151 F.R.D. 664 (D.Kan. 1993), 92-4297-SAC, Stambaugh v. Kansas Dept. of Corrections

Docket Nº92-4297-SAC.
Citation151 F.R.D. 664
Opinion JudgeCROW, District Judge.
Party NameJacqueline C. STAMBAUGH, et al., Plaintiffs, v. KANSAS DEPARTMENT OF CORRECTIONS, et al., Defendants.
AttorneyWilliam S. Robbins, Jr.,Jon A. Blongewicz, Fairchild, Stang, Beal, Barber & Sanders, Kansas City, MO, for plaintiffs. Timothy G. Madden, Kansas Dept. of Corrections, Topeka, KS, for defendants.
Case DateOctober 08, 1993
CourtUnited States District Courts, 10th Circuit, District of Kansas

Page 664

151 F.R.D. 664 (D.Kan. 1993)

Jacqueline C. STAMBAUGH, et al., Plaintiffs,

v.

KANSAS DEPARTMENT OF CORRECTIONS, et al., Defendants.

No. 92-4297-SAC.

United States District Court, D. Kansas.

October 8, 1993

Page 665

[Copyrighted Material Omitted]

Page 666

Employees of state prison system brought suit claiming sexual discrimination. Motion was made to certify class. The District Court, Crow, J., held that requirements for certification were not complied with.

Motion denied.

Page 667

William S. Robbins, Jr.,Jon A. Blongewicz, Fairchild, Stang, Beal, Barber & Sanders, Kansas City, MO, for plaintiffs.

Timothy G. Madden, Kansas Dept. of Corrections, Topeka, KS, for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the plaintiffs' motion to certify (Dk. 11) their class action as maintainable pursuant to Rule 23(b)(2) or (b)(3) of the Federal Rules of Civil Procedure. The defendants oppose the plaintiffs' motion on several grounds. On the plaintiffs' request, the court conducted an evidentiary hearing on this motion on September 21 and 22, 1993.

I. BACKGROUND

The plaintiffs are female employees with the Department of Corrections (" DOC" ). When they filed their underlying charges of discrimination in April and May of 1991 with the Equal Employment Opportunity Commission (" EEOC" ) and the Kansas Human Rights Commission, each of them worked at the Ellsworth Correctional Facility. The plaintiff Jacqueline Stambaugh was a Correctional Counselor II; the plaintiff Linda Hoag was an Office Specialist; the plaintiff Susan Lenoir was a Correctional Specialist III; the plaintiff Carol Strutt was a Correctional Counselor I; and the plaintiff Sharon Talebi-Shull was a Correctional Counselor II. In their underlying charges, each of the plaintiffs alleged that she had suffered discrimination on the basis of sex while working at the Ellsworth Correctional Facility.

In their complaint, the plaintiffs allege that the DOC maintains a pattern and practice of discrimination in hiring, promoting and transferring females; in retaliating against female employees who voice opposition to perceived sex discrimination; and in condoning or promoting a discriminatory work environment that constitutes sexual harassment. They allege such discrimination violates Title VII, 42 U.S.C. § 2000e et seq., and the Kansas Acts Against Discrimination (" KAAD" ), K.S.A. 44-1001 et seq.

The plaintiffs' class action complaint and motion for certification request a class covering all of their claims regarding promotion, hiring, transfers, retaliation, and sexual harassment. At the hearing, the plaintiffs narrowed their proposed class to those female employees of DOC on or anytime after March 4, 1985, who have been denied or will be denied promotions under the selection process required by DOC's Internal Management Policy and Procedure (IMPP) or who were removed or will be removed as Equal Employment Opportunity (" EEO" ) representatives. The plaintiffs also clarified at the hearing that their class action claims are pursued principally on a disparate impact theory while reserving their right to introduce evidence of a pattern or practice of discrimination occurring throughout the DOC's facilities. As for the employment policy having a discriminatory impact, the plaintiffs point to the IMPPs that purportedly give the wardens, as the appointing authorities, unsupervised discretion to select whomever they want for a particular promotion. The court will focus on the allegations, evidence, and issues pertinent to these promotion and retaliation claims on which class certification is sought.

