Monday, September 19, 2005

employment - race/age discrim. - union duty of fair representation

Wilkins v. ABF Freight Systems, Inc. - ED Pa. September 15, 2005

Seventy year-old African-American man, a former truck driver, brought various claims against his former corporate employer and individual supervisors. One supervisor made overt racial slurs. The next supervisor did as well. They also denied him the chance to earn overtime and encouraged him to retire. After going through the required administrative process, plaintiff sued in federal court. Defendants moved to dismiss most claims.

individual liability - Claims against the supervisors in their individual capacities were dismissed. Neither Title VII, 42 USC 2000e-1 et seq., nor the Age Discrimination in Employment Act (ADEA), 29 USC 621 et seq., provides for individual liability, as plaintiff ultimately conceded.

racial discrimination - Some of plaintiff's claims were found to be untimely under the 300-day administrative filing requirement. Plaintiff's claim of continuing violations was rejected, because the acts of the supervisors did not appear to be part of the company's standard operating procedures, but rather separate courses of action of two men, each not responsible for the conduct of the other.

age discrimination - Defendants challenged plaintiff's claim that he was constructively discharged due to numerous instances of age discrimination -- denying him overtime and giving it to younger drivers. The standard for such a claim is an objective one, requiring a finding that an employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign. Held, Plaintiff's allegations, e.g., that supervisor often suggested that he retire sufficiently pleaded facts sufficient to support this claim

administrative exhaustion -- Defendants claimed that plaintiff did not allege all of the same facts in the admin. process that he alleged in court. The court rejected this, holding that the relevant inquiry on exhaustion is whether the acts alleged in the subsequent suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom. The plaintiff is not required to specifically plead each instance of discrimination to meet the exhaustion requirement. The allegations need only put the agency on notice that he was alleging both race and age discrimination.

breach of duty of fair representation by union - Plaintiff made only conclusory statements that the union breached its duty of fair representation in his case. The court said that would not suffice. The union has broad discretion about whether and how to pursue an employee's grievance against an employer. The employee must prove that the union's failure to pursue his grievance was arbitrary and so far outside a wide range of reasonableness as to be irrational.

intentional infliction of emotional distress - The court rejected the argument that the racial slurs --both supervisors calling him nigger -- supported a claim for intentional infliction of emotional distress under state tort law. The court said that the slurs were not so outrageous, so extreme, as to go beyond all possible bounds of decency... atrocious, and utterly intolerable in a civilized society....the most egregious conduct. Such a finding is "extremely rare." The court said that these comments were inappropriate and unacceptable but not the kind of "utterly deplorable actions cognizable under Pennsylvania law." In addition, the court held that such claims must be brought under the state workmen's compensation law, which provides the sole remedy for injuries allegedly sustained during the course of employment.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg