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ARTIS v. UNITED STATES INDUS.

August 25, 1989

LUTHER ARTIS, Plaintiff,
v.
UNITED STATES INDUSTRY and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS and HITACHI-ZOSEN CLEARING, INC., Defendants


James B. Moran, United States District Judge.


The opinion of the court was delivered by: MORAN

JAMES B. MORAN, UNITED STATES DISTRICT JUDGE.

 Plaintiff Luther Artis (Artis) brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, against his former employer Clearing Division of United States Industry (Clearing) and the International Association of Machinists and Aerospace Workers, plaintiffs' collective bargaining representative during the time he was employed by Clearing. Defendant Hitachi Zosen Clearing, Inc. subsequently purchased Clearing. We have before us defendants motion for judgment on the pleadings which invokes two recent decisions of the Supreme Court. Our review of those opinions compels us to deny defendants' motion in part and to grant it in part.

 FACTS

 Having visited the facts thrice before in our memoranda dated June 16, 1988, August 23, 1988, and May 4, 1989, we recite only those facts particularly relevant here. In approximately 1981 Clearing installed a Poreba engine lathe. According to Artis' deposition testimony, when the Poreba first arrived he inquired whether he could receive instructions on how to run the machine, but his request was denied (pl.dep. at 20-21). During 1982, thirteen operators from the engine lathe department, including plaintiff, were laid off. Artis was the most senior and the only black person among those machinists. He was laid off on November 9, 1982. Under the collective bargaining agreement then in effect he retained recall rights to the machinist's position for two years. He exercised his seniority rights and bumped to assembly helper, a position he held until January 23, 1983, when he was again laid off -- maintaining recall rights to that position for two years. Subsequently, Clearing determined that it needed machinists to run the Poreba lathe to meet the demands of a specific contract. Lawrence Hale, the machine shop superintendent, first asked three white machinists -- who had more seniority than plaintiff, had not been laid off, but did not have Poreba training -- whether they would be willing to run the Poreba. These machinists refused. The decision was then made to recall two others, Messrs. Glowacki and McDonnell, who had less seniority than Artis but did have Poreba training. The company did not recall any laid-off machinist who was not Poreba-trained. Of that group, plaintiff was apparently the only black and had the most seniority. Pursuant to the seniority system, he therefore would have been the person recalled if a laid-off machinist were to be trained to operate the Poreba lathe. Artis was recalled as an assembly helper, effective February 22, 1983, but he declined, opting to wait until he was recalled to a machinist's position.

 Artis alleges two separate discrimination issues, each of which has been brought under both Title VII and § 1981. He first complains of discrimination in the decision as to who received Poreba training. And he separately alleges discrimination in the recall of two white machinists with inferior seniority. We consecutively evaluate each issue, with individual discussion respecting Title VII and § 1981.

 I. Discrimination in Training

 A. Title VII

 The Supreme Court's holding in Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S. Ct. 2261, 104 L. Ed. 2d 961 (1989), compels dismissal of Artis' Title VII claim respecting alleged discriminatory training. Lorance evaluated the limitations period respecting the discrimination claims created by an intentionally discriminatory seniority system. The Court held that the limitations period begins to run not at the point where the impact becomes most obvious but, rather, at the time that the system is adopted.

 Lorance implicitly requires satisfaction of three separate prongs before dismissal is considered appropriate. First, the original action about which the plaintiff complains must be outside the limitations period. Second, the defendant must demonstrate that the plaintiff knew or should have known, at the time of the original action, that he or she had suffered, or would suffer, "concrete" harm. And third, the defendant must demonstrate that the plaintiff knew or should have known, at the time of the original action, that it was discriminatory.

 Neither side disputes that the alleged failure to train was outside the relevant limitations period. We conclude, however, that material issues of fact pertain to Artis' knowledge and therefore it cannot be conclusively determined that the limitations period began to run when Artis failed to receive Poreba training. Those issues of fact concern whether he knew or should have known of the requisite concrete harm and whether he knew or should have known that his failure to receive training was motivated by race. Lorance, therefore, cannot compel dismissal at this time.

 Lorance made clear that while more "painful" harm may well occur at a later date, the limitations period begins to run when the plaintiff suffers "concrete harm." 109 S. Ct. at 2266. By effect, the AT & T seniority system there at issue put women who had exercised their plant-wide seniority to become testers at risk of demotion. Id. The limitations period therefore began to run the day of its adoption because those women knew or reasonably should have known of the system's discriminatory impact. See Lorance v. AT & T Technologies, Inc., 827 F.2d 163, 167 n.3 (7th Cir. 1987) ("the affidavits that the plaintiffs submitted to the district court conclusively prove that the plaintiffs were aware that they had forfeited their plant-wide seniority on the day they became subject to the Tester Concept").

 That knowledge element explains one of the central disputes between the majority and the dissent. Justice Marshall, in dissent, contends that "AT&T's new seniority system was designed to have a long-range discriminatory impact, hurting women employees as a group but, as of the time of its inception, only theoretically hurting particular women employees." Lorance, 109 S. Ct. at 2272 (Marshall, Jr., dissenting) (emphasis added). Contrast that description with Justice Scalia's conclusion that the women suffered "concrete harm" the day the "employer provide[d] a patently less desirable seniority guarantee than what the law requires." 109 S. Ct. at 2266 n. 3 (emphasis added). Further, the plaintiffs in Delaware State College v. Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980), and United Air Lines v. Evans, 431 U.S. 553, 52 L. Ed. 2d 571, 97 S. Ct. ...


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