Rivers v Roadway Express Writ of Certiorari Joint Appendix

    No. 92-938

In The

Supreme Court of tfye ©ntteb ^tates>
October Term, 1992

Maurice R ivers and Robert C. Davison,
Petitioners,

v.

Roadway E xpress, Inc.
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

JOINT APPENDIX

*Glen D. Nager 
Laurie F. Calder 
Jones, Day, Reavis & Pogue 
1450 G Street, N.W. 
Washington, D.C. 20005-2088 
(202) 879-5464

John T. Landwehr 
Thomas J. Gibney 
Eastman & Smith 
One SeaGate, 24th Floor 
P.O. Box 10032 
Toledo, Ohio 43699-0032 
(419) 241-6000

Attorneys for Respondent

Elaine R. Jones 
*Ckarles Stephen Ralston 
E ric Schnapper 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Cornelia T.L. P illard 
Kerry Scanlon 
NAACP Legal Defense & 

Educational Fund, Inc.
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Ellis Boal 
925 Ford Building 
Detroit, MI 48226 
(313) 962-2770

Attorneys for Petitioners

*  Counsel of Record

PETITION FOR WRIT OF CERTIORARI FILED DECEMBER 2, 1992 
CERTIORARI GRANTED FEBRUARY 22, 1993



Table of Contents

Item: Page:

1. Docket Entries  ..........................................3a

2. First Amended Com plaint...............................  15a

3. Answer of Defendant Roadway Express to
Plaintiffs’ First Amended Complaint......... .. 21a

4. Supplement to Defendant Roadway Express,
Inc.’s Answer to Plaintiffs’ First Amended 
Complaint............................... .......................... 26a

5. Memorandum and Order of the United
States District Court for the Northern 
District of Ohio, in Harris, et al. v. Roadway 
Express, Inc., et al, November 30, 1988 .........  27a

Location of Additional Record Excerpts 
Not Included in the Joint Appendix

6. Memorandum and Order of the United 
States District Court for the Northern 
District of Ohio, in Harris, et al. v. Roadway 
Express, Inc., et al.,, January 9, 1990, 
reprinted in the appendix to the Petition for 
a Writ of Certiorari at pages 19a-24a.

7. Findings of Fact and Conclusions of Law of 
the United States District Court for the 
Northern District of Ohio, in Harris, et al. v. 
Roadway Express, Inc., et al., October 18, 
1990, reprinted in the appendix to the Brief 
of Respondent in Opposition to Petition for 
a Writ of Certiorari at pages A1-A13.



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8. Decision of the United States Court of
Appeals for the Sixth Circuit in Harvis, et al. 
v. Roadway Express, Inc., et al, January 10, 
1991, reprinted in the appendix to the Brief 
of Respondent in Opposition to Petition for 
a Writ of Certiorari at pages A14-A19.



RELEVANT DOCKET ENTRIES

2/22/87 1 Complaint filed Summons issued to 
Attorney.

2/22/87 2 JURY DEMAND of Pltf. filed.

1/23/87 7 ANSWER of Deft. Union filed. Mid. 4 
p. WHS

1/5/87 8 ANSWER of Deft. Roadway filed. Mid. 
5 p. WHS

9/18/87 52 M A G ISTRA TE’S R EPO R T & 
RECOMMENDATION filed. JGC. 
Copies mid. 11 p. WHS

9/28/87 55 OBJECTION of Pltf. to Magistrate’s R 
& R filed. Mid. 8 p. WHS

10/8/87 62 RESPONSE of Deft. Roadway to Pltfs 
objections to Magistrate'^ R & R filed. 
Mid. 8 p. WHS

10/9/87 63 OPPOSITION of Deft. Roadway to 
motion to amend complaint filed. Mid. 
8 p. WHS

10/19/87 68 (169) 2ND MOTION of Pltf. to amend 
complaint filed. Mid. 14 p. WHS

10/19/87 69 RESPONSE of Deft. Union to Pltfs. 
Objections to Magistrate’s R & R filed. 
Mid. 40 p. WHS



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11/13/87 84 ORDER filed. JWP. Magistrate’s R & 
R adopted; Deft’s motion to strike Jury 
Demand granted. Copies mid. 7 p. 
WHS

11/16/87 88 MOTION of Deft. Roadway for 
summary judgment filed. Mid. 98 p. 
WHS

11/16/87 90 (225) MOTION of Deft. Roadway to 
separate trials on pltfs 301 Hybrid 
claims from Race Discrimination Claims 
filed. Mid. 6 p. WHS

11/16/87 91 (225) MOTION of Deft. Roadway to 
strike jury demand filed. Mid. 6 p. 
WHS

11/16/87 92 (225) MOTION of Deft. Roadway to 
bifurcate issues of liability & damages 
filed. Mid. 4 p. WHS

12/1/87 109 PRETRIAL ORDER filed. JGC. 
Pretrial held 12/1/87. Pltf. granted to 
12/8/87 to file 3rd amended complaint. 
Copies mid. 1 p. WHS

12/1/87 113 MOTION of Deft. Union to dismiss / 
summary judgment re: claims of M. 
Rivers filed. Mid. 93 p. WHS

12/1/87 114 MOTION of Deft. Union to dismiss / 
summary judgment re: claims of R. C. 
Davison filed. Mid. 87 p. WHS

12/1/87 115 (225) MOTION of Deft. Union to 
dismiss / summary judgment re: claims of 
J. T. Hams filed. Mid. 107 p. WHS



5a

12/8/87

12/11/87

12/11/87

12/1/87

1/19/88

12/7/87 122 REPLY of Pltf. to opposition of Deft. 
Union to 2nd motion to amend 
complaint filed. Mid. 5 p. (leave to file 
was granted 12/1/87 - pleading not 
physically received until this time - 
pleadings was used for R & R filed. 
12/2/87) WHS

124 (203) MOTION to Pltf. for leave to file
3rd amended complaint filed. Mid. 16 p.

