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HYMAN v. FIRST UNION CORP.

September 2, 1997

SONDRA W. HYMAN, et al., Plaintiffs,
v.
FIRST UNION CORP., et al., Defendants.



The opinion of the court was delivered by: LAMBERTH

 This matter comes before the court on plaintiffs' motion to maintain their claims as class, collective, and consolidated issues for the common issues trial, and on defendants' several motions for summary judgment. In a memorandum opinion issued August 12, 1997 ("Hyman I"), the court granted plaintiffs' motion to maintain two collective actions, but reserved ruling upon the proposed class actions. In a memorandum opinion issued August 27, 1997 ("Hyman II"), the court granted summary judgment for defendants on plaintiffs' state law breach of contract claims, and denied as moot plaintiffs' motion to maintain the contract claims as a class. Upon consideration of the written submissions, oral arguments, and the relevant law, the court will grant defendants' motion for summary judgment on plaintiffs' Reston Servicenter ethnic discrimination claims and deny as moot plaintiffs' motion to maintain the Reston Servicenter claims as a class action. The court will grant plaintiffs' motion to maintain a consolidated action for all black branch managers and assistant black managers alleging employment discrimination. The court will reserve ruling on defendants' remaining motions for summary judgment.

 II. Plaintiffs' Proposed Class Action and Defendants' Motion for Summary Judgment as to the Former Reston Servicenter Plaintiffs' National origin and Ancestry Claims

 A. Background

 Plaintiffs have moved the court to certify a plaintiff class of all persons who were employed at the First American facility in Reston, Virginia at any time between May 17, 1993, and December 31, 1993, and were terminated by First Union. In addition to opposing class certification, defendants have filed a motion for summary judgment on the ethnic employment discrimination claims raised by the Reston employees.

 In their Seventh Amended Complaint, plaintiffs allege that First Union discriminated against former First American employees of non-Caucasian ancestry and denied them equal opportunities in employment because of their ethnicity, in violation of 42 U.S.C. § 1981, *fn1" pursuant to a common plan of acquisition and consolidation. In particular, plaintiffs allege that the Reston Servicenter was closed because of the large percentage of employees of non-Caucasian ancestry. In their papers against class certification and in favor of summary judgment, defendants argue that the decision to close the Reston Servicenter was for economic, not discriminatory reasons.

 B. Procedural Analysis

 C. Summary Judgment Analysis

 Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). If summary judgment is to be denied, there must be evidence on which the jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment may be granted. Celotex, 477 U.S. at 322.

 Defendants argue that plaintiffs have failed to establish a prima facie case of ethnic discrimination under the pattern and practice standard of proof. In the alternative, defendants argue that plaintiffs cannot demonstrate that First Union's proffered non-discriminatory reasons are a pretext for ethnic origin discrimination. Although the court concludes that plaintiffs have established a prima facie case of discrimination, summary judgment for defendants is appropriate because plaintiffs have failed to produce any evidence upon which any reasonable jury could conclude that defendants' proffered reasons are pretextual or the existence of a discriminatory motive.

 Plaintiffs present both statistical *fn2" and anecdotal evidence to establish their prima facie case. The statistical evidence demonstrates that by deciding to close the Reston Servicenter and transfer the duties to the Reston and Richmond facilities, First Union eliminated a workforce that was 47% Hispanic and Asian-American in favor of a workforce that was only 1.7% Hispanic or Asian-American. Plaintiffs argue that these statistics raise an inference that First Union chose to close the Reston office because of the high percentage of employees of Asian-American and Hispanic origin.

 In their reply, defendants emphasize a finding of plaintiffs' expert that by closing the Reston Servicenter, a greater percentage of Reston employees of European ancestry were permanently displaced than Reston employees of Asian-American descent. Defendants argue that the firing of proportionally more whites. than Asian-Americans demonstrates that defendants were not acting with a discriminatory intent when they closed Reston. The statistic upon which defendants are apparently relying is a finding by Dr. Drogin that by closing the Reston Servicenter, 57% of the white employees were displaced, and 56% of the Asian-Americans were displaced. The fact that some white employees were displaced does not negate the fact that the workforce chosen by defendants had significantly less workers of different ethnicities. Thus, this one finding is insufficient to support defendants' argument that plaintiffs have failed to establish a prima facie case of discrimination.

 In addition to the statistical evidence, plaintiffs rely on a stray remark in a single memorandum prepared by Clarence Adams, Richard Penland, and Richard Schwartz, three First Union officials who made the recommendation to close the Reston Servicenter. In memorializing their visits to the different servicenter sites, the group prepared a memorandum entitled "Summary of Findings and Decisions Relating to Locations Where Servicenter Functions will be performed after the Consolidation of Dominion Bank and Slapshot Bank." Twice, the memorandum states ...


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