# Appendix — Goodman v. Lukens Steel Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1987
- **Citation:** 482 U.S. 656

## Text

prame Court, U.S.

BS] 1626 FILED

No. : APR ¢ 1988
ee JOSEPH F. SPANIOL, JR,
IN THE CLERK

SUPREME COURT OF THE UNITED. STATES ——

October Term. 1985

CHARLES GOODMAN, RAMON L. MIDDLETON.
ROMULUS C. JONES, JR., LYMAS L. WINFIELD, and
UNITED POLITICAL ACTION COMMITTEE
OF CHESTER COUNTY,
DAVID DANTZLER, JR., JOHN R. Hicks, III,
DocK L. MEEKS, individually
and on behalf of all others similarly situated,
Petitioners,
¢.

LUKENS STEEL COMPANY, INTERNATIONAL
STEELWORKERS OF AMERICA, (AFL-CIO), LOCAL 1165,
UNITED STEELWORKERS OF AMERICA (AFL-CIO) and

LOCAL 2295, UNITED STEELWORKERS OF AMERICA
(AFL-CIO),
Respondents

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

APPENDIX

William H. Ewing
Arnold P. Borish*
Daniel Segal
HANGLEY CONNOLLY EPSTEIN
CHICCO FOXMAN & EWING
1429 Walnut Street, 14th Floor
Philadelphia, Pennsylvania 19102
(215) 864-7724
Attorneys for Petitioner
Counsel of Record

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

TABLE OF CONTENTS
Page

Opinion of the United States Court of Appeals for
the Third Circuit . Goodman, et al. v. Lukens
Steel Company, et al.. Nos. 84-1478 and 84-
1509, filed November 13, 1985.............. A-1

Order Amending Opinion of the United States Court
ot Appeals tor the Third Circuit, Goodman, et al.
v. Lukens Steel Company, et al., Nos. 84-1478
and 84-1509, November 22, 1985........... A-53

Order of the United States Court of Appeals for the
Third Circuit Sur Petition tor Rehearing and
Statement of Judge Garth Sur Petition for Re- ~
hearing, Goodman, et al. v. Lukens Steel Cum-
pany, et al., Nos. 84-1478 and 84-1509, January
ww A-35

Memorandum and Order of the United States Dis-
trict Court for the Eastern District of Penn-
svivania, Goodman, et al. v. Lukens Steel

a he Che oa 5 0s Wee ee EU eds ye e's 2 A-59

Opinion and Order of the United States District
Court for the Eastern District of Pennsylvania,
Goodman, et al. v. Lukens Steel Company, et al.,

No. 73-1328, dated February 13, 1984 ...... A-64

Memorandum and Orders of the United States Dis-
trict Court for the Eastern District of Penn-
syivania, Goodman, et al. v. Lukens Steei
Company, et al., No. 73-1328, dated August 2.
MR es StS Dd et ... A-163

TABLE OF CONTENTS— Continued )
Page

Judgement of the United States Court of Appeals for
the Third Circuit, Goodman et al. v. Lukens
Steel Company, ct al., Nos. 84-1478 and
84-1509, dated November 13, 1985..... ... A-176

Statutory Provisions Involved ................. A-177

ul

a

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 84-1478 & 84-1509

CHARLES GOODMAN. RAMON L. MIDDLETON.
ROMULUS C. JONES. JR.. AND LYMAS L.
WINFIELD. on their own behalf and on behalf of
others similarly situated.

and

UNITED POLITICAL ACTION COMMITTEE. an
unincorporated association. DOCK MEEKS, DAVID
DANTZLER. JOHN HICKS. III. individually and on
behalf of all others similarly situated

Vv.

LUKENS STEEL COMPANY. and INTERNATIONAL
STEELWORKERS OF AMERICA (AFL-CIO). and
LOCAL 1165. UNITED STEELWORKERS OF
AMERICA (AFL-CIO). and LOCAL 2295. UNITED
STEELWORKERS OF AMERICA (AFL-CIO)

United Steelworkers of America.
AFL-CIQ-CLC. and its Local Unions 1165 and
2295. Appeilants in 84-1478

Lukens Steel Company. Appellant in 84-1509

APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. No. 73-1328)

A-l

A-2

Argued June 11. 1985

Before: WEIS. GARTH. and STAPLETON.
Circuit Judges

Filed November 13. 1985

Julia Penny Clark. Esq. (ARGUED)
Robert M. Weinberg. Esq.
David M. Silberman. Esq.
Bredhoff & Kaiser
1000 Connecticut Ave.. N.W.
Washington. D.C. 20036

Bernard Kleiman. Esq.
One East Wacker Drive
Chicago. Illinois 60601-1980 ”

Carl Frankel. Esq.
Five Gateway Center
Pittsburgh. PA 15222

Attorneys for Appellants United Steelworkers of
America. AFL-CIO-CLC, and LOCAL UNIONS 1165
and 2295

Jerome A. Hoffman. Esq. (ARGUED)
Mark A. Klugheit. Esq.
Steven B. Feirson. Esq.
Dechert Price & Rhoads

3400 Centre Square West

1500 Market Street, ~.
Philadelphia. PA 19102

Attorneys for Appellant Lukens Steel Company

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William H. Ewing. Esq. (ARGUED)

Arnold P. Borish. Esq.

Daniel Segal. Esq.

Leslie A. Hayes. Esq.

Hangley Connolly Epstein Chicco Foxman & Ewing
1429 Walnut Street. 14th Floor
Philadeiphia. PA 19102

Attorneys for Appellees Charles Goodman. et al.

OPINION OF THE COURT

WEIS. Circuit Judge.

This appeal is from the grant of injunctive relief
and liability findings in a wide-ranging employment
discrimination class action. We conclude that : (1) the
same period of limitations applies in § 1981 claims as
in those under § 1983: (2) class representatives who
were not discriminated against in initial work
assignments may not represent those who were: (3) on
remand. consideration should be given to appointment
of an appropriate representative and possible
reinstatement of findings: (4) the unions violated Title
VII and § 1981 by failing to assert racial bias as
grievances: (5) the limitations period for a Title VII
charge against a union begins only after it is named in
an EEOC proceeding and not on the date that a charge
is brought against the employer alone in a state
proceeding: (6) a finding of discrimination in denying
incentive pay was clearly erroneous where the evidence
demonstrates the action was taken solely on economic
grounds: and (7) other findings of discrimination by
the district court were not clearly erroneous.
Accordingly. we affirm. reverse. and remand in part.

A-4

After a lengthy bench trial. the district judge found
for plaintiffs on several counts alleging discrimination
in employment. and therefore entered a remedial order.
reserving assessment of damages for future
proceedings. On the other counts. the court concluded
that the evidence was inadequate to support the
plaintiffs’ claims and entered judgment for defendants.
Defendants appeal the orders adverse to them. '

In 1973. class action plaintiffs filed this massive
suit on behalf of current and past employees of the
Lukens Steel Company. alleging violations of 42 U.S.C.
§ 1981 and Title VII of the Civil Rights Act of 1964. 42
U.S.C. § 2000e et seq. Plaintiffs sought both injunctive
relief and damages.

Defendant Lukens is an independent steel
producing company with its principal facility in
Coatesville. Penngyivania. Since 1966. its work force
has ranged between approximately 4200 and 5300
employees: of these the hourly employees numbered
between 2600 and 3900. From 1967 to 1978. the
percentage of black employees in the hourly work force
varied between 21.8 and 24.1. Lukens hourly
employees had been represented by Locals 1165 and
2295 of the United Steelworkers of America. and the
unions are listed as defendants together with the
company.

The district court observed that work at Lukens
requires skills which are unique to its specialized
products. With a few limited exceptions. the “majority
of the Lukens hourly work force start from scratch. and
are trained on the job.” Partially as a consequence of
the need for highly specific skills. the company has a
general policy of promoting from within its workforce.
The district court found that to some extent current

l. The district court opimion is reported at Goodman v. Lukens
Steel Co.. 580 F. Supp. 1114 (E.D. Pa. 1984)

A-5

disparaties between white and black employees are a
reflection of historical discrimination existing well
before the statutory limitations period applicable in
this lawsuit.

Plaintiffs developed their case by a combination of
Statistical and anecdotal evidence. After the
compilation of an extensive record. the court found
evidence of discriminatory practices by the company in
the following categories:

1. Initial job assignments to higher paying craft
jobs were skewed in favor of whites. Blacks
also were assigned in higher percentages than
whites to “pool” positions. which had seniority
provisions inferior to those in the
“subdivisions.”

2. Evidence focusing on transfers to more
desirable craft positions demonstrated that
whites were favored over blacks by a
substantial margin.

3. Incentive pay was denied to workers in the
predominantly black crews in the Pit
Subdivision. although it was given to other
specialized crews composed mainly of whites.

4. Lukeri# discriminated against black workers
by discharging a higher percentage of black
employees during their probationary period.

5S. The company discriminated against blacks in
denying them promotion to salaried positions
in management.

6. Lukens tolerated harassment of black
employees by whites and failed to take
appropriate steps to curb such behavior,
thereby encouraging workers to believe such
conduct would go unpunished.

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The district court also determined that the unions
were guilty of discriminatory practices in:

1.

3.

Failing to challenge discriminatory discharges
of probationary employees.

Failing and refusing to assert instances of
racial discrimination as grievances.

Tolerating and tacitly encouraging racial
harassment.

The court further found that plaintiffs had failed to
present adequate proof of discrimination in the
following areas:

l.
2.

The seniority system.

Manning of the new Strand-cast facility (with
the exception of class representative Ramon L.
Middleton).

Shift assignments. including Sundays. and
holiday work, as well as overtime pay.

Discipline (excluding discrimination in
discharge of probationary employees).

Awards for employee suggestions for
improvement in plant operation.

Processing grievances by the unions insofar as
the complaints centered on the number of
grievances which the locals presented initially
and pursued through arbitration. In addition.
the lower rate of successful outcomes for black
employees’ grievances did not show racial
discrimination.

The court also directed individual relief for class
representatives Goodman. Winfield. Jones. Middleton.
and Dantzler. but denied the individual claims of Dock
L. Meeks. and John R. Hicks III.

—

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The court issued orders against the company and
the unions enjoining racial discrimination in the
specific areas in which violations of Title VII and
§ 1981 had been found and directing certain remedial
measures. Notice to class members was ordered, and a
tentative trial date was set for the individual claims.

Both the company and the unions have appealed
the various findings against them. challenging both
legal and factual determinations made by the district
court. Plaintiffs have not appealed the rulings on
which they or the class were unsuccessful.

I.

THE STATUTE OF LIMITATIONS FOR
SECTION 1981 CLAIMS

Because there is no specified federal statute of
limitations applicable to § 1981 cases. the district
court was required to use the state limitations period
most analogous to the civil rights cause of action.
Johnson v. Railway Express Agency. 421 U.S. 454
(1975). In a Memorandum Opinion issued on June 16,
1975, the district court concluded that the appropriate
period was the six years set forth in Pa. Stat. Ann. tit.
12. § 31. rather than the two year period “for injury
wrongfully done to the person” as set out in Pa. Stat.
Ann. tit. 12. § 34.

In this determination. the district judge
anticipated our decision some two years later in
Meyers v. Pennypack Woods Home Ownership Ass'n..
559 F.2d 894 (3d Cir. 1977). where we applied the six
year general statute of limitations in a housing
discrimination case brought under sections 1981 and
1982. See also Davis v. United States Steel Supply.
581 F.2d 335 (3d Cir. 1978) (six year statute of
limitations applicable to § 1981 employment
discrimination claim).

A-3

Although the district judge was correct in
forecasting that we would adopt a six year limitation
period in am employment case. his prescience. like
ours. was limited. Neither he. nor this court. foresaw
the Supreme Court's ruling that all § 1983 cases
should be governed by a uniform statute of limitations
-- that provided by the states for personal injury.
Wilson v. Garcia, 53 U.S.L.W. 4481 (Apr. 17. 1985).
That ruling requires us to reexamine our earlier
decisions on the appropriate statute of limitations in
Civil Rights cases.

In Polite v. Diehl. 507 F.2d 119 (3d Cir. 1974) (in
banc). we discarded the notion of applying a single
limitations period to all § 1983 cases and chose instead
to look to the relief sought and the particular injury
alleged. A claim alleging bodily injury was governed by
the two vear Pennsylvania statute but one which was
more akin to a contract action came under the six year
limitation. Hence. under Polite v. Diehl differirg
statutes of limitations would be applied to a variety of
claims in one suit.

Although the court discussed only the § 1983
claims, it noted that plaintiff did formulate causes of
action under § 1981. 507 F.2d at 121. n.2. In any
event, the Polite rationale of looking to the facts in each
case and then searching out for the most analogous
State statute was followed in § 1981 cases. a well as
those brought under § 1983. See Davis v. United
States Steel. 581 F.2d at 338. 341 n.8: Meyers v.
Pennypack Words Home Ownership Ass'n.. 559 F.2d
at 903 n.27.

We later determined that the six year statute of
limitations applied in § 1983 claims of (1) sex
discrimination in employment. Knoll v. Springfield
Township School Dist., 699 F.2d 137 (3d Cir. 1983).
vacated and remanded 53 U.S.L.W. 4488 (Apr. 17.
1985). on remand 763 F.2d 584 (3d Cir. 1985): (2)

A-9

termination of employment without due process. Perri
v. Aytch, 724 F.2d 362 (3d Cir. 1983): (3) discharge
from employment in violation of the First Amendment.
Fitzgeraid v. Larson. 741 F.2d 32 (3d Cir. 1984): and
(4) termination of employment contract for exercise of
First Amendment rights. Skehan vp. Trustees of
Bloomsburg State College. 590 F.2d 470 (3d Cir.
1978).