126 RESPONSE of Pltf. to Deft. Roadway 
to motion to strike jury demand. Mid. 6 
P-

127 2/4/5Z7 RESPONSE of Pltf. to Deft. 
Roadway’s motion to sever pltfs claims 
and for separate trial AND RESPONSE 
to motion to separate trials re: 301 claim 
AND RESPONSE to Deft. Union’s 
motion for separate trials AND Deft. 
Roadway’s motion to bifurcate liability 
& damages. Mid. 17 p. WHS

132 PT ORDER. JGC. Deft union granted 
to 12/28/87 to respond to pltfs motion 
for leave to file 3rd amended complaint; 
Union and deft Roadway granted leave 
to file on 12/28/87 their replies to pltfs’ 
response to their motion for separate 
trials; Pltfs. to reply to union’s response 
re amended complaint motion on or 
before 1/11/88. DJW

157 REPLY of pltfs’ in supp of motion to 
file 3rd amended complaint. 4pp. DJW



6a

5/17/88 169 ORDER. JWP. Mag’s R&R is hereby 
adopted. Pltfs motion for leave to file 
an amended complaint is hereby 
granted. Copies mid. lpg. cjr.

7/7/88 181 AMENDED ANS of Deft. Union. Mid. 
6 p. WHS

1/29/88 194 (200) MOTION of Deft. Roadway for 
leave to answer pltfs 1st amended 
complaint & to amend motion for 
summary judgment instanter. Mid. 4 p. 
WHS

1/30/88 200 MARGINAL ENTRY ORDER granting 
Deft. Roadway leave to file answer to 
1st amended complaint & amended 
motion for summary judgment. JGC. 
Copies mid. Ip. WHS

1/30/88 202 ANSWER of Deft. Roadwav to 1st 
amended complaint. Mid. 5 p. WHS

9/1/88 203 ORDER JWP. R&R is hereby adopted. 
Pltfs motion to file 3rd amended 
complaint is hereby denied. Copies mid. 
2pp. cjr.

10/18/88 218 1ST AMENDED COMPLAINT Mid. 
6pp VI

11/7/88 220 (222) MOTION of Deft. Roadway to 
supplemental answer to pltfs 1st 
amended complaint. Mid. 2pp. cjr

11/9/99 221 OPPOSITION of pltf to Deft Roadway’s 
motion to supplement its answer. Mid. 
3pp. cjr



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11/10/88

11/10/88

11/30/88

2/16/89

3/14/89

222 MARG. ENTRY ORDER granting deft 
Roadway’s motion to supplement answer 
to pltfs 1st amended complaint. JWP. 
Copies mid. Ipg. cjr

223 SUPPLEMENTAL ANSWER of deft. 
Roadway to pltfs 1st amended 
complaint. Mid. 2pp. cjr

224 MEMO & ORDER. Deft Union’s 
motions for summary judgment are 
hereby granted. Deft Company’s motion 
for summary judgment is hereby granted 
in part and denied in part. All pending 
motions are hereby denied as moot. 
Copies mid. 6pp. cjr

228 P.T. ORDER. JWP. J. T. 6/6/89. Imp. 
date 6/5/89. P.T. 5/22/89 at 2:30 p.m. 
Copies mid. 1 py. cjr

229 MEMO & ORDER. Deft’s motion to 
strike jury demand is hereby denied. 
Deft’s motion to reconsider is hereby 
granted; Defts motion to bifurcate is 
hereby denied; Deft’s motion to sever 
claims & for separate trials is hereby 
granted in part & denied in part. This 
case is scheduled for p.t. on 4/3/89 at 
2:15 p.m. for purposes of scheduling a 
trial date for Davison & Rivers claims. 
Copies mid. 4pp. cjr



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4/10/89 230 P.T. ORDER. JWP. Held 4/3/89. J.T. 
set 5/30/89 and 9/12/89. Imp. dates 
5/30/89 and 9/11/89. P.T. dates 5/22/89 
at 2:30 p.m. and 8/28/89 at 3:30 p.m. 
Any motions in limine are due 14 days 
prior to each trial date. Copies mid. 
lpgxjr

5/30/89 243 MIN. OF PROCEEDING. Held 
5/30/89. Time: 6 hrs. Jury duly 
impaneled & sworn according to law and 
evidence. Opening statements made. 
Trial recessed but not concluded. Trial 
to resume at 9:00 a.m. on 5/31/89. cjr

6/1/89 244 MIN. OF PROCEEDING. Held 
5/31/89. JWP. Time: 5.5. hrs. Pltfs case 
continued but not concluded. Testimony 
taken. Exhibits admitted. Court 
recessed until 6/1/89 at 9:00 a.m. cjr

6/2/89 246 MIN. OF PROCEEDING]. Held 
6/1/89. Time: 6 hours. JWP. Trial 
resumed. Witnesses testified. Exh. 
admitted. Court recessed until 6/2/89 at 
9:00 a.m.

6/2/89 247 MIN. OF PRO. Held 6/2/89. Time: 3 
hours. JWP. Trial resumed. Witnesses 
testified. Exh. admitted. Court recessed 
until 6/5/89 at 9:00 a.m. cjr

6/5/89 248 MIN. OF PRO. Held 6/5/89. Time: 3.5 
hours. Trial resumed but not concluded. 
Trial to resume 6.6/89 at 9:00 a. cjr



9a

6/7/89

6/9/89

6/9/89

6/13/89

6/13/89

6/10/89

6/5/89 249 MIN. OF PRO. Held 6/6/89. Time: 5.5 
hrs. Case con’t but not concluded Trial 
to resume 6/7/89 at 9:00 a.m.

250 MIN. OF PRO. Held 6/7/89. Trial 
continued but not concluded. Pltf s case 
concluded. Defts case began. 
Testimony taken. Trial continued to 
6/8/89 at 9:00 a.m. Time: 4 hours.

