Harper v. Mayor and City Council of Baltimore

• Citation: 359 F. Supp. 1187
• Decision Date: 02 May 1973
• Docket Number: Civ. No. 71-1352.
• Parties: Louis R. HARPER, Jr., et al., Plaintiffs, v. MAYOR AND CITY COUNCIL OF BALTIMORE, a municipal corporation, et al., Defendants, and Patrick A. McCarthy et al., Defendants and Intervening Defendants, and William Gregory Sheffield et al., Intervening Defendants.
• Court: U.S. District Court — District of Maryland

359 F. Supp. 1187

Louis R. HARPER, Jr., et al., Plaintiffs, v. MAYOR AND CITY COUNCIL OF BALTIMORE, a municipal corporation, et al., Defendants and Patrick A. McCarthy et al., Defendants and Intervening Defendants and William Gregory Sheffield et al., Intervening Defendants.

Civ. No. 71-1352.

United States District Court, D. Maryland.

May 2, 1973.

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Kenneth L. Johnson, Baltimore, Md., Jeffry A. Mintz, New York City, for plaintiffs.

Samuel M. Campanaro, H. Thomas Howell, Richard T. Sampson, Baltimore, Md., for intervenors.

George L. Russell, Jr., A. Douglas Owens, Gerald S. Klein, Baltimore, Md., for defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH H. YOUNG, District Judge.

Four black employees of the Baltimore City Fire Department have brought suit individually and as representatives of all similarly situated and affected persons, seeking injunctive and declaratory relief from patterns and practices of racial discrimination allegedly employed by the defendants, Mayor and City Council of Baltimore, members of the Board of Fire Commissioners and Civil Service Commission. Twenty-three white firemen have intervened as defendants.

By order of October 20, 1972, the Court certified this suit as a class action on behalf of all black employees of the Baltimore City Fire Department, all black former employees and all potential black employees and applicants. The actions of defendants on which the complaint is based, if proven, would make injunctive or declaratory relief appropriate to all such individuals. Rule 23(b)(2), Federal Rules of Civil Procedure.¹

Jurisdiction is founded upon 28 U.S.C. § 1343(3), which confers on this Court, without regard to the amount in controversy, jurisdiction of any action to redress the deprivation under color of any state law or regulation, of any right, privilege or immunity secured by the Constitution, or by any federal civil rights statute. Plaintiffs' complaint charging racially discriminatory employment practices properly invokes such jurisdiction by stating a claim for relief under 42 U.S.C. §§ 1981, 1983 and 1988, 28 U.S.C. § 2201 and the Thirteenth and Fourteenth Amendments. Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971); Bennett v. Gravelle, 323 F.Supp. 203 (D.Md.1971). Venue is proper in this District. 28 U. S.C. § 1391.

Plaintiffs' amended complaint sets out numerous specific grievances. They concern overt discrimination against the plaintiff class through a long-standing refusal to hire any blacks to work in the Fire Department and through segregation and harassment after they were hired. Additionally they allege discrimination against plaintiffs in more covert ways, including maintenance of hiring procedures designed to minimize entry of blacks into the Department and promotion procedures designed to hinder the progress of those blacks who do enter the Department. The complaint places more than the intentions of defendants in issue. Plaintiffs are entitled to treatment by this government employer free from discrimination of any sort. The Court must evaluate the position of blacks in the Department and determine whether responsibility for any disadvantaged position can be laid to defendants. Carter v. Gallagher, supra; Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

Black employees in the Department do not comprise he same percentage of the Department as they do of the City. A survey by the Fire Department shortly after suit was filed disclosed that only 13.7% of the Department employees were black,² and a survey taken just before trial commenced disclosed that the percentage rose imperceptibly in the year that this action was pending.³ The percentage of blacks is even lower in the officer ranks. By contrast, the census figures indicate that in 1970 47% of the residents of the City of Baltimore were black. Intervenors contend that, since the Fire Department is not limited in its hiring to City residents, more appropriate figures for comparison are the racial percentages of the Baltimore Standard Metropolitan Statistical Area. Blacks comprised slightly less than 24% of that population in 1970.

