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INGRAM v. MADISON SQUARE GARDEN CTR.

December 13, 1979

HENRY INGRAM, JAMES BRITT, WILLIAM MOODY, and ROY T. FLOYD, individually and on behalf of all persons similarly situated, Plaintiffs, and FRANCES WILLIAMS, EDWARD MILON, HORACE MITCHELL, HERBERT BRUTON, JOVINO GARCIA, Intervenors, against MADISON SQUARE GARDEN CENTER, INC., MADISON SQUARE GARDEN CORPORATION, ALLIED MAINTENANCE CORPORATION, ALLIED PUBLIC EVENTS SERVICE CORPORATION, and LOCAL # 3 I.B.E.W., Defendants; SHELLY L. ANDERSON, JAMES L. PERRY, individually and on behalf of all others similarly situated, Plaintiffs, against MADISON SQUARE GARDEN CENTER, INC., MADISON SQUARE GARDEN CORPORATION, ALLIED MAINTENANCE CORPORATION, ALLIED PUBLIC EVENTS SERVICE CORPORATION, LOCAL 3 I.B.E.W., Local 54, SERVICE EMPLOYEES INTERNATIONAL UNION, Defendants.


The opinion of the court was delivered by: SAND

On October 3, 1979, this Court held that the manner in which Local # 3, International Brotherhood of Electrical Workers ("Local 3") referred workers to Madison Square Garden ("the Garden") for employment as "laborers" violated both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970) and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1970). *fn1" The Court found that the plaintiffs in the first of these two consolidated class actions, *fn2" the "Ingram" plaintiffs, were entitled to recover under § 1981 only, while plaintiffs in the second action, the "Anderson" plaintiffs, were entitled to recover under both Title VII and § 1981. *fn3" Pursuant to the Court's initial decision to bifurcate the trial into a liability and a remedial stage, a hearing on all remedial issues was held on October 17, 1979, and both parties submitted briefs shortly thereafter.

Plaintiffs seek an injunction ordering Local 3 to regularize its referral practices *fn4" and to refer to the Garden "in order of their current seniority" those class members who desire a laborer's position. Plaintiffs also seek full backpay for all class members who unsuccessfully applied for the job of laborer or who would have applied but for their belief that such application would be futile. Finally, plaintiffs seek an injunction ordering Local 3 to credit all class members who become laborers with full seniority for all purposes for the same number of years that they worked as cleaners at the Garden. Reasonable attorneys' fees and costs are also sought.

 The Court finds that, as a general matter, an award of backpay, retroactive seniority and attorneys' fees is appropriate here. The case will now be referred to Magistrate Leonard A. Bernikow (or such other Magistrate as he shall designate) as Special Master under F.R.Civ.P. 53 who, in accordance with the general guidelines set forth below, will make recommendations to the Court as to both the entitlement of individual class members to such relief and the amount appropriately chargeable to defendant for attorneys' fees and costs. *fn5" Plaintiffs' request for prospective injunctive relief is granted as modified herein.

 I. Retroactive Seniority

 When a court finds that an employer or union has engaged in a policy of unlawful employment discrimination, class action plaintiffs are not required to introduce specific evidence of individual acts of discrimination at the remedial stage of the proceeding. The proof supporting the finding of liability in such a case also "supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 361-2, 97 S. Ct. 1843, 1868, 52 L. Ed. 2d 396 (1977). Where such a policy is found to exist, the Supreme Court has made clear that, as a general matter, the District Court must ordinarily grant seniority relief, absent reasons for denying such relief which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination and making persons whole for injuries suffered. Teamsters v. United States, 431 U.S. at 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396; Franks v. Bowman Transport Co., 424 U.S. 747, 771, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976). Since defendant Local 3 has made no argument that such reasons exist here and since this Court has already found that Local 3 engaged in a policy of unlawful employment discrimination, the Court now concludes that an award of retroactive seniority is appropriate. This, however, does not necessarily mean that each class member is entitled to such relief. Only Actual victims of Local 3's discriminatory referral practices are entitled to retroactive seniority. Teamsters v. United States, 431 U.S. at 324 at 371-372, 97 S. Ct. 1843, 52 L. Ed. 2d 396.

