Petition — Shaheed v. Adam Metal & Supply Co.
Supreme Court brief1983
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R Q-116 eyes ae
No. Saree da
eS JUL wk
ALEXANDER L. STEVAS
IN THE
SUPREME COURT OF THE UNIT
OCTOBER TERM, 1983
KHALIL T. SHAHEED,
Petitioner
-V-
ADAM METAL & SUPPLY COMPANY,
KENNETH R. LALLY, indivi-
dually and as President of
Adam Metal & Supply Company,
and ALUMINUM COMPANY OF
AMERICA,
Respondents
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
REINHARDT & SCHACHTER, P.C.
744 Broad Street, Suite 2501
Newark, NJ 07102
(201) 623-1600
Attorneys for Petitioner
Paul Schachter,
Of Counsel and
On The Petition
(Counsel of Record)
Denise Reinhardt,
On the Petition
QUESTIONS PRESENTED
1. Does §704(a) of the Civil Rights Act of
1964 or 42 U.S.C. §1981 prohibit an employer
from taking an adverse personnel action based
on its unilateral determination that an
employee's statements at an EEOC Fact Finding
Conference were false and from admittedly
using that determination to disbelieve
everything the employee says?
2. What standard should the court apply
when determining whether retaliation played a
part in the discharge of an employee for
giving testimony at an EEOC Fact Finding
Conference?
3. Did the trial court deny due process
and abuse its discretion by substantially
precluding cross-examination of the principal
witness proferred by the employer, thereby
depriving the civil rights plaintiff of his
opportunity to meet his burden to establish
his case?
4. Did the trial court abuse its
discretion in assessing attorney's fees
against the plaintiff where the claim was not
frivolous or groundless?
ii
PARTIES TO THE PROCEEDING
IN THE UNITED STATES
COURT OF APPEALS FOR THE
THIRD CIRCUIT
The names of all parties to that
proceeding are contained in the caption of
this petition.
iii
TABLE OF
CONTENTS
Page
Questions Presented...ccccccccesccceves i
Parties in the Court of Appeals........ ii
Table Of ContentsS...ccccccccccccccccccee Adi
Table of Authorities. .cescccccccccccces Vv
Opinions Below. cccccccccccccvccccccccce 2
JULISAICCION. .cccccccccvcccccccsccccocs 2
Statutory Provisions Involved.....seees 3
Statement of the CaS@.cccccccccesccccee§ §
General Background....ccsrecveceves 5
The Judicial ProceedingsS....seseee 8
Reasons for Granting the Writ.......+-.- 10
I. This Court Should Resolve The
Conflict Concerning The Important
Question of The Extent to Which
an Employer Can Rely on
Statements Made in an EEOC
Proceeding as The Basis For
Discharge of an Employee.......-. 10
A. Adverse Use of
Statements Made to The
Beles cétnwedeatebacteaces ll
II.
III.
iv
B. Mixed Motive Discharges..
The Courts Below Erroneously
Decided an Important Question of
Federal Law as to Whether The
Trial Court Deprived Plaintiff of
a Fair Trial by Substantially
Precluding Cross-Examination of
Defendant's Principal Witness....
The Courts Below Decided an
Important Question of Federal
Law In Conflict With Applicaole
Decisions of This Court by
Setting an Overly Low Standard
for Deciding That a Cause of
Action by a Civil Rights
Plaintiff Was So Frivolous as
to Warrant an Award of Attorney's
POOBeccccececeeceeeseeseseseeecsee
COEUR, 6466600464 650000066000 666080
14
17
21
25
TABLE OF
AUTHORITIES
Page
Cases:
Abramson v. University of Hawaii, 594
P.a8 202, (Sth Cie. FF) ccccccecesese Akp Sa
Adickes v. Kress, 398 U.S. 144 (1970). 23
Alexander v. Gardner-Denver Co., 415
Uses 36 CARPE cbc bcecnsevuceéececeeeves 12
Alford v. United States, 282 U.S. 687
CRORES 64 60 OW bub 00050 2b6 OER OCRS Re OREOE 18
Christiansberg Garment Company v.
EEOC, 434 (U.S. 412 (1978).....ee00.26 21, 24
City of Los Angeles v. Manhart, 435
Uelle 702 eo. | eee re er 23
Crandell v. United States, F.2d
__s- (4th Cir. eee 20
EEOC v. Kallir, Phillips, Ross, Inc.
401 F.Supp. 66 (S.D. N.Y. 1975) aff'd
559 F.2d 1203 (2nd Cir. 1977) .wcccceee 14
General Building Contractors Assn. v.
Commonwealth of Pennsylvania, U.S.
__, 102 S.Ct. 2515 (1982). .ccccccceee 23
Givhan v.Western Line Consolidated
School District, 439 U.S. 410 (1979).. 14
vi
Goodwin v. City of Pittsburgh, 480
F.Sup. 627 (W.D. Pa. 1979) aff'd 624
F.2d 1090 (3rd Cif. 3 rrr re
Green v. McDonnell-Douglas Corp., 463
F.2d 337 (8th cir. Lirs Peevey r Tarr rer
Griggs v. Duke Power Co., 401 U.S.
424 Peace bhicasadnesesereovedeseasvaeeee
Hughes v. Rowe, 449 U.S. 5 (1980).....
J. L. Ouerner v. Safeway, 65 N.J.
Super 554, (App. Div. 1961), aff'd
35 Nod. 564 (1961]) wc ccccccccccccccvccce
Johnson v. Seaboard Airline R.R. Co.,
Se Pau CSS 6th Cit. TSS) cicececece
Kauffman v.Sidereal Corp., 677 F.2d
767 (9th Cir. ji i Pree er rrrTrererrrrs
Lazevnick v. General Hospital, 499
F.Supp. 146 (M.D. Pa. SON +6 6eeebenne
LeGare v. University of Pennsylvania
Medical School, 488 F.Supp. 1250
(C.D. Pa. | rrr rTrivirrrirerrrrr
Little v. Southern Electric Steel,
Co., 595 F.2d 998 (5th Cir. 1979).....
McDonnell Douglas Corp. v. Green,
411 U.S. 792 CAST ePcocecceces coeeesoees
Monteiro v. Poole Silver Co., 615 F.2d
4 (lst Cir. BOE) 66:660606006000800000080
12,
15
14
13
21
22
12
15
22
24
24
15
14
vii
Mt. Healthy City School District v.
Doyle, 429 U.S. 274 (1977) cccccccccces
NLRB v. Burnup and Simms, Inc., 379
Biss 31 e6 ) | ee rr a
NLRB v. Scrivener, 405 U.S. 117 (1972),
rok. Gon. 605 0.8. 2063 CISTZ) cceccvees
NLRB v. Transportation Management Corp.,
U.S. , 51 U.S.L.W. 4761 (1983)..14,
Payne v. McLemore's Wholesale Stores,
660 F.2d 496 (Sth Cir. 1981). .ccccccee
Pettway v. American Cast Iron Pipe
Co., 411 F.2d 998 (Sth Cir. 1969).....
Pilot Freight Carriers, Inc. v.
Walker, 394 U.S. 918 TaD ePh cscecsewees
Sias v. City Demonstration Agency,
588 F.2d 692 (9th Cir. 1978) .cccccccecs
Skinner v. Caldwell, 564 F.2d 1381
(9th elie. RTE Vase sesceseeeeeeseescas 18,
Texas Department of Community Affairs
v. Burdine, 450 U.S. 248 (1981)....... 15,
Teti v. Firestone Tire & Rubber Co.,
392 F.2d 294 (6th Cir. 1968).......06.
Womack v. Munson, 619 F.2d 1292 (8th
Cir. Dn 6$4666666060666666000600664 12,
United States v. Ketchum, 420 F.2d
901 (4thCir. Ee ae aera ae
14
14
13
12
12
12
12
18
22
19
viii
Statutes:
§704(a) of Title VII, Civil Rights
Act of ee Te ere ere ree 10, 14
28 U.S.C. §1254(1) cc ccccvcccccvcccvece 2
29 U.S.C. §151 Ot. SOG cccccccssescses 14
42 U.S.Co SlLMBLecccccccccccccccccede By 21, 22
42 U.S.C. §200DCmL.wcccccccccccccccces 3
42 U.S.C. §2000E-1(b) .cccccccccccccces 23
42 U.S.C. §2000(e€)—3(a). ccc cecveccccee 4, 10
Rule 403, Federal Rules of Evidence... 18
Rule 611(b), Federal Rules of
DUSOR.. os cab ciesedtaeesnnesoeucheanae 18
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1983
KHALIL T. SHAHEED,
Petitioner
-V=-
ADAM METAL & SUPPLY COMPANY,
KENNETH R. LALLY, indivi-
dually and as President of
Adam Metal & Supply Company,
and ALUMINUM COMPANY OF
AMERICA,
Respondents
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
Khalil T. Shaheed petitions for a writ of
certiorari to review a judgment of the United
States Court of Appeals for the Third Circuit
entered on May 18, 1983.
2
OPINIONS BELOW
The opinion of the District Court for the
District of New Jersey, setting forth its
findings of fact and conclusions of law, is at
Appendix page 3.1/ rt has not been formally
reported. Its judgment is at A 36-38. The
Third Circuit Court of Appeals entered
judgment without opinion. Al. The judgment
has not been formally reported. .
JURISDICTION
The judgment of the Court of Appeals was
entered on May 18, 1983. The jurisdiction of
this Court is invoked pursuant to 28 U.S.C.
§1254(1).
1/the Appendix will be hereinafter referred to as
"A" followed by the appropriate page number.
3
STATUTORY PROVISIONS
INVOLVED
1. Section 1 of the Civil Rights Act of
1866, as codified at 42 U.S.C. §1981,
provides:
All persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and
enforce contracts, to sue, be parties, give
evidence, 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, and shall be subject to like
punishment, pains, taxes, licenses, and
exactions of every kind, and to no other.
2. Section 701 of the Civil Rights Act
of 1964, as codified at 42 U.S.C. §2000e-1,
provides:
For the purposes of this title--
(a) The term "person" includes one or more
individuals, governments, governmental
agencies, political subdivisions, labor
unions, partnerships, associations,
corporations, legal representatives, mutual
companies, joint-stock companies, trusts,
unincorporated organizations, trustees,
trustees in bankruptcy, or receivers.
(b) The term "employer" means a person
engaged in an industry affecting commerce
who has fifteen or more employees for each
working day in each of twenty or more
4
calendar weeks in the current or preceding
calendar year, and any agent of such a
person, but such term does not include (1)
the United States, a corporation wholly
owned by the Government of the United
States, an Indian tribe, or any department
or agency of the District of Columbia
subject by statute to procedures of the
competitive service (as defined in section
2102 of Title 5 of the United States code),
or (2) a bona fide private membership club
(other than a labor organization) which is
exempt from taxation under section 50l(c) of
the Internal Revenue Code of 1954, except
that during the first year after the date of
enactment of the Equal Employment
Opportunity Act of 1972, persons having
fewer than twenty-five employees (and their
agents) shall not be considered employers.
3. Section 704(a) of the Civil Rights
Act of 1964, as codified at 42 U.S.C. §2000e-
3(a), provides:
(a) It shall be an unlawful employment
practice for an employer to discriminate
against any of his employees or applicants
for employment, for an employment agency, or
joint labor-management committee controlling
apprenticeship or other training or
retraining, including on-the-job training
programs, to discriminate against any
individual, or for a labor organization to
discriminate against any member thereof or
applicant for membership, because he has
opposed any practice made an unlawful
employment practice by this subchapter, or
_ because he has made a charge, testified,
5
assisted, or participated in any manner in
an investigation, proceeding, or hearing
under this subchapter.
STATEMENT OF THE
CASE
Plaintiff, Khalil T. Shaheed, a black
man, was hired by Adam Metal & Supply Company
on May 30, 1979 as a "Shape" driver. (A6) A
"shape" driver reports daily but only works
when there is an actual assignment. (A 13)
Shaheed was terminated on April 21, 1980.2/
Adam Metal, its president, Kenneth R. Lally,
and Aluminum Company of America (ALCOA), the
parent corporation of Adam Metal were named as
defendants below. Jurisdiction in the
district court was premised upon 28 U.S.C.
§§1331, 1337, 1343 and pendent jurisdiction.
General Background
The facts of this case are fairly simple
and straightforward. In June 1979, Shaheed
began to experience racial harassment from his
coworkers. He complained to the company, but
no efforts were made to stop the harassment.
(A 42) In September 1979 Shaheed informed the
company that he was going to file a civil
2/ 411 dates herein refer to the year 1980 unless
otherwise indicated.
6
rights complaint against the company because
of the harassment and because he felt that he
was being treated unequally from the white
workers. (A 4) He filed a charge with the
Equal Employment Opportunity Commission (EEOC)
that same week. (A 43) The EEOC did not take
further action on the charge until it
conducted a Fact Finding Conference on April
21.3/
In November 1979, Shaheed sustained an
injury to his back when he was attacked,
beaten and shot by a mugger. (A 9) He was
hospitalized and continued under medical care
when he returned to work. On Friday, April
18, Shaheed reported to work but asked to be
released because he was experiencing back
pains, and he did not feel well enough to
drive. (A 11) The company dispatcher approved
Shaheed's request and initialled his timecard.
