Bennett v. Gravelle

• Decision Date: 19 January 1971
• Docket Number: Civ. A. No. 70-534-N.
• Citation: 323 F. Supp. 203
• Parties: James B. BENNETT et al., Plaintiffs, and Carl A. Brown et al., Intervening Plaintiffs, v. Louis A. GRAVELLE, individually and in his capacity as Chairman (now Member) of the Washington Suburban Sanitary Commission, Salvatore Barranca, individually and in his capacity as Vice-Chairman (now Chairman) of the Washington Suburban Sanitary Commission, Peter R. Bozick, individually and in his capacity as a Member of the Washington Suburban Sanitary Commission, Carter C. Hubbel, Jr., individually and in his capacity as a Member of the Washington Suburban Sanitary Commission, John J. McBurney, individually and in his capacity as a Member of the Washington Suburban Sanitary Commission, George W. McRory, individually and in his capacity as a Member of the Washington Suburban Sanitary Commission, Defendants.
• Court: U.S. District Court — District of Maryland

323 F. Supp. 203

James B. BENNETT et al., Plaintiffs, and Carl A. Brown et al., Intervening Plaintiffs, v. Louis A. GRAVELLE, individually and in his capacity as Chairman (now Member) of the Washington Suburban Sanitary Commission, Salvatore Barranca, individually and in his capacity as Vice-Chairman (now Chairman) of the Washington Suburban Sanitary Commission, Peter R. Bozick, individually and in his capacity as a Member of the Washington Suburban Sanitary Commission, Carter C. Hubbel, Jr., individually and in his capacity as a Member of the Washington Suburban Sanitary Commission, John J. McBurney, individually and in his capacity as a Member of the Washington Suburban Sanitary Commission, George W. McRory, individually and in his capacity as a Member of the Washington Suburban Sanitary Commission, Defendants.

Civ. A. No. 70-534-N.

United States District Court, D. Maryland.

January 19, 1971.

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Kenneth L. Johnson, Baltimore, Md., and Richard B. Sobol and Richard T. Seymour, Washington, D. C., for plaintiffs and intervening plaintiffs.

J. Lloyd Niles, John B. Kenkel and Charles M. Byrd, Hyattsville, Md., and Thompson Powers and Martin P. Schneiderman, Washington, D. C., for defendants.

Stephen D. Shawe, Baltimore, Md., for The Maryland Commission on Human Relations, amicus curiae.

Stanley P. Hebert, Robert Fitzpatrick and Craig T. Sawyer, Washington, D. C., for The Equal Employment Opportunity Commission, amicus curiae.

NORTHROP, Chief Judge.

The plaintiffs in this proceeding are twenty-seven (27) black and two (2) white former employees of the Washington Suburban Sanitary Commission (WSSC) who were discharged for engaging in an unlawful walkout against the WSSC; four (4) current black employees of the WSSC who intervened after this action commenced; and one minor black woman suing through her father for the denial of employment by the WSSC, who likewise intervened after this action commenced. The defendants are the six (6) members of the Commission being sued personally as well as in their official capacity.

The gravamen of this dispute centers on whether the WSSC has participated in any racial discrimination against the plaintiffs individually as well as a class. Each of the plaintiffs is suing not only in their individual capacity but also is suing as the representative of their class. The class, as stated in plaintiffs' complaint, constitutes all former, present, and future black employees of the WSSC as well as past, present and future white employees who are or will be adversely affected by the practices challenged herein.

The plaintiffs are seeking injunctive relief requiring the termination of all alleged racially discriminatory practices in employment, assignment and working conditions by the defendants, their agents and employees; reinstatement and back pay and other damages for those employees discharged for participating in the unlawful walkout; the termination of all policies that impose more onerous and less desirable working conditions on black workers than those that are afforded white workers; the cessation of disproportionate allocation, because of race, of job training opportunities; damages or back pay in an amount that will compensate plaintiffs and members of their class for the higher levels of pay and other benefits they have been denied because of the alleged racially discriminatory employment policies; the recruitment of new black employees in such a manner as to correct the effects of long-standing racial discrimination; and such other and further relief as this court may deem to be just and proper.

The defendants contend the plaintiffs are not entitled to relief since

(a) defendants in their official capacities are extensions of the WSSC, and neither the Fourteenth Amendment nor 42 U.S.C. §§ 1981, 1983 and 1988 provides a basis for an action for back pay or other monetary damages against a governmental entity; and

(b) in their individual capacities, defendants are immune from liability for back pay or other damages under 42 U.S.C. §§ 1981, 1983 and 1988 for the exercise of their official discretion.

