Los Angeles Employment Lawyers Resource: Ferguson v. Pipefitters

Case No. 02-2057
__________________________________________________________
 
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
__________________________________________________________
 
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

        Plaintiff-Appellee,
       and

JAMES M. FERGUSON,
        
        Intervening Plaintiff-Appellee,
 v.

PIPEFITTERS ASSOCIATION LOCAL UNION 597,
 
        Defendant-Appellant.
________________________________________________________

On Appeal from the United States District Court for the
Northern District of Illinois, Case Nos. 98 C 1601 and 98 C 3217The
 Honorable David H. Coar
_________________________________________________________

BRIEF FOR PLAINTIFF-APPELLEE EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION
_________________________________________________________     
  

NICHOLAS M. INZEO     
Acting Deputy General Counsel         
 

PHILIP B. SKLOVER   
Associate General Counsel      
       
 
CAROLYN L. WHEELER  
Assistant General Counsel  
     
 
JOSEPH A. SEINER
Attorney
EQUAL EMPLOYMENT  
 OPPORTUNITY COMMISSION
Office of General Counsel  
1801 L Street, N.W., Room 7020  
Washington, D.C.  20507      
(202) 663-4772 

 
TABLE OF CONTENTS            Page
 
TABLE OF CONTENTS..............i

TABLE OF AUTHORITIES.........iii

STATEMENT OF JURISDICTION........ 1

STATEMENT OF ISSUES...............2

STATEMENT OF THE CASE.............3

STATEMENT OF THE FACTS............5
 
STANDARD OF REVIEW...............13

SUMMARY OF ARGUMENT..............13

ARGUMENT.........................16

 Title VII Prohibits a Labor Union from Acquiescing in  
  an Employer's Hostile Work Environment.............................. 16
 
  A.  The Plain Language of Title VII Requires Unions to 
   Prevent a Racially Hostile Working Environment......... 17

  B.  The Case Law Provides That a Union Cannot 
   Acquiesce in an Employer's Discriminatory 
    Practices..................  21

Pipefitters' Conduct Went Well Beyond
  Acquiescence and Mere Passivity.......... 24

 
III. Pipefitters Discriminated in Selectively Choosing Not to 
  Resolve Racial Problems in the Workplace, Thereby
    Violating Title VII Under the Goodman Rule........... 30

CONCLUSION................39

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE


TABLE OF AUTHORITIES 

FEDERAL CASES 

 Anjelino v. The New York Times, 
     200 F.3d 73 (3d Cir. 1999)  29, 30

Berry v. Delta Airlines, 
     260 F.3d 803 (7th Cir. 2001)  18, 25

Chrapliwy v. Uniroyal, 
     458 F. Supp. 252 (N.D. Ind. 1977)  24
 
Daniels v. Pipefitters' Ass'n Local Union No. 597, 
     945 F.2d 906 (7th Cir. 1991)  28, 32

Dowd v. United Steelworkers of America, 
     253 F.3d 1093 (8th Cir. 2001)  19

Farmer v. ARA Services, 
      660 F.2d 1096 (6th Cir. 1981)  23

Goodman v. Lukens Steel Co., 
     482 U.S. 656 (1987)  passim

Hellums v.  Quaker Oats Co., 
     760 F.2d 202 (8th Cir. 1985)  20

Hess v. Hartford Life & Accident Ins. Co., 
      274 F.3d 456 (7th Cir. 2001)  13

Howard v. Int'l Molders Union, 
     779 F.2d 1546 (11th Cir. 1986)  23

Johnson v. Palma, 
     931 F.2d 203 (2d Cir. 1991)  22, 32

Macklin v. Spector Freight System, 
      478 F.2d 979 (D.C. Cir. 1973)  23
  
Marquart v. Lodge 837, 
     26 F.3d 842 (8th Cir. 1994)  20, 25

Mason v. S. Illinois University, 
     233 F.3d 1036 (7th Cir. 2000)  18

Nat'l R.R. Passenger Corp. v. Morgan, 
      122 S. Ct. 2061 (2002) . . . . . . . . . . . . . . . . . . . . .
     . . . . . . . . . . . . . . . . . . . . . . .18

Patterson v. America Brands, Inc., 
     535 F.2d 257 (4th Cir. 1976)  23

Petrilli v. Drechsel, 
      94 F.3d 325 (7th Cir. 1996)  13

Romero v. Union Pacific R. R., 
     615 F.2d 1303 (10th Cir. 1980)  21

Salvadori v. Franklin Sch. District, 
     293 F.3d 989 (7th Cir. 2002)  32

Seymore v. Shawver & Sons, 
      111 F.3d 794 (10th Cir. 1997)  22

Smith v. BMI, Inc., 
     957 F.2d 462 (7th Cir. 1992)  13

Smith v. Hussman, 
     619 F.2d 1229 (8th Cir. 1980)  21

Sorenson v. Sec'y of Treas., 
     475 U.S. 851 (1986)  19
 
Sullivan v. Stroop, 
     496 U.S. 478 (1990)  19

Thomas v. Denny's, 
     111 F.3d 1506 (10th Cir. 1997)  3
Thorn v. Amalgamated Transit Union, 
     305 F.3d 826 (8th Cir. 2002)  20, 28, 29, 30, 32
 
Thornton v. Brown, 
     47 F.3d 194 (7th Cir. 1995)  13

Vore v. Indiana Bell, 
     32 F.3d 1161 (7th Cir. 1994)  18

Woods v. Graphic Communications, 
     925 F.2d 1195 (9th Cir. 1991)  19, 23, 25, 32
 
York v. AT&T, 
     95 F.3d 948 (10th Cir. 1996)  22


FEDERAL STATUTES 

28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345  1

28 U.S.C. § 1291  2

42 U.S.C. § 1981  3

42 U.S.C. § 2000e-2(a) (Section 703(a) of Title VII)  17, 18, 19
 
42 U.S.C. § 2000e-2(c) (Section 703(c) of Title VII)  14, 17-20, 30,
31, 32

42 U.S.C. § 2000e-5(f)   1

Fed. R. Civ. P. 52(a)  13


LAW REVIEW ARTICLES
      
David S. Schwartz, When is Sex Because of Sex?, 
      150 U. Pa. L. Rev. 1697 (2002) 18


STATEMENT OF JURISDICTION
    
 Appellant Pipefitters' jurisdictional statement is not correct and
 complete,<1> and the Commission provides the following separate
  jurisdictional statement (See 7th Circuit Rule 28(b)):
 In this case, the Commission brought suit against Pipefitters, together
 with Foster Wheeler Constructors and several related corporate
 entities, pursuant to section 706(f) of Title VII.  (Doc. No. 1,
  Complaint; Doc. No. 83, Third Amended Complaint).  The district court
 had jurisdiction in this case pursuant to 28 U.S.C. §§ 1331 (federal
 question), 1337 (federal statute regulating commerce), 1343 (civil
 rights), 1345 (federal agency as plaintiff), and 451 (defining agency).
  (Id).  All of the Foster Wheeler defendants were dismissed from the
 case prior to trial – the related corporate entities were dismissed
 on summary judgment, and Foster Wheeler Constructors itself was
 dismissed pursuant to court-approved settlements with the plaintiffs.
  (Doc. No. 184, Minute Order dismissing parties on summary judgment;
 Doc. No. 249, Minute Order entering consent decree; Doc. No. 260,
 Entry of protective order covering confidential settlement terms).
 On March 29, 2002, following a bench trial, the District Court entered a
  final judgment against Pipefitters.  (Doc. No. 281, Entry of Judgment).
 The final judgment incorporated by reference a permanent injunction
 against Pipefitters that was set forth in a separate order issued the
  same day.  (Doc No. 282, Injunction).  On April 26, 2002, Pipefitters
 filed a timely notice of appeal from the final judgment and injunction.
 (Doc No. 284, Notice of Appeal).  This Court has jurisdiction to review
  this matter pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Does a Union violate Title VII when it knows that a racially hostile
work environment exists, has significant control over the workplace,
 and has the ability to remedy the hostile work environment created in
part by its own members – yet chooses to do nothing?