Wilson v. Garcta completely undermined the
rationale we employed in Polite as we were quick to
recognize. Smith v. City of Pittsburgh. 764 F.2d 188
(3d Cir. 1985), reviewed our earlier decisions in light of
Wilson and applied Pennsylvania's two year statute of
limitations for personal injuries to a § 1983 claim of
employment termination without due process. In view
of the previous unsettled law in this and other circuits.
in Smith we also determined that Wilson v. Garcia
should be applied retroactively.

Had the case at hand been brought under § 1983
rather than § 1981. the statute of limitations question
would be answered by Wilson. This case. however,
involves discrimination in private employment to
which § 1983 does not apply. and therefore the issue is
whether the same statute of limitations used under
§ 1983 should also apply to § 1981.

The Wilson v. Garcia analysis begins with a
reference to 42 U.S.C. § 1988. which determines the
“rules of decision applicable to Civil Rights claims.”
Because no federal statute of limitations has been
provided for such claims. § 1988 approves the use of
state law to provide the appropriate rule. The reference
to state law. however, occurs only after analysis of the
claim using federal standards. In characterizing
§ 1983 claims for statute of limitations purposes. the
court must consider the elements of the cause of action
and Congress’ purpose in providing it. Wilson. 53
U.S.L.W. at 4483.

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In deciding the issue presented here. we find it
most significant that § 1988 applies not only to § 1983
but to § 1981 and the other reconstruction Civil Rights
Acts as well. Section 1988 by its terms applies to “the
jurisdiction in civil and criminal matters conferred on
the district courts by the provisions of this Title. and of
Title ‘Civil Rights.’ and of Title ‘Crimes.’ for the
protection of all persons in the United States in their
civil rights.”

In this context, we do not consider relevant that
§ 1981 was originally enacted in 1866. reenacted in
1870. and later included in the 1874 codification.
while § 1983 was the subject of separate legislation in
1871. See Runyon v. McCrary, 427 U.S. 160, 168 n.8
(1976); Mahone v. Waddle, 564 F.2d 1018. 1030-31
(3d Cir. 1977). Both sections are to be analyzed under
the broad provision of § 1988, which is “a directive to
select. in each state, the one most appropriate statute
of limitations.” Wilson. 53 U.S.L.W. at 4485. In this
choice, we should be guided by “federal interests in
uniformity. certainty. and the minimization of
unnecessary litigation” over the limitations period as
well as by the nature of the federal Civil Rights remedy.
and the prevention of potential state discrimination
against it.

In concluding that state statutes for personal
injury were the most appropriate for use in § 1983
cases, the Supreme Court believed that the enacting
Congress viewed civil rights actions as analogous to
state tort claims. In this connection, one might argue.
as does the dissent. that since § 1981 on “its face
relates primarily to racial discrimination in the making
and enforcement of contracts.” Johnson v. Railway
Express Agency, Inc.. 421 U.S. 454. 459 (1975). the
state statute of limitations applying to suits for breach
of contract is the most appropriate one. See Wilson v.
Sharon Steel Corp.. 549 F.2d 276. 280 (3d Cir. 1977).

A-1]

We are not persuaded by that argument because it
does not recognize the broad sweep of § 1981. see
Mahone v. Waddle. nor is it consistent with the
fundamental reasons underlying Wilson v. Garcia.
There. the Court emphasized § 1983's derivation from
the Fourteenth Amendment. which recognizes the
“equal status of every person:” that all persons shall be
accorded the full privileges of citizenship: and that no
person should be deprived of life. liberty or property
“without due process. ~ n, 53 U.S.L.W. at 4485. As

Those conce apply equally to actions under
§ 1981. Present day § 1981's predecessor was founded
on the Thirteenth Amendment that allows “neither
slavery nor involuntary servitude” to exist any longer. It
is difficult to imagine a more fundamental injury to the
individual rights of the person than the evil that comes
within the scope of that amendment. Also of
significance is that in Runyon v. McCrary, the
Supreme Cou™. accepted the use of a state's personal
injury statute of limitations in a § 1981 case. 427 U.S.
at 180-82.

Moreover. in its reenactment of § 1981 in 1870.
Congress looked to constitutional authority embodied
in the Fourteenth, as well as in the Thirteenth
Amendment. Croker v. Boeing Company. 662 F.2d
975. 987 (3d Cir. 1981) (in banc): see also General
Building Contractors Ass'n... Inc. v. Pennsylvania, 458
U.S. 375 (1982). Consequently. much of the body of
law developed under the Fourteenth Amendment is
helpfui in the interpretation of § 1981.

A substantial overlap exists in the types of claims
brought under sections 1981 and 1983. A plaintiff may
press an allegation of intentional racial discrimination
under either section when state action is present. A
§ 1983 case of intentional racial discrimination in

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employment filed in Pennsylvania against a state
agency is governed by the two year personal injury
statute. See Knoll v. Springfield Township School
Dist.. 763 F.2d 584 (3d Cir. 1985). Application of
Pennsylvania's six year statute of limitations where the
same claim is brought under § 1981 would lead to a
bizarre result.

Our first opinion in Knoll. 699 F.2d 137. 144.
expressed our doubt that Congress would have
intended a differing limitations period depending on
whether the defendant was a state official sued under
§ 1983 or a private individual in a § 1981 action. The
same conclusion is appropriate where the identical
claim may be brought under either of these
Reconstruction Civil Rights Acts. See Jackson v. City
of Bloomfield. 731 F.2d 652 (10th Cir. 1984).
Therefore. because employment discrimination cases
under § 1983. regardless of their affinity to contractual
actions, are now governed by the personal injury
Statute of limitations. and because the same
considerations which led to that judgment are also
present in § 1981 cases. we conclude that the same
limitations period applies.”

In taking this position. we are in agreement with
Supreme Court in 'Vilson that the personal injury
limitation period is unlikely to be fixed in such a way as
to discriminate against federal Civil Rights claims. In
addition. the factors characterized as “practical
considerations” by Justice O'Connor's dissent in
Wilson -- which include the desirability of uniformity.
certainty, and minimization of litigation prior to
reaching the merits -- are best served by applying the

2. We note that in 1978 and 1982 Pennsyivania’s statute of
limitations scheme was substantially revised. Claims for
injury to economic rights. as well as for personal injuries. are
currently subject to a two year limitation. 42 Pa. Cons. Stat.
Ann. § 5524.

A-15

same statute of limitations to all of the Reconstruction
Civil Rights cases.’

As we noted earlier. the reasoning employed by the
Supreme Court in Wilson is inconsistent with the
Polite approach as used in Davis and Pennypack
Words. This court has consistently held that one pane!
may not overrule an earlier panel's decision. See Third
Circuit Internal Operating Procedure VIII C. However.
we have recognized that this principle must yield when
a panel opinion is in conflict with an intervening
Supreme Court precedent. “Where. however. a holding
of this Court is overruled or rejected by the Supreme
Court. IOP 8c does not require in banc consideration to
align this court's jurisprudence with Supreme Court
teaching. Rubin v. Buckman, 727 F.2d 71 (3d Cir.
1984) (Garth. J. concurring). See also West v. Keve.
721 F.2d 91. 93 (3d Cir. 1983): Geraghty v. United
States Parole Commission. 719 F.2d 1199. 1209 (3d
Cir. 1983). The rationale used in Davis cannot coexist
with Wilson. and accordingly does not bind us here.

We hold, therefore. that the personal injury statute
of limitations of the forum state supplies the most
analogous statute of limitations for actions brought
under § 1981. For the reasons set forth in Smith v.
City of Pittsburgh. we also conclude that our decision
should be given the customary retroactive effect. See
Fitzgerald v. Larson. 769 F.2d 160 (3d Cir. 1985).

3. The plaintiffs argue that under the rule we adopt in this
opinion a statute meant to cover only cases involving bodily
injury will be applied to actions in which no such injury is
alleged. See Meyers v. Pennypack Woods. 559 F.2d at 902.
The Supreme Court clearly foresaw the possibility that
uniform characterization of all civil rights claims might lead
to some seemingly anomaious results under a particular
State statutory scheme. See Wilson v. Garcia. 53 U.S.L.W. at
4484. That state law interpretations are not fully consistent
is an acceptable result when considered in light of the
overriding federal interest in uniformity.

A-14

Our holding affects some but not all of the findings
made by the district court. Plaintiffs contend that the
two year statute of limitations would not change the
district court's decree because it was based on
violations of Title VII as well as § 1981.* However.
because the court did not consider the facts separately
under § 1981 and Title VII. we conclude this lack of
discrete analysis requires a partial remand.

As noted in Croker v. Boeing. 662 F.2d 975 (3d Cir.
1981). § 1981 liability is not co-extensive with that
under Title VII. and the remedies provided under the
two Statutes are “separate. distinct. and independent. ”
See Johnson v. Railway Express Agency. In the
absence of a specific finding fixing liability under each
Statute. we are unable to say whether application of the
two year statute of limitations would result in a
difference in the court's decree on two of its liability
determinations. It is conceivable. for example. that
events within the six vear statute of limitations used
for the § 1981 claims might have been considered by
the court in finding liability under Title VII bevond its
limitations period.

In finding discrimination in transfers to salaried
positions, the district court relied heavily on the low
percentage of blacks promoted to foreman jobs in the
years 1969 and 1970 -- between three and four vears
before the suit was filed. The court found that the
evidence “overwhelmingly establishes that Lukens
discriminated in the selection of foremen until at least
1971.” 580 F.Supp. at 1145. For the vears 1971

4. The district court determined that as to the claims against
the company. the Title VII limitations period began on Mav 6.
1970. and that finding has not been challenged on appeal.
Evidence of disparate treatment under Title VII provides the
elements of intentional discrimination under § 1981. See
Lewis v. University of Pittsburgh. 725 F.2d 910. 915 n.5 (3d
Cir. 1983).

A-1l5

through 1978. however. approximately 26% of the
foreman promotions were given to blacks -- not
substantially different from their 29% representation
in the work force during those years.

The record contains other anecdotal and statistical
evidence on this point which should be evaluated by
the district judge in the first instance. We are mindful
that a finding of classwide violation is supported only
when the evidence shows that discrimination was the
companys standard operating procedure. rather than
something which occurred only in a few isolated
incidents. See International Bhd. of Teamsters v.
Uniied States. 431 U.S. 324 (1977). In such a
situation. the trial judge's appraisal is particularly
important.

Similarly. the district court's finding that the
company tolerated racial harassment within the work
lorce must be reevaluated on remand. The court stated
that it had considered more than 100 incidents or
practices. many of which “predated the limitation
period” and about 35 of which “occurred within the
limitations period or shortly before -- e.g. ‘in the late
1960s or ‘between 1965 and 1970.” 580 F. Supp. at
1147. The court recognized the critical inquiry as
“assessing the conditions which prevailed during the
limitations period.” Id.

Some of the instances described in detail by the
district judge occurred before 1971 and some
thereafter. We are unable to determine from the record
what effect the application of the two year statute of
limitations for the § 1981 claims would have on the
district court's conclusion with respect to the
harassment charge. Consequently. it too will require
reexamination by the trial court.

We have surveyed the findings on the other issues
and conclude that they would not be affected by the two
vear limitations period. Naturally. in the portion of the

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case remaining to be tried for assessment of individual
damages. the two year statute would apply.

Il.

CLASS CERTIFICATION AND
CLASS REPRESENTATIVES

A.

A second major issue presented in this case is that
of class representation. In this area. too. subsequent
decisional law requires review of the district court's
ruling in a somewhat different light than that which
prevailed at the time the court acted.

In a Memorandum of June 16, 1975. the district
court certified a class of “ail black persons employed by
the defendant Lukens Steel Company at any time on or
after June 14. 1967.” This class includes persons
whose employment was within the six year statute of
limitations for § 1981 applied by the district court. To
that extent. the class definition must be narrowed.

A review of the class allegations in the complaint
and the court's certification order shows that the suit
was conceived as a broad. “across the board” attack on
racial discrimination at Lukens. As _ class
representatives, the court approved Charies Goodman.
Ramon L. Middleton, Romulus C. Jones. Jr., Lymas L.
Winfield. Dock Meeks. David Dantzler. and John R.
Hicks, III. Each of these plaintiffs asserted specific
claims of discrimination practiced against them by the
company and, in several instances. by the unions as
well.
Because of the nature of the claims. the court
concluded that any ruling on the appropriateness of
damages was premature. and therefore certified the
class under Fed. R. Civ. P. 23(b)(2). See Kyriazi v.
Western Electric Co.. 647 F.2d 388 (3d Cir. 1981).
Possible definition of a class under Rule 23(b)(3) for

A-17

assessment of damages was reserved. After making its
liability determinations, the court directed counsel to
prepare a proposed form of notice to class members.

On appeal. defendants contend that the district
court erred in allowing the individual plaintiffs who
asserted injury from specific discriminatory practices
to represent a broad class alleging violations beyond
those of the named individuals.

