United States District Court, Northern District of Illinois
May 17, 1973
WALTER C. MASSEY, PLAINTIFF,
ILLINOIS RANGE COMPANY, AN ILLINOIS CORPORATION, AND SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL 115, DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the motion of defendant Sheet Metal
Workers International Association, Local Union No. 115
("Union") to dismiss the complaint.
This is an action to redress an alleged deprivation of the
plaintiff's civil rights to equal employment opportunities
pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., and 1870, 42 U.S.C. § 1981. This Court is alleged to have
jurisdiction over the instant action pursuant to
28 U.S.C. § 1343(4), 2201 and 2202 and 42 U.S.C. § 2000e-5(f).
The plaintiff, Walter C. Massey, is an American Indian, a
United States citizen and a resident of Chicago, Illinois. The
defendant Illinois Range Company ("Employer") employed the
plaintiff at the time of the alleged discrimination and is an
employer within the meaning of 42 U.S.C. § 2000e(b). The
defendant Union is a labor organization within the meaning of
42 U.S.C. § 2000e(d) and (e).
The plaintiff in his complaint alleges inter alia the
1. On October 28, 1963, plaintiff was hired by
the defendant company. At various times
during the course of his employment,
plaintiff was harassed, intimidated and
ridiculed by certain co-workers.
2. On or about November 28, 1968 plaintiff filed
a racial discrimination charge against
defendant company, based on the
abovementioned actions of his co-workers.
This charge was subsequently withdrawn by the
plaintiff after supervisors of defendant
company assured plaintiff that the harassment
by his co-workers would be stopped.
3. On or about May 31, 1970 the labor agreement
between the defend-company.
On or about June 9, ant company and the
defendant union expired resulting in a strike
by the employees of the defendant 1970,
plaintiff left Chicago for his birthplace of
Pelliston, Michigan, at which time he made
arrangements to call defendant union's
steward Grayson every four days.
4. The plaintiff telephoned Mr. Grayson on June
25, 1970 and was informed that the strike had
been settled and that the employees had
rturned to work on June 24, 1970. On June 26,
1970 plaintiff telephoned defendant company
and was informed by the plant superintendent
that his employment had been terminated. The
termination of the plaintiff's employment was
based solely on plaintiff's being an American
Indian and plaintiff's previous filing of a
discrimination charge against the defendant
Employer. The defendant Union acquiesced and
joined with the defendant Employer in the
unlawful and discriminatory acts in that,
contrary to its duty and obligations to
plaintiff as a member of the Union and though
requested by the plaintiff, the Union failed
to aid plaintiff and discouraged plaintiff
from filing a grievance against defendant
Employer and refused to provide plaintiff
with the representation to which he was
entitled pursuant to the Civil Rights Act of
5. On July 6, 1970 and within ninety days of the
alleged discriminatory acts, the plaintiff
filed written charges under oath with the
Equal Opportunity Commission, alleging denial
by the defendants of his rights under Title
VII of the Civil Rights Act of 1964. On or
about October 13, 1971 plaintiff was notified
by the EEOC that he was entitled to institute
a civil action in the U.S. District Court
against the defendant. The plaintiff
instituted the instant action within 30 days
after the receipt of such notice.
The plaintiff seeks to restrain the defendants from
discriminating against him and to recover compensatory and
punitive damages, appropriate payment of back wages, and the
cost of maintaining this action.
The defendant Union in support of its motion to dismiss
1. Plaintiff has failed to allege a violation of
42 U.S.C. § 2000(e)-2(c) [§ 2000e-2(c)].
2. Plaintiff has failed to allege a violation of
Section 301 of the Labor Management Relations
Act, 29 U.S.C. § 185.
3. Plaintiff has failed to exhaust his
intra-union remedies and has no standing to
commence this action.
4. Plaintiff's complaint has been rendered moot.
The plaintiff in opposition to the instant motion contends
that the motion is without merit.
