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January 24, 1983

AMOS ORANGE, ET AL., Plaintiffs, CARL SYLVESTER SUMLER, Intervening Plaintiff,

The opinion of the court was delivered by: GESELL

 Following extensive discovery, defendants Safeway Stores, Incorporated, and Warehouse Employees' Union Local No. 730 have each moved for summary judgment in this case. The facts and law have been fully briefed and argued, and the events leading to this litigation are as follows.

 In August, 1980, Ralph Sines, the Maintenance Manager of the Engineering Department of a Maryland Distribution Center of Safeway Stores, for purely business reasons made the decision to lay off four of the eight "Utility Workers" employed by that Department. Based on company seniority -- that is, the length of time each of the eight had been employed by Safeway -- he decided to lay off four individuals, of whom three were white and one an American Indian.

 A few days later, Sines was approached by Willie Parrot, a Shop Steward of Local 730 and a black. Parrot informed Sines that he had made a mistake, that under the terms of the collective bargaining agreement between Safeway and Local 730 the utility workers -- all of whom were members of Local 730 -- should be laid off by bargaining unit seniority, that is, the length of time each had been a member of Local 730. Sines asked Parrot to have appropriate Local 730 representatives call him to explain the matter further. Sines was later contacted by Jim Collins, one of two business agents for Local 730 and a black. Collins and Sines, after reviewing shop practice, agreed that bargaining unit seniority rather than company seniority should be used to determine layoffs. They further agreed that, in accord with historical practice, if employees had the same bargaining unit seniority, seniority would be determined by alphabetical order.

 Plaintiffs filed this action on March 8, 1982. They allege that defendants Safeway and Local 730 have discriminated against them on the basis of race in violation of 42 U.S.C. § 1981. They further allege that, under the terms of the written collective bargaining agreement in force at the time of the layoffs, seniority for purposes of layoffs was required to be company -- not bargaining unit -- seniority. Consequently, they argue, defendants have breached the terms of the collective bargaining agreement and are guilty of violation of § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, and defendant Local 730 has further breached its duty fairly and lawfully to represent the plaintiffs by denying their grievances.

 42 U.S.C. § 1981

 Summary judgment must be granted as to this claim.

 Liability under 42 U.S.C. § 1981 may not be imposed without proof of intentional discrimination. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 102 S. Ct. 3141, 73 L. Ed. 2d 835, 50 U.S.L.W. 4975 (1982). Plaintiffs have introduced absolutely no evidence of discriminatory intent on the part of either Safeway or Local 730 beyond the fact that the four employees who were laid off on September 5 were black.

 There is absolutely no evidence of any discriminatory animus, pattern or practice. Depositions of the plaintiffs and the participants in the layoff reveal that race was never mentioned as a factor in the decision, and there is no evidence of any racial remarks or slurs by anyone in Local 730 or Safeway. In fact, the evidence shows that Sines first intended to lay off the white utility workers until told of his mistake by black members and officers of Local 730. Approximately 60 percent of the members of Local 730 are black; five of its seven officers are black; its President is black. Yet it is Local 730 which insisted to Safeway that bargaining unit rather than company seniority be used for layoffs.

 Numerous depositions and other documents, relied on by the parties and carefully reviewed by the Court, show that the layoffs were made in accord with an appropriate seniority system and not for discriminatory purposes. There is no evidence that the layoff system based on bargaining unit seniority has produced any disparate impact in layoffs throughout Local 730 as a whole. The disparate impact on the eight utility workers in the Engineering Department is not statistically significant. Mayor of Philadelphia v. Educatonal Equality League, 415 U.S. 605, 39 L. Ed. 2d 630, 94 S. Ct. 1323 (1974). Moreover, even if there were any evidence of disparate impact the law is well settled that differentials among employees resulting from a seniority system are not unlawful unless the product of an intent to discriminate. Pullman-Standard v. Swint, 456 U.S. 273, 102 S. Ct. 1781, 72 L. Ed. 2d 66, 50 U.S.L.W. 4425 (1982).

 Plaintiffs have failed to allege facts from which a reasonable trier of fact could infer discrimination. The inferences of intent they seek to make are too thinly drawn to constitute proof sufficient for the issue to reach the jury. Although faced with motions for summary judgment, they have failed to produce any concrete evidence substantiating the theory of the complaint even after substantial discovery and numerous depositions. Nor have they filed affidavits stating any reasons for that failure as allowed by Federal Rule of Civil Procedure 56(f).

 Defendants Safeway and Local 730 have met their burden as to the nonexistence of any material issue of fact and plaintiffs have offered nothing substantial to bar their request for summary judgment as to 42 U.S.C. § 1981. First American Bank of Arizona v. Cities Service Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575, (1968); Bloomgarden v. Coyer, 156 U.S. App. D.C. 109, 479 F.2d 201 (D.C. Cir. 1973). Reading all evidence in the light most favorable to plaintiffs, they have failed to present any facts sufficient to support an inference of intentional ...

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