Initially, we observe that contrary to the
defendants’ contentions, the issue here is one of
compliance with the provisions of Rule 23, not one of
Article III standing. Each of the named plaintiffs has
presented claims of injury to himself and has alleged
facts which present a case or controversy under the
Constitution. Cf. O'Shea uv. Littleton, 414 U.S. 488,
494 (1974) (“If none of the named plaintiffs purporting
to represent a class establishes the requisite of a case
or controversy with the defendants. none may seek
relief on behalf of himself or any other member of the
class.”).

The thrust of the defendants’ challenge is that the
injuries to the named plaintiffs are in many instances
not the same as those advanced on behalf of the class.
In essence. the defendants contend that the allegations
of the named plaintiffs do not present “questions of law
or fact common to the class” and that their “claims. . .
are |not] typical of the claims ... of the class” as
required by Rule 23(a)(2) and (3). For this reason, we
need only consider whether the named plaintiffs meet
the requirements of Rule 23.

The expansive “across the board” class action
attack on employment discrimination gained currency
in a series of cases typified by Johnson v. Georgia
Highway Exp. Inc.. 417 F.2d 1122 (5th Cir. 1969), and
Payne v. Travenol Lab.. Inc., 565 F.2d 895 (5th Cir.
1978). See also Wetzel v. Liberty Mut. Ins. Co., 508
F.2d 239 (3d Cir. 1975); Mack v. General Elec. Co..

A-18

329 F. Supp. 72 (E.D. Pa. 1971); Rutherglen, Title VII
Class Actions, 47 U. Chi. L. Rev. 688 (1980). In
General Telephone Co. of the Southwest v. Faicon,
457 U.S. 147 (1982), however. the Supreme Court
pulled in the reins by insisting on actual, not
presumed, compliance with the typicality and
commonality provisions of Rule 23.

The Supreme Court pointed out that a named
plaintiffs proof of his persona! claim would not
necessarily establish that the discriminatory practice
was pervasive or was reflected in other employment
activities. As the Court said. “[ilf one allegation of
specific discriminatory treatment were sufficient to
support an across-the-board attack, every Title VII case
would be a potential companywide class action. We find
nothing in the statute to indicate that Congress
intended to authorize such a wholesale expansion of
class-action litigation.” Jd. at 159.

In Falcon, the named plaintiff alleged that he had
been denied a promotion because he was a
Mexican-American. The Court determined that he
could not represent a class of Mexican-Americans
attacking discrimination in hiring. The Court cited
East Texas Motor Freight System, Inc. v. Rodriguez.
431 U.S. 395 (1977), in which named plaintiffs who
were not qualified as over-the-road drivers could not
represent a class of qualified drivers who complained of
discrimination. Because the named plaintiffs “could
have suffered no injury as a result of the alleged
discriminatory practices, ... they were. therefore.
simply not eligible to represent a class of persons who
did allegedly suffer injury.” 431 U.S. at 403-04.

Scott v. University of Delaware, 601 F.2d 76 (3d
Cir. 1979), presented a similar problem. There, a
former faculty member whose contract was not
renewed alleged that he was a victim of racial
discrimination and sued under sections 1981 and

——_—e

A-19

1983 as well as Title VII. He sought to represent a
subclass of applicants seeking initial faculty
appoi:itments who were also allegedly victimized by
racial considerations. The district court entered
judgment on the merits for the defendant on both the
individual and class claims.

We determined that the plaintiff could not
represent a class contesting the university's hiring
procedures. Clearly. he had suffered no harm from
discrimination in hiring practices since he had
initially obtained a position. In that situation. absent
class members might be harmed by the preclusive
effect ui the district court's judgment. Therefore, we
concluded that the court had a duty to “consider
carefully the requirement of fair and adequate
protection” to the absent class members, despite the
lack of a cross appeal of the class certification ruling by
the defendant. Scott. 601 F.2d at 83.°

As is clear from Scott. assessment of the adequacy
of representation initially must focus on any potential
conilicts of interest between the named individuals
and the class. On this record. we find no divergence
that would impair the incentive of the named plaintiffs
in vigorously prosecuting all aspects of the claims that
are otherwise found to be adequately represented. Scott
v. Untversity of Delaware. 601 F.2d at 85. See
Rutherglen. Notice. Scope. and Precilusion in Title VII
Class Actions. 69 Va. L. Rev. 11 (1983).* The
defendants have raised additional allegations of error

9. The defendant in Scott did challenge the propriety of the
class certification in both the district court and on appeal.

6 The fact that some of the named plaintiffs did not prevail on
their individual claims does not make them inadequate class
representatives. See East Texas Motor Freight v. Rodriguez.
431 U.S. at 406 n.12 (1977): International Woodworkers of
America v. Chesapeake Bay Plywood Corp.. 659 F.2d 1259
(4th Cir. 1981).

A-20

in class certification. however. which must also be
addressed.

The class representatives alleged a variety of
instances of discrimination by the company and the
unions in various employment practices. covering
most of the claims presented by the class. Included
were promotion (Middleton. Winfield. Jones), incentive
pay (Meeks). discharge (Goodman, Hicks, Dantzler).
harassment (Meeks). inadequate union representation
(Middleton. Dantzler. Meeks). testing (Meeks).
seniority system (Meeks). discipline (Dantzler), and
manning of the new Strand-Cast facility (Middleton).

Defendants contend that in a number of areas the
class representatives specific allegations are distinct
from those of the class as a whole. For example. none of
the named plaintiffs were discharged’ during the
probationary period. Nonetheless. some do allege that
racial bias resulted in their discharge. Even though the
alleged discrimination occurred after their
probationary period had passed. we conclude that the
typicality of their claims makes them adequate
representatives under Rule 23.

The defendants’ contentions are not completely
without merit however. Even under an expansive view
of representation. discrete areas of alleged bias exist in
which the record does not demonstrate the required
commonality and typicality of the class complaints
with those of the individual representatives. A footnote
in Falcon suggests that “[sjignificant proof that an
employer operated under a general policy of
discrimination conceivably could justify” a broad class
if the bias manifested itself “in the same general
fashion. such as through entirely subjective
decisionmaking processes.” 457 U.S. at 159 n.15. We
do not regard the case at hand as meeting those
requirements. The findings of the district court. which

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rejected some of the plaintiffs’ claims, belie the
existence of a “general policy” of discrimination and
plaintiffs did not produce “significant proof” of such a
scheme.

The district court found discrimination in the
initial assignment of Lukens’ newly-hired employees.
To be actionable, the discriminatory practice must
exist during the applicable limitations period. All of the
named plaintiffs. however. were originally hired
outside the limitations period. and therefore, none
have a viable complaint about discrimination in initial
assignment. Thus. no representative adequately
represents the class in this particular claim. See Hill v.
AT&T Technologies. Inc., 731 F.2d 175 (4th Cir.
1984).’

Because in this instance a qualified class
representatives is lacking, the findings applicable to it
must be vacated. Economical use of judicial resources.
however. requires that some thought be given to
whether the work of district court and counsel! with
respect to this claim may yet be salvaged.

We begin by acknowledging the realities of class
suits, a sometimes neglected approach in this field. In
a massive class action such as the one at hand, it is
counsel for the class who has the laboring oar. The
class representatives furnish the factual basis to
invoke the jurisdiction of the court and provide the
outline of the controversy. but the lawyers shape the

7. Nor do we find appropriate class representatives for one
claim resolved in defendants favor -- that in which
discrimination in the awards for suggestions made to the
company was alleged. That point has not been raised by
defendants or plaintiffs. and we leave it for further
exploration. if desired. in the district court.

A-22

claims for adjudication by the compliation of factual
and expert testimony and the presentation of
statistical and documentary evidence.

That work was performed in this case by
thoroughly competent counsel as to the claims in
which the court found for plaintiffs as well as those
where it ruled for defendants. We do not prejudge the
issue but merely note the distinct possibility that the
evidence presented would not have varied one iota had
a qualified representative for each claim been present
from the inception of the suit. If that possibility is
indeed the fact. then another suit filed on such a claim
by a newly qualified class representative would produce
a trial that would simply repeat the previous one. That
result would yield no discernable benefit to anyone but
would generate substantial loss in time for court.
counsel, and parties."

To obviate such unnecessary duplication. on
remand the district court should explore the possibility
of intervention by qualified class representatives.
followed by a proceeding to determine if the findings
previously reached may be reinstated. That solution
was suggested by the Court of Appeals for the Fourth
Circuit in Hill v. Western Elec. Co.. Inc.. 672 F.2d 381
‘4th Cir. 1982). See Note, Reinstating Vacated
Findings in Employment Discrimination Class
Actions: Reconciling General Telephone Co. v. Falcon
with Hill v. Western Electric Co.. 1983 Duke L.J. 821.

Intervention is still permissible even at this stage.
see Untted Airlines, Inc. v. McDonald, 432 U.S. 385
(1977), and a class action determination in some
instances may be made even after appeal. McLaughlin

8. Such a suit would be timely since the commencement of the
class action tolled the statute of limitations as to members of
the class. See Crown. Cork & Seal Co.. Inc. v. Parker. 462
U.S. 345 (1983): Edwards v. Boeing Vertol Co.. 717 F.2d 761
(3d Cir. 1983).

A-25

v. Wohigemuth, 535 F.2d 251. 252 n.2 (3d Cir. 1976).

As the Hill court observed. practical fairness
should guide the district court in evaluating the
propriety of intervention. For example. a witness who
testified about a particular practice and who otherwise
meets the necessary test may be a likely representative.
See Lilly v. Harris-Teeter Supermarket. 720 F.2d 326
(4th Cir. 1983). If. however. no proper class
representative is available. then that claim must be
dismissed as to the class. See Scott v. City of Anniston,
Alabama. 682 F.2d 1353 (ilth Cir. 1982): Carpenter
v. Stephen F. Austin State University. 706 F.2d 608
(5th Cir. 1983). Cf. Vuyanich v. Republic Natl Bank of
Dallas, 723 F.2d 1195 (5th Cir. 1984).

Assuming that a proper class representative is
appointed. the next step would be to detérmine
whether the findings from the original trial may be
reinstated. In reaching a decision on this question, the
district court must consider whether either side will be
prejudiced. This will require determination of whether
those findings would have been different had the new
class representative been on board at that time. An
intervenor or new class representative seeking to
salvage the original findings has the burden of proving
that the prior defect in class representation did not
affect those determinations. In the event of such proof,
the previous findings may be reinstated.

On remand. the district court has the benefit of
hindsight. As the court of appeals said in the Hill case.
“Itlo the extent inadequacy is based solely upon lack of
sufficient identity of interest. any presumed adverse
effect on the merits stemming from this may in fact be
utterly belied by the outcome.” 672 F.2d at 389. See
also Scott v. University of Delaware. 601 F.2d at 87
n.22. If the results of the original trial were favorable to
the class. then there may be no reason to assume that
reinstatement would be prejudicial to the class.

A-24

The district court also has the responsibility of
determining whether it would be unfair to defendants
to reinstate the findings. That the net effect is to revive
an adverse result is not in itself a sufficient showing of
prejudice. Rather, the court should consider whether
the defendants’ preparation and tactics would have
been different had other class representatives been in
place at the earlier trial. In other words. the question is
would defendants have conducted the litigation
differently in some material way absent the defect in
representation in the prior proceeding. See Dickerson
v. United States Steel Corp.. 582 F.2d 827 (3d Cir.
1978). Cf. Mullaney v. Anderson. 342 U.S. 415. 417
(1952) (Joinder of new parties permissible where their
earlier presence would not “have in any way affected
the course of the litigation”).

We do not limit the district court in its inquiry but
only point to a few of the considerations that should be
examined.

C.

Plaintiffs contend that the United Political Action
Committee -- an unincorporated association composed
predominantly of black citizens in the vicinity of the
Lukens plant. some of whom are employed by the
company -- should be permitted to act as a class
representative. The record in this case does not
contain adequate factual material to justify the
committee's capacity to act as a class representative.
See General Telephone Co. of the Southwest v.
Falcon.

Accordingly. we conclude that on this record no
named plaintiff could adequately represent the class in
the claim of racial discrimination in initial work
assignments. On remand, the district court may
consider the intervention and appointment of
appropriate class representatives as well as possible
reinstatement of the original findings.

Il.
CLAIMS AGAINST THE UNIONS

The district court concluded that the evidence did
not support the plaintiffs’ claims about racial
discrimination in the general handling of grievances by
the unions. including references to arbitration. The
delay in processing grievances and the decision to
abandon those of a less serious nature were, in the
court's view, practices legitimately complained of by
both black and white workers. However, the court did
find that the unions discriminated against the plaintiff
class in violation of both § 1981 and Title VII.

Collective bargaining agreements beginning in
1965 had prohibited the company from discriminating
against any employee, probationary or permanent, on
racial grounds. Nevertheless. although they knew that
blacks were being discharged at a disproportionate
rate during the probationary period. the locals failed to
file grievances challenging that practice. pursuant to a
union policy of not grieving complaints of probationary
employees.”

The unions were reluctant to assert racial bias as a
basis for a grievance even when they believed that
element was implicated. The court found this policy to
perpetuate the discriminatory environment and
“render the non-discrimination clause in the collective
bargaining agreement a dead letter.” 580 F. Supp. at
1160.

The unions argued before the district court that
simple inactivity could not make them liable under
Title VII or 8 1981. The district court rejected that
contention. but went on to hold that “the evidence in
this case proves far more than mere passivity on the
part of the unions.” The court further commented that

9. We reject the unions’ contention that the district court's
findings were clearly erroneous as (to this matter.

A-26

“{a] union which intentionally avoids asserting
discrimination claims. either so as not to antagonize
the employer and thus improve its chances of success
on other issues. or in deference to the perceived desires
of its white membership. is liable under both Title [VII)
and § 1981 regardless of” its leadership's favorable
disposition toward blacks. Id. at 1160.