It is the opinion of this Court that the plaintiff has
adequately stated a cause of action against the Union and that
the instant complaint is not moot merely because the Union is
now willing to arbitrate the plaintiff's grievance.
I. THE PLAINTIFF HAS ADEQUATELY STATED A CAUSE OF ACTION
UNDER 42 U.S.C. § 2000e-2(c).
It is well settled that a complaint brought pursuant to the
Civil Rights Act of 1964 should be accorded a liberal
interpretation in order to effectuate the purpose of Congress
of eliminating the inconvenience, unfairness, and humiliation
of ethnic discrimination. Rogers v. Equal Employment
Opportunity Commission, 454 F.2d 234
(5th Cir. 1971), cert.
denied, 406 U.S. 957
, 92 S.Ct. 2058
, 32 L.Ed.2d 343 (1972);
Parham v. Southwestern Bell Telephone Co., 433 F.2d 421
Cir. 1970); Green v. McDonnell-Douglas Corp., 318 F. Supp. 846
(E.D.Mo. 1970); United States v. Medical
Society of South Carolina, 298 F. Supp. 145 (D.C.S.C. 1969).
The Civil Rights Act of 1964 in relevant part,
42 U.S.C. § 2000e-2(c)(1) provides:
"It shall be an unlawful employment practice
for a labor organization —
(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."
It is clear that the Act does not purport to recite a list
of each and every type of discriminatory act, to the exclusion
of those not listed. The Act, quite simply, is intended to
eliminate discriminatory actions based on race by labor
The plaintiff in his complaint alleges a cause of action
based on the Union's acquiescence in the discriminatory acts
of the defendant Employer, contrary to the Union's duty and
obligations; the failure of the Union to aid the plaintiff in
filing a grievance against the defendant Employer; and the
denial by the Union of adequate representation to plaintiff.
It is the opinion of this Court that the plaintiff has
adequately stated a cause of action pursuant to
42 U.S.C. § 2000e-2(c)(1) in that the plaintiff has alleged that
defendant Union discriminated against him because of his race
in refusing to perform its duty as to the filing of his
grievance and adequately representing him. See Rogers v. Equal
Employment Opportunity Commission, supra; Lansdale v. Air Line
Pilots Association International, 430 F.2d 1341 (5th Cir.
1970); Donohue v. Shoe Corp. of America, 337 F. Supp. 1357
(C.D.Cal. 1972). Regardless of whether the plaintiff will
eventually prevail on the merits, the plaintiff, in his
complaint, sufficiently alleges a cause of action against the
Union and thus the defendant's motion to dismiss should be
It is clear, contrary to the contention of the defendant,
that under the Civil Rights Act of 1964 a plaintiff is not
required to allege a violation of Section 301 of the Labor
Management Relations Act, 29 U.S.C. § 185, in order to maintain
an action against a defendant union.
Further, the defendant's contention that the plaintiff has
no standing to commence this action since he has failed to
exhaust his intra-union remedies is without merit. The thrust
of plaintiff's allegation of discrimination is precisely a
denial of proper access to the intra-union remedies and
inadequate representation by the Union.
II. THE INSTANT COMPLAINT IS NOT MOOT
The defendant Union contends that the instant complaint is
moot because the Union is now willing to arbitrate the
plaintiff's grievance. The instant complaint is clearly not
The plaintiff's cause of action is based on racial
discrimination caused by the Union's failure to file his
grievance and its inadequate representation of his grievance.
Arbitration at this late date cannot cure the alleged
discrimination nor can it provide the full relief requested by
the plaintiff in the instant action.
Such a voluntary offer as the defendant has made cannot moot
the questions presented in a civil rights action based on
employment discrimination. See Rowe v. General Motors Corp.,
457 F.2d 348 (5th Cir. 1972); Johnson v. Pike Corp. of
America, 332 F. Supp. 490 (C.D. Cal. 1971).
Accordingly, it is hereby ordered that the defendant Union's
motion to dismiss the complaint against it is denied.
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