Peterson v. Lehigh Valley District Council, United Brotherhood of Carpenters & Joiners

GARTH, Circuit Judge,

concurring in part and dissenting in part.

While I am forced by virtue of the state of this summary judgment record to agree with some of the conclusions reached by the majority, I cannot agree that the district court judge committed error when he entered summary judgment in favor of the General Contractors Association (GCA).

I.

The majority concedes that it could find “no evidence that the General Contractors *89Association participated in the hiring or firing decisions and policies of G & Q Drywall, Inc.,” the plaintiffs’ former employer, and that “[t]here is no basis for inferring any association activity leading to the discharge of plaintiffs.” Maj. op. at 86. Nevertheless, the majority concludes that possible liability of GCA may not be excluded because (1) Walter Pries, the District Council’s business agent who allegedly engaged in discriminatory practices with respect to the plaintiffs, served with three members of GCA on the Lehigh Valley Carpenters Joint Apprenticeship and Training Committee (JATC); and (2) GCA failed to assist G & Q supervisor Kenneth Barbarino when he sought help from the association with respect to the plaintiffs’ situation.

The majority notes that its first potential ground of liability is “not fully developed in the record,” id., and attempts to remedy the defects in the plaintiffs’ case by relying on mere speculation. For example, the majority observes that “[wjhether [Pries] may be considered an agent for the contractors association with respect to his role in the apprenticeship committee is a matter which is not clear. If Pries were found to be an agent for JATC, then the liability of the contractors association as a joint participant in the program would be called into question.” Id. (emphasis added). The majority constructs this tellingly tentative theory of liability from a single fact — that Fries was a member of the JATC in 1972. There is no sworn statement or other evidence in the record to raise a factual question as to Pries’ role as an agent of the JATC when he engaged in his allegedly discriminatory practices,1 much less any sworn statement or evidence that Pries, a union official, was an agent of GCA.

In its second speculative basis of liability, the majority builds on vague statements by Barbarino to hypothesize that GCA’s failure to assist Barbarino with the plaintiffs’ case raises a disputed factual question of discriminatory intent. The Barbarino testimony on which this theory is based, however, establishes no more than that Barbarino had a “feeling” that the association could not help him because of his belief that GCA was not as familiar as he was with affirmative action programs:

Q. Did you ask the Contractors Association, specifically, to do anything with respect to the carpenters?
$ sjc sfc $ $
A. Yes, I did.
Q. What, specifically?
A. I asked him — I explained to him, fully, my minority problems on the job and it seemed to me like he was in a fog concerning affirmative action. It was like he never heard those words.
Q. Are you assuming that or did he say that?
A. It seemed to me, so I would have to—
Q. I want to know, specifically, what that person said to you.
I don’t want your guesses or your assumptions?
A. We spoke in generalizations and after we finished the discussion, I left with a feeling that he couldn’t help me because he didn’t know anything about it. I knew more than he did. So, I directed him toward my [other] laborer problems and which he took care of for me.
*90Q. Did you ever approach any apprenticeship committee regarding the carpenters?
A. No.
Q. Did you ever ask this person at the Contractors Association, specifically, what the mechanics were for persons to enter into an apprenticeship program?
A. No.
Excuse me, when we talked about the minorities, as individuals, we more or less just discussed it in general terms. When we finished our discussion, I had determined that he really didn’t know that much about affirmative action or equal opportunity or anything involving that area:
Q. That was your assumption?
A. Yes.

App. at 708a-709a. Clearly, Barbarino’s “feelings” and “assumptions” concerning GCA’s ability to assist him with the plaintiffs’ problems are insufficient to raise a factual issue as to discriminatory intent sufficient to withstand a summary judgment motion.

On a motion for summary judgment, every reasonable inference must be afforded the party opposing the motion, here, the plaintiffs. Sanford v. O’Neill, 616 F.2d 92, 96 (3d Cir. 1980). Even by that strict standard, there has been no showing of any disputed facts that would warrant denying GCA’s motion. If such facts are to be found in the record, the plaintiffs have not revealed them, either to GCA, to the district court, or to us. That being the case, the district court, in my opinion, was clearly correct in entering summary judgment in favor of GCA.

II.

Turning to the liability of the other defendants, I frankly must state that the record is so equivocal and confused that it defies any reasonable summary judgment analysis. Each of the parties apparently was intent on pursuing its own factual and legal course with little regard given by the plaintiffs to the defendants’ assertions, and with little recognition by the defendants of, what I suspect, the plaintiffs were claiming. No affidavits appear in the record, leaving us to forage through various deposition transcripts with relatively little direction as to material testimony. Accordingly, it is well-nigh impossible for me to tell which, if any, of the many shifting assertions of the parties are disputed by their opposite numbers, let alone whether they have generated genuine disputes of material fact which would preclude the granting of summary judgment.