On appeal. the unions repeat their argument that
mere passivity should not subject them to liability
because such inaction is not within the scope of
§ 703(c) of Title VII addressing union responsibility.
That section of the Act provides in pertinent part that
it is an unlawful employment practice for a union:

“(1) to exclude or to expel from its membership.
or otherwise to discriminate against. any
individual because of his race. color. religion.
sex. or national origin:

(3) to cause or attempt to cause an
employer to discriminate against an
individual in violation of this section.”

42 U.S.C. § 2000e-2(c).

The union argues that passivity does not “cause”
the employer to discriminate and faults Macklin v.
Spector Freight Systems, Inc., 478 F.2d 979 (D.C. Cir.
1973). for holding a union liable without any reference
to the text of the statute. Although the Macklin case
has been criticized. see Larson. Employment
Discrimination. § 44.50, oth-~ cases have echoed its
premise that there is an afivry.tive duty on the part of
the unions to combat discrimination in the workplace.
See, e.g.. Bonilla v. Oakland Scavenger Co.. 697 F.2d
1297 (9th Cir. 1982); Farmer v. ARA Services. Inc..
660 F.2d 1096 (6th Cir. 1981): Romero v. Union
Pacific R.R.. 615 F.2d 1303 (10th Cir. 1980): Donnell

——

A-27

vy. General Motors Corp.. 576 F.2d 1292 (8th Cir.
1978): Carey v. Greyhound Bus Co.. Inc.. 500 F.2d
1372 (5th Cir. 1974). |

In McDonald v. Santa Fe Trail Transp. Co.. 427
U.S. 273 (1976). the plaintiffs contended -that
disproportionate discipline had been imposed on them
because of their race. They alleged that the union “had
acquiesced and/or joined in” the employer s
discrimination. The Court did not accept the union's
defense that in representing a number of employees it
is sornetimes necessary to compromise the grievance of
one.

“We reject the argument. The same reasons
which prohibit an employer from discriminating
on the basis of race among the culpable
employees apply equally to the union, and
whatever factors the mechanisms of compromise
may legitimately take into account in mitigating
discipline of some employees. under Title VII
race may not be among them.”

427 U.S. at 285.

The case against the unions here is stronger than
one of mere acquiescence. The district court found that
the unions intentionally avoided asserting claims of
discrimination. In so doing. the unions violated the
duty of fair representation owed to their members. See
Vaca v. Sipes. 386 U.S. 171 (1967): Steele v.
Louisville & Nashville R.R. Co.. 323 U.S. 192 (1944):
see also. Note. Union Liability for Employer
Discrimination. 93 Harv. L. Rev. 702 (1980).

By shirking their responsibility for presenting
grievances based on discrimination. the unions also
violated the duty to enforce the collecti bargaining
agreement. See Peterson v. Lehigh Valley Dist.
Council. 676 F.2d 81 (3d Cir. 1982). The deliberate
choice not to process grievances also violated

A-2%

§ 703(c)(1) of Title VII because it discriminated against
the victims who were entitied to representation. The
district court's finding of intentional discrimination
properly supports the claims under § 1981 as well. We
therefore find mo error in the district courts
assessment of liability against the unions.

IV.

STATUTE OF LIMITATIONS AS TO THE TITLE VII
CLAIMS AGAINST THE UNIONS

Plaintiff Hicks filed charges against Lukens before
the Pennsylvania Human Rights Commission on
December 2, 1971. The unions were not named in that
complaint. On January 28, 1972, however, Hicks along
with named plaintiffs Goodman. Meeks. and Middleton
filed broad charges of discrimination against Lukens.
the International Union. and Local 1165 with the
EEOC. The Commission deferred these charges to the
Pennsylvania Human Relations Commission on.
’ February 16, 1972. and filed them on May 7. 1972.
Local 2295 was first named in an amended charge filed
by plaintiff Meeks on June 13. 1972.

Because the statute allows the state agency sixty
days to dispose of a claim. 42 U.S.C. § 2000e-5ic). the
earliest that Hicks’ original charge could be considered
filed with the EEOC was January 31. 1972. Based on
that date, the district court found that the limitation
period for Title VII claims against the unions began on
April 6, 1971. That determination is correct only if the
initial filing in the state Commission against Lukens is
construed to include claims against the unions as well.

In Ostapowicz v. Johnson Bronze Co., 541 F.2d
394 (3d Cir. 1976), we held that the scope of a Title VII
action is defined by the limits of the EEOC
investigation which can reasonably be expected to
grow out of the charge of discrimination. That case.

A-29

however. involved only one defendant. and we did not
hold that the scope of the investigation could include
unnamed parties.

Glus v. G.C. Murphy Co.. 629 F.2d 248 (3d Cir.
1980). held that charges against an unnamed
international union could be adjudicated because the
original complaint before the EEOC had named a local
union whose interests were the same and the
international had received notice. Neither of those two
conditions apply here. The charge filed by Hicks was
not against a union. but against the employer. We do
not find the commonality of interest and actual notice
which would make Glus applicable. Therefore. no
charges were cognizable against the unions until the
January 28. 1972 filing with the EEOC.

_ In Mohasco Corp. v. Silver, 447 U.S. 807. 814 n. 16
(1980). the Court held that “a complainant in a deferral
State [as is Pennsylvania]. . . need only file his charge
within 240 days of the alleged discriminatory
employment practice in order to insure that his federal
rights will be preserved.” Plaintiffs ask that they be
given the benefit of this 240 day rule. That would
produce a limitations period commencing June 2.
1971. somewhat longer than that advocated by the
unions. Although we can foresee another case in which
a plaintiff might be entitled to a longer period. in light
of the plaintiffs’ concession here, we conclude that the
June 2 starting date is appropriate.

We do not find a different limitation period
applicable to Local 2295. The identity of interest and
notice provisions of Glus are applicable in this
situation: therefore. Local 2295 will be governed by the
same effective limitations date. June 2, 1971.

The correction of the limitations date for Title VII
claims against the unions will not affect the injunctive
relief directed by the district court. It might. however.

A-30

make a difference in the assessment of damages. and
accordingly we feel obligated to make a ruling on the

point.
V

INCENTIVE PAY FOR THE PIT CREWS

The district court found that the company’s policy
of denying incentive pay to workers in the open hearth
pits while making it available to other workers
amounted to discrimination. The open hearth pit
crews were predominantly black. Their assignment
was to prepare moids to receive molten metal. pour the
metal. and remove the moids after the metal had
hardened. At a higher physical elevation in the plant.
workers on the melting “floor” placed the raw materials
into the furnaces for melting and supervised that
process. These predominantly white crews received
incentive pay. as did other workers in the Lukens
facility.

The court reasoned that “[g]iven the fact that the
company paid incentive bonuses to the ‘floor
personnel, . . . [its] refusal to accord the same benefit
to the pit personnel had no legitimate justification. |
find that this was a clear instance of racial
discrimination.” 580 F. Supp. at 1138.

In reviewing factual findings made by a district
court, we apply the clearly erroneous standard set out
in Fed. R. Civ. P. 52(a). As the Supreme Court stated in
Anderson v. City of Bessemer City. 53 U.S.L.W. 4314
(March 19, 1985), this standard is used “even when the
district court's findings do not rest on credibility
determinations, but are based instead on physical or
documentary evidence or inferences from other facts.”
Id. at 4317. The Rule clearly requires deference to the
findings of the trial judge. but it does not relieve the
court of appeals from its responsibility to correct
findings of fact when it is left “with a definite and firm

A-31

conviction that a mistake has been committed.”
United States v. United States Gypsum Co.. 333 U.S.
364, 395 (1948).

As an appellate court. we have an advantage over
the trial judge in that the parties have had ample
opportunity after trial to review the record in detail and
point out specific references to support their position.
Moreover. the attention of the litigants is restricted toa
narrow area in which they hope the challenge may be
successful. That process differs from the broad gauge
approach which is followed in the district court. where
the requests for findings are being compiled in the first
instance from voluminous testimony and exhibits and
without any indication of the trial court's ultimate
rulings. This is particularly true in a case as massive as
this one.

After a painstaking review of every record reference
to which the parties have cited us. we have come to the
conclusion that in this instance. a mistake was made.

it is undisputed that the incentive pay issue was
one of long standing which began before the
limitations period. Both testimony and documents
disclose that the union on a number of occasions had
asked the company to grant incentive pay to the pit
crew. The employer's response was consistent -- it
would include the pit crew in the incentive plan only if
the company was given the opportunity to reduce the
size of the crew. On each occasion, and there were
several. when the employer submitted this proposition
to the members of the pit crew. they rejected it. Not
only did the pit crews turn down the companys
proposal, but the crane crews in the pit - another
seniority subdivision ~ did so as well.

One union official who discussed the company's
proposal with the workers recalled that about equal
numbers of black and white workers were present at a
meeting to vote on the proposal. Although plaintiffs

A-32

suggest that other groups receiving incentive pay also
had agreements on crew size. testimony reveals that
these arrangements were not comparable to those with
the pit and crane crews.

Another union witness described the particularly
close relationship among the workers in the pit crew.
The men consistently presented a united front to the
company and were most solicitous of each member's
safety and well being. When one reads the testimony
against this background. it is understandable why the
pit crew would not sacrifice the jobs of its members in
exchange for higher pay for those who would retain
their positions.

The evidence is equally clear why the employer
insisted on the trade-off. Company officials testified
that the pit crews were overmanned and that the
facilities of the plant were limited. Any increase in
efficiency had to come from a reduction in crew size. In
these circumstances. incentive pay would not be
economically advantageous to the company because
the capacity of the facility had already been reached
and increased efficiency by the already overabundant
manpower could not result in greater production.

The testimony does not support any inference that
denial of incentive pay was racially inspired. The
company’s position on a trade-off was consistently
maintained and was unrelated to race. That conclusion
finds reinforcement in the company's experience with
the die shop workers. Early collective bargaining
agreements showed that both the pit crew and die shop
group were not included in the incentive pay plan.
However. when the die shop employees agreed that the
company would be under no restriction as to crew size.
they did receive incentive pay.

The record citations to which plaintiffs have
referred us do not furnish any basis for concluding

A-33

that the company’s reason for denying incentive pay
was pretextual. Indeed. the weakness on‘this point in
the otherwise vigorous and well-documented plaintiffs’
brief is eloquent in itself.

After our review. we conclude that the finding on
incentive pay to the pit crews is clearly erroneous, and
on this claim. the judgment of the district court must
be reversed.

V1.
LUKENS OTHER CONTENTIONS

In addition to the matters which have been
discussed above. Lukens has raised other claims of
error. It contends that the trial judge erred by
impermissibly shifting the burden of proof to the
defendant. We find no merit to this argument. In the
introduction to his opinion. the trial judge reviewed
the leading cases of Texas Dept. of Community Affairs
v. Burdine. 450 U.S. 248 (1981). and McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). He
stated clearly that the burden of proof was on plaintiffs.
We are not persuaded that the casual references in the
opinion to which Lukens points should be interpreted
as contradicting the earlier unambiguous allocation of
the burden of proof.

The court's opinion similarly displayed a thorough
understanding of the difference between disparate
impact and disparate treatment cases and of the
relevant evidence under each theory. The defendant
takes exception to the district judge's comment that

“One must be careful not to over-categorize in this
context. The analytical distinctions. . . are of only
limited utility. The ultimate questions to be
answered are essentially the same in all
employment discrimination Cases: Has the
defendant caused a given employee or group of

A-54

employees to be discriminated against? .. . Is the
action or conduct complained of justifiable .. .?”

580 F. Supp. at 1121.

We find no fault with these observations. In Dillon
v. Coles. 746 F.2d 998 (3d Cir. 1984). we similariy
commented on excessive preoccupation with the
various formulae used in an employment
discrimination case and observed that they are simply
tools designed to aid in the analysis of evidence. The
ultimate question remains whether the defendant has
discriminated. The presumptions and shifting
burdens are merely an aid -- not ends in themselves.
When direct evidence is available. problems of proof are
no different than in other civil cases. See Trans Worid
Airlines. inc. v. Thurston, _ U.S. — —. 105 S.Ct.
613. 622 (1985): United States Postal Serv. Bd. of
Governors v. Aikens. 460 U.S. 711 (1983): Furnco
Constr. Corp. v. Waters. 438 U.S. 567. 577 (1978). If
judges lose sight of the ultimate question. the analysis
intended to aid in the process will instead have become
a hinderance.

Lukens also argues that the district court
misapplied evidence by failing to recognize that a
Statistical variation in itself does not establish
discrimination unless the record also shows the
requisite availability of positions and the qualification
of the claimants. We do not so read the district court's
opinion. In considering the statistical data presented
as part of the plaintiffs case. the court demonstrated
its recognition of the limits of such evidence and the
caution with which it must be viewed. The court noted
that to prevail the class was required to prove that
“disparate treatment exists and is the defendant's
regular and standard operating procedure.” 580 F.
Supp. at 1120. Im another part of the opinion. the
court made clear that it had considered Lukens

“attempts to show that [the plaintiffs] comparisons are
faulty because of factual dissimilarities.” Id.