(A 64)
On Monday, April 21, Shaheed went to the
previously scheduled EEOC Fact Finding
Conference. Lally and N. Rebecca Shaw, an
ALCOA attorney, were also present. (A 4, 65)
Shaheed recounted his complaints including
that his coworkers had locked cats in his
truck overnight and the cats' urination and
defecation caused malodorous working
conditions. Lally contested Shaheed's claims.
(A 65)
3/ Shaheed presented evidence below that he
suffered retailatory discipline throughout this
period. That discipline is not in issue in this
petition.
7
On April 22, Shaheed reported to work and
was handed two letters. One was dated April
18 and informed him that he was under
investigation for leaving work. The other was
dated April 21 and informed him that, as the
investigation was complete, he was terminated.
(A 18) Lally never talked to Shaheed during
the investigation to get an explanation or to
verify his medical excuse. No one from the
company ever told Shaheed that he was under
investigation. Lally stated that he had made
the decision to fire Shaheed after the EEOC
Fact Finding Conference, after consulting with
ALCOA, based on the "gut feeling" that Shaheed
was not legitimately ill. (A 50)
On April 24 Shaheed returned with his
union agent and saw Lally for the first time
since April 21. (A 12) Shaheed attempted to
present a medical excuse to explain his
absence. Although Lally said he would
reconsider his decision if Shaheed were really
ill, he rejected the excuse and the request to
reinstate Shaheed.(A 48) Lally explained his
reasoning:
Well, Mr. Shaheed was saying to me that
you don't believe me, why. And I sort of
chuckled and said that after some of the
wild stories you told yesterday, that that
is just an example. I don't believe you
in just about anything you say.
xk
Q. No, what were you referring to when
you made that statement?
8
A. Well, at this time, I guess it's
referred to as that famous cat story.
A 48
The Judicial Proceedings
Shaheed filed a complaint alleging
retaliation, and discrimination under Title
VII, 42 U.S.C. §1981 and state laws. The case
came to triai in March 1981. On the first day
of trial the court granted summary judgment in
favor of ALCOA on the basis that it neither
bore direct or indirect responsibility for the
firing of Shaheed. (A 41)
After Shaheed presented his case,4/
defendants presented only two witness. One
witness testified only about one minor issue
not directly related to the events of the
discharge. The only other defense witness was
Lally. He testified extensively on direct
examination about his acts and their
justification, including an explanation of the
events of April 18, 21 and 24. On cross-
examination, Shaheed probed into the
underlying facts of the company policies, the
earlier discipline of him and the discipline
meted out to other employees. During the
course of cross-examination, the trial judge
abruptly announced that he would only allow
4'shaheed was precluded from presenting two
witnesses on his behalf because of an alleged
failure to comply with a notice requirement in the
pretrial order.
9
one additional hour of cross-examination.
(A 52-54) Plaintiff was unable to finish
cross-examination on the events of April 18,
the investigation of Shaheed, the Fact Finding
Conference of April 21 or the request for
reinstatement on April 24. Plaintiff made
oral and written objections to the conduct of
the judge. (A 56)
At the close of the case, the district
court ruled against Shaheed on all counts of
his complaint. With respect to the
allegations that Lally used Shaheed's
Statements to the EEOC as the basis for the
discharge, the court found that the statements
"even if considered in connection with his
discharge was not a use of such testimony as
would comprise a retaliatory termination."
(A 19) The court also imposed attorneys fees
of $3,806.50 against Shaheed, ruling that his
joining of ALCOA had been frivolous.
Plaintiff moved for amendment of the judgment
but this was denied. (A 37)
The Court of Appeals for the Third
Circuit affirmed the district court's judgment
without opinion. (A 1)
10
REASONS FOR
GRANTING THE WRIT
I. THIS COURT SHOULD RESOLVE THE
CONFLICT CONCERNING THE IMPORTANT
QUESTION OF THE EXTENT TO WHICH AN
EMPLOYER CAN RELY ON STATEMENTS
MADE IN AN EEOC PROCEEDING AS THE
BASIS FOR DISCHARGE OF AN EMPLOYEE
Section 704(a) of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2000e-3(a),
makes it an unlawful employment practice for
an employer to discriminate against an
employee because the employee "has made a
charge, testified, assisted or participated in
any manner in an investigation, proceeding or
hearing under this subchapter."
Notwithstanding this provision, the Court of
Appeals for the Third Circuit, by adopting the
trial court's opinion, found that under
certain circumstances an employer can
permissibly use an employee's statement made
in the course of an EEOC proceeding as a basis
for discharging that employee.
The courts below found that the employer
in this case was entitled to unilaterally
determine that plaintiff's EEOC statements
were false and use that determination to
decide that plaintiff was lying in another
matter. The discharge of plaintiff for the
other matter was considered to be a secondary
usage of the EEOC statement and, as such, did
not enjoy the protection of the anti-
ll
retaliation provision.2/ The Third Circuit's
position in this case creates a divergence of
opinion among the circuits on the issues of
(1) the extent of the protection given to
Statements made to the EEOC and (2) what test
is to be used to determine whether the EEOC
statement was a reason for the discharge when
the evidence suggests mixed motives.
A. Adverse Use of Statements Made to the
EEOC
The circuits which have ruled on the
issue of the extent of the protection which
5/ The courts below accepted that defendants did
use plaintiff's statements to the EEOC as part of
the decision to discharge. The trial court
concluded that plaintiff had made out his prima
facie case based on timing and on Lally's
explanation that plaintiff's lack of credibility
was the result of statements he made to the EEOC,
A 5. The court explained, and made a specific
finding, that Lally was justified in assessing
plaintiff's credibility because the statement
concerning the cats was incredible. A 14.
Furthermore, the court found that if Lally's
belief was proven wrong, he would have rehired
plaintiff. All. Lally's admission that he did
not believe plaintiff because of his EEOC
testimony is the direct cause of a failure to
rehire. A48. Even if the retaliation occurred
after the initial decision to discharge, it is
still retaliation and prohibited by Title VII. Cf.
Abramson v. University of Hawaii, 594 F.2d 202,
210-211 (9th Cir. 1979)
12
the anti-retaliation provision gives to EEOC
testimony have generally followed the lead of
the Fifth Circuit in Pettway v. American Cast
Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969).
The court in that case concluded that
statements made by an employee to a civil
rights agency, even if they are without merit.
or are falsely or maliciously made, are
privileged in that employers may not make
adverse personnel decisions based on those
statements. See also Sias v. City
Demonstration Agency, 588 F.2d 692, 695 (9th
Cir. 1978); Abramson v. University of Hawaii,
594 F.2d 202 (9th Cir. 1979); Womack v.
Munson, 619 F.2d 1292, 1298 (8th Cir. 1980);
Payne v. McLemore's Wholesale Stores, 660 F.2d
496 (5th Cir. 1981).
The scheme of enforcement of the rights
granted under Title VII requires that a charge
of discrimination be filed with the EEOC.
McDonnell Douglas Corp. v. Green, 411 U.S.
792, 798 (1973); Alexander v. Gardner-Denver
Co., 415 U.S. 36, 47 (1974). The EEOC must
have the opportunity to investigate and
conciliate charges that are brought before it.
See Johnson v. Seaboard Airline R.R. Co., 405
F.2d 645 (4th Cir. 1968) cert. den. sub nom
Pilot Freight Carriers, Inc. v. Walker, 394
U.S. 918 (1969).
In Pettway v. American Cast Iron Pipe
Co., 411 F.2d at 1005, the Fifth Circuit
specifically found that the anti-retaliation
Clause of Title VII was essential to the
administration of that statute brcause it
protected the filing of charges and the giving
of information. This court has found a
13
similar purpose to anti-retaliation clauses in
other statutes. See, e.g., NLRB v. Scrivener,
405 U.S. 117 (1972), reh. den., 405 U.S. 1033
(1972). Apart from this decision of the Third
Circuit, the other courts have held that
access to the EEOC, and subsequently to the
courts, is protected by allowing only the
administrative and judicial mechanisms to
determine the truth, falsity, frivolousness or
maliciousness of an EEOC statement. An
employer may not take action based upon its
unilaterial determination, for that would make
it too perilous for an employee to initiate an
EEOC investigation.
Unlike the approach used by the Fifth,
Eighth and Ninth Circuits, the Third Circuit
in this case would permit the employer to
decide that a statement made to the EEOC was
false and to discharge the employee based upon
what the trial court characterized as
"secondary usage” of that statement.—
A 15. In adopting this analysis, the Third
Circuit ignores this court's instructions in
Griggs v. Duke Power Co., 401 U.S. 424, 432
(1971) that the court must assess whether
employee discouragement will be a "natural
consequent" of the employer's use of the EEOC
6/ "Secondary usage" apparently refers to the
employer's thought processes. The court would not
permit the employer to discharge an employee for
making a false statement to the EEOC. However, it
would permit the employer to determine that the
employee was not credible and discharge him for
that reason, the latter being a "secondary usage"
of the EEOC statement.
14
statements. See also NLRB v. Burnup and
Simms, Inc., 379 U.S. 31, 33 (1964). This
court should grant the writ of certiorari to
resolve the conflict and decide the important
question concerning the extent of the
protection against adverse use of statements
made to the EEOC.
B. Mixed Motive Discharges
There is a conflict and confusion among
the circuits about what standard is to be used
when the evidence in a retaliation case
suggests that there is a mixed motive for the
discharge. Although this question has recently
been resolved in the context of cases arising
under the National Labor Relations Act, 29
U.S.C. §151 et seg., NLRB v. Transportation
Management, Corp., U.S. __, 51 U.S.L.W.
4761 (1983), the question remains open in the
context of violations of §704(a) of Title VII.
At one end of the spectrum, some courts
have required only that retaliation has played
a part in the adverse action. See, e.g. EEOC
v. Kallir, Phillips, Ross, Inc., 401 F.Supp. -
66 (S.D.N.Y. 1975) aff'd 559 F.2d 1203 (2nd
Cir. 1977), Green v. McDonnell-Douglas Corp.,
463 F.2d 337, 346 (8th Cir. 1972) (Lay, J.,
concurring) rev'd on other grounds 411 U. S.
792 (1973). Other courts have adopted a
substantiality test. See, e.g. Monteiro v.
Poole Silver Co., 615 F.2d 4 (lst Cir. 1980).
It has also been suggested that the court
apply the still stricter standards articulated
in Givhan v. Western Line Consolidated School
District, 439 U.S. 410 (1979) and Mt. Healthy
15
City School District v. Doyle, 429 U.S. 274
(1977). Womack v. Munson, supra at 1298. The
Ninth Circuit has articulated a "but for" test
for mixed movive retaliatory discharges under
Title VII. Kauffman v. Sidereal Corp., 677
F.2d 767 (9th Cir. 1982).
Although the Third Circuit had previously
adopted the "at least in part" test, Goodwin
v. City of Pittsburgh, 480 F.Supp. 627 (W.D.
Pa. 1979) aff'd 624 F.2d 1090 (3rd Cir. 1980),
the instant case adopts a different analysis.
The trial court had found the plaintiff
established his prima facie case of
retaliation. (A5) Defendant articulated a
non-discriminatory reason for the discharge,
but admitted that it had used plaintiff's EEOC
Statements in making its decision. The court
did not apply any of the tests for determining
whether retaliation was a causative factor in
the discharge. Rather, it ignored the
causation issue altogether and found that the
employer's use of plaintiff's statements was
not to be considered notwithstanding any part
it might have played in plaintiff's discharge.
This ruling by the courts below
significantly alters the order and allocations
of the burdens. The courts have generally
applied the allocations of the burdens of
persuasion and proof set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)
and Texas Department of Community Affairs v.
Burdine, 450 U.S. 248 (1981) to retaliation
cases under Title VII. See Kauffman v.
Sidereal Corp., supra; Womack v. Munson,
Supra; Goodwin v. City of Pittsburgh, supra.
Plaintiff's establishment of a prima facie
16
case on causation created a legally mandated
inference of discrimination. Defendants'
inability to present a non-discriminatory
reason that was not based upon the statements
made to the EEOC was recognized by the trial
court. A 5. However, the court discarded the
inference of discrimination without logical
explanation. Thus, despite the existence of
the inference of discrimination, the courts
below failed to determine the degree to which
the discharge was based on the protected
activity.
This is not a proper allocation of the
burdens. Since the inference of
discrimination was never rebutted, "the burden
would be on the defendants to show by a
preponderance of the evidence that he would
have reached the same decision even if,
hypothetically, he had not been motivated by a
desire to punish plaintiff..." NLRB v.
Transportation Management Corp., supra. This
court should grant the writ of certiorari for
the purpose of resolving the question of what
standard is to be applied and how the burdens
are to be allocated in a mixed motive
discharge under 704(a) of Title VII.
