Patterson v. Youngstown Sheet & Tube Co.

659 F.2d 736, 28 Fair Empl. Prac. Cas. (BNA) 1434, 1981 U.S. App. LEXIS 11257, 27 Empl. Prac. Dec. (CCH) 32,177
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 20, 1981
DocketNos. 80-1983, 80-2027 and 80-2028
StatusPublished
Cited by5 cases

This text of 659 F.2d 736 (Patterson v. Youngstown Sheet & Tube Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patterson v. Youngstown Sheet & Tube Co., 659 F.2d 736, 28 Fair Empl. Prac. Cas. (BNA) 1434, 1981 U.S. App. LEXIS 11257, 27 Empl. Prac. Dec. (CCH) 32,177 (7th Cir. 1981).

Opinion

FLOYD R. GIBSON, Senior Circuit Judge.

This suit, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., is based upon EEOC charges which were filed on September 21, 1969. Those charges were filed against Youngstown Sheet and Tube Company (Youngstown) and Local 6, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO (Local 6) by employees of Youngstown employed as mason-helpers at Youngstown’s Indiana Harbor Works facility. All mason-helpers at Youngstown, at the time of the complaint, were black males. They alleged that because of their race they were denied the opportunity to move from the position of mason-helper to that of brick mason. Mason-helpers are members of the United Steelworkers of America, Local 1011 collective bargaining unit (United Steelworkers). Brick masons and brick mason apprentices are represented by Local 6.

On October 22, 1971, ten individual plaintiffs filed their complaint in federal court, alleging violations of Title VII. The action was certified as a class action on November 4, 1972. It was brought on behalf of “ * * * black employees of [Youngstown] who are employed as masons’ helpers and who have so been employed on or since July 2, 1964 or enjoyed right of recall as of that date.”

On May 12, 1977, the district court granted a motion for partial summary judgment for Youngstown, on the grounds that certain claims which plaintiffs sought to litigate (1) were beyond the scope of the suit which could properly be based upon the underlying EEOC charges, and (2) would involve an indispensable party (the United Steelworkers) which had not been charged before the EEOC and could not be made a party to the suit. As a result of this partial summary judgment, the sole remaining issue in the case was whether Youngstown and/or Local 6 denied the mason-helpers the opportunity to move to the position of brick mason or brick mason apprentice because of their race.

On August 12, 1977, the court again entered an order for partial summary judgment, this time for plaintiffs. The court found that Youngstown

was in violation of 42 U.S.C. §§ 2000e et seq. (“Title VII”), for the period of 2 July 1965-21 September 1969, as it denied Plaintiffs the opportunity to move from the position of mason helper to that of brickmason or brickmason apprentice because of Plaintiffs’ race.

A three-day trial was held in March 1979. Subsequently the court issued its decree and held that

Local 6’s requirements for apprenticeship and admission into membership as apprentices that applicants must be less than 22 years of age (or 24 with military service credit) and have a high school education or GED, as well as its stated preference for sons of members, [were] in violation of Title VII and unlawful.

However, the court also held that “Local 6’s unlawful requirements and practices did not rise to such level as, within the Court’s sound discretion under Section 706(g) of Title VII * * *, Local 6 should be held liable for any back pay herein.”

In addition, the court’s decree formalized earlier pronouncements, set forth a formula for a magistrate to follow in determining back pay against Youngstown, entered injunctive relief against both defendants, and [739]*739deferred a ruling on the amount of attorney fees to be assessed against Youngstown.

On May 7,1980, the district court entered an order adopting the magistrate’s report and recommendations, which awarded $28,-382.77 to plaintiffs. Subsequently, it assessed approximately $66,000 in attorney fees against the employer for four of plaintiffs’ attorneys.

On appeal, the appellants/cross-appellees mason-helpers assign as error (1) the district court’s computation of the back pay awarded, (2) the district court’s computation of attorney fees awarded, and (3) the finding that Local 6 is not liable for back pay or attorney fees. Youngstown has cross-appealed, assigning as error the entry of summary judgment on the issue of its liability. We affirm the judgment of the district court.

Appellants, cross-appellees Patterson et al. (plaintiffs) have moved to strike Youngstown’s cross-appeal on the ground that the point of error urged here, namely, that summary judgment was inappropriate on the issue of liability, was never presented to the district court in a manner whereby the court could rule on it. At the time the court entered its order for partial summary judgment on the issue of liability, its order was interlocutory and hence non-appealable. It did not become appealable until final judgment was entered on July 17, 1979. Youngstown was under no duty to make any post-trial motions in order to reserve the right to appeal the judgment entered against it. Plaintiffs’ motion to strike Youngstown’s cross-appeal is denied along with plaintiffs’ motion for an order directing payment of back pay and attorney fees as partial back pay and costs.

Back Pay Award

The district court properly based its back pay award upon the vacancies which occurred, during the relevant period, in Youngstown’s brick mason department only. The EEOC charges filed by plaintiffs confined the allegations of discrimination to the brick mason department. In addition, the only union named in the EEOC charges was the union which represents employees in the brick mason department, Local 6. The Steelworkers Union represents employees in the departments which plaintiffs later hoped to include in the computation of back pay. However, plaintiffs did not name the Steelworkers in their EEOC charges or in their complaint, and never attempted to join the Steelworkers as a party defendant. The court properly applied the correct standard in determining that “the allegations of the complaint which relate[d] to promotion and transfer within the Steelworkers bargaining unit [were] not properly within the scope of a judicial complaint based upon Plaintiffs’ EEOC charges.” The court did not abuse its discretion when it found that such allegations were not “like or reasonably related to” the charges made before the EEOC. See Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971).

Plaintiffs also urge that the court erred in its computation of back pay by excluding evidence of the fact that Youngstown on occasion contracted with outside companies to perform construction work, including brickmasonry, at its plant. Plaintiffs argue that they were prejudiced by this exclusion insofar as they were not allowed to show the “actual historical vacancies during the relevant time period.” We disagree.

Firstly, Youngstown’s practice of “contracting out” was not disputed on the record. Therefore, plaintiffs were not prejudiced by not being allowed to prove that the practice existed. Secondly, we know of no authority for the proposition that employees of independent contractors should be deemed employees of the defendant employer for purposes of back pay liability under Title VII. The “contracting out” of masonry work was commonplace in the industry, and Youngstown was under no duty to use its own mason workers when possible rather than to subcontract the work. As the Supreme Court stated in Furnco Construction Corp. v. Waters,

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659 F.2d 736, 28 Fair Empl. Prac. Cas. (BNA) 1434, 1981 U.S. App. LEXIS 11257, 27 Empl. Prac. Dec. (CCH) 32,177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patterson-v-youngstown-sheet-tube-co-ca7-1981.