251 MIN. OF PRO. JWP. Time: 6 hrs. held 
6/8/89. Trial resumed but not concluded. 
Trial to resume 6/9/89. cjr

252 MIN. OF PRO. Held 6/9/89. Time: 6 
hours. Trial not concluded. Trial to 
resume 6/12/89 at 1:15 p.m. Ipg. cjr

253 MIN. OF PRO. Held 6/12/89. Time: 4 
hours. Oral motions heard on admission 
of exh. Closing arguments made. Jury 
charged. Trial to resume 6/13/89 at 
10:00 a.m. cjr

254 SPECIAL VERDICT. Finding of no 
discrimination based on race. Ipg. cjr

257 ORDER. JWP. Pltfs are hereby ordered 
to show cause within 21 days of this date 
why the claim under 42 § 1981 should 
not be dismissed in accordance with the 
recent Supreme Court decision on 
Patterson v. McLean Credit Union. 
Failure to timely respond to this order 
will result in said claim being dismissed 
with prejudice. Copies mid. Ipg. cjr



10a

9/25/89

9/6/89

9/11/89

9/13/89

1/9/90

1/17/90

6/25/89 259 RESPONSE of pltf to show cause order 
dated 7/10/89. Mid. 13pp. cjr

260 ORDER granting pltf ext of time to file 
response to show cause order. JWP. 
Copies mid. 2pg. cjr

261 BRIEF of deft in support of entry of 
judgment on Hands’ Section 1981 and 
Title VII claim and in support of dism. 
of defts Rivers’ & Davison’s Section 
1981 claims. 22pp w/31pp exh. cjr

262 P.T. ORDER. JWP. Held 8/28/89. J.T. 
2/27/90 at 9:00 a.m. Emp. 2/26/90 at 9:00 
a.m. P.T. 2/12/90 at 2:30 p.m. deft 
granted leave to reply to pits response to 
show cause order until 9/6/89. Pltf. is 
granted until 9/13/89 to file surreply. 
Copies mid. Ipg. cjr

263 REPLY of Pltfs to deft Roadway 
response to pltfs response to Patterson. 
Mid. 7pp with 4pp. cjr

264 MEMO & ORDER. JWP Judgment is 
hereby entered in favor of deft, on pltfs. 
Hands’ 42 U.S.C. § 2000e et seq. and 42 
U.S.C. § 1981 claims; and it is further 
ordered that the 42 § 1981 claims of pltf. 
against Rivers & Davison be and hereby 
are dismissed. Copies mid. 4pp. cjr

265 NOTICE, p.t. 1/26/90 at 10:00 a.m. 
Copies mid. Ipg. cjr



11a

1/31/90

1/31/90

2/1/90

2/21/90

2/27/90

2/27/90

3/5/90

1/23/90 266 JUDGMENT ON DECISION BY 
COURT. JWP. Judgment is hereby 
entered in favor of deft, on pltf. Harvis’ 
42 U.S.C. Sec. 2000e et seq. and 42 
U.S.C. Sec. 1981 claims. True copies 
mid. lpg. cjr

NOTICE OF APPEAL of pltf. filed. 
Copies by clerk to attorneys Landwehr, 
Dixon, Lodge, Boal on 1/31/90. 3pp. cd

APPEAL FEE sum of $105.00 paid by 
pltf. Rept. #161819

269 TRIAL ORDER. JWP. Jury 
Impanelment 2/26/90 at 9:00 a.m. JT set 
for 2/27/90 9:00 a.m. Parties stipulate to 
the filing of motion in limine re: 
witnesses by 1/31/90. Copies mid. 1pp. 
BP

277 PROPOSED FINDINGS OF FACT & 
CONCLUSIONS OF LAW of deft. 
Mid. 20pp. BP

282 MOTION of deft. Roadway to dismiss 
pits amended complaint. Mid. 12pp with 
2pp exh. cjr

283 MIN. OF PRO. N.J. trial began. Time: 
5.5 hrs. Pltfs case began. Testimony 
taken by Atty. Richard Bush admitted 
pro hac vice. Trial not concluded. Trial 
resume 2/28/90 at 9:00 a.m. cjr

284 MIN. OF PRO. N.J. cont’d. Time 5.5. 
hrs. Trial not concluded. Trial to 
resume 3/1/90 at 9:15 a.m. cjr



12a

4/11/90

4/11/90

4/23/90

4/24/90

10/18/90

10/22/90

3/5/90 285 MEN. OF PRO. N. J. Cont’d. Time: 7.5 
hrs. Trial continued but not concluded. 
Trial to resume on 3/2/90 at 9:15 a.m. 
Ipg. cjr

291 POST-Tr. Prop, findings of fact and 
concl. of law by Deft. 22PP. Mid.

296 PLTF’s Post-tr proposed findings of fact 
and conclusion of law. 32pp. cjr

298 REPLY BRIEF of Deft. Roadway to 
pits post tr proposed findings of fact and 
conclusion of law. Mid. 25pp. cjr

300 REPLY of pltf to deft’s post-tr.
proposed findings of fact and concl. of 
law. Mid. 9pp. cjr

306 F I N D I N G S  O F  F A C T S  &
CONCLUSIONS OF LAW. JWP. 
Deft’s motion to dismiss is hereby 
denied; and it is ORDERED that 
judgment be, and hereby is entered in 
favor of deft Roadway Express, Inc. and 
against pits Maurice Rivers and Robert 
Davison. Copies mid. llppg. cjr

308 (310) MOTION of pltf for decision on
motion to strike revised exh. K or in the 
alternative to reopen proofs and for 
reconsideration and amendment of 
judgment. Mid. 4pp. cjr



