Sanders v. Bethlehem Steel Corp

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EVELYN L. SANDERS,
Plaintiff-Appellant,
v.
No. 95-2495
BETHLEHEM STEEL CORPORATION;
UNITED STEELWORKERS OF AMERICA,
Local 2609,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CA-93-4113-HAR)
Argued: April 3, 1996
Decided: June 28, 1996
Before RUSSELL, HALL, and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Nevett Steele, Jr., NEVETT STEELE, JR., P.A., Towson,
Maryland, for Appellant. G. Stewart Webb, Jr., VENABLE, BAET-
JER & HOWARD, L.L.P., Baltimore, Maryland, for Appellee Bethle-
hem Steel; Rudolph L. Milasich, Jr., Assistant General Counsel,
UNITED STEELWORKERS OF AMERICA, Pittsburgh, Pennsylva-
nia, for Appellee Steelworkers. ON BRIEF: Linda E. Percy,
Timonium, Maryland, for Appellant. Valerie Floyd Portner, VEN-
ABLE, BAETJER & HOWARD, L.L.P., Baltimore, Maryland, for
Appellee Bethlehem Steel.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Evelyn Sanders appeals a summary judgment entered for the defen-
dants, her employer and union, in Sanders' Title VII gender discrimi-
nation suit. We affirm.
I.
Evelyn Sanders has worked for Bethlehem Steel at its Sparrows
Point, Maryland, plant since 1953.1 She is represented by Local 2609
of the United Steelworkers of America (USWA), and she currently
works in the Tin Mill Metallurgical Lab.
Under a 1974 consent decree aimed at eliminating discrimination
based on gender and race in the steel industry, eligibility for promo-
tions and protection against layoffs were based on plant seniority.
Jobs were classified by pay level, and, within each pay level, the jobs
were ranked. At the Lab where Sanders worked, the top Class 10
position was Sample Expeditor, the second was Lab Equipment
Repairman, and the lowest was Lab (Tensile) Tester.
"Incumbency" was the only way to beat strict seniority. Vacancies
were posted, and employees were free to bid on them. If the most
senior eligible person did not bid, someone with less seniority could
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1 Her "continuous plant service date" is February 21, 1956. According
to her EEOC charge, she did not work for a time because of a pregnancy.
2
vault over him. The higher incumbency would then protect the less
senior employee in the event of layoffs, because layoffs began with
the most junior person in the highest affected position, who bumped
downward.
In about 1985, economic conditions had caused the Lab's Class 10
employees to dwindle to so few that the company and union thought
it pointless to maintain a hierarchy within Class 10. The jobs substan-
tially overlapped anyway, and it was growing difficult to provide full-
time work to employees who performed only one function. The com-
pany and union agreed that Class 10 was a single block of jobs, and
promotion into and layoff from Class 10 would be based strictly on
seniority. No written memorialization of this agreement was made,
and the formal job titles were retained, but the existence of the agree-
ment itself is not disputed. Sanders was in Class 8 at this time, so the
change did not concern her. Likewise, she has not alleged that the
change had a discriminatory purpose or effect at the time it was
adopted.
In 1988, a Class 10 job was posted. Sanders learned of the exis-
tence of the block at that time, if not before, because the particular
Class 10 job offered was not mentioned in the posting. She com-
plained to her shop steward, Joseph Moose, that the Lab postings and
work schedules were not using the separate Class 10 jobs. Sanders did
not get the job at that time.
In 1990, Sanders finally had the seniority to win a Class 10 job. In
accordance with the informal agreement, the posting did not list the
particular job title available, and Sanders had no idea what that title
was when she bid on it. It turned out that the job was Sample Expedi-
tor -- formerly the top job -- and Sanders therefore deemed herself
the top dog. Despite her formal title, though, she usually was sched-
uled to work as a Lab (Tensile) Tester, formerly the"lowest" Class
10 job.
All went well until October 1991, when a shortage of work caused
temporary layoffs. Both Sanders and a male, William Early, were
bumped down to lesser jobs for a short time.
