Albеrt CEDILLO, Plaintiff-Appellant, v. INT‘L ASS‘N OF BRIDGE & STRUCTURAL IRON WORKERS, LOCAL UNION NO. 1, et al., Defendants-Appellees.
No. 78-2105.
United States Court of Appeals, Seventh Circuit.
Decided July 6, 1979.
Rehearing Denied Aug. 1, 1979.
Argued April 10, 1979.
More significant than U.S. EPA‘s failure to consider Ohio EPA’ findings because they did not refer to “fundamentally different” factors is its failure to consider the finding that CEI would achieve BAT requirements three years in advance of the statutory deadline if permitted to adopt alternate BPT limitations and accelerate installations required to achieve BAT limitations. As noted earlier in this opinion, U.S. EPA in vetoing the proposed permits, commented on the possibility of CEI‘s being required to begin immediately to redesign and construct new facilities at comрletion of construction to meet BPT requirements. This comment indicates that U.S. EPA failed either to consider or to comprehend fully an important finding of Ohio EPA which it viewed as a critical element of its recommendation that CEI be permitted to comply with alternative effluent limitations between 1977 and 1980.
We conclude that CEI is entitled to have the proposed NPDES permits considered under the amended regulation. In considering these proposed permits U.S. EPA must give due regard to the findings of Ohio EPA. In view of the fact that the BPT standard is the first of two interim requirements—the second being the more stringent BAT standard—U.S. EPA must consider the finding that CEI will be able to attain the BAT limitations some three years prior to the statutory deadline if exempted from compliance with a portion of the 1977 limitations.
The ultimate justification for every regulation and guideline pertaining to discharges is its effectiveness in promoting the achievement of the goals of Congress in enacting the 1972 Amendments. The primary goal is restoration of the navigable waters of the nation to a condition of “chemical, physical, and biological integrity.”
The petition for review is granted. The action of U.S. EPA declining to approve the NPDES permits proposed by Ohio EPA is vacated and the cause is remanded to U.S. EPA for further proceedings consistent with this opinion.
Thomas M. Crisham, Richard M. Stanton, Chicago, Ill., for defendants-appellees.
Before CUMMINGS and PELL, Circuit Judges, and JAMESON, Senior District Judge.**
CUMMINGS, Circuit Judge.
This appeal arises from a judgment order entered pursuant to
I
Summary judgment should be entered only when the pleadings, depositions, affidavits, and admissions filed in the case demonstrate that, except as to the amount of damages, “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Plaintiff Albert Cedillo, a Spanish-surnamed Mexican-American, was employed as
Local 1 moved for partial summary judgment as to the transfer membership claim on the basis of two affidavits. In both the president of the Union attested that since 1969 the Union has not accepted any new members except through its apprenticeship program or pursuant to the consent decree entered in United States v. The International Association of Bridge and Structural Iron Workers Local Union No. 1, No. 68 C 676 (N.D.Ill.1973) (R. 19).7 A third affidavit subsequently was supplied in a supplemental motion for summary judgment. In this affidavit, the business representative of the Union stated that plaintiff was suspended on August 31, 1971, from membership in Local No. 510 for non-payment of dues and that this action rendered him ineligible for transfer membership into Local Union 1 (R. 35). Plaintiff‘s memorandum in opposition to summary judgment consisted of an argument purporting to show that neither the facts alleged in the affidavits nor the recent government suit and resulting consent decree preclude plaintiff from securing the requested relief from the dеfendant.
The district court granted summary judgment, reasoning that “where the defendants have made no selection of members from transfer applications at all, no charge of disparate treatment can be sustained according to the prima facie requirement of McDonnell Douglas Corp. v. Green, 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973)” (emphasis in original) (R. 52). The district court rejectеd defendants’ claim that Cedillo is not eligible for transfer because he is not a member in good standing of his own Local. The court concluded that since Cedillo was “at all times ready, willing and able to pay any past dues owing“, the lack of “good standing” was but a technical defect which could be easily remedied at the time of transfer. Of necessity, the district сourt also concluded that plaintiff‘s motion to compel the Union to answer proffered interrogatories be denied.8
II
The party moving for summary judgment has the burden of clearly establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. The issue of material fact required to be present need not be resolved cоnclusively in favor of the party asserting its existence, but the movant need only show that sufficient evidence supporting the claimed factual dispute does not require
Cedillo argues that the district court erred in finding that “no genuine issue as to any matеrial fact” exists as to his claim that the Union discriminated against him and other Mexican-Americans seeking membership through transfer. Primarily, he contends that the district court‘s failure to compel defendants to answer plaintiff‘s interrogatories which had been served upon them justifies the generality of the papers filed in opposition to the motion for summary judgment. Hе also argues, in sum, that the past conduct of the Union with respect to the employment of minorities in general, and an alleged nepotism involved in the administration of the apprenticeship program, the only other method by which the Union replenished its ranks, warrant a denial of summary judgment in this case.