2. Under Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), does a Union
violate Title VII by ignoring a racially hostile work environment that
 it knows about, when its practice is to remedy other workplace problems
on its own initiative?


STATEMENT OF THE CASE 

 On March 17, 1998, the U.S. Equal Employment Opportunity Commission 
(EEOC or Commission) filed a complaint in the United States District
 Court for the Northern District of Illinois under Title VII to correct
unlawful employment practices based on race and to provide appropriate
relief to James Ferguson and a class of African-American employees who
 were adversely affected by such practices.  (Doc. No. 1, Complaint).
In its complaint, the Commission alleged that the Defendant Union,
Pipefitters Local 597 (Pipefitters or Union), discriminated against a
class of African-American members of the Union because of their race
 by maintaining a racially hostile and offensive work environment.
(Doc. No. 1, Complaint).  On June 17, 1998, James Ferguson filed
a separate complaint intervening in the Commission's lawsuit and
asked the court to award additional damages under 42 U.S.C. §
 1981. (Doc. No. 27, Intervenor's Complaint; Doc. No. 40, Amended
Complaint in Intervention).<2> The Commission also brought suit against
the workers' employer, Foster Wheeler Constructors, Inc.  (Doc No. 1).
 The Commission reached settlement with the employer before the case went
to trial, however, leaving Pipefitters as the only defendant in this case.
(Doc. No. 260, Entry of protective order covering confidential settlement
 terms). 

 In September 1999, the District Court held a bench trial on the claims
 asserted by the Commission.  (Doc. No. 222, Minute Order setting
 trial date).  On March 28, 2002, the district court issued a 26-page
  opinion with specific findings of fact and conclusions of law outlining
 the egregious and intentional nature of the racial discrimination
 that occurred in this case.  (Doc. No. 280, Defendant's Appendix
 (Def. App.)<3> at 4-29, Findings of fact and conclusions of law).
  More specifically, the court found that through its knowledge and
 inaction, Pipefitters acquiesced in the creation of a hostile work
 environment.  (Def. App. at 14 ¶ 72).  The court further concluded that
 Pipefitters had violated its duty to address workplace problems in a
  non-discriminatory manner, see Goodman v. Lukens Steel Co., 482 U.S. 656,
 667 (1987), and had failed to "take effective action to report or remedy
 the racially hostile work environment."  (Def. App. at 23-24 ¶¶ 16-19,
  22). The court entered judgment for the EEOC and Ferguson, and awarded
 $105,000 in compensatory damages and $50,000 in punitive damages to eight
 named victims of discrimination.  (Doc. No. 281, Order). The court also
  awarded the Commission's costs and Ferguson's attorneys' fees.  Id.
 By separate order, the district court entered a permanent injunction
 against Pipefitters prohibiting further discrimination.  (Doc. No. 282,
  Injunction).<4>  

 On April 26, 2002, Pipefitters filed a timely notice of appeal in this
 matter, and on May 2, 2002, the district court entered a stay of the
 injunction pending resolution of this appeal.  (Doc. Nos. 284, 288,
  Notice of Appeal and Order Staying Injunction).  

STATEMENT OF FACTS

 Pipefitters is a labor organization (as defined by Title VII) that
 represents approximately 7000 pipefitters and welders in northeastern
  Illinois and northwestern Indiana.  (Def. App. at 5 ¶2, Findings
 of Fact and Conclusion of Law).  In January 1995, Foster Wheeler
 Constructors (Foster Wheeler) began constructing a stack foundation
 for the Robbins Resource Recovery facility (Robbins Project), and used
  workers from several different unions, including Pipefitters.  (Id. at
 5 ¶¶ 4-6).  The Robbins facility, located in Robbins, Illinois, is a
 1600-ton-per-day "waste to energy" facility.  (Id. at ¶ 3).  A minority
  of the workers at the Robbins Project were African-American, and a
 minority of the Pipefitters at the project were African-American as well.
 (Id. at 6 ¶ 9-10).  The labor agreement in effect between the Union
  and Foster Wheeler contained an explicit anti-discrimination clause.
 (See Doc. No. 121-2 at Exhibits 6-7, Vol. II of Appendix to Union's
 Motion for Summary Judgment) ("No discrimination shall be exercised by
  an Employer against any pipefitter on account of race, color, creed,
 national origin, age or sex."). 

 Contrary to Pipefitter's contention below,<5> many of the
 African-American pipefitters working at the Robbins Project were exposed
  to a racially hostile environment.  (Def. App. at 17).  This environment
 included graffiti scrawled across the portable toilets used by the Union
 members, and included racially tinged phrases targeted both generally
  at African-Americans and more specifically at particular Union members,
 such as:
  "death to all niggers" (id. at 10 ¶ 41);
  "your grandmother is such a slut she even fucks niggers" (id.);
  "KKK" (id.);
   "Fergie [James Ferguson], if you don't want to be treated like a nigger,
  don't act like one" (id. at 10 ¶ 42);
 
  a drawing of an African-American male with the size of his lips
  exaggerated and drawn around the toilet paper roll with the phrase
   "pull out Joe's [Joe McGhee] tongue" (id.);

 swastikas drawn on the walls (id. at 9 ¶ 35);
  "I like black pussy" (Tr. at 53);
  "Fuck Niggers" (Tr. at 53, 96, Exhibit 1-D);
  "The shines are ruining this country" (Tr. at 195-96, Exhibit 1-N);
   "If black is butiful I just shit a . . ." (Tr. at 197, Exhibit 1-C);
 
  "fuck you Fergeson" (Tr. at 212, Exhibit 1-A);
 graffiti referencing James Ferguson's wife, as well as her body (Tr. at
 217-19).
  
 African-American pipefitters, including the intervenor James Ferguson,
 Keith Hill, Joseph McGhee, Robert Smith, James Foster, David Payne,
 Larry Smizer, and Lance Williams, were subjected to this "racially
  hostile, offensive, derogatory, humiliating and threatening graffiti"
 on a daily basis.  (Def. App. at 8-9 ¶¶ 25-32, 10 ¶ 43).  In addition,
 the African-American Pipefitters were frequently subjected to additional
  forms of racial harassment, including:
  a swastika made out of cardboard was placed in one of the African-
  American union member's tool box, and a paper swastika was placed on
  the same individual's seat;
  
  a hangman's noose was hung at different locations at the Robbins
  Project;
 
  when African-American employees would walk into a safety meeting, other
  employees would laugh and joke "oops, there goes the neighborhood;" 
    
 a KKK poster was hung in the trailer where the African-American union
 members would take breaks.
 
(Id. at 9 ¶¶ 35-36; 10 ¶ 44; Tr. at 99-100, 108).


 Moreover, there was significant evidence, and a finding of fact, that the
  pipefitters themselves contributed to the racially hostile environment:
Caucasian pipefitters frequently made racial jokes about African
Americans;some pipefitter union members asked a Caucasian woman why she was "sitting
 with the nigger" during a lunch break;in response to a question why they didn't use a particular
African-American employee for work on a project, Pipefitter Union members
stated that "we don't use that black motherfucker."
 
(Def. App. at 9 ¶ 34;  Tr. at 595-99).
 In response to Defendant's argument that the above did not constitute a
 racially hostile work environment, the district court found the argument
 frivolous:
 There can be no serious contention that the racial environment at
  the Robbins construction site was not racially hostile.  Despite the
 contentions of Local 597, the graffiti on the walls of the port-a johns
 was vile, disgusting and insulting.  Only a visitor from another planet
  would fail to understand the ugliness of what was written and drawn
 on those walls.  To credit the testimony that Hahney, Toth, Jordan
 and others failed to understand that the graffiti was offensive to any
 African American pipe fitters would require an extraordinary level of
  naivete or cynicism . . . .

 In defense of its inaction, Local 597 argued that racial graffiti was
 common on all construction sites and that there was really nothing that
 could be done about it.  It is unclear how the union knew that because
  there was very little evidence that it had ever tried to prevent it.
 If Local 597 is of the view that its members (and other construction
 workers) are so hopelessly bigoted that neither education nor sanctions
  will deter racist conduct, then perhaps the actions of Hahney, Toth
 and others were reasonable.  However, the law, and experience suggest
 otherwise.  It may be true that civil laws may not truly change what is
  in a person's heart, but experience has shown that the law can change
 conduct.