 There are two means by which class members can demonstrate that they are actual victims. The first is for a class member to prove that he or she actually applied to Local 3 for referral to the Garden as a laborer. Once such an application is established, there is a presumption that the class member involved is entitled to retroactive seniority, and the burden is on the union to show that its failure to refer was for nondiscriminatory reasons. Teamsters v. United States, 431 U.S. at 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396. In this case, however, Local 3's referral practices made a formal application for reference to the Garden impossible: there was simply no established application procedure, and union officials deliberately frustrated informal attempts by class members to secure a laborer's position. See Op. at pp. -- - -- ; -- - -- . A liberal construction of the term "application" is thus called for if class members are to be restored to their "rightful place" in the seniority scheme. See Acha v. Beame, 570 F.2d 57 (2d Cir. 1978); James v. Stockham Valves & Fittings Co., 559 F.2d 310 (5th Cir. 1977). Accordingly, any expression by a class member to a Local 3 official evidencing a desire either to become a laborer or to acquire information as to how to obtain a referral will be treated as an "application" for purposes of determining whether that class member was an "actual victim" of Local 3's discriminatory employment practices. To do less would penalize plaintiffs for union referral procedures and recordkeeping practices which have already been condemned by this Court as violative of the employment discrimination laws. See E.E.O.C. v. Local 28 of the Sheet Metal Workers' International Assoc., 532 F.2d 821, 832 (2d Cir. 1976); Carter v. Shop Rite Foods, Inc., 470 F. Supp. 1150 (N.D.Tex.1979) (lack of formal application procedure was itself a tool of discrimination).

 Absent an application as defined above, a second and more difficult way for class members to demonstrate that they were actual victims of Local 3's discriminatory referral practices is to prove that they were qualified for a laborer's position and that they would have applied for a referral had it not been for those practices. Teamsters v. United States, 431 U.S. at p. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (referring to the nonapplicants' "not always easy burden".) In this case, the Court has already found that the atmosphere at the Garden was such that class members could reasonably have believed that seeking a referral from Local 3 would be futile. See Op. at p. -- . Such a finding, while essential to the nonapplicants' case, does not mean that all nonapplicants who now seek laborers' positions are entitled to retroactive seniority. Teamsters v. United States, 431 U.S. at pp. 324 at 369-371, 97 S. Ct. 1843, 52 L. Ed. 2d 396. Each such nonapplicant must come forward with evidence that he or she desired a laborer's job, possessed the requisite qualifications, and would have sought a referral but for the Union's discriminatory practices. Evidence of a class member's desire to become a laborer may consist of an informal inquiry or expression of interest to someone other than a Local 3 official, *fn6" or even an "unexpressed desire credible and convincing." Teamsters v. United States, 431 U.S. at p. 324, n.58, 97 S. Ct. 1843, 52 L. Ed. 2d 396. See, e.g., United States v. East Texas Motor Freight System, Inc., 32 Fair Empl. Prac. Cas. (BNA) 560, 20 EPD P 30,103 (N.D.Tex.1979) (making individual retroactive seniority determinations for nonapplicants). The question is a factual one, but if a change from cleaner to laborer would have entailed a loss of seniority at the time the class member involved desired such a change, *fn7" then whether that class member would have accepted a laborer's position at that time despite the loss of seniority is a relevant if not determinative consideration. See Teamsters v. United States, 431 U.S. at pp. 324 at 370-371, 97 S. Ct. 1843, 52 L. Ed. 2d 396.

 Although plaintiffs seek full seniority for the number of years that qualifying class members who become laborers worked at the Garden, no class member may be given retroactive seniority to a date earlier than the effective date of Title VII or the date of his application or proven "desire", whichever is later. *fn8" Teamsters v. United States, 431 U.S. at pp. 324 at 356-357, 97 S. Ct. 1843, 52 L. Ed. 2d 396. Thus, an applicant or nonapplicant who qualifies for seniority relief under the standards set out above will be granted retroactive seniority as of the date of the next laborer hire resulting from a Local 3 referral which followed the class member's application or qualifying desire, subject to a maximum date of July 2, 1965. See, e.g., Harper v. General Grocers Co., 590 F.2d 713 (8th Cir. 1979); Sagers v. Yellow Freight System, Inc., 529 F.2d 721 (5th Cir. 1976); Linebaugh v. Auto Leasing Co., 18 Fair Empl. Prac. Cas. (BNA) 752, 18 EPD P 8,904 (W.D.Ky.1978) (retroactive seniority awarded "as of date (plaintiff) should have been employed by defendant", I. e., as of date of next hire following her application). The source and date of laborer hires should be drawn from the books and records of the employer and the evidence adduced at trial, but there is a strong presumption that most if not all laborer hires were the result of a Local 3 referral. See Op. at pp. 924-925. Evidence of applications and of the "desire" and qualifications of nonapplicants may be drawn from the testimony at trial, from depositions, interrogatories and other documents admitted into evidence, and, if necessary, from testimony at hearings held before the magistrate. *fn9" Evidence of the union's nondiscriminatory reasons for its failure to refer individual class members should also be presented to the magistrate. *fn10"

 Although this procedure for identifying actual victims of Local 3's discriminatory practices and restoring them to their "rightful place" will "necessarily involve a degree of approximation and imprecision", the Court believes that it is both well within its broad equitable powers under Title VII to fashion the most complete relief possible and consistent with the Supreme Court's specific mandate to " " "recreate (as nearly as possible) the conditions and relationships that would have been had there been no" " unlawful discrimination". Teamsters v. United States, 431 U.S. at p. 372, 97 S. Ct. at p. 1873 (quoting Franks v. Bowman Transport Co., 424 U.S. at p. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444. See also, Achca v. Beame, supra; James v. Stockham Valves & Fittings Co., supra (under "rightful place" doctrine, sufficient retroactive seniority is given to permit the advancement and layoff protection the victim of the discrimination would have enjoyed but for the discrimination).