The appropriate legal standard for “the order and allocation of proof” in a non-class action challenging employment discrimination was outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (footnote omitted):
“The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant‘s qualifications.”
In United Brotherhood of Teamsters v. United States, the Supreme Court made it clear that the required showing in a disparate imрact case could not be inflexibly limited to any “discrete elements of proof” but would necessitate only that the plaintiff carry
“the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion under the Act.” 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396.
The Union‘s argument on summary judgment was intended to meet plaintiff‘s prima facie case by establishing the existence of a legitimate non-discriminatory reason for the rejection of the plaintiff for membership which, in the absence of a showing that the proffered justification was “in fact pretext,” would have been conclusive of the plaintiff‘s action. McDonnell, supra, 411 U.S. at 804, 93 S.Ct. 1817; see also Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978); Davis v. Weidner, 596 F.2d 726 (7th Cir. 1979); Taylor v. Philips Industries, Inc., 593 F.2d 783 (7th Cir. 1979).
Under recent Supreme Court law it is clear that Title VII рroscribes practices which are facially neutral but which in fact have a “disparate impact” on one group. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843; see Local 53, Asbestos Workers v. Volger, 407 F.2d 1047 (5th Cir. 1969). Defendants seek to use a dictum in the Teamsters case to argue that defendants simply made too few employment decisions to warrant a conclusion that there has been
III
The district court also dismissed the JAC as a party defendant. Plaintiff argues on appeal that the JAC should remain in the case since a possible individual or class remedy, required in order to preserve the balance in the unionized work force, could entail the Union‘s reduction of the number of workers admitted through the apprenticeship program. We agree that if the Union‘s no-transfer policy is found to be discriminatory, the JAC as administrator of the apprenticeship program will be а party “in whose absence complete relief cannot be accorded to those already parties.”
Accordingly, the order granting partiаl summary judgment in favor of defendants is reversed and remanded to the district court with directions.10
PELL, Circuit Judge, dissenting.
Being of the opinion that the district court properly granted partial summary judgment for the reasons stated in its memorandum opinion and order, I would adopt that memorandum opinion and order as the opinion of this court, and affirm the partial summary judgment. Accordingly, I respectfully dissent.
The majority order in referring to this dissent, in effect, admits that for purposes of summary judgment the plaintiff did not contravene the fact that since 1969, the time of the arrival of plaintiff in Chicago, the union had admitted no members whatsoever on transfer. All new members had come through the apprenticeship program, which is not asserted to be discriminatory toward plaintiff‘s racial group, or by virtue of a consent decree in United States v. International Association of Bridgе and Structural Iron Workers Local Union No. 1, No. 68 C 676 (N.D.Ill.1973). The majority order then states that it views plaintiff‘s case as not requiring this contravention but rather that he has to “substantiate the inference which he contends can be drawn from it.”
I fail to see what inference can be drawn from this undisputed fact relevant to the pertinent period during which he claims discrimination. The International had amended its constitution in 1968 providing for discretion to be exercised as it has been here. See Gavin v. Structural Iron Workers Local No. 1, 553 F.2d 28, 31 (7th Cir. 1977). Uniformly transfers were denied, and I agree with the district court which said:
Where the defendants have made no selection of members from transfer applications at all, no charge of disparate treatment can be sustained according to the prima facie requirement of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Furnco Construction v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). [Emphasis in the original.]
Unfortunately, it appears to me, that the majority result permits the litigant to bypass required procedure if he is to avoid summary judgment against him. The broad, sweeping information that the plaintiff sought by interrogatories related to times far earlier than that which was pertinent here. As to the pertinent period of time there wаs no dispute because the defendant union‘s affidavit was not countered. If the plaintiff is locked in a situation, he shares that situation with every other would-be transferor, irrespective of such person‘s race, sex, nationality, or color.
I cannot conceive that the across-the-board preclusion practiced here would be the basis for an inference that it was directed at what is not shown to be other than a quite small minority group. Cf. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979).