We repeat once again that the clearly erroneous
rule applies to our review of factual findings. including
those based in part on statistical data. Statistical proof
in Title VII cases must be evaluated in light of the
“surrounding facts and circumstances. ” International
Bhd. of Teamsters v. United States. 431 U.S. 324. 340
(1977). In Dothard v. Rawlinson, 433 U.S. 321, 338
(1977). Justice Rehnquist in his concurring opinion
wrote. “liJt is for the District Court, in the first
instance. to determine whether these statistics appear
sufficiently probative of the ultimate fact in issue... .
In making this determination. such statistics are to be
considered in light of all other relevant facts and
circumstances.” See also Holsey v. Armour & Co.. 743
F.2d 199, 215 (4th Cir. 1984).

We have reviewed Lukens’ remaining contentions
using this standard. We cannot say that the findings
made by the district court are clearly erroneous, nor do
we find error in the legal guidelines used by the court
in reaching these remaining findings. Therefore, the
judgment of the district court with respect to the
instances of discrimination not previously discussed
will be affirmed.

Vil.
SUMMARY

1. The district court's findings that Lukens
discriminated in transfers to salary positions and
toleration of racial harassment will be vacated and the
matters remanded for further consideration in light of
our ruling on the appropriate statute of limitations for
the § 1981 claims.

2. The district court's finding in favor of the class
with respect to initial assignments will be vacated and

A-36

remanded for reconsideration in light of our ruling on
class representation.

3. The limitations period pertaining to the Title
VIl claims against the unions shall be adjusted in
accordance with the views expressed above.

4. The finding of discrimination in the denial of
incentive pay for the pit crews is reversed and
judgment shall be entered for the defendant on that
claim.

S. In all other respects. the judgment of the
district court will be affirmed.

GARTH, Circuit Judge. dissenting:

| agree with the majority's analysis and disposition
of all the issues presented in this appeal except for one.
| respectfully dissent from the majority's hoiding that
the statute of limitations for a cause of action under 42
U.S.C. § 1981 is limited in Pennsylvania to two years
rather than the six year period applied by the district
court.

The court today relies on Wilson v. Garcia. 105 S.
Ct. 1938 (1985). in which the Supreme Court held that
all claims under § 1983 should be subject to a state's
corresponding personal injury statute of limitations.
Although Wilson does not address § 1981 claims. the
court concludes that Wilson's reasoning compels
identical limitations treatment for all reconstruction
Civil Rights claims. This conclusion is inconsistent
with history. precedent. and logic. and in any event is
not required by Wilson.

While the majority's holding may not bar the civil
rights claims asserted in this case. since violations of
§ 1981 may be found to have occurred within the
shorter limitation period. the majority's discussion

and holding necessarily will have ramifications far
beyond the appeal which we decide today. | therefore
write separately to record my disagreement with the
majority's analysis.

[.

Prior to Wilson v. Garcia. this court applied a
case-by-case analysis in determining which statute of
limitations was most appropriate for a particular civil
rights cause of action. Polite v. Diehl. 507 F.2d 119 (3d
Cir. 1974) (in banc). Under this analysis. we have
generally held that claims under § 1981 are governed
in Pennsylvania by that state's six-year statute of
limitations. See. e.g.. Davis v. United States Steel
Supply. 581 F.2d 335. 341 (3d Cir. 1978). cert.
denied. 460 U.S. 1014 (1983): Meyers v. Pennypack
Woods Home Ownership Ass'n. 559 F.2d 894, 902-03
(3d Cir. 1977).

In Davis. we held that a § 198! claim of racial
discrimination in employment. the gravamen of which
was interference with economic rights and interests
rather than personal injury. should be governed by
Pennsylvania's six-year limitations period. 42 Pa.
Cons. Stat. Ann. § 5527 (Purdon 1982). Uniess it has
been overruled by Wilson. Davis would appear to
coritrol the present case. where the gist of the cause of
action is economic rather than bodily injury caused by
interference with the employment rights of black
workers.

Wilson holds that “the federal interests in
uniformity. certainty. and the minimization of
unnecessary litigation” requires that all § 1983 claims
be governed by the same statute of limitations in a
given state: that state's personal injury statute. 105 S.
Ct. at 1947. Because Wilson looks to § 1988 for its
authority to apply state limitations periods in civil
rights actions. and § 1988 by its terms covers all of the

A-38

Reconstruction sections. the majority today concludes
that Wilson mandates that all civil rights actions be
governed by a state's personal injury limitation period.
This conclusion is at best an arguable extension of
Wilson's analysis: it is by no means the holding of
Wilson or an inexorable outgrowth of the case. In the
absence of a square holding which overrules Third
Circuit precedent. however, we remain bound by Davis
to apply the six-vear limitation period. It is not enough
if Wilson merely undermines or raises questions about
our prior analvsis. Until the Supreme Court actually
decides the limitation period for a § 1981 claim. or
unless Wilson would admit of no other reasonable
reading. only an in banc decision of this court can
overrule Davis. See Third Circuit Internal Operating
Procedures VIII C.'

A close reading of Wilson reveals that the
majority's view is neither an inevitable nor even the
most plausible reading of the case. Wilson's holding
that all § 1983 claims should be decided in a given
State under the same statute of limitations follows from
the Supreme Court's view that § 1983 claims are best
analogized to state tort actions for personal injuries.
Id. at 1947. Having made this analogy as a matter of
federal law. the Court adopted New Mexico's three-vear
personal injury statute of limitations out of deference
tp the state's judgment regarding “the proper balance
between policies of repose and the substantive policies
of enforcement embodied in the state cause of action.”
Id. at 1945.

Nothing in Wilson addresses § 1981. which has a
different history and purpose. See Section II infra. If

1. Compare Rubin v. Buckman. 727 F.2d 71. 73-74(3d Cir. 1984)
(Garth. J.. concurring) (in banc hearing not necessary to overrule
prior pane! when earlier case violated “consistent and explicit” rule
and was “obviously in conflict with Supreme Court precedent. ’).

A-39

Wilson has any effect on this case. therefore, it is
merely to suggest that a single. uniform statute of
limitations should be applied in each state to all cases
under § 1981 instead of the case-by-case approach of
Polite. Whether that would be the two-year personal
injury period now applied in Pennsylvania for § 1983
claims. Smith v. City of Pittsburgh. 764 F.2d 188 (3d
Cir. 1985). or some other limitation period dictated by
the nature of § 1981. is a question beyond the scope of
Wilson. Even if Wilson does require us to select a single
statute of limitations for all § 1981 claims. it does not
necessarily erase the distinctions between § 1981 and
§ 1983 recognized in Davis and Meyer.’ These cases
would therefore weigh heavily toward our selection of
six years as the most appropriate uniform period of
limitations for § 1981 claims. In short. not only does
Wilson not require today’s result. but it can plausibly
be read as support for a uniform six-year statute of
limitations for § 1981 claims in Pennsylvania.

II.

An examination of the history. purpose. and
application of § 1981 in contrast to the history.
purpose. and application of § 1983. supports the
conclusion that Pennsylvania's six-year statute of
limitations for contract and trespass actions is the
most appropriate one to apply to the § 1981 claim
before us. While it is true. as the majority notes. that
both § 1981 and § 1983 are concerned broadly with

2. While Smith v. City of Pittsburgh. 764 F.2d 188 (3d Cir. 1985).
discusses Davis v. United States Steel Supply. 581 F.2d 335 (3d
Cir. 1978). cert. denied. 460 U.S. 1014 (1983). in following Wilson
v. Garcia. 105 S. Ct. 1938 (1985). Smith was a § 1983 case. The
Smith court erroneously cited Davis as a § 1983 case decided under
the discredited case-by-case approach of Polite. 1764 F.2d at 193.
In fact. Davis was a § 1981 case. and as ‘such. is not controlled
either by Smith or Wilson.

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protecting the equal legal status of every person before
the law. and that there is substantial overlap in the
cases that may properly be brought under the two
sections. there are still significant differences between
the two. In short. § 1983 was conceived. and has been
generally applied. as a personal injury statute. Section
1981, however. is more fundamentally concerned with
injury to the contractual or economic fights of
minorities. and as such should appropriately be
governed by the longer contract statute of limitations.

A.

42 U.S.C. § 1981 was originally enacted as section
one of the Civil Rights Act of 1866. was re-enacted as
Section 16 of the 1870 Act. and was later included in
the 1874 recodification. Runyon v. McCrary, 427 U.S.
160, 169 n.8 (1976). In its present form it provides:

8 1981. Equal rights under the law

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. penalties. taxes. licenses. and
exactions of every kind. and to no other.

While the “full and equal benefit” and “penalties”
clauses give § 1981 broad applicability beyond the
mere right to contract. Mahone v. Waddle. 564 F.2d
1018. 1028 (3d Cir. 1977). cert. denied sub. nom..
City of Pittsburgh v. Mahone, 438 U.S. 904 (1978).
speeches and testimony at the time of § 1981's
enactment, demonstrate the predominantly economic
focus of Section 1 of the 1866 Act.

A-4]

Concerned with removing the badges and
incidents of slavery. the legislators of 1866 believed
that if economic freedom was protected. social freedom
and equality would follow. Senator Trumbull. who
introduced the 1866 Act. specified certain “great
fundamental rights” denied to freedmen by former
slave states:

the right to acquire property, the right to come and
go at pleasure. the right to enforce rights in the
courts. to make contracts. and to inherit and

dispose of property.

Cong. Globe. 39th Cong.. lst Sess. 475 (1866). quoted
in Jones v. Alfred E. Mayer Co.. 392 U.S. 409, 432
(1968).

The bills’ supporters believed that freedom would
be valueless to men not assured an equal opportunity
to bargain for their labors. Illustrative of this economic
concern are the words of Rep. Lawrence of Ohio
delivered in a detailed speech to the House:

It is idle to say a citizen shall have the right to
life. yet deny him the right to labor, whereby he
alone can live. It is a mockery to say a citizen may
have a right to live. and yet deny him the right to
make a contract to secure the privilege and the
rewards of labor.

Every citizen. therefore, has the absolute right
to life. the right to personal security. personal
liberty. and the right to acquire and enjoy
property. These are rights of citizenship. As
necessary incidents of these absolute rights, there
are others, as the right to make and enforce
contracts. to purchase. hold. and enjoy property.
and to share the benefit of laws for the security of

person and property.
Cong. Globe. 39th Cong.. Ist Sess. 1832.

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On March 2. Rep. Windom of Minnesota stated his
understanding of the scope of the bill:

Its object is to secure to a poor weak class of
laborers the right to make contracts for their labor.
the power to enforce the payment of their wages.
and the means of holding and enjoying the
proceeds of their toil. |

Id. at 1159.

In 1865, the President commissioned Brigadier
General Carl Schurz to tour the five most war-ravaged
states to report on conditions there and suggest
measures to overcome post war probiems. In Report of
C. Schurz. S. Exec. Doc. No. 2. 39th Cong.. lst Sess. at
21 (1865). Schurz concluded:

It is. indeed. not probable that a general
attempt will be made to restore slavery in its old
form. on account of the barriers which such an
attempt will find in its way: but there are systems
intermediate between slavery as it formerly existed
in the south. and free labor as it exists in the
north. but more nearly related to the former than
to the latter. the introduction of which will be
attempted.

This intermediate state between slavery and free
labor referred to by General Schurz was created in large
part by the Black Codes enacted by Southern states.
While specifying that blacks had the right to buy. sell.
own and bequeath real and personal property. the right
to contract, to sue and be sued. and to testify in court.
these rights only related to blacks’ relationships with
other blacks. The Codes authorized unequal
punishment for freedmen’s offenses. restricted travel
and residence. and established an etiquette of
deference to whites. In addition. the Codes severely
limited economic rights. Blacks were forbidden the

A-45

pursuit of certain occupations. They were subject to
various master-servant statutes. vagrancy and pauper
provisions that incorporated enforced’ labor.
apprenticeship regulations. and elaborate labor
contract statutes. especially pertaining to farm labor.
Hyman & Wiecek. Equal Justice Under the Law
319-320 (1982).

It was within this historical context that the Act of
1866 and the vetoed Freedmen’s Bureau Amendment
were proposed. The perception of Civil Rights in the
19th century. while encompassing personal safety, was
cast largely in economic terms by the definition of legal
relationships, responsibilities. and remedies. It is
evident. therefore. that § 1981 derived from an Act that
was designed to ensure predominantly economic rights
for newly freed blacks.

Moreover, 42 U.S.C. § 1982. which is recognized
as a companion to § 1981. is by its plain language
solely addressed to economic concerns. It reads:

All citizens of the United States shall have the same
right. in every State and Territory. as is enjoyed by
white citizens thereof to inherit. purchase. lease.
sell, hold. and convey real and personal property.

Reading the two sections in conjunction, the 1866
Congress intended to end all discrimination and
guarantee all citizens the opportunity to participate in
the free market economy. Citizens were now free to
make and enforce contracts for personal services and
real and personal property. From their wording and
identical legislative history. the two sections have been
construed similarly. Both § 1981 and § 1982 reach
private conduct. Runyan. 427 U.S. at 170. See
Johnson v. Railway Express. 421 U.S. 454. 460
(1975): Tillman v. Wheaton-Haven Recreation Assoc..
410 U.S. 431. 439-440 (1972). Both § 1981 and § 1982
are directed at the same kind of discrimination: racial

A-44

animus. Jones. 392 U.S. at 426. Both sections share a
similar purpose. ensuring predominantly economic
rights. and have been given similar construction. See
Meyers v. Pennypack Home Owners Assoc.. 559 F.2d
894 (3d Cir. 1979). Therefore. both sections most
appropriately belong under a state statute of
limitations governing economic and contract actions.