13a

2/5/91

2/5/91

3/18/91

4/17/91

8/26/92

8/31/92

10/29/90 309 OPPOS to deft Roadway to pits motion 
for decision on motion to strike revised 
exh. K or in the alternative to reopen 
proof sand for reconsideration and 
amendment of judgment. Mid. 3pp. cjr

OPINION of Sixth Circuit, filed 1/10/91. 
Judgment is affirmed, dc

ORDER of Sixth Circuit, filed 1/10/91. 
ordered that the judgment of the district 
court is affirmed. Issued as mandate 
2/1/91. Costs: (Awarded to appellee) 
Filing fee: None. Printing $240.00. dc 
(Note - Certified record was never sent)

310 MEMO & ORDER. JWP. Pltfs’ 
motion to strike and for reconsideration 
of amended judgment are hereby denied. 
Copies mid. 2pp. cjr

311 NOTICE OF APPEAL of pltf. Copies 
by clerk to Landwehr on 4/17/91. dc

315 INFORMATION COPY of Opinion 
from USCA, decided and filed 8/24/92. 
REVERSE and REMAND for further 
proceedings under Sec. 1981. dc

316 TRUE COPY of Opinion from USCA, 
decided and filed 8/24/92. REVERSE 
and REMANDED for further 
proceedings under Sect. 1981. dc



14a

10/23/92 317 JUDGMENT of USCA filed 8/24/92. 
Ordered of the judgment of the district 
court is reversed and the case is
remanded for further proceedings under 
42 U.S.C. 1981, in conformity with the 
Opinion. Issued as mandate 10/21/92. 
Costs: None. Ipg. dc

12/11/92 318 NOTICE of filing Petition for Certiorari, 
filed with the Supreme Court, filed 
12/7/92, their #92-938. Ipg. dc

1/12/93 319 NOTICE, pretrial 2/8/93 at 9:00 a.m. 
Copies mid. Ipg. cjr

3/8/93 320 ORDER of Supreme Court, filed 
2/22/93, their #92-938. Petition for a 
writ of certiorari to the United States
Court of Appeals for the Sixth Circuit is 
granted limited to Question 1 presented 
by the petition. (This case is 
consolidated with No. 92-757, Barbara 
Landgraf v. USI Film Products, et al.) 
Ipg. dc



15a

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF OHIO 

WESTERN DIVISION

JOHN T. HARVIS, JR., 
MAURICE RIVERS, AND 
ROBERT C. DAVISON,

Plaintiffs,
Civil Action

- vs - No. C86-7955
Hon. John W. Potter

ROADWAY EXPRESS, INC. and 
LOCAL 20, INTERNATIONAL 
BROTHERHOOD OF TEAMSTERS, 
CHAUFFEURS, WAREHOUSEMEN, AND 
HELPERS OF AMERICA,

Defendants.

FIRST AMENDED COMPLAINT

FACTS:
1. This is a claim for race discrimination, breach of 

collective bargaining contract, and breach of a union’s duty 
of fair representation. Claims lie under 42 USC § 1981 and 
2000e, 29 USC 185(a) and 159(a). Jurisdiction lies under 28 
USC 1337.

2. Defendant Roadway Express Inc. ("Roadway") is 
an employer, as defined under the federal labor laws. It 
operates a facility in Toledo, Ohio.



16a

3. Defendant Local 20 of the Teamsters, Chauffeurs 
Warehouseman, and Helpers of America ("Local 20") is a 
labor organization as defined in the federal labor laws. It 
represents a unit including mechanics at Roadway’s facility 
in Toledo, and it owes them a duty of fair representation.

4. Plaintiffs James T. Harvis, Jr., ("Harvis"), Maurice 
Rivers ("Rivers"), and Robert C. Davison ("Davison") were 
Roadway mechanics represented by Local 20 until their 
discharge recently.

5. Each plaintiff is black, and each is and was prior 
to his discharge a member and supporter of TDU 
('Teamsters for a Democratic Union), a reform caucus in 
Local 20 and the Teamsters nationally. Each was also a 
supporter of dissident activities and slates in Local contract 
and union election campaigns held in 1986.

6. The union’s leadership was openly hostile to TDU 
and dissident factions, and facilitated a busload of its 
members and agents to go to a TDU convention in 
Romulus, Michigan, in October, 1983 to physically wreck a 
TDU meeting.

7. Harvis was discharged April 30, 1986, and Rivers 
and Davison were discharged September 26, 1986.

8. Each filed a grievance protesting his discharge. 
Harvis was informed that his grievance was denied on June 
20, 1986. Rivers and Davison were informed that their 
grievance were denied on December 10, 1986.

9. Harvis’ discharge was in violation of the contract 
in that it was taken without just cause. More particularly he 
was accused of gross insubordination and his accumulated 
work record in connection with an incident where a 
supervisor threatened to kick him and he responded. No 
blows were exchanged. The following day the supervisor 
backed off of his threat. Harvis worked to more day and 
then was fired.



17a

10. Hams’ grievance was not fairly processed and 
the unit did not fairly represent him, in that, among other 
things.

a) his union agent recognized the charge against him 
was baseless, telling him h would have his job back 
the next day.

b) his union agent and the grievance committee 
which decided his case advised and pressured him to 
sign a paper waiving his legal rights during the 
grievance process;
c) when he refused to sign the paper the grievance 
committee improperly withheld its decision for a 
month;
d) grievants who have refused to sign the paper have 
never won their grievance;
e) a Roadway officer improperly attended and 
participated in the grievance decision, depriving the 
grievance panel of is neutrality and objectivity;

f) TDU members or supporters have consistently 
lost grievances comparable to grievances which non 
TDU members or supporters have won;
g) the decisions did not draw its essence from the 
contract.
11. Rivers’ and Davison’s discharge were taken 

without just cause. More particularly Roadway scheduled a 
hearing for them for September 26, 1986, based on conduct 
for which a grievance committee had previously exonerated 
them with backpay. The company did not notify them in 
writing of any obligation to attend a hearing. In the past, 
hearings have been held for them and their employees 
without their being present, and no adverse consequences 
followed the failure to attend. The only purpose of such 
hearings is to give the employee a chance, if he wishes, to



18a

explain his side of the story. Rivers and Davison declined to 
attend the hearing and the hearing resulted in their 
discharges, allegedly based on the previous exonerated 
conduct and the failure to attend the hearing itself.