II. TITLE VII THEORIES

Superimposed on a court's application of Rule 23's requirements to an employment discrimination class action is the legal framework governing Title VII theories for disparate treatment and disparate impact. See Stastny v. Southern Bell Tel. & Tel. Co., 628 F.2d 267, 273 (4th Cir.1980). A court cannot assess the requirements of commonality, typicality and adequacy of representation are met without examining the specific factual claims and legal theories being advanced by the individual plaintiffs and the class. " Central to both theories of liability where class-wide sex (as other) discrimination is alleged

Page 668

is the existence of an identifiable employment pattern, practice or policy that demonstrably affects all members of a class in substantially, if not completely, comparable ways." Id. In fact, the inquiry into commonality keys on the pattern and practice element shared by both substantive theories. 628 F.2d at 274. Accordingly, a court must keep in mind how the pattern and practice allegations function under the respective Title VII theories.

Class actions pursued under a disparate treatment theory rely on allegations and proof that discrimination in the defendant company was its " standard operating procedure-the regular rather than the unusual practice." International Broth. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977). The class must show " more than the mere occurrence of isolated or ‘ accidental’ or sporadic discriminatory acts." Id.; see Pitre v. Western Elec. Co., Inc., 843 F.2d 1262, 1267 (10th Cir.1988). Statistical evidence generally plays a major role in proving a pattern and practice. Wagner v. Taylor, 836 F.2d 578, 592 (D.C.Cir.1987). Statistics, however, are not required and do not preclude evidence of individual discriminatory acts. See Pitre, 843 F.2d at 1267; Wagner, 836 F.2d at 592. The class representatives often offer both kinds of evidence to prove their class disparate treatment claims. Wagner, 836 F.2d at 592.

Class actions pursued under a disparate impact theory have a different focus. Unlike disparate treatment, the disparate impact theory does not require the plaintiff to prove discriminatory motive or intent. International Broth. of Teamsters v. United States, 431 U.S. 324, 336 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977). This theory addresses those " employment practices [and policies] that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Id. " [T]he necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination." Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987, 108 S.Ct. 2777, 2785, 101 L.Ed.2d 827 (1988). " To establish a prima facie case of disparate impact discrimination, plaintiffs must show that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group." Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1242 (10th Cir.1991). The plaintiffs may look to statistics to show the disparate impact. Id. at 1243. " ‘ [D]iscriminatory impact cannot be established where you have just one isolated decision.’ " Reidt v. County of Trempealeau, 975 F.2d 1336, 1341 (7th Cir.1992) (quoting Coe v. Yellow Freight System, Inc., 646 F.2d 444, 451 (10th Cir.1981)).

III. FACTUAL BASIS TO CLASS CLAIMS

A. Promotions

In counts one and two of their complaint, the plaintiffs allege a pattern and practice by the defendants of discrimination in promotions. The complaint refers to two instances where one or more of them applied for a promotion at the Ellsworth Correctional Facility and were not selected and the promotion was given to a male employee having less qualifications. Theses counts also contain allegations that the plaintiff Stambaugh applied for a position for which the interview board had as a member a male employee against whom she had filed an EEO complaint. The warden denied her request to have this male employee removed from the interview board. Counts one and two include no allegations that the IMPP on promotions has a disparate impact against women. Instead, the plaintiffs allege at ¶ 49 that the defendants' discriminatory actions were intentional.

The plaintiffs testified at the hearing about these three promotion opportunities. In large part, their testimony was self-serving opinions and insubstantial accusations of unfairness. On the Correction Manager I or Major position given to Robert Murrell, the plaintiffs testified that the selection process was a sham, because Warden Harrison had decided in advance to promote Murrell and

Page 669

then served on the interview board, chose one of Murrell's neighbors to serve on the interview board, prepared the interview questions, and waived the educational requirement for Murrell. There was no evidence presented that Warden Harrison improperly influenced the interview board, that Harrison did not pick the applicant ranked first by the interview board, or that Harrison did not consider the interview board's recommendations and comments in making his selection. In the plaintiffs' judgement, it is unfair and constitutes discrimination if the warden has any opinion on who is the best applicant before hearing from the interview board. On the Correction Counselor II position, the plaintiffs offered testimony that this promotion was denied to the plaintiff Strutt, who held a Correction Counselor I position at the time, and was given to Robert Stefek, who had no experience as a correction counselor and had served only as the chaplain. There was also evidence that, in response to chiding from the plaintiff Talebi-Shull on why he could not even do the work expected of a Correction Counselor I, Stefek admitted his promotion was due to the " good old boys network." Again, there was no evidence that the interview...