(Def. App. at 17-18).  Despite the fact that the graffiti was obviously
pervasive and harassing, Union officials did not take prompt and effective
 measures to remedy the situation, even after receiving a complaint and
even after the EEOC became involved in the matter.  (Tr. at 55-59, 193,
220-22, 239, 266, 425, 820).

 Dennis Hahney, a Caucasian member of the Pipefitters Union, was Piping
  Superintendent for Foster Wheeler at the time of the Robbins Project,
 acted as lead pipefitter on the project from October 1995 until the
 completion of construction, and functioned as the Union steward for
 the project.  (Def. App. at 7 ¶ 17; 12 ¶ 60, 24 ¶ 21).  Thus, Union
  members at the Robbins Project reasonably believed that Hahney was
 acting as the on-site representative of Local 597 for the Project, and
 Hahney had actual authority to act for the Union.  (Id. at 13 ¶ 62;
 24 ¶ 21).   As part of his duties, Hahney was responsible for hiring
  pipefitters through the hiring hall, deciding who would be foremen for
 the project, and laying out the work to be completed by the pipefitters.
 (Id. at 7 ¶¶ 22-23; Tr. at 417-18).   Hahney "was hired to ensure that
  things ran smoothly.  He had the ear of Foster Wheeler and the power to
 obtain redress for issues that affected the pipe fitters on the site."
 (Def. App. at 18).  

 Hahney saw racial graffiti in the portable toilets when he started work
  in October 1995 and knew that there was graffiti in almost all of the
 port-a-johns at the Robbins project.  (Def. App. at 13 ¶ 65).  Hahney
 also knew that a cardboard swastika was placed in one African-American
  pipefitter's toolbox, and that a noose had been hanging at the facility
 for at least two months.  (Id. at 14 ¶¶ 68-69).  Despite his knowledge of
 this racially hostile work environment, Hahney did nothing to correct
  the situation until July 6, 1996, when Ferguson finally complained
 about specific graffiti referencing himself and his wife.  (Id. at
 14-15 ¶¶ 67-69, 73).  Although Hahney asked that a foreman paint over
 this specific graffiti, the complaint was not adequately resolved,
  and the Union's counsel even conceded that the Union had not done an
 effective job removing the graffiti from the port-a-johns in response
 to Ferguson's complaint.  See Tr. at 820 ("Now, did they do a great job
  cleaning it up?  Of course, they didn't.").  See also Def. App. at 7 ¶
 24; 14 ¶ 73; Tr. at 55-59, 193, 220-22, 239, 266, 820. 

 Moreover, Hahney did nothing to resolve the more general racial graffiti
 that persisted in the portable toilets, or to prevent additional racial
  graffiti from appearing, until an EEOC investigator visited the worksite
 on September 9, 1996, to serve charges and examine the facility.
 (Def. App. at 12 ¶ 52; 15 ¶ 74; Tr. at 49, 425). Even after this
 visit, however, the graffiti continued.  An EEOC investigator observed
  graffiti in the port-a-johns when he returned to the site on September
 19 and September 26, 1996.  (Def. App. at 12 ¶¶ 53-55; Tr. at 55-56).
 The investigator did not observe a worksite free of racial graffiti
  until he returned on November 4, 1996.  (Tr. at 56).

 Although Hahney did not adequately resolve the problem of racial
 graffiti even after Ferguson's complaint, the district court found that
 he would act on other complaints from workers under his supervision
  and sometimes even acted on his own initiative when he saw something
 adversely affecting his Union members.  (Def. App. at 13 ¶ 61).
 Indeed, it was one of Hahney's responsibilities to make sure that no
 Union members were "hassled."  (Id.; Tr. at 421).  More specifically,
  Hahney indicated that if he recognized a safety issue, he would have
 independently taken steps to remedy the problem.  (Def. App. at 13 ¶ 61;
 Tr. at 439).  Moreover, Hahney made sure that Union members had proper
  facilities and would independently have had the portable toilets cleaned
 if he had noticed a need to do so.  (Id. at 13 ¶ 61; Tr. at 423, 489).
 The Pipefitter business agent responsible for the Robbins Project, Steven
  Toth, a Caucasian, was also aware of the graffiti.  (Def. App. at 11 ¶
 50-51; Id. at 18; Id. at 24 ¶ 20).  As a business agent, Toth's duties
 included negotiating contracts, handling any problems that would arise
  within his jurisdiction, and looking out for the working conditions
 on his projects.  (Tr. at 505-06, 549, 568).  In his role as business
 agent for the Robbins project, Toth "walked the job" approximately
 20 to 30 times, making sure that "everything was going all right."
  (Tr. at 549).  Despite his knowledge of the graffiti at the project,
 he did nothing until specific graffiti referencing Ferguson and his
 wife caused Ferguson to complain.  (Def. App. at 11 ¶ 50; 14 ¶ 73;
 18).<6>  Even then, the situation was not adequately resolved, and the
  Union admittedly did not do a good job in painting over the graffiti.
 (Tr. at 55-59, 193, 220-22, 239, 266, 820).  Completely independent of
 any complaint, however, Toth ordered that sexual graffiti of a penis and
  a vagina that he had noticed be removed because it might be considered
 "a little offensive."  (Def. App. at 11 ¶ 51; Tr. at 513-14). 

STANDARD OF REVIEW

 This Court may not reverse the district court's findings of fact
  following a bench trial unless those findings are "clearly erroneous."
 See Petrilli v. Drechsel, 94 F.3d 325, 329 (7th Cir. 1996).  In a bench
 trial, the district court is in the unique position to make credibility
  determinations of witnesses, and those determinations should be given
 due regard.  See Thornton v. Brown, 47 F.3d 194, 196 (7th Cir. 1995);
 Fed. R. Civ. P. 52(a).  The district court's application of the law to
  the facts is reviewed for clear error as well.  See Hess v. Hartford Life
 & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001).  The clearly
 erroneous standard is a difficult one to meet, as "the challenger must
  convince the reviewing court that a mistake has been made."  Smith
 v. BMI, Inc., 957 F.2d 462, 463 (7th Cir. 1992).  The district court's
 legal conclusions are reviewed  de novo by this Court.  See Petrilli,
  94 F.3d at 329.

SUMMARY OF ARGUMENT

 It is an understatement to say that the environment at the Robbins
 Project was racially hostile.  Indeed, the vulgar and disgusting
 graffiti and racial acts prevalent at this worksite harken back to
  how African-American employees were treated prior to the enactment of
 Title VII.  Acknowledging this fact and abandoning its argument below
 that the environment at the Robbins project was not racially hostile,
  the Union now attempts to avoid liability through semantic gamesmanship
 – arguing that the statute as interpreted by the courts somehow does not
 require a union to remedy racial harassment, even where the Union had
  specific knowledge of the discriminatory acts, independently resolved
 other worker issues, exercised significant control over the workplace,
 and where Union members contributed to the racially hostile environment.
  The Union cannot successfully hide behind Title VII, however, which
 clearly requires no such result.  As a majority of appellate courts
 have recognized, section 703(c) of Title VII prohibits a union from
 acquiescing in a racially hostile work environment.  Moreover, based
  on the district court's findings, there was more than acquiescence here
 on the part of the Union.

 By focusing almost exclusively on the district court's acknowledgment
 that a union may not acquiesce in an employer's discriminatory behavior
  – a correct but alternate holding of the court – the Union quickly
 dismisses the court's primary holding in this case: that the Union
 violated Title VII under the Supreme Court's decision in Goodman by
  intentionally failing to address the racially hostile work environment
 even though its practice was to address other workplace problems
 proactively.  The district court's finding that "it was the practice
  of Local 597 to deal with members' problems in the work place in the
 absence of a grievance" but that the Union "failed to take effective
 action to report or remedy the racially hostile work environment existing
  at the Robbins site" is well supported by the record and certainly not
 clear error.  (Def. App. at 23-24 ¶¶ 18, 22).
  