12. Rivers’ and Davison’s grievances were not fairly 
processed and the union did not fairly represent them, in 
that, among other things:

a) the company’s charges against them were 
completely baseless;

b) the grievance committee which decided their 
cases advised and pressured them to sign a paper 
waiving their legal rights during the grievance 
process;

c) when they refused to sign the paper the 
committee improperly withheld its decision for a 
month;
d) grievants who have refused to sign the paper have 
never won their grievance;

e) TDU members or supporters have consistently 
lost grievances comparable to grievances which non 
TDU members or supporters have won;
f) the union agent improperly presented evidence to 
the grievance committee containing derogatory 
information about them outside the contractual nine- 
month period;

g) in the case of Davison, the company improperly 
presented altered affidavits to the committee;

h) the decisions did not draw their essence from the 
contract.

13. The company has in the last year discharged all 
but one of its black mechanics on baseless charges. That 
one was discharged some years ago, was reinstated only by



19a

an arbitrator’s decision, and more recently was threatened 
with discharge again.

14. The company has consistently disciplined and 
harassed its black mechanics treating them differently than 
white mechanics in comparable situations.

15. On or about October 27-29, 1986, plaintiffs filed 
timely charges with the Ohio Civil Rights Commission 
(OCRC) and the Equal Employment Opportunity 
Commission (EEOC). On or about November 12, 1986, 
plaintiffs withdrew their OCRC cases so that the EEOC 
would investigate them on a joint basis. By letters 
postmarked July 8, 1987, plaintiffs received notices of right 
to sue Roadway from the EEOC.

CLAIMS

16. The discharges discriminated against the 
plaintiffs because of their race in violation of 42 U.S.C. § 
1981.

17. The discharges violated the contract in violation 
of 29 U.S.C. 185(a).

18. The grievance decisions do not bar this 
proceeding, regardless whether the defects in them arose as 
a result of conduct by the company, the union or the 
grievance panel.

19. The union’s grievance-handling violated the 
union’s duty of fair representation under 29 U.S.C. 159(a).

20. The foregoing acts of the defendants were done 
with malice.

21. As a result of defendants’ acts plaintiffs have 
suffered economic losses, mental anguish, and other 
damages, for which they are entitled to compensation.



20a

WHEREFORE, plaintiffs respectfully request this
court:

a) order defendants jointly and severally to pay 
plaintiffs’ damages including punitive damages 
against Roadway;
b) order that plaintiffs be reinstated to their former 
positions with full backpay and benefits;

c) order defendants to pay plaintiffs’ costs, interest 
and attorney fees, and
d) order any other just relief.

Respectfully submitted,

_ s L______________
Ellis Boal (P10913) 
925 Ford Building 
Detroit, MI 48226 
Phone: (313) 962-2770

_sL______________
Terry Lodge 
618 North Michigan 
Suite 105
Toledo, OH 43624 
Phone: (419) 255-7552

Dated: September 28, 1987



21a

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

John T. Harvis, Jr., et al.,

Plaintiffs, Civil No. C86-7955

- vs - HON. JOHN W. POTTER

Roadway Express, Inc., 
et al.,

ANSWER OF
Defendants. DEFENDANT ROADWAY 

EXPRESS.TO PLAINTIFFS’ 
FIRST AMENDED 
COMPLAINT

Now comes defendant Roadway Express, Inc., by and 
through its attorneys, and answers plaintiffs’ first amended 
complaint as follows:

1. Answering paragraph 1 of plaintiffs’ first amended 
complaint, defendant admits that claims of race 
discrimination, breach of collective bargaining contract and 
breach of a union’s duty of fair representation may be 
actionable violations of certain specified federal statutes, but 
defendant denies each and every other allegation contained 
in paragraph 1 of the first amended complaint.

2. Answering paragraph 2 of plaintiffs’ first amended 
complaint, defendant admits the allegations contained 
therein.

3. Answering paragraph 3 of plaintiffs’ first amended 
complaint, defendant admits the allegations contained 
therein.



22a

4. Answering paragraph 4 of plaintiffs’ first amended 
complaint, defendant admits that it employed defendants. 
Defendant denies the remaining allegations contained in 
paragraph 4 of plaintiffs’ first amended complaint.

5. Answering paragraph 5 of plaintiffs’ first amended 
complaint, defendant admits that each plaintiff is black. 
Defendant is without knowledge or information sufficient to 
form a belief as to the truth of the remaining allegations 
contained in paragraph 5 of plaintiffs’ first amended 
complaint and therefore denies said allegations.

6. Answering paragraph 6 of plaintiffs’ first amended 
complaint, defendant is without knowledge or information 
sufficient to form a belief as to the truth of the allegations 
contained therein and therefore denies said allegations

7. Answering paragraph 7 of plaintiffs’ first amended 
complaint defendant admits the allegations contained 
therein.

8. Answering paragraph 8 of plaintiffs’ first amended 
complaint, defendant admits that each plaintiff filed a 
grievance. Defendant is without knowledge or information 
sufficient to form a belief as to the truth of the remaining 
allegations contained in paragraph 8 of plaintiffs’ first 
amended complaint and therefore denies said allegations.

9. Answering paragraph 9 of plaintiffs’ first amended 
complaint, defendant denies the allegations contained 
therein.

10. Answering paragraph 10 of plaintiffs’ first
amended complaint, defendant denies the allegations
contained therein.

11. Answering paragraph 11 of plaintiffs’ first
amended complaint, defendant denies the allegations
contained therein.

12. Answering paragraph 12 of plaintiffs’ first



23a

amended complaint, defendant denies the allegations
contained therein.