B.

Section 1983. in contrast. reveals a very different
legislative history. purpose. and application from
§ 1981 and § 1982. Section 1983 was enacted by
Congress pursuant to §5 of the fourteenth
amendment in order to enforce that amendment.
Monroe v. Pape. 365 U.S. 167. 171 (1961).

42 U.S.C. § 1983 in its revised form reads:

Every person who. under color of any statute.
ordinance. regulation. custom. or usage. of any
State.or Territory. subjects. or causes.to be
subjected. any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights. privileges. or immunities
secured by the Constitution and laws. shall be
liable to the party injured in an action at law. suit
in equity. or other proper proceeding for redress.

Section 1983 was enacted as section 1 of the Civil
Rights Act of 1871. Adicks vu. Kress. 398 U.S. 144. 162
(1969). It arose from and was designed to respond to an
entirely different set of circumstances than those
which led to the original enactment of what became
§ 1981. As I have previously observed in discussing
§ 1981. the 1866 Congress was concerned with
granting freedom and equality through economic
guarantees which had long been denied the now newly
freed blacks. It was economic freedom which enabled a
man to be free. The focus was to identify those rights.

A-45

previously denied. that would enable a person to
sustain himself and his family once the mechanism of
the master-slave society was dismantled. These
concerns stand in sharp contrast to concerns about
violence. physical injury and lawlessness that
motivated the Congress of 1871.

After the passage of the thirteenth amendment
and the 1866 Act. Southern resistance to
Reconstruction mounted. Ku Klux Klan activity and
atrocities increased. White vigilantes were described as
having whipped. robbed. and murdered blacks. On
March 3. 1871. President Grant. declaring that
anarchy reigned in the South and that the states were
powerless to control widespread violence. requested
emergency legislation. In order to suppress the Klan
and provide civil rights protection against official
inaction and toleration of private lawlessness.
Congress passed the Ku Klux Klan Act. which became
known as the Civil Rights Act of 1871. See Brisco v.
LaHue, 460 U.S. 325. 340 (1983).

In characterizing all § 1983 claims as personal
injury actions for limitations purposes, the Supreme
Court looked to “the historical catalyst for the 1871
Act. the campaign of violence and deception in the
south fomented by the Ku Klux Klan.” Wilson v.
Garcia. 105 S. Ct. 1938, 1947 (1985). “The atrocities
that concerned Congress in 1871 plainly sounded in
tort... .° Id. at 1948. In characterizing claims under
§ 1981. we should follow the Supreme Court's analysis
and look to the very different underlying purpose and
historical catalyst for the Act of 1866.

C.

In addition to their contrasting histories and
purposes. § 1981 and § 1983 have been applied
differently. Section 1983 encompasses a broad range of
actions sounding in tort. including injuries under

A-46

color of state law to a person or his property and
infringements of individual liberties. Jd. at 1948.
Cases under § 1983 “often involve elements that are
similar to state causes of action for personal injury.”
Jones v. United Gas Improvement Corp.. 383 F. Supp.
420. 431 (E.D. Pa. 1974). See also Harris v.
Commonwealth. 419 F. Supp. 10. 14 (M.D. Pa. 1976).

By contrast. the vast majority of cases brought
under § 1981 arise out of some economic relationship
consisting of more patterned sorts of behavior.
frequently involving documentary proof in the form of
employment ~ecords. Dudley v. Textron. Inc.. 386 F.
Supp. 602. 606 (W.D. Pa. 1974). Indeed. the plain
language of § 1981 supports the Supreme Court's own
characterization of the statute: “|Section 1981] on its
face relates primarily to racial discrimination in the
making and enforcement of contracts.” Johnson v.
Railway Express. 421 U.S. 454. 459 (1975).

In addition. a review of the elements of causes of
action brought er § 1981 and § 1983 further
suggests that the two acts should be construed
separately. Section 1983 requires. by its language and
purpose. state action. while § 1981 can extend to acts
of private discrimination. Mahone v. Waddle. 564
F.2d at 1031: Jones v. Mayer Co.. 392 U.S. at 437:
Johnson v. Railway Express. 421 U.S. at 460. Section
1981 also requires racial animus. Jones v. Mayer Co..
392 U.S. at 426. as well as discriminatory intent.
Croker v. Boeing Co.. 662 F.2d 975. 988 (3d Cir. 1981)
(en banc): Craig v. County of Los Angeles. 626 F.2d
659. 668 (9th Cir. 1980). cert. denied. 450 U.S. 919
(1981). By contrast. racial animus need not be an
element in a § 1983 cause of action. nor is there a
requirement of intentional conduct or any other
particular state of mind as a prerequisite to recovery.
Parrat v. Taylor. 451 U.S. 527. 534-535 (1980).

A-47

Il.

The majority concludes that unless claims under
§ 1981 are governed by the same statute of limitations
as those under § 1983. the federal interest in
uniformity and certainty in litigation as expressed in
Wilson v. Garcia. 105 S. Ct. 1938 (1985). will be
frustrated. The majority further concludes that. since
the same facts could in some cases support a claim
under either § 1981 or § 1983. applying different
Statutes of limitation would lead to a “bizarre result.”
Typescript at 12. While admittedly an overiap of 1981
and 1983 causes of action exists, that is no reason to
ignore the significant differences in history. purpose.
and application between the two causes of action
outlined above. But just as some similarities between
§ 1981 and § 1983 may be recognized. so too are there
differences in dimension between these two actions.
These differences reflect traditional distinctions
between tort and contract law which have legitimate.
practical purposes under both state law and the federal
Civil Rights statutes. In that context. I suggest that the
majority's concerns about uniformity are misplaced
and given greater weight than that to which they are
entitled. Therefore. in addition to precedent and
history. logic militates against today's holding.

The majority bases its uniformity argument largely
on 42 U.S.C. § 1988. which provides that state law is to
be consulted in setting the period of limitation for all
_ Civil rights claims. Wilson, 105 S. Ct. at 1943. Finding
’ it "most significant” that § 1988 applies to both § 1981
and § 1983. typescript at 10. the majority concludes
that the federal interest in uniformity in the
enforcement of the civil rights statutes requires a
common period of limitation.

Nothing in § 1988, however. requires that result.
The statute only mandates that in cases where the laws

A-4s

of the United States “are not adapted to the object” of
enforcing civil rights.

the common law. as modified and changed by the
constitution and statutes of the State wherein the
court having jurisdiction of such civil or criminal
cause is held. so far as the same is not inconsistent
with the Constitution and laws of the United
States. shall be extended to and govern the said
courts in the trial and disposition of the cause

If anything, this language supports a measure of
deference to state law distinctions between tort and
contract actions. so long as these distinctions are
reflected in differences between and among the civil
rights sections, and are therefore consistent with
Federal law.

In fact. these tort-contract distinctions are real
and substantial. First of all. as this court noted in
Meyers v. Pennypack Home Owners Assoc.. 559 F.2d
894, 903 (3d Cir. 1979):

“(T]he passage of time is less likely to impede the
proof of facts” in a section 1981 and section 1982
action than in a state law physical injury action or
a federal action under 42 U.S.C. § 1983. for
example, and a longer statute of limitations may be
appropriate.

(quoting Dudley v. Textron. Inc.. 386 F. Supp. 602
(E.D. Pa. 1979)).

Second. a longer statute of limitation for § 1981
claims relating to economic discrimination might
actually reduce federal litigation. as a plaintiff before
proceeding in federal court could afford to wait until
the disposition of an administrative action -- for
example. an action brought under the Fair Housing Act

A-49

or Title VII -- which would be more likely to overlap with
a § 1981 action than with a § 1983 action.

That state legislatures have good reasons for
distinguishing between contract and personal injury
actions was noted by Justice O'Connor:

(T]he legislative judgment to which this Court
has traditionally deferred is not some purely
arbitrary imposition of a conveniently uniform
time limit. For example. a legislature's selection of
differing limitations periods for a claim sounding
in defamation and one based on a written contract
is grounded in its evaluation of the characteristics
of those claims relevant to the realistic
life-expectancy of the evidence and the adversary’s
reasonable expectations of repose.

Wilson. 105 S. Ct. at 1950 (O'Connor. J., dissenting).
Similarly. there is good reason for treating § 1981
claims. which focus on economic discrimination often
involving contracts and longer periods of patterned
behavior. differently from § 1983 claims. which. by and
large. more closely resemble torts for personal injury
which result from discrete and more sharply identified
events. The federal interest in uniformity and
predictability is adequately served by treating alike all
claims under a given section: it does not require that
all claims under separate and distinct statutes be
treated identically. bes
Furthermore. the majority's sought-after
“uniformity” is illusory. Even among § 1983 claims.
Wilson does not require identical treatment
throughout the country. since different states may
have different personal injury limitations periods. In
fact. in Wilson, a three-year period was applied. rather
than the two year period adopted by today’s decision.
105 S. Ct. at 1949. or the one year period found

A-50

appropriated for Mississippi by the Fifth Circuit in
Gates v. Sprinks. No. 84-4605. slip op. at 7018 (5th
Cir. September 26. 1985). Thus. Wilson defers to state
judgment on the appropriate balance of interests in
setting the limitation period. even though it results in
different periods being applied in § 1983 cases in New
Mexico. Pennsvivania. Mississippi. and elsewhere
throughout these United States. There is no reason not
to defer similarly to state judgments that actions
sounding in contract should be governed by a longer
limitation period.

The majority's concern that applying a longer
limitation period for § 1981 would lead to a “bizarre
result” is unfounded. It is true that the same nucleus of
operative fact sometimes could be characterized as
either a§ 1981 andorS§ 1983 claim and thereby receive
different limitations treatment if the six-year statute
was applied under § 1981. Such variations. however.
are commonplace in the law. In a run-of-the-mill
automobile accident case. for example. identical facts
could give rise to warranty claims sounding in contract
and strict liability claims sounding in tort -- each to be
governed by a different statute of limitations. This is
not thought to be a “bizarre result.” and the possibility
that the same or similar facts could support causes of
action under different Civil Rights statutes is no more
“bizarre.”

Moreover. facts that could support either a § 1981
or a § 1983 claim could frequently also support a claim
under Title VII. which has a 300 day limitation period
in a deferral state like Pennsylvania. 42 U.S.C.
§ 2000e-5i(e). This disparity is tolerated. however.
because Title VII is distinguishable from’ other Civil
Rights provisions, just as § 1981 is distinguishable
f-- n § 1983. Title VII covers a narrower range of
situations than does § 1981. but is not limited to racial
animus and does not require intentional

A-dl

discrimination. “The choice [between. Title VII and
§ 1981] is a valuable one. Under some circumstances
the administrative route may be highly preferrabie over
the litigatory.” Johnson v. Railway Express. 421 U.S.
454. 461 (1975). Moreover. “the remedies availabie
under Title VII and under section 1981. although
directed to most of the same ends. are separate,
distinct. and independent.” Id. Different statutes with
different purposes mav logically be governed by
different statutes of limitation. Total uniformity in
limitations periods for civil rights claims is therefore
neither possible nor necessarily desirabie.

In Johnson, 421 U.S. at 463-64. the Supreme
Court stated:

Although any statute of limitations is necessarily
arbitrary. the length or period allowed for
instituting suit inevitably reflects a value
judgment concerning the point at which the
interests in favor of protecting valid claims are
outweighed by the interests in prohibiting
prosecution of stale ones....

The legislatures of Pennsylvania. New Jersey. Delaware
and the Virgin Islands have made such value
judgments in distinguishing for limitations purposes
between actions brought for contract and personal
injury.’ There is no reason why this court should not

3. Pennsylvania. New versey and the Virgin Islands apply a
six-vear statute of limitations for contract actions. 42 Pa. Cons.
Stat. § 5527 (1981): N.J. Stat. Ann. 2A:14-1 (West Supp. 1984): V.1.
Code Ann. tit. 5 § 3I(3MA) (1967). Delaware provides for three
years. Del. Code. Ann. tit. 10 § 8106 (1975). Pennsyviania. New
Jersey. Delaware and the Virgin Islands all apply the shorter two
year limitation for actions brought for personal injury. 42 Pa. Cons.
Stat. § 5524 (1981): N.J. Stat. Ann. 2A:14-2 (West 1952): Del. Code
Ann. tit. 10 § 8119 (1975): V.I. Code Ann. tit. 5 § 31(5)(A) (1984
Supp. ).

A-52

respect the recognition by the state legislatures that
distinctions should be made. for limitations purposes.
between actions for contract and personal injury. and
conclude that such distinctions are properly reflected
in the application of the civil rights statutes. Indeed.
this court has so held. See Davis v. Untted States Steel
Supply. 581 F.2d 335. 339 (3d Cir. 1978). cert.
denied. 460 U.S. 1014 (1983): Meyers. Since Wilson
does not compel a different result. we should stand by
our sound prior analysis. For the foregoing reasons. |
respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

(A.O. U.S Courts. G.M.C. Printing. Phila.. Pa. 2!5-568-4264)

A-)5

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 84-1478 & 84-1509

CHARLES GOODMAN. RAMON L. MIDDLETON,
ROMULUS C. JONES. JR.. AND LYMAS L.
WINFIELD. on their own behalf and on behalf of
others similarly situated.

and

UNITED POLITICAL ACTION COMMITTEE, an
unincorporated association. DOCK MEEKS.
DAVID DANTZLER. JOHN HICKS, III.
individually and on behalf of all others similarly
situated

Vv.