 Even Pipefitters acknowledges that under Goodman, it has a duty "not
 to discriminate on the basis of race in dealing with [its] members'
  workplace problems."  (Def. Br. at 33).  There can be no serious
 contention here that the Union did not violate this duty.  Indeed,
 the district court specifically held that the Union steward at the
 Robbins Project would independently resolve worker safety concerns of
  which he had knowledge and considered it his duty to make certain that
 the facilities were proper and that no Union members were hassled.
 And, the Union's business agent in this case independently ordered
  that sexual graffiti be painted over because it could have been viewed
 as offensive. By deliberately ignoring the pervasive racial graffiti
 and other racial problems at the Robbins Project, then, the Union
 treated these racial issues differently from other workplace problems.
  The Supreme Court's decision in Goodman, like every other appellate
 decision to address this issue, mandates that such discriminatory
 treatment of workplace problems violates Title VII.

  In summary, this Court should align itself with the majority of
   appellate courts and the plain meaning of the statute by holding
  that a union has an affirmative duty to remedy a racially hostile work
  environment of which it is aware – particularly here where there is more
   than passive union acquiescence.  However, at a minimum, this Court must
  affirm the district court's decision under the principle set forth by
  the Supreme Court in Goodman – that the Union cannot discriminate on
   the basis of race in dealing with its members' workplace problems.

ARGUMENT

 The district court held that the Union was liable for the hostile work
 environment at the Robbins project.  There are three independent legal
  grounds for the district court's holding: (1) the Union violated its
 affirmative duty to remedy the racially hostile work environment; (2) the
 Union did more than passively acquiesce in the employer's discrimination
  because it had significant control over the workplace and the ability
 to remedy the situation, and its members contributed to the racially
 hostile environment; and (3) the Union violated Title VII under the
 principles set forth by the Supreme Court in Goodman.  This Court can
  affirm the district court's decision on any one of these grounds.
Title VII Prohibits a Labor Union from Acquiescing in An Employer's
Hostile Work Environment.
 
 The Union maintains that it has no "affirmative duty" under Title VII to
  "take action to report or remedy a racially hostile work environment."
 (Def. Br. at 16).   Thus, the Union contends that it cannot be held
 liable for intentionally acquiescing in the hostile work environment of
  Foster Wheeler.  This argument, however, runs contrary to the plain terms
 of the statute, as well as the decisions of the majority of appellate
 courts that have addressed the scope of a union's obligations under
  Title VII. 

A.   The Plain Language of Title VII Requires Unions to Prevent a Racially
Hostile Working Environment.

 Pipefitters clearly misreads Title VII as not requiring unions to prevent
 a racially hostile work environment.  There is no doubt that Title
  VII was written to apply specifically to labor unions.  Section 703(c)
 of Title VII specifically provides that:
 It shall be an unlawful employment practice for a labor organization– 

 (1)  to exclude or to expel from its membership, or otherwise to
  discriminate against, any individual because of his race, color,
 religion, sex, or national origin . . . .
42 U.S.C. § 2000e-2(c) (emphasis added).

 The phrase "or otherwise to discriminate against" in the statute mirrors
  the provision for employers in section 703(a) of Title VII, which makes
 it illegal for employers
 to fail or refuse to hire or to discharge any individual, or otherwise to
 discriminate against any individual with respect to his compensation,
  terms, conditions, or privileges of employment, because of such
 individual's race, color, religion, sex, or national origin . . . .
42 U.S.C. § 2000e-2(a)(1) (emphasis added).  

 The language "or otherwise to discriminate" under section 703(a)(1)
  includes not permitting a hostile work environment.  See Mason
 v. S. Illinois Univ., 233 F.3d 1036, 1042 (7th Cir. 2000) (noting that
 the language of section 703(a)(1) prohibits racially hostile working
 environment); Vore v. Indiana Bell, 32 F.3d 1161, 1163-64 (7th Cir. 1994)
  ("Title VII provides redress to employees subject to a hostile work
 environment as the result of racial harassment of fellow employees");
 David S. Schwartz, When is Sex Because of Sex?, 150 U. Pa. L. Rev. 1697,
  1717 (2002) ("the textual hook for the sexual harassment cause of action
 under Title VII is the phrase "or otherwise . . . discriminate against
 any individual with respect to his compensation, terms, conditions, or
  privileges of employment." See also Nat'l R.R. Passenger Corp. v. Morgan,
 122 S. Ct. 2061, 2074 n.10 (2002) ("Hostile work environment claims based
 on racial harassment are reviewed under the same standard as those based
  on sexual harassment").  Thus, under section 703(a)(1) of Title VII an
 employer who knew or should have known of a hostile working environment
 and failed to act is liable for discrimination. See Berry v. Delta
  Airlines, 260 F.3d 803, 810 (7th Cir. 2001) ("An employer may be held
 responsible for coworker on coworker harassment only if the employer knew
 or should have known about [the coworker]'s acts of harassment and fails
  to take appropriate remedial action.") (internal citations omitted). 
 Because section 703(c)(1) contains the identical language found
 in section 703(a)(1), it must also be construed as not permitting a
 hostile work environment of which the Union knew or should have known.
  See Sullivan v. Stroop, 496 U.S. 478, 484-85 (1990) ("the normal rule
 of statutory construction [is] that identical words used in different
 parts of the same act are intended to have the same meaning.") (internal
  quotations omitted); Sorenson v. Sec'y of Treas., 475 U.S. 851, 860
 (1986) (same).<7>  Indeed, the Eighth Circuit has interpreted the
 language "or otherwise to discriminate" under Section 703(c)(1) as
  specifically including harassment.  See Dowd v. United Steelworkers of
 America, 253 F.3d 1093, 1102 (8th Cir. 2001) (noting that under section
 703(c), "the plain language of the statute suggests that unions may
  be liable for any discrimination, including a claim of hostile work
 environment"); see also Woods, 925 F.2d at 1200 ("Title VII and Section
 1981 prohibit discrimination by unions to the same extent they prohibit
  discrimination by employers") (citation and quotation omitted).<8>  
 As properly found by the district court, the Union had actual knowledge
 of the overtly hostile working environment here, yet failed to take
  any corrective measures.  (Def. App. at 23-24 ¶¶ 19-22) ("Local 597 is
 liable . . . if 1) it knew or should have known of the racially hostile
 environment and 2) it failed to take effective action . . . . Plaintiffs
  have proven by a preponderance of the evidence that Hahney, Toth and
 Local 597 failed to take effective action to report or remedy the
 racially hostile work environment").  The Union should therefore be
 held accountable under Title VII.<9>
 
 B.  Judicial Interpretations of Title VII Mandate that A Union Cannot
 Acquiesce in An Employer's Discriminatory Practices.

 In citing two cases that support its argument that a union has no
 affirmative duty to remedy harassment in the workplace – neither of which
  are dispositive here (see section II, infra) – Pipefitters simply ignores
 the fact that the majority of appellate courts to consider the issue
 have acknowledged that a union cannot acquiesce in the discriminatory
  practices of the employer.  

 For example, the Tenth Circuit has unequivocally held that such an
 affirmative duty under Title VII exists:
 we point out that labor organizations have an affirmative duty to 
  insure compliance with Title VII . . . .  If a union does not take
 action against discriminatory practices by an employer, it may be held 
 responsible for those practices . . . .
      
 A union cannot acquiesce in a company's prohibited 
  employment discrimination and expect to evade Title VII liability 
 for such discrimination.

