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VIRGO v. LOCAL UNION 580

March 17, 1986

LEWIS A. VIRGO, Plaintiff, against LOCAL UNION 580, Defendant


The opinion of the court was delivered by: WEINFELD

WEINFELD, EDWARD, United States District Judge

FINDINGS OF FACT & CONCLUSIONS OF LAW

 Plaintiff Lewis Virgo commenced this action alleging that defendant Local Union 580 of the International Association of Bridge, Structural and Ornamental Iron Workers ("Local 580" or the "Union") discriminated against him on the basis of his race in its admissions and referral practices in violation of Title VII of the Civil Rights Act of 1964. *fn1" Upon a review of the testimony of the witnesses during the three-day trial and an appraisal of their credibility, the exhibits introduced into evidence, and the stipulated facts, the Court makes the following findings of fact and conclusions of law.

 Plaintiff is a black man of Jamaican origin who entered this country in 1967 and who has lived here since as a resident alien. Virgo was first employed within the jurisdiction of Local 580 in 1971, when he worked as an architectural and ornamental iron worker at General Bronze. On August 21, 1972, Virgo filed an application for membership in Local 580. He took and passed the defendant's journeyman's examination on February 14, 1973, but was not admitted to the Union's membership until February 28, 1980.

 During the years 1971 through 1974, the Union referred plaintiff, as a permit man, to various jobs as an iron worker. *fn2" In 1976, plaintiff was employed as a full-time shipfitter by Seatrain Shipbuilding, where he worked until he sustained a permanent disabling injury in January or February 1978.

 In November and December 1976, Virgo filed discrimination charges against the Union with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights. After five days of hearings in 1980 and 1981, an Administrative Law Judge dismissed Virgo's complaint on the ground that the State Division of Human Rights' jurisdiction has been preempted by a federal consent judgment entered in EEOC v. Local 580.3 On August 24, 1982, Virgo's complaint was dismissed by a commissioner of the State Division of Human Rights upon findings of fact, a decision and an opinion. *fn4" Upon appellate review, the commissioner's decision was affirmed by the chairman of the Division on December 30, 1983. The EEOC issued plaintiff a notice of right to sue on February 10, 1984.

 DISPARATE TREATMENT

 Plaintiff asserts two separate claims for recovery: disparate treatment and disparate impact. We first consider the disparate treatment claim. He contends that the seven-year delay in his admission to the Union from the time he passed the journeyman's examination in 1973 to 1980 was the result of defendant's discriminatory admissions against him on the basis of his race with respect to its job referral practices.

 In a Title VII case alleging disparate treatment the central issue is whether there has been intentional discrimination against the plaintiff. *fn5" "Proof of discriminatory motive is critical." *fn6" The plaintiff has the burden of proving by a fair preponderance of the evidence a prima facie case of discrimination. To establish a prima facie case, Virgo must show: 1) he belongs to a racial minority; 2) he applied and was qualified for admission to the union and/or for referrals and the union was admitting applicants or referring persons; 3) despite his qualifications he was not admitted or referred for jobs; and 4) after his rejection, defendant was still admitting or referring applicants from person's of plaintiff's qualifications. *fn7"

 
The four McDonnell Douglas requirements, however, do not represent the exclusive method of showing disparate treatment under Title VII. . . . "The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act." *fn8"

 It is undisputed that Virgo is a member of a racial minority, that he applied for admission to Local 580 and that after passing the journeyman's examination in February 1973, he was qualified to become a member of the Union. Nevertheless, the Court finds that Virgo failed to establish a prima facie case of disparate treatment. The only evidence offered by plaintiff to sustain his allegation that his membership was not acted upon or delayed because of his race was his own testimony, which largely was based on double hearsay and unreliable recollections of past events and which frequently was inconsistent and contradictory with respect to material matters. *fn9"

 Virgo testified that he was told by others that the defendant was discriminating against him *fn10" and that he "heard" and was "told" that five to seven white men and one black man who passed the journeyman's examination when he did had been admitted. *fn11" He testified that about four of those men flashed what appeared to be union books at him to prove they had been admitted but he acknowledged that he did not know if these men were misleading him. *fn12" Virgo could not remember the names of any of the applicants allegedly admitted after taking the test with him, *fn13" offered no documentary proof to support his allegations and called no witnesses with firsthand knowledge of the Union's admissions practices during this period.

 Plaintiff relies heavily on the stipulated fact that in 1973 and 1974, 86 persons were admitted to the Union. However, plaintiff failed to establish when any of these people took the journeyman's examination. Robert A. Kennedy, counsel for Local 580 in its negotiations with the EEOC and the United States Attorney's office during the pendency of a proceeding hereafter referred to, testified that none of the people who took the journeymen's examination between 1971 and 1975 were admitted during that period. *fn14" This credible evidence was not challenged in any respect. Thus, plaintiff failed to establish that defendant was admitting persons of his qualifications during the period in question or that he was treated differently than any other person. The evidence does not give rise to an inference that the delay in Virgo's admission was based on his race.

 In at Title VII case alleging disparate treatment, if plaintiff establishes a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for its failure to admit the plaintiff. *fn15" The burden of persuasion remains on the plaintiff at all times; only the burden of production shifts to the defendant if plaintiff establishes a prima facie case. *fn16" "Because it is incumbent upon the [plaintiff] to prove that the nondiscriminatory reason was pretextual, the [defendant] need not prove the absence ...


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