LUKENS STEEL COMPANY, and
INTERNATIONAL STEELWORKERS OF
AMERICA (AFL-CIO). and LOCAL 1165, UNITED
STEELWORKERS OF AMERICA (AFL-CIO). and
LOCAL 2295, UNITED STEELWORKERS OF
AMERICA (AFL-CIO)

United Steelworkers of America.
AFL-CIO-CLC. and its Local Unions 1165
and 2295. Appellants in 84-1478

Lukens Steel Company. Appellant in
84-1509

APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA
(D.C. Civ. No. 73-1328)

A-54

Argued June 11, 1985

Before: WEIS. GARTH, and STAPLETON,
Circuit Judges

Opinion Filed November 13, 1985

ORDER AMENDING OPINION

IT IS ORDERED that the opinion heretofore filed
be amended as follows:

Place a period at the end of footnote | appearing on
page 4 of the slip opinion:

On page 8 of the slip opinion. delete the word “out”
appearing in the fifth line of the third paragraph:

In the first full paragraph appearing on page 13 of
the slip opinion. in the fourth line, change “Words” to
“Woods”: in line 13. close the quotation after the word
“teaching” and change the citation to read “Rubin v.
Buckman, 727 F.2d 71. 74 (3d Cir. 1984)”; in line 17,
hyphenate the word “co-exist”;

In the first full paragraph appearing on page 15 of
the slip opinion, in the fourth line, hyphenate the word
“class-wide”;

In the third full paragraph appearing on page 17 of
the slip opinion, in the fourth line, delete the word
“the” before the word “defendants”;

In the section title appearing on page 30 of the slip
opinion, place a period after the Roman numeral “V".

BY THE COURT,

/s/ Joseph F. Weis, Jr.

United States Circuit Judge
Dated: November 22. 1985

he ee ele ee a ae ee ee

A-55

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 84-1478 & 84-1509

CHARLES GOODMAN, et al..
Plaintiffs-Appellees
v.

LUKENS STEEL COMPANY. and
INTERNATIONAL STEELWORKERS OF AMERICA
(AFL-CIO). and LOCAL 1165. UNITED
STEELWORKERS OF AMERICA (AFL-CIO). and
LOCAL 2295. UNITED STEELWORKERS OF
AMERICA (AFL-CIO).

Defendants-Appellants
(D.C. Civ. No. 73-1328)

SUR PETITION FOR REHEARING

Present: ALDISERT. Chief Judge. SEITZ. ADAMS.
GIBBONS. HUNTER. WEIS. GARTH.
HIGGINBOTHAM. SLOVITER. BECKER.
STAPLETON. and MANSMANN. Circuit

Judges.

The petition for rehearing filed by
Plaintiffs-Appellees in the above entitled case having
been submitted to the judges who participated in the
decision of this court and to all the other available
circuit judges of the circuit in regular active service.
and no judge who concurred in the decision having
asked for rehearing. and a majority of the circuit
judges of the circuit in regular active service not having

A-56

voted for rehearing by the court in banc. the petition
for rehearing is denied.
Judge Gibbons would grant rehearing in banc.
Judges Garth and Becker would grant rehearing in
banc oniv with respect to the statute of limitations
issue, Judge Garth's Statement Sur Petition for
Rehearing is attached hereto.

BY THE COURT.

/s/ Joseph F. Weis. Jr.

Circuit Judge
DATED: January 7. 1986

STATEMENT OF JUDGE GARTH
SUR PETITION FOR REHEARING

| would grant rehearing only on the issue of
whether actions pursuant to 42 U.S.C. § 1981 must be
governed by a uniform personal injury statute of
limitations as are actions pursuant to § 1983 under
the rule of Wilson v. Garcia. 105 S. Ct. 1938 (1985). |
believe the panel majority in this case wrongly decided
this question for three reasons.

First. on its face. Wilson v. Garcia only governs
actions under § 1983. Even a moderately expansive
reading of Wilson would require only that each section
of the Reconstruction civil rights acts be governed by
an appropriate. uniform statute of limitations. The
Wilson court focused on the history. purpose. and
application of § 1983 in concluding that actions under
that section are most appropriately governed by a
state's personal injury limitation period. Wilson

ee ee

A-57

therefore does not control the disposition of the
present case.

Second. the history. purpose. and application of
§ 1981 reflects that the section was conceived and has
been applied primarily as a means of protecting
economic rights. such as those involving labor.
property. and contracts. As such. § 1981 is best
governed by the longer statute of limitations provided
im most states for actions in contract.

Third. the “uniformity” sought by the panel
majority in the application of the civil rights laws is
nothing less than chimerical. It is quite common for a
complaint to join causes of action governed by different

Statutes of limitations -- whether the joined claims

involve tort and contract. federal civil rights claims and
state claims. or § 1981 and § 1983 claims. Different
Statutes of limitation are applied because different
sorts of imterests are protected by the different
provisions. and the states have made policy choices in
balancing rights against the practical problems of
trying stale claims.

Most states have concluded that economically
grounded causes of actions will more frequently arise
from patterned and well-documented courses of
conduct than will claims for personal injury. and that it
is therefore fair to bring such economic claims up to
six years after they arise. There is no reason we should
not respect these policy choices. grounded as they are
in real and substantial differences between and among
causes of action. in appiving civil rights statutes which
reflect the same differences.

I have more fully set out these reasons with
supporting authorities in my dissent from the panel!
opinion. | have voted to grant rehearing here because |
believe that this issue will arise with great frequency in
cases brought before the federal courts. Thus. the
majority's holding will have far-reaching consequences

A-ds

by unjustifiably barring many cases brought under
§ 1981 through the application of a shorter personal
injury statute of limitations.

Because of the importance of this question. |
believe full court consideration is warranted.

A True Copv:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuut

alte Me ee ee ee Ae.

A-59

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHARLES GOODMAN. RAMON L. CIVIL ACTION
MIDDLETON. ROMULUS ©. JONES. .
JR.. and LYMAS L. WINFIELD.
on their own behall and.on behali
of others similarly situated
and
UNITED POLITICAL ACTION
COMMITTEE. an unincorporated
association, Plainulls
5
LUKENS STEEL COMPANY.
and
INTERNATIONAL STEELWORKERS
OF AMERICA (AFL-CIO).
and
LOCAL 1154. UNITED
STEELWORKERS OF AMERICA
(AFL-CIO).
and
LOCAL 2295. UNITED NO. 73-1328
STEELWORKERS OF AMERICA
(AFL-CIO). Delendants

MEMORANDUM AND ORDER

FULLAM., J. June 16, 1975

Plaintiffs claim that the defendant steel company
has engaged in racially discriminatorv emplovment prac-
tices, and that the defendant unions have. for racial rea-
sons, inadequately represented them. Plaintiffs seek
declaratory, injunctive and compensatory relief. and
seek a ruling that this action mav be maintained as a
class action under Rule 23(b)(2). The detendant Lukens
opposes class designation. and the defendant unions
seek to limit the class to issues involving injunctive re-
lief. Certain additional individuals seek to intervene as
plaintiffs, with the approval of the present plaintiffs: the
defendant Lukens opposes the intervention. in all but

A-60

one instance, while the defendant unions do not oppose
intervention.

The action is brought, inter alia, under 42 U.S.C.
$1981. so the appropriate statute of limitations is that of
the most nearly analagous state cause of action. Young v.
International Telephone & Telegraph Co., 438 F.2d 757
(3d Cir. 1971). |. have concluded that the applicable
Pennsvlivania statute is the six-year limitation provided
in 12 Purdon’'s Stat. Annot §31. Under this view, claims
arising on or after June 14, 1967 are cognizable in this
action. The appropriate class, therefore, would seem to
be

“all black persons emploved by the defendant
Lukens Steel Company at any time on or after June
14. 1967.”

Contrary to Lukens’ contentions, I conclude that the
named plaintiffs are adequate representatives of such a
class. While the earliest act of discrimination in the case
ot the plainuftf Middleton is charged to have occurred in
June of 1966, he also alleges additional discriminatory
acuons in 1970 and thereafter. In short, all of the named
plaintiffs have asserted individual claims which are not
time-barred.

I am satisfied that the proposed class is sufficiently
numerous, and that all of the other requirements for a
23(b)(2) class action have been met in this case.

I do not believe it is appropriate on the present record
to make a definitive ruling at this time as to whether or
not claims for damages are appropriate for class action
treatment. In some situations. a pervasive discriminatory
practice may adversely affect large enough numbers of
people, in sufficiently similar fashion, that the award of
damages in a class action context is appropriate. In such
Situations, damages may be awarded as an incident to
injunctive or declaratory relief under 23(b)(2).

On the other hand, it seems probable from the aver-
ments of the complaint in this case that any damage

A-61

claims are highly individualized. Thus, individual claims
would have to be asserted and individually considered.
And it is entirely possible, as the defendants suggest,
that the number of potential class members having dam-
age claims would be too small to justify class action treat-
ment of damage issues. standing alone.

If this action proceeds as a (b)(2) class action, and if
plaintiffs prevail on the merits, there would seem to be no
valid objection to permitting individual class members to
prove and recover their individual damages. If the action
proceeds as a(b)( 2) class action, and the defendants pre-
vail. that result would presumably bar individual claims
by class members tor damages resulting trom the dis-
criminatory practices alleged this case, although it
presumably would not bar some kinds of closely related
individual claims based upon isolated acts of discrimi-
natorv treatment not forming part of the pattern or prac-
tice alleged in this case.

In a (b)(2) class action, there is no opportunity for
class members to withdraw from the action. If | were to
rule at this time that no damage issues are entitled to
class action treatment, each class member who may
have, and wish to assert. a claim for damages would be
forced to take individual action. This would largely neu-
tralize the principal benefits of Rule 23. Moreover. it is
conceivable that many class members may be sutffti-
ciently aware of the pendency of this action to be relving
upon this case as having tolled the statute of limitations.
but may not be following its course so closelv as to be-
come aware of the implications of a denial of class action
treatment of damage issues. insofar as the statute of lim-
itations is concerned. | recognize that these difficulties
could be obviated by insisuung upon full compliance with
the requirements of Rule 23(b)(3). But in view of the
nature of the claims asserted, the relative financial po-
sitions of the parties. and the burdens which compliance
with Rule 23(b)(3) might entail, | believe it would be

A-62

premature at this time to impose that condition. The pri-
mary thrust of this litigation is for injunctive and declar-
atorv relief. and I believe it would be preferable to
postpone definition of the precise status of damage
claims until a later stage of the litigation.

The sole basis for opposing intervention by Messrs.
Dantzler and Hicks is that they did not pursue claims
betore the EEOC. On.-the authority of Otis v. Crown
Zellerbach, 398 F.2d 496. 499 (5th Cir. 1968), | conclude
that this objection is without merit.

A-63

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHARLES GOODMAN. RAMON L. CIVIL ACTION
MIDDLETON. ROMULUS C. JONES.
JR.. and LYMAS L. WINFIELD.
on their own behall and on behalf
ol others similarly situated
and
UNITED POLITICAL ACTION
COMMITTEE. an unincorporated
ussociauon, Plainulls
Vv.

LUKENS STEEL COMPANY.
and
INTERNATIONAL STEELWORKERS
: OF AMERICA (AFL-CIO).
and
LOCAL 1165, UNITED
STEELWORKERS OF AMERICA
(AFL-CIO).
and
LOCAL 2295. UNITED NO. 73-1328
STEELWORKERS OF AMERICA
(AFL-CIO). Defendants

ORDER

AND NOW, this 16th day of June, 1975. it is OR-
DERED,

1. That this action may be maintained as a class ac-
tion pursuant to Federal Rule of Civil Procedure
23(b)(2), on behalf of a class consisting of all black per-
sons who are, or who at anv time on or after June 14.
1967 have been, or who in the future mav be, emploved
by the defendant Lukens Steel Compan.

2. That the motion to intervene as parties plaintiff.
tiled by Dock Meeks, David Dantzler and John Hicks.
Ill, is GRANTED.

Rte le eg et Bint oe we od 5 Pl eg met ot

=

FULLAM. District Judge.

A-64

Charles GOODMAN, et al.

v.
LUKENS STEEL COMPANY, et al.
Civ. A. No. 73-1328.

United States District Court,
E.D. Pennsvivania

‘OPINION AND ORDER

INTRODUCTION

Review of Legal Principles
Title VII and §1981
Limitations Periods

Findings of Fact and Discussion

Parties
Jurisdiction and Procedural Matters
Background Information Concerning
the Organization of the Work force
at Lukens
Introduction to Findings on the Merits
The Bona Fide Nature of the Seniority
Svstem
Racial Disparities Attributable to
Impacts of the Seniority Svstem,
and Theretore Not Actionable
Initial Job Assignments During the Lim-
itations Period
Access to Salaried Positions
Racial Harassment at Lukens
Miscellaneous Matters
Plaintiffs’ Claims Against Union
Detendants
Individual Claims
Conclusions

February 13. 1984

Page

1119
112]

1123
1123

1124
1126

1128

1129

1129
1144
1147
1151

1157
1160
1163

<8 et CRS Piatt te he 4

i
;
-

A-65

INTRODUCTION

Plaintiffs in this class action alleging racial discrim-
ination in emplovment seek equitable and monetary re-
lief against both the defendant emplover, Lukens Steel
Company. and the defendant labor unions, the Interna-
tional and two local unions of the United Steelworkers of
America. This Opinion addresses liability issues.