13. Answering paragraph 13 of plaintiffs’ first
amended complaint, defendant denies the allegations
contained therein.

14. Answering paragraph 14 of plaintiffs’ first
amended complaint, defendant denies the allegations
contained therein.

15. Answering paragraph 15 of plaintiffs’ first
amended complaint, defendant denies the allegations
contained therein.

16. Answering paragraph 16 of plaintiffs’ first
amended complaint, defendant denies the allegations
contained therein.

17. Answering paragraph 17 of plaintiffs’ first
amended complaint, defendant denies the allegations
contained therein.

18. Answering paragraph 18 of plaintiffs’ first
amended complaint, defendant denies the allegations
contained therein.

19. Answering paragraph 19 of plaintiffs’ first
amended complaint, defendant denies the allegations
contained therein.

20. Answering paragraph 20 of plaintiffs’ first
amended complaint, defendant denies the allegations
contained therein.

21. Answering paragraph 21 of plaintiffs’ first
amended complaint, defendant denies the allegations
contained therein.



24a

AFFIRMATIVE DEFENSES
22. Plaintiffs are misjoined as parties in this case as 

their claims do not arise out of the same transaction, 
occurrence or succession or series of transactions or 
occurrences and as there are no questions or law or fact 
common to plaintiffs’ claim.

23. All or a portion of each plaintiffs’ claims are 
barred by the applicable statute of limitations.

24. Plaintiffs and each of them have failed to exhaust 
available contractual or internal remedies.

25. Plaintiffs and each of them have failed to 
mitigate claimed damages.

26. Plaintiffs’ complaints and each of them fail to 
state a claim upon which relief can be granted.

27. Plaintiffs’ claims and each of them have been 
finally adjudicated and such claims are barred by the 
doctrine of arbitration and award.

28. Plaintiffs’ claims and each of them have been 
finally adjudicated in other judicial or administrative forms 
and may not proceed herein under the doctrines of collateral 
estoppel or res judicata.

29. Plaintiffs and each of them are not entitled to a 
jury trial.

WHEREFORE, defendant prays that plaintiffs’ first 
amended complaint be dismissed and that it may recover its 
costs herein expended, including reasonable attorneys fees 
and any other relief which the court deems appropriate.



25a

EASTMAN & SMITH

_sL____________
John T. Landwehr 
Barry W. Fissel 
Thomas J. Gibney 
800 United Savings Bldg. 
Toledo, OH 43604 
241-6000

Attorneys for defendant 
Roadway Express, Inc.



26a

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

John T. Harvis, Jr., et ah,

Plaintiffs,

- vs -

Roadway Express, Inc., 
et al.,

Defendants.

Civil No. C86-7955

SUPPLEMENT TO 
DEFENDANT ROADWAY 
EXPRESS. INC’S ANS­
WER TO PLAINTIFFS’ 
FIRST AMENDED COM­
PLAINT

Now comes defendant Roadway Express, Inc. by and 
through its attorneys, and supplement its answer to plaintiffs5 
first amended complaint by interlineation as follows:

26: Plaintiffs’ complaints and each of them fail to 
state a claim upon which relief can be granted. 42 U.S.C. § 
1981 does not confer a private right of action for plaintiffs 
in this case. Patterson v. McClean Credit Union, U.S. Supt. 
Ct. No. 87-1707, argued October 12, 1988.

EASTMAN & SMITH
s/_______________ _

John T. Landwehr 
Barry W. Fissel 
Thomas J. Gibney 
800 United Savings Bldg. 
Toledo, OH 43604 
241-6000

Attorneys for defendant 
Roadway Express, Inc.



27a

[Filed November 30, 1988]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

John T. Harvis, Jr., et al.,

Plaintiffs, Case No. C86-7955

- vs -

Roadway Express, Inc., 
et al.,

MEMORANDUM AND 
Defendants. ORDER

POTTER, J.:

This cause is before the Court on motions for 
summary judgment filed by defendant Roadway Express, Inc. 
(Company) and defendant Teamsters, Local 20 (Union), 
plaintiffs’ opposition, defendants’ replies, plaintiffs’ response 
to new matters and defendant Union’s reply. The three 
plaintiffs in this action are black and were employed as 
mechanics by defendant Company. Plaintiffs’ claims arise 
from their discharges. Plaintiffs’ first cause of action is a 
hybrid section 301/duty of fair representation claim against 
both defendants. Plaintiffs’ second cause of action for race 
discrimination is only asserted against defendant Company.

Under the Federal Rules of Civil Procedure, 
summary judgment is proper only where there is no 
genuine issue of material fact and the moving party 
is entitled to judgment as a matter of law. Fed. R.



28a

Civ. P. 56(c). The Supreme Court has recently stated 
that the inquiry is "where the evidence presents a 
sufficient disagreement to require submission to a 
jury or whether it is so one-sided that one party must 
prevail as a matter of law." Anderson v. Liberty 
Lobby, Inc., 06 S. Ct. 2505, 2512 (1986).... In 
reviewing a motion for summary judgment, however, 
all inferences "must be viewed in the light most 
favorable to the party opposing the motion." See 
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 106 
S. Ct. 1348, 1356-57 (1986) (quoting United States v. 
Diebold, Inc., 369 U.S. 654, 655 (1962).

Ralph Shrader, Inc. v. Diamond International Corp., 833 F.2d 
1210, 1213 (6th Cir. 1987).