 Romero v. Union Pac. R. R., 615 F.2d 1303, 1310-11 (10th Cir. 1980).
 More recent Tenth Circuit decisions have reaffirmed that a union may not
  acquiesce in conduct prohibited by Title VII.  See Seymore v. Shawver &
 Sons, 111 F.3d 794, 798 (10th Cir. 1997); York v. AT&T, 95 F.3d 948,
 956 (10th Cir. 1996).  The Court in York also set out the standard for
  what it means to acquiesce in an employer's discriminatory conduct:
 "Acquiescence requires (1) knowledge that prohibited discrimination
 may have occurred and (2) a decision not to assert the discrimination
  claim."  Id. at 956.  Here, the district court found that the Union had
 knowledge of the racially hostile work environment, yet did nothing to
 assert the discrimination claim for the minority members of the Union.
  Thus, at a minimum, Pipefitters has acquiesced in the racially hostile
 working environment created by Foster Wheeler.<10>

  The overwhelming majority of other circuit courts to address this issue
  have reached the same conclusion as the Tenth Circuit – acknowledging
   that a union has an affirmative duty to prevent harassment in the
  workplace, and that a union cannot acquiesce in the discriminatory
  practices of an employer.  See Johnson v. Palma, 931 F.2d 203,
  208 (2d Cir. 1991) (holding that union violates Title VII when it
   "acquiesces in a company policy that abridges the statutory rights of
  the plaintiff"); Patterson v. Am. Brands, Inc., 535 F.2d 257, 270 (4th
  Cir. 1976) (local union which "acquiesced without protest" in company's
   lines of progression which perpetuated effects of discrimination
  was properly held liable); Farmer v. ARA Services, 660 F.2d 1096,
  1104 (6th Cir. 1981) ("A labor organization can be held jointly and
  severally liable under Title VII for acquiescing in the discriminatory
   practices of the employer"); Woods v. Graphic Communications, 925 F.2d
  1195, 1200 (9th Cir. 1991) ("The union has an affirmative obligation
  to oppose employment discrimination against its members.  If instead
   it acquiesced or joined in the Company's discrimination practices,
  it too is liable to the injured employees.") (citation and quotation
  omitted); Howard v. Int'l Molders Union, 779 F.2d 1546, 1553 (11th
   Cir. 1986) (unions were liable to minority employees under Title VII
  for failing to use "all reasonable effort to cause the employer" to
  cease using racially discriminatory nonvalidated tests for promotion);
   Macklin v. Spector Freight Sys., 478 F.2d 979, 989 (D.C. Cir. 1973)
  (holding that "tacit union acquiescence in an employer's discriminatory
  practices" and "union passivity" can result in Title VII liability,
   and contrary result would "undermine Title VII's attempt to impose
  responsibility on both unions and employers"), disapproved of on other
  grounds by Johnson v. Railway Exp. Agency, Inc., 421 U.S. 454 (1975);
   see also Rainey v. Town of Warren, 80 F. Supp. 2d 5, 18 (D.R.I. 2000)
  (union liable where union officials "knew of plaintiff's harassment,
  and deliberately stuck their heads underneath the sand in response
   thereto");  Chrapliwy v. Uniroyal, 458 F.Supp. 252, 261 (N.D. Ind. 1977)
  ("Without citing any authority, the Union submits that acquiescence
  by a union to an employer's unlawful employment practices is a valid
   defense in a Title VII action.  However, all authorities located by
  the court have reached the opposite conclusion.").

 Despite the Union's failure to acknowledge this authority, these courts
 recognize that a union cannot acquiesce in an employer's discriminatory
  conduct and expect to avoid liability.  Here too, Pipefitters should
 not escape its responsibilities under Title VII, as the Union clearly
 knew of the egregious discrimination and yet failed to act.

 Pipefitters' Conduct Went Beyond Acquiescence and Mere Passivity.
 
 As demonstrated above, a labor union is liable for intentionally
 acquiescing in a hostile working environment.  However, in this case
 this Court need not decide whether acquiescence alone is sufficient to
  support the district court's liability decision, because Pipefitters'
 conduct went well beyond passive acquiescence here.  Like the union
 in Goodman – which did more than acquiesce by selectively choosing to
  pursue only those workplace complaints that were not racially related –
 Pipefitter's conduct here constitutes more than "mere passivity."  See
 Goodman, 482 U.S. at 666.  See also Woods, 925 F.2d at 1201 ("Courts
  following Goodman have continued to recognize that an affirmative duty
 may exist . . . . But, as in Goodman, we need not rest our ruling on this
 ground.  The Union's acts constituted "more than mere passivity[.]").
  Indeed, Pipefitters did far more than "acquiesce[] in the creation of
 a hostile work environment at the Robbins site" through its "inaction"
 (Def. App. at 14 ¶ 72).

 More specifically, Pipefitters' failure to take timely and appropriate
  remedial action when it became aware of the hostile environment
 in October 1995 must be considered in the context of the union's
 unusual level of control over the working environment of its union
 members.<11>  Hahney, the union steward, was responsible for hiring
  pipefitters through the hiring hall, deciding who would be foremen for
 the project, laying out the work to be completed by the pipefitters,
 and determining who would be laid off.  (Def. App. at 7 ¶¶ 22-23, Tr. at
  417-18). In addition, Pipefitter business agent Toth's duties included
 negotiating contracts, handling any problems that would arise within
 his jurisdiction, and looking out for the working conditions on his
  projects to make sure that "everything was going all right."  (Tr. at
 505-06, 549, 568).  Thus, the Union controlled which pipefitters were
 hired and fired, what job assignments were to be completed, and the
 general working conditions of the union members at the employment site.
  In these respects, the Union was acting very much like an employer,
 and, like an employer, the Union should be held liable under Title VII
 for contributing to a racially hostile work environment. 

 Along with its control of the working environment, the Union had the
  clear ability to remedy the hostile work environment.  As found by the
 district court, Hahney "was hired to ensure that things ran smoothly.
 He had the ear of Foster Wheeler and the power to obtain redress for
  issues that affected the pipe fitters on the site."  (Def. App. at 18).
 And, business agent Toth independently ordered sexual graffiti he
 observed in the restrooms to be painted over.  (Def. App. at 11 ¶ 51;
 Tr. at 513-14).  Yet, the Union did nothing about the racial graffiti
  for approximately nine months until one of its members, Ferguson,
 complained about specific graffiti in July 1996.  Even then, the
 situation was not adequately resolved, and the Union even concedes that
 it did not do a good job in painting over the graffiti.  (Id. at 7 ¶ 24;
  14 ¶ 73; Tr. at 55-59, 193, 220-22, 239, 266, 820).  And, even after
 Ferguson's complaint, there was no attempt to remove the more general
 racial graffiti –  which remained until approximately November 1996.
  (Def. App. at 12 ¶ 52; 15 at ¶ 74; Tr. at 49, 55-56, 425).  Indeed,
 nowhere does the Union assert that it did not have the ability to remedy
 the situation if it had wanted to.  Rather, the Union simply felt that
  it was not in its job description to remove offensive graffiti of which
 it was aware.  See Tr. at 438 (in response to question as to why he did
 not get rid of racial graffiti that he saw, Hahney responded "It's not my
  job, sir"); Tr. at 438-39 (in response to question as to whether he could
 have had graffiti removed, Hahney stated "[i]f it would have been in my
 job description, I probably would have taken care of it every time.").  
  Finally, it cannot be ignored that it was Pipefitters' members who
 actively contributed to the racially hostile environment here.  As found
 by the district court, Caucasian pipefitters frequently made racial
  jokes about African Americans.  (Def. App. at 9 ¶ 34).  The testimony
 at trial showed that some pipefitter union members asked a Caucasian
 woman why she was "sitting with the nigger" during a lunch break.
 (Tr. at 597).  Further testimony revealed that pipefitter union members
  stated that they did not use a particular African-American employee
 for work on a project because "we don't use that black motherfucker."
 (Tr. at 597-99).  Because of the Union members' active contributions
  to the racial attitude at the site, then, the Union clearly did more
 here than passively "acquiesce" in the hostile environment created by
 Foster Wheeler.  Cf. Daniels v. Pipefitters' Ass'n Local Union No. 597,
  945 F.2d 906, 909 (7th Cir. 1991) (Pipefitters Local 597 found liable for
 intentional discrimination in hiring practices – African American union
 members at hiring hall were referred to as "'baboon[s],''porch monkeys,'
  'spear-chuckers,' 'ghetto assholes,' 'nigger,' and 'super nigger.'"). 
 The facts here are largely uncontroverted:  Pipefitters knew that a
 racially hostile work environment persisted at the Robbins Project;
  Pipefitters had the ability to remedy the situation; and Pipefitters'
 members actively contributed to the racially hostile situation.  Yet,
 Pipefitters chose to do nothing.  Based on these undisputed facts,
  Pipefitters has clearly done more than "passively" sit by while the
 employer violated its workers' rights with respect to Title VII –
 Pipefitters has violated its members' rights under the statute as well.
  In this respect, Pipefitter's heavy reliance on the Eighth Circuit's
 decision in Thorn v. Amalgamated Transit Union, 305 F.3d 826 (8th
 Cir. 2002), is misplaced.  In Thorn, the Eighth Circuit "agree[d] with
  the district court that [plaintiff] has only alleged non-actionable
 passive acquiescence by the Unions in the employer's allegedly unlawful
 failure to remedy sexual harassment."  Id. at 833 (emphasis added).<12>
  Like the union held liable under Title VII in Goodman, the Union
 here did much more than passively sit by while the employer created a
 hostile working environment.  The Union here had actual knowledge of the
 hostile environment, had significant control over the workplace as well
  as a demonstrated ability to remedy the situation, yet failed to act.
 For these reasons, the situation here is clearly distinguishable from
 that of Thorn, where the union was simply found to have passively
 acquiesced in the employer's conduct.  Id. at 832-833. 
  