REVIEW OF LEGAL PRINCIPLES

A. Title VII and §1981

Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e et seq., is “a broad remedial measure, designed
‘to assure equality of employment opportunities.’ ”
Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct.
1781, 1783-84, 72 L.Ed.2d 66 (1982) (quoting McDon-
nell Douglus Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct.
1817, 1823, 36 L.Ed.2d 668 (1973)). The Act bars not
only overt employment discrimination — discrimination
by disparate treatment — but also policies that are su-
perticially neutral but discriminatory in operation — dis-
crimination by disparate impact. Griggs v. Duke Power
Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d
158 (1971). Both tvpes of discrimination are here alleged
both by the individual plainuffs and by the plaintiff class.

As the Supreme Court has noted. disparate treat-
ment is the most easily understood type of discrimina-
tion. The employer simply treats some people less
favorably than others because of their race, color. sex. or
national origin. Proot of discriminatory motive is critical.
although it can in some situations be interred from the
mere tact of differences in treatment.

International Brotherhood of Teamsters v. U.S.. 431
U.S. 324, 335 n. 15, 97 S.Ct. 1843. 1854 n. 15. 52
L.Ed.2d 396 (1977).

A-66

The plaintiffs must show “not only ‘the existence of
disparate treatment but also that such treatment was
caused by purposeful or intentional discrimination.’ ©
Smithers v. Baular, 629 F.2d 892, 895 (3d Cir. 1980)
(citations omitted ).

The standard method or proving disparate treatment
entails three steps. First, plaintiffs must establish a
prima facie case. Next, the employer must articulate a
legitimate business justification for its acuons. If the em-
plover does so, plaintiffs must then demonstrate that the
protfered justification is merelv a pretext for intenuonal
discrimination. McDonnell Douglas, 411 U.S. at 804, 93
S.Ct. at 1825. Although the burden of production thus
shifts trom the plaintiff to the defendant and back again.
the burden of persuasion remains with the plainuftfs
throughout. See Texas Department of Community Af-
fairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67
L.Ed.2d 207 (1981). In the Title VIJ context, the term
“prima facie case” refers to the “establishment of a le-
gally mandatory. rebuttable presumption” rather than
the presentation of “enough evidence to permit the trier
of fact to infer the fact at issue.” Jd. at 254 n. 7, 101 S.Ct.
at 1094 n. 7 (1981).

The McDonnell Douglas plaintitts alleged onlv dis-
crimination in hiring; the particular elements of the
prima facie case there identified have been modified to
cover discrimination in other contexts. See B. Schleir &
P. Grossman. Employment Discrimination Law (2d ed.
1983) 1318-1321 nn. 82-90 (collecting and discussing
cases on discharge, discipline. promotion. transfer, lav-
off, training, and job assignment).

Although an individual alleging disparate treatment
is free to introduce direct evidence of a discriminatory
intent, as a practical matter plaintiffs tvpically must-rely
on indirect evidence from which an inference of such
intent can be drawn. Frequently. plaintiffs argue that the
emplover applied various policies differently to black and
white emplovees; in response. the emplover attempts to

Ee,

A-67

show that those comparisons are faulty because of fac-
tual dissimilarities. As trier of fact, the trial court must
resolve these competing claims. Sec, ¢.g., Worthy v. U.S.
Steel Corp.. 616 F.2d 698, 702-03 (3d Cir. 1980).

At least in theory, the McDonnell Douglas analvsis is
also applicable to class actions alleging a “pattern or
practice” of classwide disparate treatment. Teamsters,
431 U.S. at 355, 97 S.Ct. at 1854. The class plaintiffs
must initially demonstrate, by a preponderance of the ev-
idence. that a pattern of disparate treatment exists and is
the defendant's regular and standard operating proce-
dure. Id. Such evidence frequently takes the form of sta-
tisucal data. See Hazelwoud School District v. U.S., 433
U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768
(1977); Wilmore v. City of Wilmington, 699 F.2d 667 (3d
Cir. 1983). Once plaintiffs have produced such data, the
defendant may rebut by showing flaws in the data or the
statistical analysis. Absent a persuasive rebuttal, the
court will infer that all class members were discrimi-
nated against in the fashion alleged.

The second, and more prevalent, theorv of liability
under Title VII allows plaintiffs to challenge emplov-
ment policies which, though neutral on their face, are
discriminatory in operation. These “disparate impact”
cases do not require proof of discriminatory motive.
Griggs, 401 U.S. at 432, 91 S.Ct. at 854. In Griggs and
its progeny, especially Albemarle Paper Co. v. Moody.
422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). the
Supreme Court has articulated the procedure for proving
such claims. The plaintiffs must first establish a prima
facwe case that the challenged procedure does in fact
have a substantial adverse impact. Plaintiffs must also
demonstrate “a causal connection between the chal-
lenged policy or regulation and a racially unequal result.”
EEOC v. Greyhound, 635 F.2d 188, 193 (3d Cir. 1980).
The defendants can then attempt to demonstrate that
those statistics are deficient and thus insufficient to
make out a prima facie case. Dothard v. Tawlindson.

A-68

433 U.S. 321. 331, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786
(1977).

If plaintiffs succeed in establishing a prima facie
case. defendant must justify the challenged policy as
job-related or otherwise a business necessity. Albemarle.
422 U.S. at 425. 95 S.Ct. at 2375. The burden of per-
suasion, however, remains with the plaintiffs; defen-
dant’s rebuttal burden is simply to “come forward with
evidence to meet the inference of discrimination raised
by the prima facie case.” Croker v. Bueing Co., 662 F.2d
975. 991 (3d Cir.1981 (en banc)). If the defendant does
so, plaintiffs must then show that “a feasible vet less
onerous alternative exists.” /d. (citations omitted ). It has
long been established that properly validated job-related
tests are permissible even if they have a disparate im-
pact. Griggs, 401 U.S. at 433-36, 91 S.Ct. at 854-856.
Similarly, a bona fide seniority system — one which was
not adopted with intent to discriminate — does not vio-
lated Title VII even though it has a discriminatory effect.
Teamsters, 431 U.S. at 348-55. 97 S.Ct. at 1861-1864.
Section 198]

Section 1981 prohibits intentional racial discrimina-
tion in making and enforcing contracts and in securing
“equal benefit of all laws and proceedings.” 42 U.S.C.
§1981. Proot of discriminatory intent is crucial; the pro-
vision, “does not extend to facially neutral conduct hav-
ing the consequences of burdening one race more than
the other.” Croker, 662 F.2d at 989. Although disparate
impact thus is not itself actionable under §1981. evi-
dence of such impact “may be an important factor in
proving racially discriminatory intent.” Id.

Variations on the McDonnell Douglas tormula tor
making out a prima facie case have also been applied in
§1981 cases. See, e.g., Baldwin v. Birmingham Board of
Education, 648 F.2d 950. 955 (Sth Cir.1981); Tagupa v.
Board of Directors, 633 F.2d 1309,.1312 (9th Cir. 1980).
As under Title VII. once the plaintiffs have made a prima
facie case. defendant must show a legitimate reason for

i oe Oe a?

Pe a See ee eee eee

alt 8 i let MI Bi

A-69

its actions; thereatter, plaintiffs must show defendant's
protfered reason is merely a pretext. Baldwin, 648 F.2d
at 956.

To summarize, “disparate treatment” means simply
that on a given occasion, one or more emplovees were
treated less favorably because of their race; “pattern or
practice” means simply a generalized version of this phe-
nomenon; and “disparate impact” means simply that fa-
cially neutral policies or decisions have had a different.
and adverse, impact on emplovees of a particular race.

One must be careful not to over-categorize in this
context. The analytical distinctions outlined above are of
only limited utility’ The ultimate questions to be an-
swered are essentially the same in all emplovment dis-
crimination c ses: Has the defendant caused a given
emplovee or group of emplovees to be discriminated
against? Because of race? Because of something that oc-
curred within the limitations period? If the answers to all
of these questions are in the affirmative, is the action or
conduct complained of justifiable. bv reason of business
necessity, a bona fide seniority svstem. or other legiti-
mate factor? Both statistical and anecdotal evidence may
be looked to in attempting to answer these questions
(with, obviously, varying degrees of relevance and pro-
bative force).

Finally, a word about “intentional discrimination” or
“discriminatory animus.” The aim of the law is equality
of treatment and equality of opportunity for all races. At-
tainment of that lofty goal can be expected, in the long
run, to ameliorate subjective racial attitudes, but such
attitudes are not directly implicated in the enforcement
scheme. An emplover who hates Jews or Negroes. but
who suppresses those feelings and treats all races and
creeds evenhandedly, is not in violation of either Title VII
or §1981. On the other hand, an emplover who admires
and respects all races equally, but who knowingly ex-
cludes qualified blacks from consideration for promotion

A-70

because thev are black, is guilty of intentional discrim-
ination. An emplover may inadvertently discriminate (as,
for example. if the employer is unaware of the racial
identity of the affected emplovee, or is unaware of the
adverse treatment): there is no liability for such inad-
vertent consequences because, without more, an infer-
ence of an intent to discriminate on racial grounds would
not be supportable. But an employer who persists in im-
plementing racially neutral policies or practices with ac-
tual awareness that thev adversely affect blacks in
comparison to similarly situated whites, is. in the ab-
sence of some overriding justification (such as adher-
ence to a bona fide seniority system, or business
necessitv/job-relatedness ) in violation of Title VIL.

B. Limitations Periwd

This action was instituted on Julv 14, 1973. The ap-
propriate limitations period for claims arising under 42
U.S.C. §1981 is six vears (derived from the
then-pertinent Pennsylvania statute, 12 P.S. §31). Davis
v. U.S. Steel Supply, 581 F.2d.335 (3d Cir. 1978).

The applicable limitations period for claims arising
under Title VII of the Civil Rights Act is set forth in
§706(e) of that statute, 42 U.S.C. §2000e-5/e), as
amended in 1972. The 1972 amendments apply to all
cases in which charges were then pending before the
EEOC. In the present case the plaintiffs Dantzler, Hicks.
Goodman. Meeks and Middleton had charges pending
betore the EEOC when the 1972 amendments became
ettective. In these circumstances. the limitations period
is measured from the original filing date in each case. not
merely trom the effective date of the 1972 amendments.
See Wood v. Southwestern Bell Telephone Co., 580 F.2d
339 (8th Cir.1978); Inda v. United Airlines, 565 F.2d
554, 560-61 (9th Cir. 1977), cert. denied, 435 U.S. 1007,
98 S.Ct. 1877, 56 L.Ed.2d 388 (1978); Dickerson v.
United States Steel Corp.. 439 F.Supp. 55. 69. n. 11

A-71

(E.D.Pa.1977). vacated on other grounds, sub. nom.
Worthy v. United States Steel Corp., 616 F.2d 698 (3d
Cir. 1980). |

It is clear that, with respect to the claims of the plain-
tiff class. all class members are entitled to the benefit of
the earliest filing date of the named plaintiffs. Wetzel v.
Liberty Mutual Ins.-Co., 508 F.2d 239, 246 (3d
Cir. 1975), cert. dented, 421 U.S. 1011, 95 S.Ct. 2415, 44
L.Ed.2d 679 (1975). Indeed, there is authority for the
proposition that all class members are entitled to the ben-
efit of the earliest filing by any member of the class.
whether or not named as a plaintiff. Webb v. Westing-
house Electric Corp., 78 F.R.D. 645. 653 n. 3 (E.D.Pa.
1978).

The plaintitf Dantzler first filed charges before the
EEOC on December 7, 1970, followed by a related filing
with the Pennsvivania Human Reiations Commission on
December 31, 1970. This action was filed within 90 davs
after Dantzler received his right-to-sue letter, and he was
a member of the class. His bar-date, for all claims fairly
encompassed within the charges filed, is Mav 4. 1970
(300 days before March 1, 1971. the date 60 davs fol-
lowing his initial filing with the Pennsvivania Human
Relations Commission ). In his original charges. Dantzler
asserted a pattern of racia. jiarassment, and discrimina-
uon in disciplinary decisions; his original charges named
only Lukens as culpable. On August 10. 1972. Dantzler
amended his charges to include the unions. and was
thereafter permitted to intervene as a named plaintiff in
this action.

The net effect of these circumstances, in my view. is
that the entire class is permitted to assert Title VII claims
against Lukens for the alleged pattern of racial harass-
ment, and for discriminatory treatment in the adminis-
tration of discipline, from and after May 4. 1970.

The named plaintiffs Goodman. Meeks. Hicks and
Middleton filed broadscale charges against both Lukens
and the union, before the EEOC, on January 28. 1972.

A-72

This produces a starting date of April 6, 1971. for (a) all
claims against the union defendants, and (b) all claims
against Lukens not encompassed within the original fil-
ing by the plaintiff Dantzler.

To summarize. the following claims are cognizable
in this litigation: (1) all claims for intentional discrimi-
nation, in violation of 42 U.S.C. §1981, arising after July
14, 1967; (2) claims for Title VII violations by the de-
fendant Lukens, in the form of racial harassment and
discriminatory discipline, arising after May 4, 1970: (.)
all other claims for class-wide discrimination. against
both Lukens and the union defendants, arising after
April 6, 1971; and (4) irrespective of the class issues. the
individual claims of disparate treatment asserted bv
those individual plaintiffs who have been issued nght-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0105%3A03. Public record. Not legal advice.