The party moving for summary judgment "always 
bears the initial responsibility of informing the district court 
of the basis for its motion, and identifying those portions of 
the pleadings, depositions, answers to interrogatories, and 
admissions on file, together with the affidavits if any, which 
[he] believes demonstrate the absence of a genuine issue of 
material fact." Celotex Corp. v. Catrett, A ll U.S. 317, 323 
(1986). The substantive law of the case identifies which facts 
are material. Anderson v. Liberty Lobby, Inc., A ll U.S. 242, 
248 (1988). Therefore, only disputes of facts affecting the 
outcome of the suit under the applicable substantive law will 
preclude the entry of summary judgment. Id. A moving 
party may discharge its burden "by ‘showing’ - that is, 
pointing out to the district court - that there is an absence 
of evidence to support the nonmoving party’s case." Celotex, 
A ll U.S. at 324-325. Where the moving party has met its 
initial burden, the adverse party "must set forth specific facts 
showing that the is a genuine issue for trial." Anderson, A ll 
U.S. at 250. "[Pjlaintiff, to survive the defendant’s motion, 
need only present evidence from which a jury might return 
a verdict in his favor." Id. at 257.



29a

Defendant Union’s claim that plaintiff Harvis’ suit is 
barred by the statute of limitations is not well taken. The 
Court finds the action was filed by Hands within six months. 
The Court will next address the motions for summary 
judgment on plaintiffs’ hybrid section 301/duty of fair 
representations claim. Specifically, the Court will consider 
whether the Union breached its duty of fair representation 
to plaintiffs. "A breach of the statutory duty of fair 
representation occurs only when a union’s conduct toward a 
member of the collective bargaining unit is arbitrary, 
discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 
190 (1967). "A union’s conduct may be sufficiently arbitrary 
to establish a breach of its duty to fairly represent its 
members when it handles a grievance in a ‘perfunctory’ 
manner, with caprice or without rational explanation." Poole 
v. Budd Co., 706 F.2d 181, 183 (6th Cir. 1983). A plaintiff 
may establish a breach of the union’s duty by evidence of 
personal hostility or bad faith. Whitten v. Anchor Motor 
Freight, Inc., 521 F.2d 1335, 1340-1341 (6th Cir. 1975).

Defendant Union has set forth facts which, if 
uncontroverted, would entitle it to summary judgment as to 
all plaintiffs on the claim for breach of duty of fair 
representation. In effect, the Union has demonstrated that 
plaintiffs’ case lacks evidence from which the court could 
find in their favor on this claim. The claims of all three 
plaintiffs involve their discharge from employment with the 
defendant Company. Grievances were filed in each 
plaintiffs case and each grievance was processed through 
final and binding arbitration in accordance with the 
collective bargaining agreement. The record in this case is 
voluminous. It includes hundreds of pages of briefing and 
thousands of pages of deposition testimony and exhibits. 
Despite this extensive record, plaintiffs have failed to present 
any evidence of arbitrariness, discrimination or bad faith in 
the processing of their grievances.

Plaintiffs argue that the Union officers who 
represented them were hostile to plaintiffs because they



30a

were members of a dissident faction within the Union. 
Plaintiffs contend that this hostility was transferred to them 
during the grievance proceedings. Plaintiffs have presented 
no evidence in support of their contentions. To the 
contrary, each plaintiff testified in his deposition that the 
Union representative handling his grievance exhibited no 
personal hostility toward him. Plaintiffs claim that their 
grievances were arbitrated in a perfunctory manner is also 
unsupported by any evidence. Plaintiffs have failed to 
present specific facts creating a genuine issue of material 
fact in opposition to the Union’s motion for summary 
judgment. Plaintiffs have not shown that the Union failed 
to take any reasonable step in processing their grievances 
through arbitration or that any complaint they have with the 
Union’s handling of their grievances could have had a 
material impact on their outcome.

Plaintiffs continue to assert that the Union’s failure 
to process race discrimination claims through the grievance 
machinery is a breach of its duty, despite this matter having 
already been adjudicated in this case. This claim is not well 
taken for the reasons set forth in the magistrate’s Report 
and Recommendation filed June 6, 1988. The holding in 
Farmer v. ARA Services, Inc., 660 F.2d 1096 (6th Cir. 1981) 
is not as broad in scope as plaintiffs suggest. The defendant 
union in that case was found to have breached its statutory 
duty based upon the facts found by the trial judge. Plaintiffs 
in this case have produced no evidence from which it could 
be determined that their situation was factually similar to 
Farmer. In sum, there is no material fact as to the duty of 
fair representation claim, and the Union is entitled to prevail 
as a matter of law on the claims of all three plaintiffs.

Plaintiffs assert that they are entitled to prevail on 
their hybrid section 301/duty of fair representation claim 
even if they cannot establish the breach of the Union’s duty. 
The Court believes this assertion is contrary to the well 
established law as set forth in DelCostello v. Teamsters, 462 
U.S. 151 (1983).



31a

The suit against the employer rests on §301, since the 
employee is alleging a breach of the collective 
bargaining agreement. The suit against the union is 
one for breach of the union’s duty of fair 
representation, which is implied under the scheme of 
the National Labor Relations Act.
"Yet the two claims are inextricably interdependent. 
‘To prevail against either the company of the Union, 
... [employee-plaintiffs] must not only show that their 
discharge was contrary to the contract but must also 
carry the burden of demonstrating breach of duty by 
the Union.’" Mitchell, supra, at 66-67 (Stewart, J., 
concurring in judgment), quoting Hines, supra, at 
570-571. The employee may, if he chooses, sue one 
defendant and not the other; but the case he must 
prove is the same whether he sues one, the other, or 
both.

Id. at 164-165. It is clear that plaintiffs may not maintain 
this claim against the Company where the Court has 
determined that the Union is entitled to summary judgment.