17
II. THE COURTS BELOW
ERRONEOUSLY DECIDED AN
IMPORTANT QUESTION OF FEDERAL
LAW AS TO WHETHER THE TRIAL
COURT DEPRIVED PLAINTIFF OF A
FAIR TRIAL BY SUBSTANTIALLY
PRECLUDING CROSS-EXAMINATION
OF DEFENDANT'S PRINCIPAL
WITNESS
The result of the Court of Appeals'
affirmance of the judgment below is the
approval of the trial judge's conduct in
curtailing the cross-examination of the
principal defense witness, Kenneth Lally.
Lally was the president of defendant Adam
Metal. He was an individually named defendant
and the main actor for the company concerning
the events of the discharge.
Not only did Lally discharge Shaheed, but
also he was the only company witness to
testify about the events which were directly
involved in the discharge. Certainly, much of
the case depended on what Lally was thinking
and why on April 18 when he was informed that
Shaheed had gone home sick, on April 21 when
he listened to Shaheed at the EEOC and when he
later made the decision to discharge him, and
on April 24 when he refused to consider
reinstatement because of the "wild stories"
Shaheed told to the EEOC at the Fact Finding
Conference. Shaheed could only testify as to
his own thoughts and actions, and after the
morning of April 18, he had no personal
knowledge of most of the events that
culminated in his discharge.
18
The general rule is that the extent of
cross-examination on an appropriate subject of
inquiry is within the sound discretion of the
trial court which may exercise reasonable
judgment in determining when a subject is
exhausted. Alford v. United States, 282 U.S.
687, 688 (1931). Rule 611(b) of the Federal
Rules of Evidence (FRE) sets the guidelines
for the exercise of discretion in limitation
of questioning to the subject matter of direct
examination and to matters affecting the
witness's credibility. Rule 403, FRE, permits
exclusion of evidence for considerations of
undue delay, waste of time or needless
presentation of cumulative evidence.
Relevancy is also a factor in the breadth of
cross-examination allowed. Subject matter
central to the issues merits extensive
questioning; remote issues may be limited or
foreclosed entirely. See, e.g., Skinner v.
Caldwell, 564 F.2d 1381, 1389 (9th Cir. 1977).
In exercising discretion to limit questioning
or foreclose testimony, the court must have a
reasonable basis grounded in considerations of
the factors set forth in the Rules of
Evidence. The reasonableness of the ruling
will clearly depend on how central the
testimony is to the ability of plaintiff to
prove his case.
In Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 255, n.10 (1981),
this court recognized that a Title VII
plaintiff has a difficult burden to sustain,
since a "satisfactory explanation by defendant
destroys the legally mandated inference of
discrimination arising from plaintiff's
19
initial evidence." The explanation of
defendant, then, is clearly central to the
success or failure of plaintiff's case. It
is, therefore, a subject upon which wide
discretion to cross examine should be granted.
In this case there was no other way to
obtain the needed information, since the
events from April 18 through April 24 are
wholly based upon Lally's mental operations.
This court has stated that "there may be some
cases where the plaintiff's initial evidence
combined with effective cross-examination of
the defendant will suffice to discredit
defendant's explanation. Texas Department
of Community Affairs v. Burdine, supra at 255
n.10 (emphasis added). Here, cross-
examination was really the only way to
qualify, discredit or destroy Lally's direct
testimony. Since Lally was the key witness
for defendants, plaintiff's chance of
prevailing rested almost exclusively on his
ability to impeach Lally's version and
credibility. Cf. United States v. Ketchum,
420 F.2d 901, 903 (4th Cir. 1969).
The trial judge precluded Shaheed's
counsel, over objection, from inquiring into
the events of April 18, April 21 and April 24.
There was no basis for a finding that the
evidence sought to be introduced was
irrelevant, cumulative or prejudicial, nor did
the preclusion follow any objection by defense
counsel to the form and substance of the
questions. After this preclusion, the court
credited Lally's untested version of the
events of those crucial days. All of the
findings in the court's opinion concerning the
20
legitimate nondiscriminatory reasons were
lifted from Lally's testimony. That testimony
had, for the most part, never been subject to
testing by cross-examination.
The conduct of the trial court is
prejudicial error and deprives plaintiff of an
important federal right to due process of law.
In Crandell v. United States, P.2d
(4th Cir. 1983), the Circuit Court reversed
the judgment of the trial court in a medical
malpractice case because the judge had sua
sponte prevented plaintiffs' counsel from
cross-examination on the issue of causation.
Slip opinion at 9. It was found that such
conduct deprived the plaintiffs of the
opportunity to prove their case. See also,
Skinner v. Caldwell, supra at 1389; Teti v.
Firestone Tire & Rubber Co., 392 F.2d 294, 299
(6th Cir. 1968).
The Third Circuit, by affirming the lower
court's judgment, enunciates a rule that
preclusion of cross-examination of a key
witness, especially as it relates to the
reasons for discharge, is permissible
JT/ Referring to testimony about the events of
April 18 after plaintiff left work, the trial
judge stated, "All I hear is the same story over
and over, I only need to hear it once.” A55. Up
to the point, the only time he heard that story
was on Lally's direct examination. Yet he
steadfastly refused to extend cross-examination to
permit inquiry into this area.
21
as a matter of course in a Title VII case.
This ruling removes from civil rights
plaintiffs a major route, perhaps the only one
in most cases, of disproving the articulated
nondiscriminatory reasons for otherwise
discriminatory actions. The writ of
certiorari should issue so that this court can
resolve this important issue of federal law.
IIZT. THE COURTS BELOW DECIDED
AN IMPORTANT QUESTION OF
FEDERAL LAW IN CONFLICT WITH
APPLICABLE DECISIONS OF THIS
COURT BY SETTING AN OVERLY LOW
STANDARD FOR DECIDING THAT A
CAUSE OF ACTION BY A CIVIL
RIGHTS PLAINTIFF WAS SO
FRIVOLOUS AS TO WARRANT AN
AWARD OF ATTORNEY'S FEES
This court has established that the
Standard for awards of attorney's fees against
a civil rights plaintiff in favor of a
prevailing defendant under Title VII or 42
U.S.C. §1981 is that the claims must be
frivolous, unreasonable or without foundation.
Christiansberg Garment Company v. EEOC, 434
U.S. 412, 421 (1978); See also Hughes v. Rowe,
449 U.S. 5, 14 (1986). The trial court in
this case set such a low threshold for finding
the claim against defendant ALCOA to be
frivolous as to exceed the grant of
discretion. By doing so, the trial court's
judgment defeats the overriding important goal
of encouraging civil rights plaintiffs to
vindicate the public interest, Christianberg
Garment Company v. EEOC, supra at 420, and
22
does not serve the purpose of deterring
vexatious lawsuits.
At the time it made its decision, the
district court had before it plaintiff's facts
alleging that ALCOA both acted as the agent of
Adam Metal and assisted Adam Metal in making
the decision to discharge plaintiff.
(A 59-62) Adam Metal admitted that an ALCOA
employee made the decisions at the EEOC Fact
Finding Conference after which plaintiff was
discharged. (A 4)
Under either Pennsylvania law (the locus
of ALCOA) or New Jersey law (locus of both
Adam Metal and the rendering of the
assistance) the doctrine of respondeat
superior imputes the wrongful acts of servants
to their master, even where the wrong occurs
while they are rending service to one not
their master. Liability under this "bcrrowed
servant” doctrine hinges on whether the
allegedly harmful acts were performed within
the general mission given the servant by the
lending employer. Lazevnick v. General
Hospital, 499 F.Supp. 146, 149 (M.D.Pa. 1980);
J.L. Ouerner v. Safeway, 65 N.J. Super 554,
561 (App. Div. 1961), aff'd 35 N.J. 564
(1961). The mission of ALCOA's servants
clearly encompassed involvement in the
personnel decisions respecting plaintiff with
an intent to benefit both Adam Metal and its
parents, ALCOA. This raises the substantial
question that ALCOA would be liable for
discharge under traditional common law
principles of vicarious liability for the
purposes of the 42 U.S.C. §1981 determination.
See General Building Contractors Assn. v.
23
Commonwealth of Pennsylvania, U.S. 102
S.Ct. 2515 (1982).
Title VII defines employer to also
include “any agent" of the employer. 42
U.S.C. §2000e-1(b). The broad reading
accorded this section is consistent with the
intent of the statute that its remedial
purpose not be frustrated by an employer's
delegation of authority to third parties.
City of Los Angeles v. Manhart, 435 U.S. 702
(1978).
Notwithstanding plaintiff's showing that
ALCOA had lent its servants to Adam Metal and
was acting as Adam Metal's agent, the district
court failed to draw reasonable inferences in
plaintiff's favor and, placing the burden on
plaintiff to demonstrate an absence of factual
issues, granted summary judgment to ALCOA on
the first day of trial. Cf. Adickes v.Kress,
398 U.S. 144 (1970). Even if the lower court
were correct in its grant of summary judgment,
it does not follow that plaintiff's cause of
action was unreasonable or without foundation.
Plaintiff had a good and reasonable basis to
believe that ALCOA bore direct
responsibility, as ALCOA was present at the
EEOC proceedings on the day of his discharge,
and he had good reason to believe he was
discharged for participating in the
proceedings. =
8/ at trial additional facts emerged that Adam
Metal cu -ulted ALCOA before deciding to discharge
plaintiff and ALCOA "let" them proceed. A 51. The
trial court failed to consider this. See A 39.
24
The district court's ruling required
plaintiff to prove the decisive facts needed
to prevail on the claim prior to the start of
the trial or face paying defendants'
attorney's fees. The standard that was
applied is so low that it will "discourage all
but the most airtight claims" and serve not to
deter vexatious litigation but to chill
plaintiffs from bringing potentially
meritorious actions. See Christiansberg
Garment Company v. EEOC, supra at 423.
The district court made no finding nor
relied on facts to support a finding that the
deterrent purpose would be fulfilled by its
award. Indeed, the district court had already
concluded that it was error for plaintiff's
counsel to join ALCOA as a defendant. A 41 It
is undisputed that plaintiff relied totally on
the advice of counsel in joining ALCOA. A
civil rights plaintiff's reliance on his
trained counsel which results in filing a
claim that does not succeed should not be
lightly used to penalize him in the form of
fees. See, e.g., Le Gare v. University of
Pennsylvania Medical School, 488 F.Supp 1250
(C.D.Pa. 1980); Little v. Southern Electric
Steel Co., 595 F.2d 998 (5th Cir. 1979). 9/
9/ the penalty aspect of the district court’s
decision on fees is highlighted by the fact that
fees were awarded for all work (not just from the
point that the court determined that the action
was clearly frivolous) and that the court did not
consider the relative impecuniousness of
plaintiff, in arriving at the amount of the award.
25
The imposition of attorney's fees is a
drastic remedy that should be reserved for
cases in which the vexatious nature of the
litigation has been clearly established. It is
important that this court protect the access
of civil rights plaintiffs to the courts by
granting this petition to review an unjust
imposition of attorney's fees.
CONCLUSION
For the reasons set forth above, this
petition for a writ of certiorari to the
United States Court of Appeals for the Third
Circuit should be granted.
Respectfully submitted,
Paul Schachter
REINHARDT & SCHACHTER, P.C.
744 Broad Street, Suite 2501
Newark, N.J. 07102
(201) 623-1600
Attorney for Petitioner
Dated:
APPEROTIX
Sti i 7
la
UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
NO. 82-5378
KHALIL T. SHAHEED,
Appellant
Vv.
ADAM METAL & SUPPLY COMPANY, KENNETH R.
LALLY, indiv. and as President of
ADAM METAL & SUPPLY COMPANY, and
ALUMINUM COMPANY OF AMERICA
Appellees
On Appeal from the United States District Court
for the District of New Jersey
(C.A. No. 81-1808)
Argued May 12, 1983
Before: ADAMS and WEIS, Circuit Judges, and
VanARTSDALEN, District Judge*
JUDGMENT ORDER
After considering all contentions raised by
appellant, it is
2a
ADJUDGED AND ORDERED that the judgment of the
district court be and is hereby affirmed.
Costs taxed against appellant.
BY THE COURT,
/s/
Circuit Judge
ATTEST:
/s/
Sally Mrvos, Clerk
Dated: May 18, 1983
* Honorable Donald W. VanArtsdalen, United
States District Court for the Eastern District of
Pennsylvania, sitting by designation.
3a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KHALIL T. SHAHEED, X
Plaintiff,
v. : No. 81-1808 (HCM)
ADAM METAL SUPPLY CO.,:
et al.,
Defendants.
X
OPINION
This Title VII case was brought by the
plaintiff Khalil T. Shaheed originally against
Adam Metal, Kenneth Lally and Aluminum Company of
America. The case has already been dismissed as
to Aluminum Company of America. Remaining are
Adam Metal and the defendant Kenneth Lally.
The suit was predicated under Title VII of
the Civil Rights Act of 1964, 42 USC Section 1981,
the New Jersey Statute, N.J.S.A. 10:5-12(a), and
the New Jersey common law public policy as
enunciated in Pierce v. Ortho Pharmaceutical, 84
N.J. 58 and the Thirteenth Amendment.