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17 practice notes
  • 164 F.R.D. 529 (D.Kan. 1995), 88-2202-EEO, Commander Properties Corp. v. Beech Aircraft Corp.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • December 5, 1995
    ...of all members is impracticable." " ‘ Impracticable does not mean impossible.’ " Stambaugh v. Kansas Dept. of Corrections, 151 F.R.D. 664, 673 (D.Kan.1993) (quoting Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993)). To obtain certification, Commander is not required to pro......
  • 164 F.R.D. 529 (D.Kan. 1995), 88-2202-EEO, Commander Properties Corp. v. Beech Aircraft Corp.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • December 5, 1995
    ...of all members is impracticable." " ‘ Impracticable does not mean impossible.’ " Stambaugh v. Kansas Dept. of Corrections, 151 F.R.D. 664, 673 (D.Kan.1993) (quoting Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993)). To obtain certification, Commander is not required to pro......
  • 167 F.R.D. 147 (D.Kan. 1996), 93-2366-EEO, Zapata v. IBP, Inc.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • May 15, 1996
    ...consider the range of proof necessary to maintain the allegations of class-wide discrimination. Stambaugh v. Kansas Dept. of Corrections, 151 F.R.D. 664 (D.Kan.1993). See also Smith, 124 F.R.D. at 674 (" the court often must, to some extent, analyze the elements of the claims and defen......
  • 222 F.R.D. 505 (D.N.M. 2004), Civ. 01-0531 LH/WDS-ACE, Harrington v. City of Albuquerque
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • June 30, 2004
    ...or identifiable class exists and that the class representatives are members of the class." Stambaugh v. Kansas Dep't of Corrections, 151 F.R.D. 664, 671 The putative class in this case comprises " all City employees represented by Local 624 who are or were not members, at some tim......
  • Request a trial to view additional results
17 cases
  • 164 F.R.D. 529 (D.Kan. 1995), 88-2202-EEO, Commander Properties Corp. v. Beech Aircraft Corp.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • December 5, 1995
    ...of all members is impracticable." " ‘ Impracticable does not mean impossible.’ " Stambaugh v. Kansas Dept. of Corrections, 151 F.R.D. 664, 673 (D.Kan.1993) (quoting Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993)). To obtain certification, Commander is not required to pro......
  • 164 F.R.D. 529 (D.Kan. 1995), 88-2202-EEO, Commander Properties Corp. v. Beech Aircraft Corp.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • December 5, 1995
    ...of all members is impracticable." " ‘ Impracticable does not mean impossible.’ " Stambaugh v. Kansas Dept. of Corrections, 151 F.R.D. 664, 673 (D.Kan.1993) (quoting Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993)). To obtain certification, Commander is not required to pro......
  • 167 F.R.D. 147 (D.Kan. 1996), 93-2366-EEO, Zapata v. IBP, Inc.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • May 15, 1996
    ...consider the range of proof necessary to maintain the allegations of class-wide discrimination. Stambaugh v. Kansas Dept. of Corrections, 151 F.R.D. 664 (D.Kan.1993). See also Smith, 124 F.R.D. at 674 (" the court often must, to some extent, analyze the elements of the claims and defen......
  • 222 F.R.D. 505 (D.N.M. 2004), Civ. 01-0531 LH/WDS-ACE, Harrington v. City of Albuquerque
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • June 30, 2004
    ...or identifiable class exists and that the class representatives are members of the class." Stambaugh v. Kansas Dep't of Corrections, 151 F.R.D. 664, 671 The putative class in this case comprises " all City employees represented by Local 624 who are or were not members, at some tim......
  • Request a trial to view additional results