, be, and the same is hereby affirmed as to the

district court’s grant of summary judgment on Count I of the

Appellant’s claim under section 301 of the National labor Rela-

tions Act, 29 U.S.C. § 185; the district court’s grant of summary

judgment on Count II of the Appellant’s claim under 42 U.S.C.

§ 1981 be and the same is hereby reversed, and the cause is

remanded for further proceedings consistent with the opinion of

this Court.

ATTEST:

/s/ Ilegible

September 10, 1980 Clerk