It seems to me that about covers the possible
waterfront of any claims the plaintiff could make
in this court.
The claim, as I read it, is one for
4a
retaliatory discharge. That is, a discharge
effective April 21 of which the plaintiff was
notified April 22, 1980.
It is claimed by the plaintiff that at that
time he had a pending EEOC complaint which he had
filed the previous September. His hearing, or
fact-finding conference for that complaint, was to
take place on April 2lst. The decision to
terminate him emanated from or was precipitated by
events of April 18, 1980. The decision to
terminate him was finalized following the EEOC
fact-finding conference on Monday, April 21, 1980.
He claimed before the EEOC, and he claims
here, that he was fired in retaliation for having
filed that EEOC charge which ultimately was found
to have no merit by the EEOC and was not the
subject of a suit.
He bolsters his claim of retaliatory
discharge by showing an employment history in
which he claims he was discriminated against on a
racial basis.
In this Title VII case plaintiff is obligated
to make a prima facie case. He's got to prove he
was engaged in a protected activity. He was--
participation before the EEOC as a complaining
party.
He has shown a second prerequisite, i.e., an
adverse employment action that was contemporaneous
with his EEOC complaint. And he has shown, in my
judgment, I think as Mr. Rizzo concedes, a causal
connection between the two on a prima facie basis.
These elements are set forth in Goodwin v.
City of Pittsburgh, 480 FS 627, Western District
Sa
of Pennsylvania 1979, affirmed by judgment order
624 F2d 1090 (3d Cir. 1980).
Under this decision, if retaliation played a
part even though it may not have been the sole
reason for discharge, plaintiff has made a case
entitling him to relief.
The criterion is whether the retaliation was
a determinative factor not the determinative
factor.
And as I said, it makes no difference whether
there were other bases for the discharge if
retaliation was a factor plaintiff is entitled to
succeed.
I think that the plaintiff makes out his
prima facie case by showing the proximal time
relationship between the pendency of and
activities on his EEOC case and his discharge. He
also adds to that prima facie case by showing that
in explaining the basis for his discharge Mr.
Lally, the president of Adam Metal, referred to
the lack of credibility in his opinion of a
statement the plaintiff had made during the EEOC
hearing.
In any Title VII case the defendant, such as
Adam Metal, can rebut a prima facie case by
showing a justification for the employment action
on a permissible ground, i.e., firing for cause.
The plaintiff must then show that the
proffered legitimate basis for discharge was
pretextual. The defendant in my judgment, has
advanced legitimate reasons based on plaintiff's
employment file, including the arbitrator's
finding, for discharging the plaintiff.
6a
It is then the obligation of the plaintiff to
refute this justification, showing that he was
disciplined and discharged for offenses that non-
EEOC employees were not. And he relies on Lally's
remarks about plaintiff's credibility in the
statements made at the EEOC hearing in trying to
show pretext. First, defendants have
demonstrated, I think, legitimate nonretaliatory
reasons for discharging the plaintiff. At the time
of his discharge Mr. Shaheed had been with Adam
Metal for not quite eleven months, May 30, 1979 to
April 21, 1980. The personnel record of Mr.
Shaheed shows the following:
a) A written memo to the file indicating
the plaintiff has an attitude problem and subject
of complaints by other drivers, dispatchers and
mechanics. There's also in the file a
memorialization of an oral warning given the
plaintiff after he argued with a customer about
the return of a skid. This warning was apparently
given on August 23, 1979, the date of memo. The
memo was apparently given to the plaintiff on
September 17, 1979.
b) There's a memo dated September 17, 1979,
detailing a meeting on that date between the
plaintiff, Robert Miller, the former immediate
supervisor of the plaintiff, and Thomas DeMaio, at
which time Miller verified plaintiff's
understanding that he, Miller, had wanted to fire
plaintiff for an incident of losing company checks
but had reduced the discipline to a written
warning at the urging of DeMaio and one Serio who
was representing the union.
c) There's a written warning dated
September 18, 1979 regarding plaintiff's loss
7a
through plaintiff's admitted negligence in leaving
his truck unattended of two checks made out to
defendant in the total amount of $2,507.77, as
well as the loss of signed delivery sheets and,
additionally, the written warning refers to
plaintiff's loss of his payroll check on September
10, 1979. Miller noted that it was a matter of
concern to him that plaintiff should have two such
incidents occur to him as a new employee and
warned that another such incident would result in
further action, including possibility of
termination.
d) There are three notes in the personnel
file detailing four occasions which plaintiff did
not have sufficient dollars to cover his purchases
of gas and had to borrow money from customers to
cover the cost of gasoline purchases.
e) There's another memorandum in the file
memorializing an oral warning to Shaheed on
December 17, 1979 regarding his taking off of two
sick days virtually upon the heels of his becoming
eligible for sick pay after six months of service.
f) There's a memo detailing plaintiff's
initial refusal to make a delivery from the
defendant's Amityville facility until being told
specifically to do so by Miller.
g) There's a memo suspending the plaintiff
for two days for refusal to pick up metal from
Busby Metals after Miller's direct order to do so
and signing for the goods. That memo is dated
February 15, 1980.
Even ignoring the references to a bad
attitude, as noted by fellow employees, as too
subjective a basis for discipline, the gas
8a
incidents as caused by plaintiff not being told
about the availability of advance dollars and the
Amityville delivery incident as a legitimate query
by plaintiff as to whether he was obligated under
the CBA to make a delivery from that point; even
ignoring all these disciplinary incidents, a
picture still emerges of a careless, irascible
employee who was no asset to the company and did
not reflect well upon Adam Metal.
Even if it is true the plaintiff did not know
about the skid return policy, this does not excuse
his arguing about the matter with the customer
known as Instrument Cases, or becoming abusive
with that customer.
Similar argumentation and hostile contact was
evidenced by plaintiff in his dealings with the
Busby Metal customer in connection with
plaintiff's refusal to pick up an order there, the
event which led to his two-day suspension.
Although plaintiff alleges that the Busby
people were "hassling" him, this is as irrelevant
as his ignorance of skid policy with regard to the
Instrument Cases incident. An employee must
simply know that the customer is always right and
that any disnute should be referred to his
superior. In no event should an employee
antagonize a customer as plaintiff did on both
occasions, nor should it be necessary to apprise
an employe of this basic maxim.
In any event, the Busby incident was the
second one and particularly inexcusable since the
plaintiff had already been employed for about ten
months and had been warned about arguing with
customers some six months before in connection
with the Instrument Cases affair.
9a
Plaintiff showed serious negligence in
connection with his loss of the company checks and
signed receipts. He simply had no excuse for
leaving them unattended in his truck.
Miller, his supervisor, had wanted to fire
him for that incident alone; union intercession
reduced that to a warning.
Similarly, plaintiff's refusal to make the
pickup at Busby was a refusal of a direct order
from Miller and thus grounds for immediate
discharge; plaintiff rather was only suspended.
Finally, the record also shows that shortly
after becoming eligible for sick pay, plaintiff
took two days off in late 1979. Despite a warning
with regard to early abuse of such sick leave,
which parenthetically was an acute concern of
management given the large number of paid sick
days available to drivers under their union
contract, plaintiff proceeded to take some eight
paid sick days between January 1, 1980 and his
termination. Although it is true that the sick
days were covered by Dr. Panzer's notes, did not
result in any warnings, and plaintiff was
seriously injured -- he had a gunshot, knife wound
and trauma to the back in the course of a mugging
in November 1979 -- they may still be probative of
plaintiff's time cards indicate that he did not
call in sick during any of the weeks immediately
after his return to work following the mugging
before he was eligible for sick pay.
It was Lally's uncontested testimony that
according to Teamster practice, punching in and
looking at one's manifest constituted an
acceptance of the day's work. Leaving work
10a
without taking out the run was thus a refusal of
an order to work in Lally's estimation and grounds
for immediate discharge.
[his was supported by his conversation with
the Teamster business agent from another local who
stated that a course of action such as plaintiff's
actions on the 18th of April, 1980, comprised a
basis for discharge.
Lally testified that plaintiff's termination
stemmed from a combination of the April 18th, 1980
incident and plaintiff's past poor record with the
company. He asserted that, standing by itself,
the 4/18/80 affair would probably not have
resulted in plaintiff's discharge. His specific
denial that plaintiff's participation in the EEOC
played any part in his decision is credible in
light of the factors stated to have been
considered in the discharge determination.
In deposition testimony, Lally stated that he
would not have terminated plaintiff if he had
actually been ill on April 18, 1980, but that, in
his judgment, plaintiff's allegations of illness
were a fabrication, plaintiff simply not wanting
to take a run he disliked on a nice Friday.
Plaintiff argues that defendant's failure to
consult him before his termination demonstrates
that defendant's disbelief in plaintiff's illness
was not supported by evidence available to the
defendant. Plaintiff also seeks to prove by
testimony and his doctor's note that he was indeed
sick that day. Even if plaintiff succeeded in
this effort, it would not negate defendant’s
assertion of legitimate reasons for plaintiff's
discharge.
lla
Whether plaintiff was in fact ill goes to
whether his termination was for good cause, not
whether defendant had a legitimate reason for
discharging plaintiff on April 18, 1980.
The issue of good cause was addressed by the
arbitrator who found against plaintiff. Although
it is true that the arbitrator did not consider
the issues before the EEOC, he did specifically
find plaintiff's assertion of illness unbelievable
in light of Panzer's ambiguous notes and testimony
as to plaintiff's distaste for the New York City
run.
If defendant's belief that plaintiff was
feigning illness was proven wrong, Lally would
have rehired him. Such a wrongful belief would
not, however, prove that Lally did not have a
legitimate reason for discharging plaintiff when
he acted on the basis of information he then had.
Lally made a credibility determination
regarding plaintiff which he certainly was
entitled to make; it does not appear that he was
required to provide plaintiff with a trial type
forum before making that determination.
Ascertaining the accuracy of that determination
was the arbitrator's task and it was before him
that plaintiff could present evidence that Lally's
credibility determination was wrong.
In determining that plaintiff's assertion of
illness was false, as of April 18, 1980, Lally
relied on the following:
a) A statement by a company employee named
Magyarits that he saw plaintiff look at his
manifest, put it down on the table, speak to
DeMaio and Muciaccia, who was the receiving clerk,
l2a
and then leave; Magyarits' additional statement
that DeMaio, who died that weekend, without ever
speaking to Lally, to him, that is, told
Magyarits, that plaintiff had told DeMaio that he,
the plaintiff, did not want to take the New York
city run, and was going to take a sick day.
b) Plaintiff's taking sick days soon after
becoming eligible for sick pay.
c) The number of sick days plaintiff had
taken up to April 18, 1980 after being warned
about early use of sick days.
d) The two incidents of plaintiff's arguing
with customers as to which plaintiff had a
different version of the events than did the
customers.
e) The written note of March 13, 1980
memorializing a phone call by a Mr. Lovelidge
employed by the plaintiff to Dr. Panzer which
noted that Dr. Panzer was evasive in his answers
to questions about plaintiff.
f) Stories attributed to plaintiff about
mechancis not fixing his truck. And,
g) Conceivably, plaintiff's testimony at EEOC
about cat urine and defication in his truck,
although defendant maintains that this came up
only after plaintiff produced Dr. Panzer's note at
the April 24 meeting; even if this testimony were
considered, it does not lead to a conclusion of
retaliatory discharge.
As to the truth of plaintiff's claims about
cats being locked in his truck so they could
urinate and deficate in there, and make life
13a
unpleasant for him, the evidence was in sharp
conflict as to whether someone seeking to
contaminate plaintiff's truck would know
beforehand which truck plaintiff would be driving.
This is particularly true since the plaintiff
filled in for absent drivers and did not always
have a regular route. Whether a cat could be
confined within a given truck is also an open
question since the trucks were constantly being
moved about at night during the loading process.
Plaintiff claims that he was always given the
same truck. I also examined the manifest and
that's not true. He drove different trucks,
although one truck seems to have been driven by
plaintiff more than the others. I believe it's
No. 562, if I recall correctly.
Lally testified to his understanding of the
truck driver work assignments, and that
understanding, if Lally is correct, would preclude
the possibility of plaintiff's truck regularly
being the subject of housing felines at night.
And that would provide Lally with a rational
basis, even if he was mistaken, for discrediting
plaintiff's veracity about the cat story.
In any event, the stated reason for having
the cat in the warehouse in the first place, was
to keep the rodent population under control;
locking them in a truck all night is certainly
inconsistent with that purpose.
No defense witness specifically challenged
plaintiff's testimony that he was always given the
same truck. If he did not, for plaintiff to have
gotten a truck in which cats have been confined at
night would require that the perpetrators were
always aware of who would be out on that truck the
l4a
next day. Furthermore, plaintiff's assertion that
he always operated the same malodorous truck is
difficult to credit as it seems to me incredible
anyone would load someone's truck and then, after
learning that that driver wouldn't be in, unload
it and reload the goods in the plaintiff's truck
just to make sure the plaintiff drove an aromatic
vehicle.