 Finally, while the Ingram plaintiffs are entitled to recover under § 1981 and not under Title VII, the Court notes that the two statutes have generally been similarly interpreted and applied, See, e.g., Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976), and sees no reason why successful § 1981 plaintiffs should not be eligible for a retroactive seniority award. See Williams v. DeKalb County, 577 F.2d 248 (5th Cir. 1978) (backpay award appropriate in a § 1981 suit). Accordingly, the Ingram plaintiffs' individual entitlements to retroactive seniority will be determined in accordance with the standards set forth above, including the maximum seniority date of July 2, 1965. See Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1374-75, 1378-79 (5th Cir. 1974) (limiting the availability of backpay relief under § 1981 to the effective date of Title VII). As the Fifth Circuit stated in Johnson, the "balancing of the equities" in the employment discrimination area suggests that backpay relief under § 1981 should be limited to the effective date of Title VII, and this Court believes that the same rule should govern an award of retroactive seniority. Any other conclusion would be particularly unfortunate in this case since two essentially identical plaintiff classes would then be eligible for different measures of relief after having suffered from the same discriminatory practices.

 II. Backpay

 Much of what has already been said about retroactive seniority applies to backpay as well. *fn11" The standard for general availability is identical in both contexts; indeed, that standard was first adopted by the Supreme Court in a backpay decision. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1974). The standard for determining the eligibility for backpay of individual "applicant" class members is also the same as that employed in the retroactive seniority context. *fn12" See, e.g., Hill v. Western Electric Co., 596 F.2d 99 (4th Cir. 1979); Mitchell v. Mid-Continent Spring Co., 583 F.2d 275 (6th Cir. 1977); Chewning v. Schlesinger, 471 F. Supp. 767 (D.C.D.C.1979). The questions which require extended separate discussion are whether nonapplicants are eligible for backpay relief, the effect of the statute of limitations, the composition of a backpay award, and the availability of front pay. The Court notes before addressing those questions, however, that since defendant has pointed to no reason for denying backpay relief which, "if applied generally, would not frustrate" the purposes of the employment discrimination laws, *fn13" a backpay award is, as a general matter, appropriate here. *fn14"

 Although the Supreme Court opinion in Teamsters v. United States, supra, was not concerned with backpay, courts confronted with the question since Teamsters have held that "nonapplicants" are potentially eligible for a backpay award, and have applied Teamsters eligibility standards to the backpay area. See, e.g., Hill v. Western Electric Co., supra; Mitchell v. Mid-Continent Springs Co., supra; Carter v. Shop-Rite Foods, Inc., supra; Chewning v. Schlesinger, supra. This approach seems consistent with the parallel treatment generally accorded the two remedies by both the Supreme Court and the lower federal courts. Compare Teamsters v. United States, supra, with Albemarle Paper Co. v. Moody, supra. Moreover, the Teamsters Court's concern that imposing an absolute bar on relief to nonapplicants would "put beyond the reach of equity the most invidious effects of employment discrimination" is equally applicable here. Teamsters v. United States, 431 U.S. at pp. 365, 367, 97 S. Ct. at p. 1871. That language at least suggests that limiting the type of relief available to a victim of discrimination because he is a nonapplicant would be inconsistent with the duty of the courts to secure "complete justice" and provide a "make whole" remedy for such victims. Id. at 364, 97 S. Ct. 1843. The Court thus concludes that backpay relief is available to nonapplicants, and that the standards set out in Teamsters v. United States, supra, and described above are to be used in making individual eligibility determinations. *fn15"

 Unlike an award of retroactive seniority which is subject only to the maximum recovery date of July 2, 1965, backpay awards are also subject to a statute of limitations. Title VII specifically provides that "(b)ack pay liability shall not accrue from a date more than two years prior to the filing of a charge with" the E.E.O.C. 42 U.S.C. § 2000e-5(g). *fn16" Thus, the Anderson plaintiffs' backpay award is actually subject to a maximum recovery date of November 24, 1973, which is two years before their charge naming Local 3 was filed with the Commission. *fn17" The Ingram plaintiffs, whose backpay recovery is based on § 1981 rather than Title VII, *fn18" are subject to the applicable state limitations period, Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1974), which in New York is three years prior to the time the lawsuit was ...


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