Nor may plaintiffs directly attach the arbitration 
awards adjudicating their grievances in this action. It is not 
the award itself which is at issue in this case, but the conduct 
of the parties to the arbitration. For this reason also, the 
issue regarding the applicable collective bargaining 
agreement is not an issue of material fact. This Court has 
already held that the decisions of the arbitral committee are 
final and binding on the parties in this case in its order of 
May 24, 1988. For example, plaintiffs’ complaint does not 
allege a cause of action to set the awards aside, pursuant to 
the Arbitration Act, 9 U.S.C. §1, et seq., under which the 
court could engage in a narrow, but direct review of the final 
decision of the arbitral committee. The Court does not 
determine whether plaintiffs would have standing to bring 
such an action, but only illustrates the contrast between this 
case and an action brought to set aside an award. Thus, the



32a

final decision must stand as to all parties, and plaintiffs5 
hybrid section 301/duty of fair representation claim will be 
dismissed.

Plaintiffs’ remaining claims are against the defendant 
Company for race discrimination under 42 U.S.C. §1981 and 
Title VII. The Company contends that plaintiffs are barred 
from litigating these claims because of the final and binding 
arbitration decisions. The showing required to prevail under 
either statute is essentially the same. Murray v. Thistledown 
Racing Club, Inc., 770 F.2d 63, 69 (6th Cir. 1985). The 
principles underlying Title VII and Section 1981 are 
essentially the same. Benson v. Little Rock Hilton Inn, 742 
F.2d 414, 416 (8th Cir. 1984). "In sum, Title VII’s purpose 
and procedures strongly suggest that an individual does not 
forfeit his private cause of action if he first pursues his 
grievance to final arbitration under the nondiscrimination 
clause of a collective bargaining agreement. Alexander v. 
Gardner-Denver Co., 415 U.S. 36, 49 (1974). The case 
before the Court provides all the more reason why plaintiffs’ 
claims under Section 1981 and Title VII should not be 
barred by the final arbitration decision where plaintiffs had 
no opportunity to litigate their race discrimination claims in 
the grievance procedure.

A Title VII case of sexual discrimination must 
be analyzed under the three prong test articulated by 
the Supreme Court in Texas Department of 
Community Affairs v. Burdine, 450 U.S. 248, 101 S. 
Ct. 1089, 67 L.Ed.2d 207 (1981) and McDonnell 
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 
36 L.Ed.2d 668 (1973). A plaintiff carries the burden 
of establishing aprima facie case. 450 U.S. at 252-53, 
101 S. Ct. at 1093-94. If she establishes a prima facie 
case, the defendant must then articulate a 
nondiscriminatory reason for its actions. Id. If the 
employer does this, the burden is again on the 
plaintiff to prove that the articulated reason was 
pretextual and not the true reason, either by showing



33a

that a discriminatory reason was the more likely 
motivation, or by showing that the articulated reason 
is unworthy of belief. (Citations omitted.)

Mills v. Ford Co., 800 F.2d 635, 637 (6th Cir. 1986).
"The plaintiff must ultimately prove that the 

defendant intentionally discriminated against her. 450 U.S. 
at 253, 101 S. Ct. at 1093." Id. at 638. "Proof of the four 
McDonnell Douglas elements or other direct or statistical 
proof raises a rebuttable presumption of discrimination." 
(Footnotes omitted.) Simpson v. Midland-Ross Corp., 823 
F.2d 937, 940 (6th Cir. 1987).

Establishment of the prima facie case in effect 
creates a presumption that the employer unlawfully 
discriminated against the employee. If the trier of 
fact believes the plaintiffs evidence, and if the 
employer is silent in the fact of the presumption, the 
court must enter judgment for the plaintiff because 
no issue of fact remains in the case. (Footnotes 
omitted.)

Texas Department of Community Affairs v. Burdine, 450 U.S. 
248, 254 (1981).

"The burden of production then shifts to the 
defendant employer to provide a legitimate 
nondiscriminatory reason for the action taken." Simpson, 
823 F.2d at 940.

A plaintiff can establish that the legitimate, 
nondiscriminatory reason for the employment 
decision articulated by the defendant employer is 
pretextual in one of two ways, the first is to establish 
by a preponderance of the evidence that the 
discriminatory reason was the true reason motivating 
the employer’s conduct. Alternatively, the plaintiff 
can prove pretext by showing that the proffered 
legitimate reason was false. (Citations omitted.)



34a

Sims v. Cieland, 813 F.2d 790, 792 (6th Cir. 1987).

Plaintiffs claim that their discharges were racially 
motivated. The Court determines for the purpose of this 
motion that plaintiffs have each established a prima facie 
case under Section 1981 and Title VII. Defendants assert 
that plaintiffs’ discharges were for the legitimate 
nondiscriminatory reasons advanced to the arbitration 
committee. Plaintiffs’ claim that they were discharged for 
violations for which similarly situated white employees have 
received lesser discipline or no discipline and that the 
defendants’ reasons are pretextual. The Court has 
thoroughly reviewed the pleadings, affidavits, depositions 
transcripts and other materials filed in support of and in 
opposition to summary judgment. It is this Court’s opinion 
that genuine issues of material fact exist as to plaintiffs’ 
claims under Section 1981 and Title VII against defendant 
Company.

The Court has also reviewed all the pending motions 
in this action relating to various issues of trial management. 
The Court believes the issues raised in these motions are 
now moot in light of the foregoing opinion. This cause will 
now proceed to trial against the defendant Company on 
plaintiffs’ claims of race discrimination. Plaintiffs’ claims 
under Section 1981 will be tried to a jury and the claim 
under Title VII will be tried to the Court. Title VII matters 
not appropriate for presentation to the juiy under Section 
1981 will be heard out of the presence of the jury.

THEREFORE, for the foregoing reasons, good cause 
appearing, it is

ORDERED that the defendant Union’s motion for 
summary judgment be, and hereby are, GRANTED; and it 
is

FURTHER ORDERED that defendant Company’s 
motion for summary judgment be, and hereby is GRANTED 
in part and DENIED in part; and it is



35a

FURTHER ORDERED that all pending motions be, 
and hereby are, DENIED as moot.

S/S_______________
UNITED STATES DISTRICT JUDGE



\ -