Early complained to Moose. Moose filed a grievance for Early; the
gravamen of that grievance was that there was not actually a lack of
3
Class 10 work. When Early's grievance reached stage 3, it was writ-
ten up and sought back pay for "all affected employees," i.e. including
Sanders. Early's grievance was not successful.
Meanwhile, at around the same time Moose filed Early's griev-
ance, Sanders requested that one be filed for her. Moose refused.
Sanders soon had a flurry of actions pending in several different
fora. She complained to the Civil Rights Division of the Steelwork-
ers' Union, which secured a letter from David Fyhr of the company
offering to investigate and settle her claim for any lost wages. Sanders
refused any settlement.
Sanders filed charges with the National Labor Relations Board and
Equal Employment Opportunity Commission (EEOC), both to no
avail. She was successful, though, when she submitted her dispute to
the Bethlehem/USWA Audit Review Committee (BARC). BARC
was formed to monitor civil rights compliance upon the expiration of
the consent decree in 1989. BARC decided that the 1985 oral agree-
ment was not properly formalized, and Sanders should therefore be
made whole for the times she was bumped below Class 10. The grand
total of her loss was $253.18. The company deposited this sum in
Sanders' account electronically. Sanders then wrote a check to the
company for the same amount. The check has not been cashed.
On December 1, 1993, the company and union formally reorga-
nized the Lab line-of-progression in a fashion roughly like that under
the 1985 oral agreement, and it submitted the new structure to BARC.
Several months later, BARC approved the new plan.
Meanwhile, on December 20, 1993, Sanders filed this suit against
the union and company, alleging that the union and company had "de-
moted" her on account of her gender, the union had refused to repre-
sent her on account of her gender, and the new line-of-progression
had a similar purpose.
After discovery, the district court granted summary judgment for
the defendants. Sanders appeals.
4
II.
Claims of discrimination not included in an EEOC charge are not
tenable in court. Dennis v. County of Fairfax , 55 F.3d 151, 156 (4th
Cir. 1995). Sanders attempts to include a claim that the company and
union discriminated against her on the basis of gender by implement-
ing the new line of progression. This claim is not only not in her
EEOC charge; it arose after she had her right-to sue letter.2 In no
sense can it be deemed to be properly exhausted.
The EEOC charge against the union consisted solely of an allega-
tion that the union failed to represent Sanders by refusing to file her
grievance. In her complaint, she attempts to also accuse the union of
taking part in her alleged "demotion." On the face of things, the latter
claim is not properly exhausted.
Sanders argues that she is unsophisticated, she relied on the EEOC
to draft the charges, and the EEOC inexplicably split up what she felt
was a single charge. There are problems with her argument. She read
and signed each charge after it was prepared. Though she is not exten-
sively educated, she is not illiterate, and there is nothing complex
about her charges. Cf. Alvarado v. Board of Trustees, 848 F.2d 457(4th Cir. 1988) ("hypertechnical" error in naming of proper legal
entity as respondent was excused where claimant was unrepresented
and could not speak English and where proper party had full notice
of charge). Finally, the division of the charges by the EEOC was quite
logical: the company obviously had nothing to do with her attempt to
file a grievance, and unions ordinarily do not promote or demote any-
one.
We agree with the district court that Sanders' claims must be lim-
ited to those expressly stated in the EEOC charge.
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2 The EEOC charges were dismissed on September 21 and 23, 1993.
The new line of progression was proposed by the company and union on
December 1, 1993, and was implemented upon BARC's approval on
April 22, 1994.
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III.
There is no evidence that Bethlehem discriminated against Sanders
on the basis of gender. It wrongly bumped her on a few occasions, but
its error was clearly the result of its reliance on the oral agreement
with the union to treat all Class 10 jobs as a block. It tendered full
back pay to Sanders.
IV.
Sanders' claim that the union wrongfully refused to file her griev-
ance presents a closer question. If her affidavit is true, Moose specifi-
cally refused to file the grievance because, if it were successful, he
would have a "broad over top of" him. Sanders buttressed this allega-
tion with scattered similar comments she had endured through the
years by Moose and other male coworkers.