 The only other appellate case relied upon by the Union, Anjelino v. The
 New York Times, 200 F.3d 73 (3d Cir. 1999), provides only a cursory
 discussion of a union's responsibilities with respect to Title VII.
  See id. at 95.  In Anjelino, the court held that a union was not liable
 for harassment experienced by mail room employees because the union
 members had failed to show that "the Union itself instigated or actively
  supported the discriminatory acts." Id.<13> Like the rationale in Thorn,
 then, the Anjelino decision is clearly based on the principle that a
 union cannot be held liable for mere passivity.  As shown above, there
  is far more than mere passivity in this case to support the district
 court's liability decision.<14>

 Moreover, both the Thorn and Anjelino decisions were based on an
 acquiescence liability theory; neither decision (nor any other appellate
  court decision) holds that an employer may discriminate on the basis
 of race when addressing workplace problems, as was clearly done here.
 Indeed, as set forth below, Pipefitters' conduct constituted a clear
  violation of its duties as articulated in the Supreme Court's decision
 in Goodman.

Pipefitters Discriminated in Selectively Choosing Not to Resolve Racial
Problems in the Workplace, Thereby Violating Title VII Under the  Goodman
 Rule.

 This Court should properly hold that a union may not acquiesce in an
 employer's discriminatory behavior – particularly here where there
 is more than mere union passivity.  However, at a minimum, this Court
  should affirm the district court's decision on the rationale set forth
 in Goodman. In Goodman, the Supreme Court held that a union may not
 discriminate on the basis of race when addressing workplace problems.
  482 U.S. at 669.  In that case, the unions involved did not hold "any
 racial animus against" African-American employees, or "denigrate" those
 workers in any way.  Id. at 668.  However, the unions selectively chose
  which complaints to consider – effectively pursuing only those complaints
 from union members that were not based on racial discrimination.
 Id. at 669.  

 In considering the discrimination claims of the union members, the
  Goodman Court held that the unions had violated Title VII and § 1981.
 Id.  The Court noted with approval that the district court had found the
 Union liable for violating section 703(c)(1) of Title VII, and stated
  that the "plain language of the statute supports this conclusion."
 Id. at 667.  The Court further held that unions may not "refuse to file
 any and all grievances presented by a black person on the ground that
  the employer looks with disfavor on and resents such grievances."<15>
 Thus, the Goodman decision stands for the proposition that a Union may
 not discriminate on the basis of race when addressing workplace problems.
  See id. at 667-69 (the "plain language" of section 703(c)(1) of Title
 VII prohibits unions from "discriminat[ing] on the basis of race by
 the way in which they represent[]" their members in the workplace).
 Under Title VII and Goodman, then, a Union cannot have a practice of
  remedying workplace problems generally, but then choose not to address
 racial issues that adversely affect union members.   This standard set
 forth by the Supreme Court in Goodman has been adopted by this Court as
  well as every other appellate court that has addressed the issue.  See,
 e.g., Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 998 (7th Cir. 2002)
 ("[a] union may not refuse to file race-based, disparate-treatment
  grievances solely because the union looks with disfavor on those
 types of claims or because they would be troublesome to process");
 Daniels v. Pipefitters' Ass'n Local Union 597, 945 F.2d 906, 915 (7th
  Cir. 1991) (refusal to refer African-American plaintiff for employment
 falls within prohibition set forth in Goodman); Thorn, 305 F.3d at
 832 (union organization can be held liable where it follows policy of
 rejecting disparate-treatment complaints); Johnson, 931 F.2d at 208
  (under Title VII, union may not refuse to pursue certain complaints);
 Woods, 925 F.2d at 1200 (same).

 As its primary holding, the district court below found that Pipefitters
 had violated its duties with respect to Goodman, and had failed promptly
  and effectively to address racial problems of which it was aware,
 while remedying other workplace problems.  As carefully set forth by
 the court:

Local 597 has a duty to report or otherwise seek to remedy a racially
 hostile work environment if its practice is to report or otherwise seek
to remedy workplace conditions and/or activities that adversely impact
members of the union, even if a union member has not filed a grievance
 or complaint with Local 597. . . .

EEOC has proven by a preponderance of the evidence that it was the
practice of Local 597 to deal with members' problems in the work place
in the absence of a grievance, and that, therefore it had a duty to take
 action to report or remedy the racially hostile work environment . . . .

Plaintiffs have proven by a preponderance of the evidence that Hahney,
Toth and Local 597 failed to take effective action to report or remedy
 the racially hostile work environment existing at the Robbins site.

(Def. App. at 23-24 ¶¶ 17-22).
 In its brief, the Union focuses almost exclusively on the district
 court's acknowledgment that a union may not acquiesce in an employer's
  discriminatory behavior – a correct but alternate holding of the district
 court.  In doing so, the Union provides only a cursory discussion of the
 district court's primary holding in this case – that the Union violated
  its duties with respect to the Supreme Court's decision in Goodman by
 taking affirmative steps to remedy some workplace problems without a
 grievance, but allowing the racially hostile environment to persist.
  Indeed, Pipefitters even acknowledges its duties with respect to
 Goodman,  (Def. Br. at 13, 28, 33), but argues that its general policy
 was to remedy workplace problems only upon receipt of a complaint.
 (Def. Br. at 36-40).
 
 Based on the district court's findings, however, there can be no serious
 contention that the Union has not violated Title VII by discriminating
 on the basis of race in its treatment of workplace problems.  To be
  sure, the court's conclusion that "it was the practice of Local 597
 to deal with members' problems in the work place in the absence of
 a grievance"<16> but that the Union "failed to take effective action
  to report or remedy the racially hostile work environment existing at
 the Robbins site" is all but compelled by the evidence in the record.
 (Def. App. at 23-24 ¶¶ 18, 22).  But at a minimum, this factual finding
  is not clearly erroneous.

 Despite the Union's overly-generalized argument that there was almost no
 evidence to support the district court's finding, (Def. Br. at 36-40),
 the evidence at trial showed that:
 Toth independently observed sexual graffiti of a vagina and a penis in
one of the portable toilets, and immediately ordered that it be removed
because it might be considered "a little offensive."  (Def. App. at 11 ¶
 51; Tr. at 513-14). 

Hahney indicated at trial that if he recognized a condition that
threatened the safety of other union members, he would have independently
taken steps to remedy the problem.  (Def. App. at 13 ¶ 61; Tr. at 439).
 
If Hahney became aware that the restrooms were dirty, he would have
acted on his own initiative to have them cleaned.  (Def. App. at 13 ¶
61; Tr. at 423, 489).<17>
     
Hahney sometimes acted on his own initiative when he saw something
 negatively affecting union members, and made sure that no one was
"hassled."  (Def. App. at 13 ¶ 61; Tr. at 421).

