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GILMORE v. LOCAL 295

August 6, 1992

ANDRE GILMORE, Plaintiff, against LOCAL 295, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN and HELPERS OF AMERICA, ANTHONY CALAGNA as President and as an Individual, SALVATORE CATALDO, as Business Agent and as an Individual, AIRBORNE EXPRESS, BOB BRAZIER as President and as an Individual, STEVE ELLER as Regional Field Service Manager and as an Individual, and CHRISTOPHER BROWER as Field Services Supervisor and as an Individual, Defendants.


The opinion of the court was delivered by: GERARD L. GOETTEL

 GOETTEL, D.J.,

 BACKGROUND

 Andre Gilmore began working for Airborne Express, a subsidiary of Airborne Freight Corporation in October 1986 as a driver at the company's facility in Portchester, N.Y. While he was employed at Airborne, he was a member of Local 295, the International Teamster's Union shop representing Airborne's drivers.

 Procedures for hiring, terminating and disciplining Union employees at Airborne are governed by a collective bargaining agreement ("CBA") between the company and Local 295. The agreement contains a Progressive Disciplinary System that provides for staged penalties that grow increasingly more severe with repeated infractions of company procedures. Termination is a Stage III penalty.

 Airborne suspended Gilmore for the first time in January 1989 for allegedly failing to follow company regulations. In May, after he had been reinstated, Gilmore applied for the position of dispatcher. His application was denied. He claims that, even though he and another African-American had more seniority, the job was given to a Caucasian applicant. In August, Gilmore again applied for the dispatcher position. He claims that, even though he was qualified for the position, he was again denied.

 Plaintiff was put on disciplinary suspension for a second time in September 1989 for allegedly taking unauthorized overtime and violating other company procedures. *fn1" This time, the company issued him a Warning Letter, as required by the CBA. The letter informed plaintiff that, if he committed further infractions of company rules within a one year probationary period, he would be discharged in accordance with the Progressive Disciplinary System.

 On January 6, 1990, plaintiff and several other employees allegedly caused a delay in the loading of delivery trucks at one of Airborne's loading docks. The employees demanded that the supervisor produce proof that the delivery trucks were insured. Gilmore purportedly stated that the drivers were not required to drive unless they were assured that insurance on their vehicle was up-to-date. Airborne alleged that the workers had engaged in a "job action" or work stoppage in violation of the CBA. The agreement stated that workers could not engage in "self-help" but had to rely on union bargaining procedures outlined in the CBA to resolve any grievances against the company.

 On January 22, 1990, the plaintiff and several other employees who had been present during the alleged "job action" received disciplinary letters from Airborne. Plaintiff received a Stage III penalty - termination - because the incident had occurred within the one year probationary period following his last suspension.

 The Union protested the disciplinary action and the company agreed to arbitration. After a hearing, the arbiter held that a work stoppage in violation of the CBA had occurred and the record "did not show one scintilla of credible evidence that Gilmore's discharge resulted from anything other than his participation in the January 6 job action and his prior disciplinary record." Arbiter's Decision at 17. *fn2" The arbiter, therefore, affirmed plaintiff's termination by Airborne.

 During the course of his employment at Airborne, plaintiff filed complaints with four different government agencies alleging wrongdoing by Airborne, the Union, or both. Shortly after he was denied the dispatcher position, he filed a complaint alleging unsafe working conditions at Airborne with the Occupational Safety and Health Administration ("OSHA"). *fn3" Immediately following his second suspension in September 1989, plaintiff filed a complaint with the Department of Labor, Office of Federal Contract Compliance Programs ("OFCCP") alleging that Airborne's denial of his application for the dispatcher position was the result of racial discrimination. He also alleged that he was being harassed on the job because of his race. OFCCP notified plaintiff that it would investigate his charges and that it had forwarded a copy of his complaint to the Equal Employment Opportunity Commission ("EEOC").

 The EEOC sent plaintiff a charge form and, on January 29, 1990, he filed a complaint under Title VII of the Equal Rights Act of 1964. Plaintiff named Airborne Express as the sole respondent. He alleged that he was being "subjected to harassment, verbal and physical abuse, denied promotions for which [he was] well-qualified" and that his September 6, 1989 termination by Airborne had been "without just cause." Even though he had been terminated by Airborne on January 22, just a week before filing with EEOC, he listed September 1989 as the date of Airborne's most recent discrimination against him.

 On April 10, 1990, plaintiff filed a fourth complaint, this time with the National Labor Relations Board ("NLRB"). Local 295 was named as respondent. In this complaint, plaintiff charged that he had not been adequately represented by the Union at the arbitration hearings concerning the January "job action." He also claimed that another participant in the alleged incident had received a less severe penalty for his participation in the incident because the other employee was related to a Union official.

 Although the EEOC issued plaintiff a notice of Right To Sue when he requested it, no other government agency found sufficient evidence to issue a complaint in response to plaintiff's charges. On January 30, 1990, OFCCP notified plaintiff that it had investigated his charges and found insufficient evidence of discrimination against him or any other Airborne employee.

 On April 30, 1992, the NLRB notified plaintiff that it had found insufficient evidence of racially motivated retaliation or discrimination by either Airborne or Local 295. The Board also investigated the arbitration hearings and found that they were "fair and regular." The NLRB concluded that plaintiff's discharge was the result of the non-discriminatory application of the Progressive Disciplinary System. Like OFCCP, the NLRB refused to issue a complaint on plaintiff's charges. On May 8, 1992, plaintiff requested a review of the Board's decision. It is presumed that this review is still in progress.

 Plaintiff seeks damages, back pay, reinstatement and promotion as well as pay differential and possible attorney's fees from Airborne, Local 295 and the individual defendants. He also seeks compensation for emotional pain and suffering and consequential damages resulting from his loss of employment. Plaintiff additionally demands a trial by jury.

 Before us now are the Union's motions to dismiss the complaint in its entirety and Airborne's motions to dismiss the claims against it under 42 U.S.C. § 1981 and to limit the Title VII action to parties and events described in the EEOC charge. Airborne additionally seeks to impose sanctions against plaintiff under Fed. R. Civ. P. 11 for filing what it describes as a groundless suit.

 I. PLAINTIFF'S CIVIL RIGHTS CLAIMS

 A. The Civil Rights Act of 1991: Retroactivity

 Perhaps unknowingly, but certainly unerringly, plaintiff has embarked into the thicket of legal controversy surrounding the enactment of the Civil Rights Act of 1991. Pub. L. No. 102-166, 105 Stat. 1071-1100 (to be codified at 42 U.S.C. 2000e-5(g) and 42 U.S.C. § 1981(b)).

 Section 102 of the new Act creates additional remedies for civil rights violations under Title VII, 29 U.S.C. § 2000e-5 for complainants who cannot recover under 42 U.S.C. § 1981. It allows for the award of compensatory and punitive damages for intentional discrimination, including racially motivated harassment in the workplace. Such relief was previously available only under § 1981. ...


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