In addition, Lally's explanation that the
trucks were constantly being shuttled about and
and that thus no cat could be penned up in one all
night, seem credible.
Therefore, if need be, a finding that
plaintiff was mistaken about the cat story is in
order. Something like that may have happened once
or twice, but I find it entirely incredible that
it happened on a regular and recurring basis.
It seems to me that Lally was justified in
assessing plaintiff's credibility the way he did
and in concluding the plaintiff was not ill on
April 18.
On the basis of the finding that plaintiff
was not ill, Mr. Lally could conclude, as he did,
plaintiff walked off the job and, hence, had
refused the company order to take out the load and
was, therefore, subject to immediate discharge.
On the basis of a finding that plaintiff had
refused a company order coupled with plaintiff's
shabby work record compiled in only eleven months,
defendant has demonstrated a legitimate, non-
retaliatory reason for plaintiff's discharge. At
this stage then we have to go to the proposition
as to whether the plaintiff has shown that these
reasons proffered by the defendant were a
l5a
pretextual reason for a retaliatory or racial
discharge.
I find that plaintiff has failed to
demonstrate by a preponderance of the evidence
that defendants' legitimate non-retaliatory
reasons for discharging him were pretextual
either, one, by relying on Lally's statements
regarding plaintiff's testimony at the EEOC fact-
finding hearing or, two, showing that plaintiff
was disciplined for offenses others were not, or
three, showing that plaintiff was discharged for
infractions that others were not.
I'll deal first with Lally's remarks
regarding the EEOC testimony.
The secondary usage of the EEOC participation
involved here does not appear to be the sort of
retaliation which at least one court found to be a
violation of 704 (a), even assuming the employer
acted in good faith.
The case relied upon by the plaintiff
involves an employee filing what the employer
believed to be false and defamatory accusations
against it, thus, the defendant argue that it
discharged the plaintiff not merely because the
employee filed an EEOC complaint but, rather,
because the complaint contained allegedly false
and libelous statements regarding the employer.
It was in this context that the Court held an
employer's good faith belief in the falsity of an
employee's accusations does not comprise a
justification for the discharge of that employee.
That case is Pettway v. American Cast Iron
Pipe Company, 411 F2d 998, (5th Cir. 1969).
l6a
Plaintiff also cites to the Court Mead v.
U.S. Fidelity & Guaranty Co., 442 FS 114 (D. Minn.
1977). That case 6tates that a defendant's
protestations that it had not intended to
discriminate is not availing when a natural
consequence of its action was discouragement
toward employees from exercising their rights
under Title VII. This was said, however, in the
context of the question whether specific evidence
of intent to discriminate was required to show a
Section 704(a) violation has little bearing on the
specific argument advanced here by plaintiff,
i.e., Lally's reference to Shaheed's EEOC
testimony.
Here the asserted reason for Shaheed's
discharge was not that he had slandered the
defendant or that he had lied at the hearing but
rather his refusal of a work assignment on April
18, 1980, coupled with his overall poor record.
Defendants do not assert, as the defendant
did in Pettway, that they fired Shaheed for, in
essence, the fact of his having made allegations
to the EEOC; rather, Shaheed's statements were
utilized in connection with his discharge, if at
all, solely as they bore upon his credibility in
an unrelated matter.
Thus, it can hardly be said that in relying
on Shaheed's statements to make an unrelated
credibility determination, defendants retaliated
against plaintiff in discharging him. Defendants
could legitimately have made the same use of
Shaheed's statements if made to them informally in
private; it does not appear that a statement
becomes absolutely privileged for all purposes
under 704(a) merely because it is made in
l7a
connection with an EEOC proceeding. I cite
generally Hochstadt v. Worcester Foundation, 545
F.2d 222, 230-33 (lst Cir. 1976) for the analogous
proposition that not all forms of employee
activities are immunized under 704(a) merely
because allegedly made in opposition to
discriminatory employer practices.
As an example, suppose an employee states
under oath at an EEOC hearing that he has stolen
large sums of money from his employer. Should the
employer then be precluded from firing the
employee not because of his participation at the
EEOC but because of his admission of theft?
In addition to the foregoing discussion,
defendants contend that they did not retaliate
against Shaheed for his EEOC statements because
the decision to terminate plaintiff had been
effectively made by Lally on the preceding Friday,
April 18, 1980, subject only to verification of
plaintiff's having looked at his delivery
assignments before departing work that day.
Lally testified that on April 18, 1980:
1) He was told in the morning by either
Mucaccia, O'Shea or Ruiz, all Adam Metal
employees, that plaintiff took a sick day after
punching in and also that some drivers had seen
plaintiff look at his run before saying he was
sick.
2) He spoke with one Larry Gilbert, a
business agent for one of the locals representing
defendant employees, and was told that if
plaintiff had indeed done what was ascribed to
him, this would justify his immediate discharge.
18a
3) He examined plaintiff's work file in
toto for the first time.
4) He wrote a letter to plaintiff and sent
a copy to plaintiff's union, stating that
plaintiff was under investigation for his action
on April 18, 1980, and that suspension or
termination might follow.
Plaintiff was given a copy of this letter on
his next day of work, April 22, 1980. Lally
testified that it was the defendant's practice to
hand deliver such letters to employees. An
examination of other disciplinary letters, most of
which bear handwritten notations that they were
shown to the employee in question, verifies
Lally's testimony in this respect.
5) Lally attempted to verify the assertion
that Shaheed had looked at his run sheet before
leaving sick but was unable to locate a driver on
April 18 who could so attest to that.
Furthermore, by plaintiff's own testimony, he
was informed by the EEOC on the date of the
hearing, April 21, 1980, that he was under
investigation by Adam Metal and could be subjected
to disciplinary action.
Lally testified that defendant's attorney
told the EEOC before the conference started that
plaintiff was being investigated for the April 18,
1980 incident and could be discharged.
Lally also testified that he had refrained
from firing other employees when he could not get
a witness who would testify that he witnessed the
alleged infraction.
19a
Lally also stated that he would not fire
someone unless he thought he had at least a fifty
percent chance of winning the ensuing arbitration.
When Mr. Lally spoke with William Magyarits,
a truck driver, in the late afternoon or evening
of April 21, 1980, after the EEOC hearing, and
Magyarits stated that he had seen plaintiff look
at his manifest before reporting sick on April 18,
1980, Lally finalized Shaheed's discharge and
wrote the termination note given the plaintiff the
following day.
Thus, the decision to terminate plaintiff
flowed not from his statements to the EEOC but
from the availability of a witness who could
verify that plaintiff looked at his manifest.
Had Lally spoken to Magyarits on April 18,
1980 prior to the EEOC hearing, in my judgment
plaintiff would have been discharged at that time.
The preceding discussion and evidence adduced
demonstrates that Shaheed's testimony at the EEOC
hearing either, 1) was not a cause of plaintiff's
discharge or 2) even if considered in connection
with his discharge was not cause of such testimony
as would comprise a retaliatory termination.
It also should be noted that plaintiff
contends that his discharge and the disciplinary
actions preceding are all in retaliation for
plaintiff's resort to the EEOC. The chief claim,
however, and the one which was the subject of
plaintiff's motion for partial summary judgment,
was that Lally had fired plaintiff in retaliation
for his testimony at the EEOC fact-finding
hearing.
20a
Thus, the rejection of this claim as outlined
above goes a long way toward defeating plaintiff's
allegations of retaliatory action on defendant's
part. Since more general claims of such action
remain, however, discussion follows with regard to
plaintiff's other claims of pretext.
I find plaintiff was not disciplined for
infractions other employees were not disciplined
for.
Plaintiff contends that the record of
plaintiff's shabby performance which defendants
pointed to in discharging him, was itself the
result of retaliatory treatment designed to build
just such a record justifying termination. This
follows from the allegedly different discipline
meted out to other non-EEOC complaining workers.
This plainly is not so,
Now, I have to note that it is somewhat
difficult to determine from the employee records
whether someone was not disciplined for committing
the same offense for which plaintiff was
disciplined since, obviously, there would be no
record of discipline not meted out.
The reverse, that is, evidence of discipline
given other workers for similar offenses, would
tend to negate plaintiff's claims. The records
were examined for evidence of similar offenses.
In addition, plaintiff made some accusations
from his personal knowledge that some other
employees were not disciplined as he was. I'll
examine these in order.
Number one, the plaintiff received a warning
2la
for arguing with customers. Another driver,
Robert Roberts, was investigated for having used
foul language to a customer, a comparable offense.
Since defendant's contact with the customer did
not verify the accusation, he was not formally
warned with regard to it.
By his own admission, Roberts did engage in
some horse play at the customer's place of
business, and was warned about this, and was told
that a repetition of such acts could lead to a
suspension or discharge.
Second, plaintiff received a warning for
allowing company checks and signed delivery
receipts to be stolen from his truck. Roberts
committed comparable infractions in failing to
have all his delivery receipts on August 10, 1981,
and in failing to pay proper attention to the
security of some metal he picked up on August 14,
1981, resulting in its loss or theft.
For these infractions, Roberts was suspended
on August 25, 1981 for a period of thirty days, (a
more severe punishment because of the actual loss
to the company).
The date of Roberts' suspension is noteworthy
since plaintiff claims that his warning for his
similar offense should be discounted because it
was given him more than seven days after the
infraction, and that this delay also indicates its
retaliatory nature since plaintiff made his first
EEOc charge during the interim.
I might note that the Teamsters Master
Freight Agreement in Article 47, provides that no
disciplinary letter or suspension shall be valid
unless given within seven days, exclusive of
22a
weekends, of the employer acquiring knowledge of
the infraction.
However, Roberts here was suspended in part
because of the August 10 incident which is more
than seven days before the August 25th suspension.
With regard to the August 14th incident, it was
apparently timely since August 14th was a Friday.
This Roberts delay indicates that defendant
may not always have complied with the seven-day
rule. And, thus, did not particularly extend the
time for punishing this plaintiff.
That such delays may have been commonplace
also undercuts plaintiff's contention that his
warning came as a result of his EEOC charge.
Additionally, whether defendants may have imposed
discipline in violation of the Master Freight
Agreement may have had an impact on whether
plaintiff's discharge was for just cause but that
was a question for the arbitrator who upheld the
discharge. The imposition of discipline here is
probative, even if technically invalid, of
defendants' legitimate reasons for terminating
plaintiff. This is especially true when it is
clear that other non-minority, non-EEOC
complaining drivers also received such allegedly
invalid discipline.
Finally, the circumstances of the Roberts
incident--discipline resulting not immediately
after a first infraction but soon after a second
quickly follows the first--buttresses the
inference that it was the combination of
plaintiff's warning letter states that Miller was
concerned two such incidents should befall a new
employee.
23a
Lastly, the delay in defendant's disciplining
of plaintiff for these incidents may also be
attributable to the fact that Miller wanted to
fire plaintiff for them and the union's
intercession which caused discipline to be reduced
to a warning. The union's intercession and the
change of Miller's initial decision what to do
about these incidents, may well have been a
significant factor in creating the delay.
Third, plaintiff received a warning for early
use of sick days. He took two sick days soon
after being eligible for sick leave. And Lally
testified that plaintiff's eight sick days in the
first three months of 1980 was excessive and a
factor in judging plaintiff's claim of illness on
the 18th of April.
An employee named James Mara received a
warning for having been out eight times in six
months, and told all future absences will be
thoroughly investigated and would have to be
accompanied by a doctor's note.
It should be noted at the time Mara was
disciplined, he had been an employee for two year
and thus eligible for sick pay for one-and-a-half
years.
Fourth, plaintiff received a two-day
suspension for refusing Miller's direct order to
return to Busby Metals to Pick up some metal bars.
Apparently the only other employee to be
disciplined for failing to obey a company order
was a warehouseman named W. Raper who refused to
fill out a production form. His refusal resulted
in a warning letter; the ultimate resolution of
the situation is not clear.
24a
It should be noted that at the time of the
Raper incident, Raper was a fifteen-year veteran
of employment at Adam Metal whose record reflected
only one form warning about excessive absence and
tardiness, given in Raper's tenth year.
I also infer from the records before me that
many warehouse employees were given form
attendance warnings of the nature Mr. Raper got.
We have no incidents before the Court of any other
employee receiving a sick day warning after taking
two sick days off virtually upon the heels of
becoming eligible for sick leave. This doesn't
really prove anything. Such an incident may not
have occurred with any other employee.
In any event, it is clear that management was
concerned with absenteeism on the part of all its
workers and expressed such concern with regard to
one of plaintiff's fellow drivers. Also, the
discipline plaintiff received for this abuse was
very mild, only an oral warning, and he was
apparently paid for the two sick days.
Defendants, I emphasize, had a legitimate
special concern as to the drivers because of the
liberal sick pay provisions for them, and in light
of that it seems to me that more pronounced
reaction to a driver's use or abuse of sick days
is justifiable as distinguished from the reaction
of a warehouseman who only had a limited number of
sick days. These disciplinary actions were
focused upon by Lally in his description of what
prompted him to fire this plaintiff.
