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Pearson v. Furnco Construction Co.

decided: August 25, 1977.

WILLIE G. PEARSON, VANDY HAWKINS, SYLVESTER WILLIAMS, WILLIAM WATERS, BOGUS KNIGHT, CHARLES TEMPLE, NARCISSE BATISTE, MELVIN KING, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
FURNCO CONSTRUCTION COMPANY, A CORPORATION, PETER J. BRENNAN, SECRETARY, U. S. DEPARTMENT OF LABOR, AND BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, AN UNINCORPORATED ASSOCIATION, DEFENDANTS-APPELLEES. BRICKLAYERS, MASONS, AND PLASTERERS INTERNATIONAL UNION OF AMERICA, AN UNINCORPORATED ASSOCIATION, DEFENDANT-APPELLEE, CROSS-APPELLANT, V. WILLIE G. PEARSON, VANDY HAWKINS, SYLVESTER WILLIAMS, WILLIAM WATERS, BOGUS KNIGHT, CHARLES TEMPLE, NARCISSE BATISTE, MELVIN KING, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS, CROSS-APPELLEES



Fairchild, Chief Judge, Pell, Circuit Judge, and Hoffman, Senior District Judge.*fn*

Author: Fairchild

FAIRCHILD, Chief Judge.

Plaintiffs' complaint, filed September 30, 1974, was dismissed on motion. Plaintiffs proposed an amended complaint and sought reconsideration. The district court dismissed the amended complaint, and plaintiffs appealed. Thus the facts, for purposes of this appeal, appear from the amended complaint (except for certain additional submissions). Although brought as a class action, it does not appear to have been ordered to be maintained as such, and thus we consider only the claims of the named plaintiffs.

I. THE CASE AGAINST FURNCO

Plaintiffs are eight black bricklayers who reside in Chicago. Each has substantial experience in the craft. Furnco is a mason contractor with headquarters at Buffalo, New York. In the period 1969-74 Furnco performed a number of firebrick jobs on blast furnaces in the greater Chicago area, including northern Indiana.

During the summer of 1973, Furnco performed a job at Inland Steel Corporation, in East Chicago, Indiana. A portion of the workforce employed by Furnco on that job consisted of seventeen white Canadian bricklayers, employed after Furnco sought and obtained permission for them to enter the United States as non-immigrants for temporary work. In order to obtain such permission, the Secretary of Labor must certify qualified persons in the United States are not available. In order to obtain the certification, Furnco represented that it had been unable to find any qualified bricklayers to perform the work.

At this time, plaintiffs were available and qualified, and would have accepted the employment if offered.

The district court decided that plaintiffs lacked standing to complain because none of them had applied to Furnco for work on the Inland job.

Plaintiffs do not claim they had so applied. They had, however, sought employment at numerous other jobs performed by Furnco in Chicago and northern Indiana. They sought employment by going to the respective sites and leaving their names, addresses and telephone numbers with representatives of the company. Some of them wrote letters to Furnco, advising of their availability.

Some of the plaintiffs had taken other action which necessarily made known to Furnco their availability and qualifications. Present plaintiff Batiste and others brought an action against Furnco in the Northern District of Illinois March 11, 1971. The action was based upon an allegedly discriminatory denial of employment in 1969. Batiste v. Furnco Construction Corporation, 350 F. Supp. 10 (N.D.Ill. 1972), 503 F.2d 447 (7th Cir. 1974). Present plaintiffs Pearson, Hawkins, Williams, Waters, and others brought a similar action September 15, 1972. It was based on alleged discrimination in 1971. Present plaintiffs Pearson, Hawkins, and Williams were ultimately hired on that job, although Pearson and Hawkins were fired. Waters v. Furnco Construction Corporation, 551 F.2d 1085 (7th Cir. 1977).

Plaintiffs alleged that Furnco "concealed" the Inland job from them. No details of active concealment are described. Thus the claim of concealment adds little more than emphasis to the claim which is adequately disclosed elsewhere, i.e., that plaintiffs had made Furnco sufficiently aware of their interest in firebrick jobs so that Furnco's failure to notify them of the Inland job, coupled with Furnco's representation of inability to find qualified bricklayers, could only have been a deliberate avoidance of considering plaintiffs for employment.

Furnco and the district court proceeded on the theory that plaintiffs' inability to show they had applied for the Inland job established they had suffered no actual injury and had no standing to complain. We think, however, that these plaintiffs alleged a sufficient demonstration of interest in employment, which they brought to the attention of Furnco, so that it is fair and reasonable to treat plaintiffs as applicants for the Inland job if they can show, as they alleged, that they were available and would have applied if they had been made aware of the job. See, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396, 45 U.S.L.W. 4506, 4516 (1977). Such proof would adequately demonstrate injury to plaintiffs and entitle them, under the circumstances, to the inference of discrimination recognized in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) assuming plaintiffs can prove their qualifications.

Putting the matter another way, plaintiffs have alleged a particular demonstrable relationship between themselves and Furnco, so that Furnco's failure to notify plaintiffs of the Inland job could be found tantamount to refusal to employ them.

With respect to the allegation that some of plaintiffs had advised Furnco by letter of their availability, Furnco points to an affidavit asserting that a search of Furnco's files showed only a letter from Waters, and that sought only a specific position, other than Inland, in 1971. We do not view this affidavit as conclusively establishing that no other letters were received, nor do we regard the letters as ...


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