Under these circumstances, considering that all reasonable inferences are to be resolved in favor of the plaintiffs as the non-moving party, Sanford v. O’Neill, supra, 616 F.2d at 96, and with recognition of the fact that by denying summary judgment we are here doing no more than requiring the parties to come to grips in a plenary context with the particular facts of this controversy, I cannot reject the majority’s conclusion that we should send this case back to the district court for resolution, on a full record, of the factual disputes. At the very least, perhaps some clarification could be forthcoming from which an intelligent summary judgment analysis could once again be made.

I recognize that these are frail reasons for denying summary judgment. I also recognize that in this case the plaintiffs have probably succeeded in defeating summary judgment more by reason of a poorly developed and poorly presented record than by reason of a defined, clear, and precise analysis. Nevertheless, I still cannot urge that we affirm the district court’s judgment because I cannot be certain from the briefs, the record, and the oral argument that no genuine issue of material fact exists.

It does seem to me that some efforts should have been exerted by counsel to assist the district court judge and this court in distilling the record and in analyzing the issues raised by this motion. The briefs submitted to this court and the memoranda submitted on the summary judgment motion below only hint that genuine factual disputes exist, instead of clearly delineating what is and is not contested.

*91For example, the defendants claim that plaintiff Peterson was fired because of his tardiness and absence from work, while the plaintiffs point to testimony that although lateness was a factor in Peterson’s discharge, Peterson would not have been dismissed had it not been for the racial animus shown toward him on the job site. We have not been directed to any testimony, however, directly attributing this animus to these particular defendants. Similarly, the defendants state that plaintiff Doster was laid off due to lack of work. The plaintiffs, while not contradicting the fact that there was no more work for Doster to do, respond that the only reason Doster lacked work was that no white journeymen carpenter would work with him. Again, a gap apparently exists between this latter assertion of racially motivated acts and the particular defendant responsible for them. Thus, at the most, with respect to both sides’ presentations, the proofs are inconclusive on the question of whether the dismissals of Peterson and Doster can or cannot be attributed to the particular named defendants.

The parties also apparently do not meet head-on the issue of whether the defendants attempted to derail the plaintiffs’ efforts to join the union and to gain admittance into the apprenticeship program. For example, the defendants claim that Fries, the District Council’s business agent, told Doster that he would bring the appropriate application forms to the job site, but that Doster had been laid off before the date the forms were to be delivered. On the other hand, the plaintiffs assert in conclusory fashion and without detailing the facts, that Doster’s request for the forms was “denied.”

Certainly, sound summary judgment motion practice requires a great deal more than that with which we have been furnished. As a result of the state of this record, each member of this court has been required to spend far more time in trying to piece together and analyze the issues than should have been necessary. What we are left with is a confused and inconclusive record that is permeated with troubling suggestions of racial animosity toward the plaintiffs. In the presence of such ambiguity, I can do no more at this stage than to conclude that the entry of summary judgment in favor of the District Council, local union, and individual defendants (Fries, Miller, and Larsen) was inappropriate.

III.

As I have indicated above, the summary judgment record with which we have been confronted leaves a great deal to be desired. As a result of that presentation, in my opinion, an anomalous situation has resulted. Here, largely as a consequence of less than adequate lawyering, a result has been achieved that might not otherwise have been obtained. Although the parties have invited us to choose among competing inferences that could be drawn from the depositions, in a summary judgment context, a “court is not entitled to and cannot ‘sift’ the facts it believes to be important from those it regards [as] insignificant.” Braden v. University of Pittsburgh, 552 F.2d 948, 967 (3d Cir. 1977) (en banc) (Garth, J., concurring). Thus, I am compelled to agree with the majority that as to the Lehigh Valley District Council, Local No. 368, and the individual defendants, a further development of the facts should be had. There are enough suggestions in the record of racial discrimination, albeit only imprecisely defined and vaguely attributed to these particular defendants, to preclude summary judgment prior to a more complete development of the evidence.2

In concurring with the majority’s conclusions as to these defendants for all of the reasons which I have stated, I nevertheless dissent from the majority’s holding vacating the summary judgment entered in favor of GCA.

. The only evidence of Fries’ role within the JATC appears in an oblique portion of his deposition:

Q. Were there any discussions in the Lehigh Valley District Council between Committee members about promoting black membership?
A. Well, there were discussions held when we had the Apprenticeship Committee meetings and a discussion followed as to how we could get minorities involved in this.
Q. What did you determine?
A. Well, really, nothing because we didn’t know what to do. We were doing what we were required to do and that was to post the notices and we didn’t get any response, anyway.
Q. Who told you what you were required to do?
A. The Pennsylvania Department of Labor and also the United States Department of Labor.

App. at 779a-780a.

. On this record, I am also forced to agree that the district court should not have granted summary judgment on the plaintiffs’ § 301 claims.