As to the comparisons I have referred to, it
shows that the discipline meted out to the
plaintiff for these incidents were not out of line
with that given other employees for similar
25a
events. Thus, it cannot be said that the
discipline plaintiff was subject to was itself
pretextual or designed to build a record against
plaintiff.
Plaintiff also asserts that he was discharged
for infractions for which others were not
discharged. I find this not to be so,
Plaintiff urges the Court to compare his
behavior on April 18, 1980 with that displayed by
other employees on other occasions whose
transgressions were as severe or worse and who
were not terminated.
This is not the proper inquiry, however,
since Lally's testimony establishes that plaintiff
was fired for the events of April 18, 1980 in
light of his entire work record. Thus, to
genuinely find disparate treatment, we would have
to compare plaintiff with an employee who
committed a similar offense and who had a similar
work record as a whole.
In addition, factors such as length of
service may come into play. Just because an
employee commits an offense for which he may be
immediately discharged does not, of course, mean
that he must be fired. An employer has discretion
in such decisions and may exercise it as long as
he does not do so on the basis of impermissible
factors.
Finally, there may be differences between
warehousemen and drivers making comparisons
between the two meaningless. For instance, it may
be easier to get truck drivers at the salary
defendant pays than to get warehousemen and, thus,
more misbehavior will be tolerated on the part of
26a
the latter.
With these considerations in mind,
plaintiff's alleged instances of non-termination
of others for similar or more egregious actions
will be examined.
1) Plaintiff testified that Mr. DeMaio, a
driver, had a least once punched in, looked at his
manifest and left claiming illness without being
terminated. Plaintiff advances a similar claim
as to driver Sal Patti, but this will be
disregarded since he could not state wih certainty
that Patti looked at his manifest.
Plaintiff testified that this took place in
July 1979; DeMaio's time cards apparently indicate
that DeMaio was out the last week of July.
At the deposition, Lally adverted to a period
of time during which DeMaio was hospitalized and
in traction for back problems. I do not know
whether DeMaio was hospitalized in July of 1979.
That is not clear. But if he had been, then
clearly his leaving work, even after looking at
his manifest, would have been acceptable, as it
would have been on the part of plaintiff had the
plaintiff been hospitalized on April 18, 1980.
More to the point, Lally testified at the
trial that, his hospitalization aside, DeMaio was
an average employee, his records do not disclose
any disciplinary action ageinst him.
In addition, 1979 was DeMaio's fiftxenth year
at Adam Metal; even if he had not been
legitimately ill in July, such lengthy service
might reasonably form the basis for less severe
discipline than discharge for somecne with an
27a
acceptable record.
Furthermore, Demaio was shop steward; rightly
Or wrongly, that position may, as a practical
matter, dictate cautious action in disciplining
such a key employee.
Most importantly, plaintiff's testimony gave
no indication that anyone had brought the matter
to management's attention as various employees had
in the case of this plaintiff. Thus, there may
have been no trigger for any action whatsoever
until the matter was raised by plaintiff, at which
time DeMaio was dead.
DeMaio's time card for April 1, 1980 shows a
punch in -- this is a different day we have been
referring to now -- no punch out. And the
notation "sick day", initialed Jack Mucaccia.
Lally's deposition introduced by plaintiff
refers to this. This may be what plaintiff was
referring to, I do not know.
In any event, it's there by, of course, there
has been no testimony that anyone saw DeMaio punch
in that day, or look at his manifest. And there's
also no evidence that DeMaio was not obviously ill
on that day, such as vomiting, sweating, breathing
hard, whatnot. He may have had obvious indicia of
illness on April 1, 1980. The plaintiff did not
have obvious indicia of illness on April 18, 1980.
Also, the driver, James Mara's time card for
November 7, 1979, indicates that he punched into
work and went home sick and was paid a sick day.
The same inferences could be drawn from the facts
about Mara on November 7, 1979.
28a
If management believe that Mara was actually
ill and didn't fire him, there is no inconsistency
with disbelieving plaintiff and firing him.
The problem with the Mara incident is that
Mara has a bad record, including discipline for
abuse of sick days and leaving work to attend to
personal business.
On the positive side, November 7, 1979
predates any discipline against Mara and thus
defendants have no basis in Mara's record to doubt
his allegation of illness as they did in
plaintiff's case.
Additionally, Lally testified here that based
on his record, Mara's next infraction would
probably be his last at Adam Metal.
Lastly, the Mara time card notation was made
at the time when Mara had already been an
apparently satisfactory employee for two years
rather than plaintiff's eleven months. It should
be noted again that plaintiff's time card incident
came at the end of his record of misbehavior. Not
at the beginning of it.
Plaintiff also contends several warehouse
employees committed infractions like the
plaintiff's, which were grounds for immediate
discharge without being discharged. I've already
pointed out that the evidence regarding this
different class of workers may be subject to some
infirmities insofar as the probative value of this
evidence is concerned. However, plaintiff raises
the following: One Milt Simmons was reported to
his superiors by one John Perjatel, night foreman,
on November 21, 1979, and June 10, 1980, for being
drunk in Perjatel's opinion.
29a
As far as his record shows, no discipline was
imposed, and indeed, Perjatel recommended that
Simmons be paid for one of the days.
There are some distinguishing
characteristics. Simmons was hired on October 19,
1959, and thus was in his twentieth year at the
time of the first incident. Although grounds for
immediate discharge in any event, drunkenness may
be of less consequence in a warehouseman than a
truck driver for obvious reasons, and thus
discipline may be less necessary.
One Stan Canady was noted as being drunk,
according to his supervisors, on March 14, 1979,
November 21, 1979 and July 10, 1980. He was given
a verbal warning regarding drinking on July 14,
1980, and a letter of the same date indicating
that this would be his last warning, and that any
further drinking would meet with disciplinary
action.
There are distinguishing characteristics.
Canady was hired October 27, 1958, and, thus, in
his twenty-first year at Adam Metal when first
reported as drunk.
Also I have to add that whether a person is
drunk is very often a subjective judgment and an
opinion on the part of someone who observes him,
and may be very difficult to prove.
I recall Mr. Lally's statement that he would
not fire an employee unless he had evidence that
he thought would give him a 50/50 chance of
winning an arbitrtion.
One Mike Hopkins was fired on August 16, 1979
30a
for having been drunk at work, becoming abusive
when told to leave, threatening a foreman and his
family, knocking over a locker and breaking a
glass window, all on August 10, 1979.
From this plaintiff apparently wishes to show
that discharge is reserved only for extreme cases
of employee misconduct, misconduct much greater
than plaintiff's.
On the other hand, a different conclusion may
be drawn; namely, the discharge was not a form of
discipline reserved for plaintiff, that defendant
would utilize discharge when it was called for.
More compelling is the distinguishing
characteristics here. Hopkins was hired on May
28, 1979, mere three months before he was fired.
Thus, in connection with these drunkeness
offenses, a reasonable pattern emerges.
Defendants would go easy on very long term
employees while showing little tolerance for such
an offense in a new employee. This is a logical
and understandable differentiation. Who wants to
hurt an old co-worker unless absolutely necessary,
an experienced employee whom the defendant has
presumably invested money in terms of training, et
cetera, over the years, and who presumably knew
his job well?
Conversely, who wants to allow to stay on
someone who has shown he is trouble soon after
being hired? Unfortunately for the plaintiff he
falls into the latter category.
Hopkins' discharge is, thus, consistent with
plaintiff's and bolsters the legitimacy of it.
Indeed, when it is remembered that plaintiff
31a
could have been discharged for the Busby Metals
incident, i.e., refusing to pick up the metal
bars, and was only suspended for two days, in the
ninth month of his employment, it appears that
plaintiff was, if anything, treated a little more
leniently.
The foregoing demonstrates that plaintiff has
failed to prove that he was treated differently
from other employees when all surrounding
circumstances are taken into account.
In particular, although plaintiff has shown
that other employees were not terminated for
infractions that, like his, would sustain an
immediate discharge, these non-terminations are
justifiable on legitimate grounds.
Also, for reasons discussed above, Lally's
reference to plaintiff's EEOC testimony does not
comprise direct evidence of retailation. Having
been unable to prove that defendants' legitimate
justification for his termination was pretext by
failing to show that his underlying discipline and
discharge was pretextual, plaintiff has also
failed to prove that he was discharged in
retaliation for his EEOC complaint or anything
that he said before the EEOC.
There's also been a Title VII racial
discrimination case. I might as well cover that
as long as I'm about it.
In Whack v. Peabody, 595 F.2d 190 (3d Cir.
1979), the Court stated that there are no hard and
fast rules as to what evidence comprises a prima
facie discrimination case, there, is a racial
discharge case.
32a
The Court did not, however, that usually some
showing must be made that plaintiff was treated
differently from similarly situated non-
minorities. District courts in this Circuit have
thus come up with a variety of formulations for a
prima facie case involving discharge.
In Oshiver v. Court of Common Pleas, 469 FS
645, 649, (ED Pa 1979), the following formulation
was stated: First, plaintiff must be a member of
a protected class; second, qualified for a job;
third, discharged; fourth, non-members of
protected class continued to work at same type of
job plaintiff had held.
Leftwich v. U.S. Steel Corp., 470 FS 758,
764, (WD Pa 1979): 1) member of protécted class,
2) subject of adverse employment action, 3) casual
relationship between membership in class and
adverse action.
Depending on what formulation is adopted,
plaintiff here may or may not have made out a
prima facie case. Even assuming that he has, it
is clear that as a plaintiff in a disparate
treatment case, plaintiff must prove both the
existence of disparate treatment and also that
such treatment was caused by purposeful or
intentional discrimination. Smithers v. Bailar,
629 F.2d 892, 898 (3d Cir. 1980). Here plaintiff
has presented absolutely no direct evidence of a
racial animus leading up to his discharge. Given
defendants' legitimate explanation of plaintiff's
discharge, plaintiff must prove that in his
discharge, or disciplinary record leading up to
it, he was treated differently from white
employees.
Assuming that all the employees discussed in
33a
the preceding section are white, I know that all
the other drivers but one are, I'm not confident
about the warehousemen, the discussion therein
precludes such proof by plaintiff.
In this connection, Leftwich states that,
"The fact that other white employees (who were
also guilty of tardiness) were not also discharged
does not establish that the defense is a pretext
where none of those employees had a disciplinary
record comparable to plaintiff's." 470 FS at 766.
The only driver whose record is close to
plaintiff's is James Mara. Mara has already been
suspended and Lally testified that his next
mistake would be his last for Adam Metal.
Plaintiff here has ultimately failed to show
disparate treatment as required by the Third
Circuit. Whether plaintiff has made out a prima
facie case will depend on how strong a showing of
same one wants to require in the prima facie case.
Plaintiff's prima facie evidence appears to
consist solely of his discharge as a black and the
non-discharge of fellow white drivers. Thus,
plaintiff has either failed to make out a prima
facie case or, alternatively, falied to carry his
burden of proof that his discharge was caused by
purposeful or intentional discrimination.
Defendants provided a legitimate,
nondiscriminatory reason for plaintiff's
discharge, rebutting whatever prima facie racial
case plaintiff had.
Plaintiff has already failed to show that the
reason is pretextual. The failure applies to the
racial discrimination claim as well.
34a
The finding that defendants raised a
legitimate reasons for firing plaintiff which was
not pretextual was based on determinations that
defendants had treated plaintiff in a legitimately
different fashion for disciplinary and discharge
purposes. This should preclude any other claim of
disparate treatment in connection with racial
discrimination, .
In short, in his Section 704(a) claim,
plaintiff had only argued pretext because the
other workers had not filed EEOC complaints; now,
it would only be because they were not black. The
same findings of legitimate differences or no
differences in defendant's handling of plaintiff
should apply equally here; no further evidence of
racial discrimination is given other than
plaintiff's own race.
Now, plaintiff has a 1981 claim under 42 USC
Section 1981. The Third Circuit has recently held
that 1981 reaches only purposeful discrimination
and that discriminatory intent must be shown in a
1981 case. Croker v. Boeing, 662 F.2d 975, 988-89
(3d Cir. 1981).
I think that in light of the Croker case,
what I've already said about plaintiff's Title VII
claim, a fortiori, disposes of the 1981 claim.
Also, plaintiff makes a 13th Amendment claim.
If there is a direct action under the 13th
Amendment, which I don't think ultimately will be
sanctioned by the Supreme Court of the United
States, again I think that what I've said about
the Title VII case would certainly dispose a
fortiori of any action that may arise directly
under the 13th Amendment, although I doubt that
one does. Plaintiff, as I also pointed out, sues
35a
under N.J.S.A. 10:5-12(a). That's identical to
Title VII.
As to the order of proof and the requirements
for a prima facie case, Peper v. Princeton
University Board of Trustees, 77 N.J., Rutgers,
155 N.J. Super 232, 237-38 (App. Div. 1977).
Again, what I've said about plaintiff's federal
Title VII case disposes a fortiori of his New
Jersey claims under N.J.S.A. 10:5-12(a).