Toth's responsibilities included handling any problems that would arise at
the Robbins project, and he walked around the project on  approximately
 20 to 30 different occasions, making sure that "everything was going
all right."  (Tr. at 505-06, 549, 568).

 In response to these many examples of the Union affirmatively remedying
 workplace problems in the absence of a complaint, the Union points to
  no evidence of even a single incident where the Union had knowledge
 of a workplace problem but did nothing to correct it.  In fact, the
 evidence reveals only one such instance: the Union's failure to remedy
  the racially hostile working environment at the Robbins project.<18>
 Certainly, the numerous instances cited by the district court of the
 Union acting independently to remedy workplace problems more than support
  the court's factual finding that it was the practice of the Union to
 deal with members' problems in the absence of a complaint, and such a
 finding is not clearly erroneous.  (Def. App. at 23-24 ¶¶ 18, 22).   
  Indeed, the Union not only failed to act here in the absence of a
 complaint, but, as properly found by the district court, even if the
 African-American Union members had filed a complaint, it would have
 proven futile.  (Def. App. at 18).  See also Tr. at 170-74, 222-23.
  As the district court explained:
To complain about the graffiti would be to acknowledge the power of its
authors to inflict harm.  If this were the first incident of racially
offensive conduct on a work site, perhaps the hope of remedial action
 would have outweighed the sting of acknowledgment: akin to saying uncle if
that will result in relief.  But the African American pipe fitters knew
(or suspected, based on experience) that complaining would not produce
 relief, so they said nothing. 
 
(Def. App. at 18).  The futility of complaining was further demonstrated
by the Union's treatment of Ferguson's complaint about the graffiti in
July 1996.  The Union did not effectively handle this complaint, and
 racial graffiti at the Robbins project remained even after Ferguson was
laid off from the project in August 1996.  (Def. App. at 7 ¶ 24, 12 ¶
53-55, 14 ¶ 73; Tr. at 55-56, 193, 239, 266, 820). 

 Although the Union suggests that the only type of workplace problem
  that it would remedy without a complaint was safety-related concerns,
 (Def. Br. at 36-38), the trial evidence and district court findings
 set forth above reveal far more instances of where the Union would
 independently resolve worker problems without a complaint.  By ignoring
  the weight of this evidence, the Union attempts to mischaracterize the
 district court's finding that it was the "practice" of Pipefitters to
 address workplace problems as a finding that the Union would address
  only safety concerns without a complaint.  The district court's decision
 is much broader, however, and is well substantiated by the evidence
 presented at trial.  

 To be sure, taken alone, each individual incident of the Union acting
  independently to address workplace problems might not be enough to
 support the court's finding that the Union had a "practice" of dealing
 with "members' problems in the work place in the absence of a grievance."
  (Def. App. at 23 ¶ 18).  When viewed in the aggregate, however, the many
 instances of the Union acting without a complaint support the finding
 that it was the Union's practice to do so.  Certainly, such a finding
  is well supported by the record and not clearly erroneous.  
 Thus, the Union violated Title VII by discriminating on the basis of
 race in its treatment of workplace problems.  The Union took immediate
 action when it became aware of sexual graffiti in the port-a-johns,<19>
  independently resolved safety issues, maintained the cleanliness of
 the restrooms, made certain that no union members were "hassled," and
 made sure that "everything was going all right" with Union members on
 a regular basis.  However, despite knowledge by the Union steward and
  Union business agent that there was racially hostile graffiti in the
 port-a-johns and a racially hostile environment at the Robbins project,
 the Union took no action for almost nine months – and even then its
  response was wholly inadequate. 

 This disparate treatment of workplace problems constitutes a clear
 violation of Title VII under the Supreme Court's decision in Goodman,
 which prohibits a union from "discriminat[ing] on the basis of race in
  dealing with their members' workplace problems."  (Def. Br. at 33).
 See also Goodman, 482 U.S. at 667-69.  The plain language of Title
 VII dictates that a Union may not "discriminate[] on the basis of race
  by the way in which they represent[]" their members in the workplace.
 Goodman, 482 U.S. at 667.  As shown above, the Union's conduct certainly
 runs afoul of Title VII here.

CONCLUSION

 It is undisputed that the Union knew that a racially hostile work
  environment existed at the Robbins Project and had the ability to remedy
 the situation –  yet chose to do nothing.  Under the prevailing view of
 the controlling legal standard, based on these facts Pipefitters was
  properly held liable by the district court for violating its members'
 rights under Title VII.

 In addition, the district court's liability judgment must be affirmed
 because the Union discriminated on the basis of race in its treatment
  of workplace problems, thereby violating Title VII under the principle
 articulated by the Supreme Court in Goodman.  The Union took immediate
 action when it became aware of sexual graffiti in the port-a-johns,
  independently resolved safety issues, maintained the cleanliness of
 the restrooms, made certain that no Union members were "hassled," and
 made sure that "everything was going all right" with Union members
 on a regular basis.  However, the Union did not take prompt and
  effective remedial action despite  knowledge by the Union steward and
 Union business agent that there was racially hostile graffiti in the
 port-a-johns and a racially hostile environment at the Robbins project.
  The plain and unfortunate truth of this case is that the Union easily
 could have corrected the hostile working environment if it had chosen to
 do so.  But the Union just did not see it as part of its job to do so.
  The district court properly rewrote the Union's job description,
 recognizing that while "civil laws may not truly change what is in a
 person's heart," "experience has shown that the law can change conduct."
  Def. App. at 18.  We respectfully request that this Court affirm the
 decision of the district court.


       Respectfully submitted,  

       Nicholas M. Inzeo
       Acting Deputy General Counsel      
          
       Philip B. Sklover   
       Associate General Counsel 
            
       Carolyn L. Wheeler  
       Assistant General Counsel 

       ________________________ 
       Joseph A. Seiner
        Attorney
       Equal Employment
          Opportunity Commission
       Office of General Counsel
       1801 L Street, N.W., Room 7020
       Washington, D.C. 20507
       (202) 663-4772

 CERTIFICATE OF COMPLIANCE

 I certify that this brief complies with the type-volume limitation set
 forth in Fed. R. App. P. 32(a)(7)(B).  This brief contains 9885 words.
 See Fed. R. App. P. 32(a)(7)(B)(i).  The brief was prepared using the
  WordPerfect 9 processing system, in 14-point proportionally spaced type
 for text and 14-point type for footnotes.  See Fed. R. App. P. 32(a)(5).
         

        _____________________
        Joseph A. Seiner
    


December 30, 2002


CERTIFICATE OF SERVICE   

 I, Joseph A. Seiner, hereby certify that on the 30th day of December,
 2002, I caused: (1) copies of the attached brief, and (2) a diskette
  containing the brief in an Adobe Acrobat PDF format, to be sent via
 overnight mail to:


Clerk of Court      
U.S. Court of Appeals      
  for the Seventh Circuit                
219 S. Dearborn Street     
 Room 2722       
Chicago, IL 60604              
           
Dennis R. Johnson              
Johnson & Smetters, LLC      
208 S. LaSalle Street 
Suite 1727             
Chicago, IL 60604         
 

Catherine Bremer 
Bremer & Warner 
218 N. Jefferson
Chicago, IL 60661

 I further certify that on the 30th day of December, 2002, I caused (1)
 copies of the attached brief, and (2) a diskette containing the brief in an
  Adobe Acrobat PDF format, to be sent via messenger (for delivery on December 31, 2002)
 to:

Andrew Roth 
Laurence Gold
Bredhoff & Kaiser, PLLC
805 15th Street, N.W.
Suite 1000
Washington, D.C.  20005
     

       __________________________
       Joseph A. Seiner
       EEOC / Office of General Counsel
       1801 L Street, N.W., Room 7020
       Washington, D.C. 20507
       (202) 663-4772

 
December 30, 2002 

1  The error in Pipefitters' jurisdictional statement
is minor – Pipefitters simply omitted that the district court also had
jurisdiction in this case pursuant to 28 U.S.C. §§ 1337, 1343, 1345
 and 451; and that the complaint in this matter was brought pursuant to
section 706(f) of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e-5(f) (Title VII).  Pursuant to Seventh Circuit Rule
 28(b), however, the Commission sets forth a complete jurisdictional
summary here.