Defendants further assert that they delegated the function of job hiring, assignment and working conditions to a General Manager and other subordinate officials and that these individuals were exclusively responsible for such functions. Therefore, the defendants contend they cannot be held accountable under section 1983 since that section does not impose liability under the doctrine of respondeat superior but solely against an individual acting in his personal capacity. Furthermore, as to the discharged plaintiffs, the defendants allege their release was solely for striking against a public agency in violation of Maryland law and not because of any acts of racial discrimination on the part of the defendants. The assigned reason for the walkout concerned the working conditions of employees, specifically a newly announced rule dealing with non-emergency work. This dispute involved solely a labor-management grievance and not racial discrimination. Defendants further assert that an award for damages to plaintiffs in an amount that would compensate them for higher levels of pay and other benefits because of the alleged racial discrimination is not an appropriate ground for a class action. The final contention of defendants is that plaintiffs should be denied all relief in that they have failed to exhaust the appropriate administrative remedies that are available to them and capable of providing the requested relief.

Plaintiffs bring this action pursuant to 42 U.S.C. §§ 1981, 1983 and 1988 and the due process and equal protection clause of the Fourteenth Amendment. Jurisdiction over this action is conferred by 28 U.S.C. § 1343(3) and (4). The defendants have moved this court for dismissal as to each and every plaintiff individually as well as to the class they represent.

Because of the number of plaintiffs involved in this proceeding, and the claims they advance, this opinion will discuss, so far as is practical, the complaint and defenses as they relate to each group of plaintiffs and the class they represent.

DISCHARGED EMPLOYEES

The discharged employee plaintiffs allege that the defendants, personally and through their agents and employees, have systematically and purposefully practiced discrimination on the grounds of race in hiring and in employee assignments and promotions. Plaintiffs allege they protested these actions to defendants on numerous occasions to no avail.

As an example of this discrimination, plaintiffs contend that all but two (2) of the approximately one hundred and fifty (150) laborers at the Commission's Anacostia Yard are black. Plaintiffs allege that the laborer's jobs are the lowest paid and the least desirable jobs with the Commission. By contrast, forty-two (42) of the sixty-three (63) foremen, who supervise the work of the laborers, are white. At the Commission's Anacostia Yard, all of the approximately twenty (20) meter readers are white. All of the mechanics are white. All of the employees in the craft jobs, such as welders and carpenters, are white. All of the supervisors are white. All but a handful of the skilled heavy equipment operators are white. All but three of the white-collar workers at the Commission's central offices in Hyattsville are white. In addition to the maintenance of racial restrictions in hiring, assignment and promotions, plaintiffs also maintain that they and the class they represent were subjected to more onerous and less desirable working conditions than those afforded white employees. For example, black laborers were required to ride in the back of unheated trucks, regardless of the weather, while white foremen rode in heated cabs.

On March 5, 1970, the defendants adopted a new regulation requiring that laborers in the Maintenance and Operations Division do non-emergency outdoor work, during inclement weather. This rule was instituted without any consultation with the employees affected. The only employees affected by this rule, with the exception of the two white plaintiffs, were black. No other employees were required to do such non-emergency work. Plaintiffs contend that as a direct and proximate consequence of this continued discrimination, and because of their exacerbation by the regulation adopted that day, plaintiffs and certain members of the class they represent walked off their jobs in protest. By a letter dated March 6, 1970, defendant Commissioner McBurney informed plaintiffs and the class members they represent that they were required to return to work on March 9 or face immediate discharge. Plaintiffs maintain that since these letters did not contain assurances that the racially discriminatory practices would be corrected, they refused to return to work. They were subsequently informed that they had been dismissed. Plaintiffs now seek reinstatement with back pay from March 6, 1970, along with such other and further relief as may be just and proper.

Because this court accepts the defendants' contention that relief should be denied to these plaintiffs since they were discharged for participating in an unlawful walkout and not for any acts of racial discrimination, we need not, as to these plaintiffs, answer the defendants' other contentions.

Plaintiffs have cited no cases, nor has this court been able to find any, dealing with the specific question presented before this court—whether an individual has a right to strike in violation of a valid state or federal no strike law, when the claimed purpose is to protest alleged racial discrimination. This court is of the opinion that this issue should be decided on the basis of established law and not by exception carved out by this court.

The accepted common law rule as adopted in Maryland and in other jurisdictions is that absent an authorizing statute, a public employee has no right to strike. E. g., International Union of...