As I mentioned before, plaintiff also sues
under Pierce v. Ortho Pharmaceutical, 84 N.J. 58
(1980). I don't know whether one would have a
cause of action under Pierce if the cause of
action were covered by the statute N.J.S.A. 10:5-
12(a).
Insofar as Pierce might be applicable, what
I've already said about Title VII federal cases
disposes of that claim as well.
36a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KHALIL T. SHAHEED, :
Plaintiff, : Civil Action No.
81-1808 (HCM)
-v- :
ADAM METAL & SUPPLY COMPANY, : SUMMARY JUDGMENT
KENNETH R. LALLY, individually: IN FAVOR OF
and as president of Adam Metal: DEFENDANT ALCOA
& Supply Company, ALUMINUN $
COMPANY OF AMERICA, :
Defendants. :
This action came before the Court, Honorable
H. Curtis Meanor, United States District Judge,
presiding, on the Motion of defendant Aluminum
Company of America for summary judgment in its
favor as to all causes of action alleged against
it together with counsel fees incurred by the said
defendant, and the Court having considered the
moving papers and Memorandum of law sumbitted
(sic) by the said defendant as well as plaintiff's
Affidavit in opposition thereto and oral arguments
of counsel, and a decision having been duly
rendered, and for good cause shown:
It is ORDERED AND ADJUDGED that summary
judgment of No Cause of Action be and hereby is
37a
entered in favor of Aluminum Company of America,
together with counsel fees in the amount of
$3,806.50, and costs of suit.
Newark, New Jersey
Dated: April 8, 1982
/s/
H. CURTIS MEANOR
Ballsicas
38a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KHALIL T. SHAHEED,
: Civil Action No.
Plaintiff, $ 81-1808 (HCM)
-v- H JUDGMENT IN FAVOR
H OF DEFENDANTS ADAM
ADAM METAL & SUPPLY COMPANY, : METAL & SUPPLY
KENNETH R. LALLY, individually: COMPANY AND
and as president of Adam Metal: KENNETH R, LALLY
& Suply Company, ALUMINUM
COMPANY OF AMERICA,
Defendants.
This action came on for trial before the
Court, Honorable H. Curtis Meanor, United States
District Judge, presiding, and the issues having
been duly tried and a decision having been duly
rendered, and for good cause shown:
It is ORDERED AND ADJUDGED that a judgment of
No Cause of Action be and hereby is entered in
favor of Adam Metal & Supply Company and Kenneth
R. Lally, defendants, and against Kahlil T.
Shaheed, plaintiff, together with costs of suit.
Newark, New Jersey
Dated: April 8, 1982
/s/
H. CURTIS MEANOR
U.S.D.J.
39a
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KHALIL T. SHAHEED,
Plaintiff, : Hon. H. Curtis
$ Meanor
-v- : Civil No. 81-1808
ADAM METAL AND SUPPLY CO.,
et al.s,
$ ORDER
Defendants. :
This matter having come before the Court on
motion of the plaintiff pursuant to Federal Rule
of Civil Procedure 59(e) for amendment of judgment
against plaintiff for Aluminum Company of America,
entered on April 8, 1982, in the form of relief
from the award of attorney fees against plaintiff,
or in the alternative an abatement of the amount
awarded, and the Court having considered the
moving papers of the plaintiff and the papers in
opposition to the motion submitted on behalf of
defendant Aluminum Company of America, and the
Court having heard oral argument in open court on
May 10, 1982, the Rutgers Labor Law Clinic (by
Denise Reinhardt) appearing on behalf of the
plaintiff and Stryker, Tams & Dill (by John J.
Rizzo) appearing on behalf of said defendant and
for good cause shown:
It is on this 20 day of May, 1982,
ORDERED that plaintiff's motion be and the
same is hereby denied,
40a
IT 1S FURTHER ORDERED that counsel for the
defendant John J. Rizzo, submit to the Court no
later than three days after the entry of this
Order an Affidavit to suppJement an Affidavit
filed with the Court on March 30, 1982 which said
supplemental Affidavit shall set forth further
background facts regarding the experience of
counsel and shall set forth an identification of
dates of services rendered with respect to
services rendered on behalf of defendant Aluminum
Company of America as set forth on Schedule A of
the aforesaid Affidavit of March 30, 1982.
/a/ H. Curtis Meanor
H. Curtis Meanor DATE:
4la
EXCERPTS FROM THE TRIAL TRANSCRIPT
Transcript: Volume 1, page 24-25
THE COURT: In fact, I don't think you can
show a connection between Alcoa and this case in
the fact that house counsel for Alcoa also
represented Adam Metal, that's not enough. All
right.
There are about 15 reasons that Alcoa should
no longer be in this case.
First, it's not liable under Title VII at
all. Second, there is no prima facie case against
it under 1981. There's not a shred of evidence
anywhere in the pile of paper in this rather
simple case has generated that would indicate in
any way that Alcoa bears direct responsibility or
indirect responsibility for the firing of the
plaintiff.
There is no relief that the plaintiff can get
against Alcoa that is not available to the
plaintiff against Adam Metal,
What is wanted is apparently a declaratory
judgment about Alcoa, This Court is not in the
business of engaging in hypothetical litigation,
Declaratory judgment will add nothing to the
plaintiff's rights, just gives him another piece
of paper.
Declaratory judgment is a discretionary
remedy, and where it serves no purpose I'm not
about to entertain it.
You may have your dismissal with prejudice as
to Alcoa,
42a
MR. RIZZO: Thank you, your Honor.
THE COURT: You have an application for fees
and costs, let that abide the event of the rest f
the trial.
Transcript: (Shaheed-Direct) Volume 1, page 109
Q. You were telling us about a conversation
that you had with Mr. Miller on Thursday,
September 13th. Would you tell us what you said
to Mr. Miller and what he said to you?
A. I went to Mr. Miller about my paycheck
and I had asked him would he reimburse me another
check. And he told me that he couldn't give me
another check until after he found out w ether or
not I had cashed it.
Q. Did he say whether or not you had cashed
it or whether or not it had been cashed?
A. No, he said that he wanted to find out
whether I cashed it.
Q. What, if anything, did you say to him?
A. I told him that it wasn't right--he also
stated that he was going to hold the check for
seven days to find out whether I had cashed it.
And I had told him that I had rights and he
couldn't hold the check for seven days.
And he insisted that he could. And I told
him that I was going to go to the Human Rights
Commission about it.
43a
Q. Did you tell him why you were going to
the Human Rights Commission?
A. Yes.
Q. What did you tell him?
A. For implying that I had cashed the
check.
Q. Did anything else take place in that
conversation?
A. No.
Q. After that conversation did you in fact
go to the Human Rights Commission or any other
government agency?
A. I went to the EEOC.
Q. Where?
A. In Newark.
Q. When did you go? Was that the same day?
A. I believe so. I went twice.
Q. What happened the first time you went
there?
A. I believe I was a little late getting
there. And they had to pick up the proceedings
that Monday, which was the 17th.
44a
Transcript: (Shaheed--Direct) Volume 2, page 15 to
page 18.
Q. Prior to your receiving this letter, had
anyone from the company asked you about your
actions on the morning of April 18th?
A. No, they didn't.
Q. What happened after you received these
letters?
A. I was instructed by the dispatcher to
see the union representative.
Q. Did you see the union representative?
A. Yes, I called.
Q. And what happened?
A. They set up an appointment with Mr.
Lally. I believe it was April 24th.
Q. Yes.
A. And we had a meeting. You want to hear
about the meeting?
Q. Yes. I would like to hear about the
meeting. Who was present?
A. Mr. Harry Serio, union representative,
and Leon Barone, acting shop steward, and also Mr.
Lally and myself.
Q. Approximately what time of day did this
meeting start?
45a
A. I believe it was 9:00 or 9:30 that
morning.
Q. And where did it take place, if you
remember?
A. InMr. Lally's office.
Q. Would you tell us as exactly as you can
remember what, if anything, was said at that
meeting and by whom?
A. Mr. Serio had asked Mr. Lally why I had
been terminated and Mr. Lally had told him that I
had refused a direct order to take a truckload of
material out that day. Mr. Serio asked me about
it, and I went on to tell him what I had did that
day and why, being sick, and Mr. Serio asked, did
I have a doctor's excuse, and I did, and he asked
me for it, and he showed it to Mr. Lally, and Mr.
Lally told Mr. Serio that he didn't care whether I
had a doctor's slip or not that I just wanted to
take off that day because it was a pretty day and
I didn't want the New York run, and I could get a
doctor's excuse from any doctor for 10 or $20.
Q. Who was it that said that?
A. Mr. Lally.
Q. And then what happened?
A. Mr. Serio told Mr. Lally that, being
that an employee has to be out over three days
before he is required to show a doctor's slip, and
that if he didn't take me back, being I was only
out for one day and had a doctor's slip, that he
would have to take it to arbitration. He had
asked Mr. Lally, would he take me back before
46a
then.
Q. Who asked him that?
A. Mr. Harry Serio, and Mr. Lally stated
that he would not take me back under any
conditions because of the fact of what I had said
at the EEOC hearing, and Mr. Serio asked Mr. Lally
what it was I had said, and Mr. Lally told Mr.
Serio that I had concocted a story about the cats
and complaining about the foreman and the
dispatcher and the drivers, and that's when he
said that he wouldn't take me back under any
conditions. And Mr. Serio went on to tell him
that he would take it to arbitration, and Mr.
Lally told Mr. Serio that he would get in touch
with him and let him know what his decision was
after he talked to the lawyers. At that time, Mr.
Serio asked Mr. Lally, would it be all right if I
was to call back to find out what his decision
was, and Mr. Lally said, yes. Call him back in
the morning.
Q. Excuse me. Before we finish up that
meeting, you told us about Mr. Lally having said
you concocted some things, and you told us what
some of those things were. Did he say when or
where or how he thought you concocted those
things? e
A. At the EEOC meeting.
Transcript: (Lally - Direct) Volume 3 Page 152 to
page 153.
THE COURT: All right.
A. What was the question again, sir?
47a
Q. Do you recall what Mr. Shaheed said at
that meeting relevant to his departure from the
premises on April 18?
A. Well, his contention was that he was
sick and he couldn't work and here is the doctor's
certificate to prove it.
Q. Now, when you say here is the doctor's
certificate, I direct your attention to D-25. Is
that the doctor's certificate?
A. That is correct.
Q. That was provided--
A. Well, it is what he claimed was a
doctor's certificate.
Q. And did you, at that meeting, make any
statements about your position with respect to Mr.
Shaheed's credibility?
A. Yes. I told him I didn't, just didn't
believe him in that part of the story.
Q. And what did you say to him
specifically?
A. With regards to the doctor's
certificate?
Q. Yes.
A. I made comments in that area that it is
not--it doesn't say you were sick. All it says,
you were supposed to visit somebody on the 18th,
and I made reference that doctors' certificates
48a
are very easy to buy for 10 or $20, and that is
fairly common.
Q. Did you, at any time, make reference to
any statements which Mr. Shaheed had made during
the course of the EEOC conference?
A. Yes.
Q. And what did you say, now speaking of
what you said at the meeting of the union
representatives with Mr. Shaheed on the 24th?
A Well, Mr. Shaheed was saying to me that
you don't believe me, why. And I sort of chuckled
and said that after some of the wild stories you
told yesterday, that is just an example. I don't
believe you in just about anything you say.
Q. Now, what--
MR. SCHACHTER: I didn't hear the end of the
answer.
(Court Reporter read pending answer.) .
Q. Now, what were you referring to when you
made that statement?
A. Well, at this time, I guess it's
referred to as that famous cat story.
Q. Well, identify specifically for us and
speak up, please.
THE COURT: What are you running, a market
in cats?
THE WITNESS: No. We have two warehouse
49a
cats, and we have no rats or mice in the
warehouse,
THE COURT: Not on account of the cats?
THE WITNESS: Excuse me,
THE COURT: Not on account of the cats?
THE WITNESS: That I don't know. I am not
an expert on °
Q. What was your recollection as to what
Mr. Shaheed said at the EEOC conference relevant
to cats in the warehouse?
A. Well, Mr. Shaheed was saying that cats--
we, the company, were deliberately locking cats up
in the truck that he was going to take out the
next day so the cat would urinate in the truck and
have cat fur all over the truck, and he thought
the next morning he would turn on the heater and
it would gag them.
Transcript: (Lally-Cross) Volume 2, Page 152 to
Page 153
Q. Mr. Lally, when did you make the
determination that Mr. Shaheed was not ill?
A. That morning or earlier that afternoon I
came to that conclusion,
Q. You came to that conclusion at a time
when you had not known whether or not Mr. Shaheed
looked at his manifest? Isn't that true?
A. I was told that he had, and I just
50a
assumed that if he had and it was all fake.
Q. You determined that if he had it was a
fake?
A. If he looked at his--we are looking at
two different things.
Looking at the manifest is the part on the
contract. As far as Mr. Shaheed being sick, that
was a judgment call on my part, and I just thought
that he was taking a day off.
Q. What was that judgment based on?
A. Just--salesman language--we call it gut
feeling.