2  The Commission agrees that for purposes of the issues raised in
this appeal, the standards under 42 U.S.C. § 1981 are the same as
 under Title VII.  See Defendant's Brief at 30-31; Thomas v. Denny's,
111 F.3d 1506, 1513 (10th Cir. 1997) ("In a case under Title VII and §
1981 arising out of the same facts, the commonality of factual issues
 between the § 1981 and Title VII claims is nearly all-encompassing. The
elements of each cause of action have been construed as identical, and a
jury verdict on the issue of liability . . . . under § 1981 is normally
 conclusive on the issue of liability in a parallel action under Title
VII.") (citations omitted).

3 Citations to the Appendix refer to the materials attached to the
Defendant's opening brief.

4 Pipefitters does not challenge the scope of the monetary or injunctive
 relief awarded by the district court in its appeal.

5 Pipefitters  no longer disputes that there was a racially hostile
working environment, and does not set forth facts related to the hostile
environment in its brief.  The Commission presents those facts here,
 however, as they are clearly relevant to the district court's decision
in this matter, as well as the issues on appeal.

6  As the district court properly found, the African-American pipefitters
did not complain earlier because filing such a complaint would have
 proven futile.  (Def. App. at 18).

7 The only substantive difference between Title VII section 703(a)(1)
and section 703(c)(1) is that in section 703(a)(1) the phrase "otherwise
to discriminate" is limited  to the "compensation, terms, conditions or
 privileges of employment."  Thus, section 703(c)(1) must be construed at
least as broadly as section 703(a)(1).  See Dowd v. United Steelworkers
of America, 253 F.3d 1093, 1102 (8th Cir. 2001) (plain language of Title
 VII suggests that unions can be liable for hostile work environment);
Woods v. Graphic Communications, 925 F.2d 1195, 1200 (9th Cir. 1991)
(Title VII prohibits discrimination "to the same extent" for both unions
 and employers) (citation and quotation omitted).

8 Some courts have also found that the Union's duty to address complaints
of harassment arises under section 703(c)(3) of Title VII because a
union may not "cause or attempt to cause an employer to discriminate
 against an individual."  See, e.g., Marquart v. Lodge 837, 26 F.3d 842,
853 (8th Cir. 1994).

9 The Union's concern that Title VII might place it in the "untenable
position" of having to choose sides between those union members doing the
 harassing and the union members who are victimized, (Def. Br. at 25 n.8),
is misplaced here, because there is no dispute in this case about the
existence and nature of the racially hostile environment created by some
 union members. Moreover, even if there were factual disputes requiring
resolution, unions are frequently placed in the position of having to
represent adequately the interests of conflicting members – as is done
 when one member files a grievance against another member on any issue,
including discrimination.  As recognized by the case cited by defendant,
Thorn v. Amalgamated Transit Union, 305 F.3d 826 (8th Cir. 2002), when
 a company "investigates a sexual harassment claim by one union member
against another, the union has a statutory duty to fairly represent
both in their disciplinary dealings with the employer."  Id. at 833.
Accord Hellums v. Quaker Oats Co., 760 F.2d 202, 205 (8th Cir. 1985)
 (where altercation between union members presented "conflicting claims"
by "different union members," union properly "submit[ted] each of the
grievances in a neutral fashion, permit[ted] the parties to present their
 own stories at the arbitration hearing, and [left] it to the arbitrator
to make the necessary credibility determinations"); Smith v. Hussman,
619 F.2d 1229, 1238-41 (8th Cir. 1980) (where members have conflicting
 interests "union must fairly represent both groups of employees and may
take a position in favor of one group only on the basis of an informed,
reasoned judgment").

10 Indeed, the Union does not appear to contest the district court's
 finding that it intentionally acquiesced in the egregious working
conditions present at the Robbins Project.  The Union argues only that
such acquiescence does not violate Title VII.  See Def. Br. at 19-30.

11 As shown above, Title VII prohibits discrimination "to the same
 extent" for both unions and employers.  See Woods, 925 F.2d at 1200.
Under Title VII, an employer "may be held responsible for coworker on
coworker harassment" if the employer "knew or should have known about
[the coworker]'s acts of harassment and fails to take appropriate remedial
 action." Berry, 260 F.3d at 810.   Here, the Union knew or should have
known of the discriminatory acts of its members, but failed to take
any remedial action, and is therefore liable under Title VII as well.
See also Marquart v. Lodge 837, 26 F.3d 842, 853 (8th Cir. 1994)
 (suggesting that same test for harassment applies to both unions and
employers).

12 The Union's extensive reliance on the dissenting opinion in Goodman is
equally inappropriate, as the Union's actions in this case clearly run
 afoul of the Goodman Court's interpretation of Title VII.  See Goodman,
482 U.S. at 667-669.  See also discussion in Section III, infra.
Obviously, the dissenting opinion is not binding precedent here, while
 the Court's opinion is controlling.

13  This was an alternate holding of the court, which also found that the
case was properly dismissed because the plaintiffs had not shown that they
had completely exhausted the internal grievance procedures of the union.
 Id. at 96.

14  To the extent that Thorn and Anjelino hold that there is no
affirmative duty on the part of a union to remedy a hostile working
environment, the Commission would argue that these decisions are
 simply erroneous and against the overwhelming weight of authority.
See Section I.B., supra.  Moreover, neither court discussed in any
detail the statutory responsibility of a union under Section 703(c)(1)
of Title VII not to permit a racially hostile work environment  – the
 likely reason for these courts' faulty analysis.  

15  Nothing in the Goodman decision limits that holding to grievances.
As the Union properly concedes, Goodman represents a broader duty "not
to discriminate on the basis of race in dealing with their members'
 workplace problems."  (Def. Br. at 28, 32-33).  See also Def. Br. at 13
(noting that Goodman holds that "unions do have a negative duty under
Title VII § 703(c)(1) to deal with their members' workplace problems on
 a non-discriminatory basis and not on a basis that distinguishes between
non-race-based problems as a class and race-based problems by dealing
with the former on their merits and refusing to deal with the latter no
 matter what their merits").

16  The Union twists the district court's finding that Hahney himself
"sometimes" acted in the absence of a complaint into a finding that
the Union as a whole only sometimes acted.  (Def. Br. at 33).  But as
 quoted above, the district court's finding with respect to the Union as
an entity was that it had a "practice" of remedying workplace problems
without a complaint.  (Def. App. at 23-24 ¶¶ 18, 22). 

17  The Union maintains that Hahney testified that he would only have the
 restrooms cleaned if someone complained.  (Def. Br. at 39).  However,
Hahney testified that he would act independently of a complaint to
assure the cleanliness of the restrooms.  See Tr. at 423 (in response
to the question of what he would do if the port-a-johns were filthy,
 Hahney responded in part, "I would probably recommend to have the truck
come out and clean it"); Tr. at 489 (Hahney testified that he could
have filthy urinals cleaned without a complaint); Def. App. at 13 ¶ 61
(district court found that among his duties, Hahney was "responsible
 for seeing that the pipe fitters had proper facilities").

18 Interestingly, the Union goes to great lengths in its brief to
show that Hahney did not act on his own initiative to remedy any racial
graffiti – including graffiti targeted at his own Caucasian ethnic group.
 (Def. Br. at 39-40) (quoting Hahney's trial testimony, "I seen honky
on there.  It didn't offend me either.").  Rather than helping the
Union's cause, however, this example further demonstrates the Union's
 complete disregard for the racially hostile environment that existed at
the project, regardless of which ethnic group the graffiti targeted.

19 The Union argues that the district court questioned the importance of
 this evidence in the Commission's closing remarks.  (Def. Br. at 42).
However, the Union fails to acknowledge that the Commission's attorney
adequately explained the importance of the incident in response to
 this question, (Tr. at 833-35), and that the district court observed the
significance of this event by including it in one of its findings of fact.
(Def. App. at 11 ¶ 51). 

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