If there were significance to the community-department comparison alone, it could not be doubted that plaintiffs have made a dramatic showing. For though new firefighters can reside anywhere within 30 miles of the City, the record shows that over two-thirds of the applicants come from the City itself.⁴ Therefore, to accurately reflect the racial composition of the actual hiring area, the black percentage of the Department would have to be closer to 47% than 24%. It is 14%. But dramatic and frustrating though it may be, this discrepancy does not prove a violation of the Civil Rights Acts, as plaintiffs contend. It does not evidence that the defendants maintained practices or procedures which caused the statistical discrepancy. And most importantly, it gives no clue as to where the problem of disparate treatment might lie.⁵

I.

Black entrance into the Baltimore City Fire Department is a recent story. Blacks were for years totally excluded from Fire Department employment, and the years after their initial entry were marked by segregation, ostracism and harassment.

When blacks were first admitted to the Department in 1953,⁶ it was only at the behest of a local civil rights organization. Until 1953, the Board of Fire Commissioners (fire board) had simply refused to appoint black applicants (whose names were conveniently designated in red ink by the Civil Service Commission on the list of eligible applicants.)

As can be imagined, those people who countenanced and perhaps encouraged the exclusion of blacks from the Department were not willing to accept black firemen as equals once they entered. The record in this case is replete with testimony of individual firemen to widespread segregation of firehouse facilities and to an atmosphere of harassment and ostracism. One witness called by defendants, a Battalion Chief in 1953 and thus in a position to observe conditions in many of the firehouses, testified that, though segregation did not occur in all of the firehouses, it did occur in most. The fire board caused the removal of "Reserved" signs in 1956, but the segregation which the signs had signaled continued thereafter, though perhaps not on the same scale. In some houses, the segregation that persisted was tacit, and individual blacks who defied the house policy and used "white" facilities sometimes escaped sanctions. In other houses, segregation was practiced openly, as when blacks reporting for temporary duty at a segregated house were shuffled off to another because the "black bed" was occupied. This situation persisted in more and more isolated instances until the late 1960's. During the period of the worst racial segregation, blacks were made the butt of house pranks to a disproportionate degree and were frequently ostracized from quasi-official house clubs.

In the situation just described, it is not hard to imagine that it was difficult for black firemen to carry on in the Department or work their way to higher positions. Indeed, some of the harassment was directly connected with ability to attain promotions on an equal basis,⁷ causing blacks to leave the Department in far greater proportions than whites during the 1950's.⁸

Defendants and intervenors make much of the fact that no causal relation between segregation, harassment, ostracism and heightened attrition rates has been shown.⁹ But a psychiatrist called by defendants conceded that one natural reaction to such treatment would be to leave the Department. And the Court does not need statistics or psychiatric testimony to draw a conclusion that is consistent with everything we know of human nature â blacks were treated unfairly and many of them left the Department for that reason. One witness, an ex-employee and a prominent member of the community, testified to having left the Department for just that reason. His description of the frustrations and cruelties of racial discrimination was both moving and convincing. And he left in 1964.

Responsibility for each of these instances of discrimination rests squarely with the defendants. It was the City of Baltimore which permitted the collusion of the Board of Fire Commissioners and the Civil Service Commission which resulted in black exclusion from the Fire Department prior to 1953. It was the fire board, appointed by the Mayor of Baltimore and responsible under the City charter for Fire Department affairs¹⁰ which condoned segregation in the use of Fire Department facilities and victimization of blacks in many forms in fire house affairs.¹¹ It was the City and the Board which failed to take any effective corrective action throughout the 1950's when the link between discriminatory treatment and high attrition of black firemen should have signaled the urgent need for such action. The defendants, by what they did and, charged with the responsibility to act, by what they did not do, deprived the plaintiffs of the equal protection of the laws guaranteed by the Fourteenth Amendment and violated 42 U.S.C. § 1981 and § 1983. Carter v. Gallagher, supra; Allen v. City of Mobile, 331 F. Supp. 1134 (S.D.Ala.1971) aff'd 466 F. 2d 122 (5th Cir. 1972).

Those defendants should not be heard to claim laches, or limitations, since the discriminatory treatment, of which the pre-1953 exclusion was only one part, continued well into the period covered by the statute.¹² While it is sufficient for relief that the effects of past practices have continued within the statutory period,¹³ it should be noted that the practices here complained of themselves are not so dated as to be without the reach of Section 1983.

II.

As representatives of all potential black employees and...