Q. Your gut feeling about Mr. Shaheed?
A. That's correct.
Q. Nothing else?
A. Nothing else.
Q. After you made that determination you
weren't interested any further in inquiring
whether or not Mr. Shaheed had a legitimate
illness or not. Isn't that correct?
A. After that I was interested to see if I
could get a case that would win in arbitration,
Transcript: (Lally-Cross) Volume 3, page 44
MR. RIZZO: Objection, your Honor.
5la
MR. SCHACHTER: Your Honor, these would
reflect Adam Metal's personnel policies, if they
formulated it, and set it to someplace.
THE COURT: What's the objection?
MR. RIZZO: I'm sorry, perhaps I
misunderstood the question. He's talking about
documents which wre sent from Adam Metal to Alcoa?
THE COURT: Yes
MR. RIZZO: Withdraw the objection, your
honor.
A. We sent letters to Alcoa to things we
were going to do to get their advice.
THE COURT: Anybody from Alcoa have anything
to do with the decision you made to terminate Mr.
Shaheed?
MR. SCHACHTER: What was the question, your
Honor?
THE COURT: Anybody from Alcoa have any input
or anything to do with your decision to terminate
Mr. Shaheed?
THE WITNESS: I made the decision. I advised
them that I made the decision. They looked at it
from a contract standpoint to see if I was in
violation of the contract. Since I was not they
just let me go through the decision,
52a
Transcript: (Lally-Cross) Volume 3, page 115
THE COURT: All right, we'll stop for lunch
and resume at 2:00 o'clock.
How much longer are you going to be with this
witness?
MR. SCHACHTER: You Honor, I don't exactly
know, but approximately an hour.
THE COURT: That's all I'm going to give you
because--
MR. SCHACHTER: I'1l do my best to finish
him.
THE COURT: You're going to finish him in an
hour.
MR. SCHACHTER: I'll finish my areas of
cross~examination.
THE COURT: You organize yourself to finish
cross~-examination of Mr. Lally in an hour. I've
got the right to control the length and duration
of the cross-examination and --
MR. SCHACHTER: You Honor, this is --
THE COURT: The time you've had plus another
hour is entirely reasonable.
MR. SCHACHTER: Your Honor, this is a key
witness,
THE COURT: Finish with him and quit for the
day.
53a
(Luncheon recess)
Transcript: (Lally-Cross) Volume 3, page 157
A. No, I learned of it when I read that
report at a -- I think it was when you were over
going through our files. That was the first time
I saw it.
THE COURT: All right, I have to stop. you
have any redirect, Mr. Rizzo?
MR. SCHACHTER: Your Honor, I petition to ask
for a continuation of my examination on Monday.
THE COURT: The answer is no. I cannot
devote my entire life to one lawsuit. You had
plenty of time to cross-examine this man.
MR. SCHACHTER: Your Honor, I move to
introduce the personnel files.
THE COURT: Wait until your case, rebuttal
case.
MR. SCHACHTER: May I introduce the personnel
files on my rebuttal case?
THE COURT: Have you got an redirect of this
man?
MR. RIZZO: Your Honor, I have one.
MR. SCHACHTER: I object to the conduct --
THE COURT: Otherwise I will bring him back
54a
Monday.
MR. SCHACHTER: I object to the conduct of
the Judge cutting off my cross-examination.
THE COURT: I tell you, I have the authority
to cut short a repetitive cross-examination that's
getting nowhere,
MR. SCHACHTER: Your Honor, I am going into a
matter which no one has examined on and it goes
basically to the heart of the question,
THE COURT: You should have examined on it
first.
MR. SCHACHTER: It goes to bias of the main
witness against Mr. Shaheed,
THE COURT: What do you have to show about
his bias?
MR. SCHACHTER: I have the fact that he was
found by an operations manager siphoning gasoline
and given a 30-day suspension despite the fact
that he was siphoning gasoline from company
trucks.
THE COURT: How long ago was this?
MR. SCHACHTER: This was 1977,
THE COURT: He's already admitted that. You
heard about this?
THE WITNESS: Yes.
THE COURT: Is it in his employment file I
presume?
55a
THE WITNESS: Well, normally we throw it out
at the end of three years, why it was in there I
don't know.
MR. RIZZO: I don't understand what counsel
is saying at this point.
MR. SCHACHTER: I'd like to finish my
examination on it because Mr. Lally --
THE COURT: Look, young man, I have stopped
your cross-examination. It is over.
MR. SCHACHTER: I understand, your Honor. I
would like to make an objection for the record.
THE COURT: Put it in writing. You've had
plenty of opportunity to cross-examine. You
engaged in repetitive cross-examination.,
MR. SCHACHTER: Your Honor, I think you have
given Mr. Rizzo every opportunity to present his
case and not given me the same opportunity.
THE COURT: All I hear is the same story over
and over again. I only need to hear it once.
Can you conduct your redirect in a couple of
minutes?
MR. RIZZO: Yes, your Honor,
THE COURT: Please do so.
56a
EXCERPTS FROM THE RECORD
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KHALIL T. SHAHEED, X
Plaintiff,
v. ; No. 81-1808 (HCM)
ADAM METAL SUPPLY CO.,:
et al.,
Defendants.
xX
OBJECTIONS TO THE CONDUCT OF THE JUDGE
Plaintiff herein, Khalil T. Shaheed, through
the undersigned attorney, hereby reiterates and
states objections to the trial judge's conduct in
restricting cross examination of Kenneth Lally:
l. Kenneth Lally is an individual defendant
and the president of the corporate defendant. He
is the only witness with knowledge of the events
surrounding termination that defendants have
stated that they would call;
2. Lally testified about a number of events
that required extensive cross examination. By way
of example and not by limitiation, Lally testified
that he reviewed the entire personnel file of
plaintiff. It thus was important to the
resolution of the case to inquire into the
importance and weight he gave to each document
57a
therein;
3. Lally testified on direct for
approximately two and one half hours to three
hours;
4. Plaintiff started cross examination at
approximately 10:30 a.m. on Friday March 12, 1982
and continued until approximately 1:00 p.m.
During this time the court took two recesses of
approximately one half hour each. Cross
examination resumed in the afternoon for
approximately one hour. Consequently, plaintiff
had, at most two and one half hours to cross
examine Lally;
5. During plaintiff's cross examination of
Lally, the trial judge interrupted on several
occasions, at times over the explicit objection of
counsel. These interruptions both detracted from
the time counsel had for cross examination and
required additional questions to restore the
pattern of examination;
6. Plaintiff's counsel was only informed by
the trial judge shortly before the lunch recess at
1:00 p.m. that the judge intended to restrict
examination. Even if it were otherwise proper to
restrict valid cross-examination in this case, the
court did not provide adequate notice to enable
counsel to reshape questions and lines of
examination;
7. Plaintiff had several additional lines
of cross-examination which he estimates would take
from between one half hour and one hour. These
lines include questions that would bring out prior
inconsistent statements, impeach credibility and
bring out material facts reflecting on the
"Ba
ultimate question to be decided by the court;
8. The trial judge had previously informed
counsel for all parties that he would recess court
at approximately 3:00 p.m. on March 12 so that he
would be able to catch a flight at approximately
4:15 p.m. that afternoon;
9. The undersigned counsel believes that if
court had remained in session until 4:30 p.m. as
it had the day before, cross examination of Lally
and the direct and cross examinations of
defendants' other witness would have been
completed;
10. These above objections do not replace
other objections to the conduct of the judge made
on the record, but supplement them.
s/ Paul Schachter
PAUL SCHACHTER
Attorney for Plaintiff
Dated: Newark, New Jersey
March 15, 1982
59a
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Khalil T. Shaheed, Civ. No.
81-1808 (HCM)
Plaintiff
Vv.
Adam Metal & Supply, et al.,
Defendants.
AFFIDAVIT OF PAUL SCHACHTER IN OPPOSITION TO
DEFENDANT ALUMINUM COMPANY OF AMERICA'S MOTION FOR
SUMMARY JUDGMENT
State of New Jersey
ss.
County of Essex
Paul Schachter, being duly sworn, deposes and
says:
l. I am an attorney at law of the State of New
Jersey (limited license) and I represent the
plaintiff in this action. I am fully conversant
with the circumstances of this case.
2. Kenneth R. Lally, President of Adam Metal,
has made an affidavit swearing that N. Rebecca
Shaw, “Adam Metal's attorney", formulated the
position to be taken at the E.E.0.C. Fact Finding
hearing in this matter. See Exhibit A hereto.
60a
3. N. Rebecca Shaw, attorney in the General
Counsel's office of ALCOA, has made an affidavit
swearing that she is an employee of Aluminum
Company of America (ALCOA) who has been rendering
legal advice to Lally and to Adam Metal, ALCOA's
subsidiary, throughout these proceedings. See
Exhibit B hereto.
4. ALCOA is consulted by Adam in matters
involving personnel policy and practice, and ALCOA
makes effective recommendations to Adam. See
Exhibits C through F hereto, originally produced
as appendices to ALCOA's answer's to Plaintiff's
Interrogatories.
5. These statements by ALCOA and Adam themselves
create a factual conflict with the statements
produced by ALCOA in support of its Motion for
Summary Judgment.
/s/
Paul Schachter
Sworn and suscribed to
before me this 9th day of March 1982.
/s/ Denise Reinhardt
Attorney at Law of the
State of New Jersey
6la
(Plaintiff's Exhibit No. 55)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KHALIL T. SHAHEED,
Civil Action No. 8l-
Plaintiff, : 1808 (HCM)
AFFIDAVIT OF
vs. : KENNETH R. LALLY
ADAM METAL & SUPPLY
COMPANY, et al.,
Defendants.
STATE OF NEW JERSEY )
s 88.5
COUNTY OF UNION )
KENNETH R. LALLY, of full age, being duly
sworn deposes and says:
1. I am a defendant in this action and am
President of co-defendant Adam Metal Supply, Inc.
I make this Affidavit upon my own personal
knowledge and in response to a question propounded
to me at my deposition of January 13, 1982.
2. The question to which I provde answer by
this Affidavit is as follows: "Who formulates the
position to be taken at the fact-finding
conference?"
62a
3. The answer to the foregoing question is
that Adam Metal's attorney, N. Rebecca Shaw, Esq.,
formulated the position to be taken at the EEOC
fact-finding conferences involving plaintiff.
/S/ Kenneth R. Lally
KENNETH R. LALLY
Sworn to and subscribed
before me this 2nd day
of March, 1982.
/s/
(Notary Public)
63a
(Plaintiff's Exhibit No. 51-T)
State of New Jersey )
County of Essex )
AFFIDAVIT
I Jack Muciaccia, being first duly sworn upon my
oath, hereby state as follows:
I have been given assurances by an agent of the
National Labor Relations Board that this affidavit
will be considered confidential by the United
States Government and will not be disclosed as
long 2s the case remains open unless it becomes
formal proceeding. Upon the closing of this case,
tne affidavit may be subject to disclosure only in
accordance with Agency policy.
I reside «: 2/1 Crescent Place, Yonkers, NY 10704
My teleph..e number is (914) 776-6129
I am employed by Adam Metal Supply Co.
located at 625 Evans Street, Elizabeth, NJ
I work as a traffic clerk;
2) I changed Shaheed's run on 4 occasions,
in about January and February, 1980. Shaheed told
me each time that he felt too nervous to drive
into New York City those days. No others ever
asked me to change their run. I was reprimanded
once by Bob Miller, Operations Manager, in about
March, 1980, for changing runs after they've been
assigned. He said it was not part of my job to
64a
change runs, and the men were complaining.
3) On 4/18/80 I saw Shaheed come to work
and walk over to a table where delivery orders are
placed. A few minutes later he came in to see me.
He told me that he wasn't feeling well, he wanted
me to give him a sick day, and he was going home.
I said okay and he then left. I have read the
above 3 paragraphs and swear them true.
65a
(Excerpts from Plaintiff's Exhibit No. 4)
April 21, 1980
To File
From Elaine Pinion, EDS
Subject Khalil, Shaheed vs. Adam Metal Co.
Charge # 022790593
Fact Finding Conference Notes
Attendees:
Khalil Shaheed
(spokesperson) Kenneth R. Lally - President
Thomas Lovelidge - Financial Mgr.
Nancy R. Shaw - Resp's Gen'l
Counsel
CP contends that the whites were always
complaining about his truck. When CP complained,
he was told the other driver (Grant B/M) drove that
truck. CP states that some cats slept and
urinated in his truck. The seat was smelling so
bad Miller had a new seat installed. After CP
refused to give a $1.00 for cat food, that's when
he started to see cat hairs and smell urine.
Resp - CP's allegation that the cat(s) was
deliberately placed in his truck is absurd. Shape
driver's (CP's job title) never know if there's
work for them until they report to work that
morning. When trucks are loaded, the name of the
regular driver is on the sheet, and not the shape
66a
driver. Therefore, no one knows for sure, who is
going to drive what truck.
CP - Agrees that shape drivers do not know if they
have a job until they report that next morning.
END OF EXCERPTS FROM RECORD
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.