The district court noted this direct evidence of discrimination, but
it granted summary judgment because the union would have made the
same decision notwithstanding Moose's animus against"broads."
Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989). Because
Early's grievance, if successful, would have given Sanders relief, the
union would not have filed a duplicative grievance for Sanders.
This reasoning does not quite suffice. Sanders' grievance was not
wholly duplicative. To be sure, Early's grievance would have given
her the same result, but not for the same reason. Early just complained
that the company was using a sham slowdown in available work to
knock everyone down a few notches in pay, and he lost on this con-
tention. Sanders' attack went further: even if someone should have
been bumped from Class 10, it should not have been her. Moreover,
BARC eventually held that she was absolutely right.
We nonetheless affirm. At her deposition, Sanders remembered
only that, in refusing to file her grievance, Moose spoke in a surly
tone. When specifically asked what evidence she had of the union's
motivation, Sanders testified:
[Moose] spoke to me very nastily about refusing me a griev-
ance. I was the first one to be placed out into a Job Class
6
8, and I was very concerned over the progressive ladder.
And when Mr. Moose spoke to me, he quoted, he said to
me, I know the book and you don't. And he quoted to me,
he said -- think of how I want to say it -- it's my way, he
said, I'm telling you you don't have a grievance and you
take my word for it. And he told me that very nastily, which
I didn't think was becoming to a shop steward.
* * *
Mr. Moose looked out for himself because he never had
taken the line of progression. And when I spoke of it, I said,
when it comes down to jobs, he was on a 10 and everybody
that had gone through the line of progression wasn't a 10.
But Mr. Moose was, and he never went through the pickler,
and he never took any of the line of progression. To me, he
was looking out for himself. And when I questioned him, he
became very belligerent and very nasty.
This testimony all but conceded away Sanders' claim against the
union. Title VII does not prohibit "nasty" or self-interested conduct
by union shop stewards; it prohibits gender discrimination.
When the union moved for summary judgment, citing the dearth of
evidence of discrimination, Sanders filed an affidavit in which she
remembered, "In 1991, on one of the occasions when I asked for a
grievance, Joseph Moose stated to me: ``Look, broad, I told you you
don't have a grievance. You're not getting a grievance. There won't
be a broad over top of me.'" Ordinarily, a party cannot create a genu-
ine issue of material fact by contradicting herself. Barwick v. Celotex
Corp., 736 F.2d 946 (4th Cir. 1984). Because it decided the case on
other grounds, the district court assumed without deciding that
Barwick did not bar consideration of Sanders' affidavit.
Were the critical material fact different, Sanders' affidavit might
not run afoul of the Barwick rule. One can certainly use the term
"broad" in a "nasty" way, and, if nastiness were the issue, Sanders'
affidavit might just add a colorful, and wholly consistent, detail. Here,
though, whether Moose's alleged gender-based animus toward Sand-
ers prompted him to refuse her grievance is the key issue, and his con-
7
descending and contemporaneous use of the term "broad" would be
much more than a mere detail. Sanders' failure to remember it when
repeatedly asked for the bases of her claim is tantamount to testimony
that it did not occur. We apply the Barwick rule here, and we disre-
gard the conflicting portion of Sanders' belated affidavit. Without that
affidavit, there is simply not enough evidence for a rational trier of
fact to find that Moose, the union's decisionmaker, 3 refused to file
Sanders' grievance on account of her gender.
The judgment of the district court is affirmed.
AFFIRMED
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3 Sanders' evidence of sporadic hostility toward "broads" from her
coworkers has little relevance here. In a "hostile workplace" case, such
evidence is often useful, but where, as here, a discrete employment deci-
sion is the basis of a discrimination claim, the intent of the decision-
maker is the only issue. Ambush v. Montgomery County Gov't Dep't of
Finance Div'n of Revenue, 620 F.2d 1048, 1054-1055 (4th Cir. 1980).
8