Byrd v. Travenol Laboratories, Inc., Civ. A. No. DC 83-228-D-O.

• Decision Date: 15 December 1987
• Docket Number: Civ. A. No. DC 83-228-D-O.
• Citation: 675 F. Supp. 342
• Parties: Thomas Lee BYRD, Freddie Funchess, Arthur Mae Hampton, Walter Bernell Scott, Printress Earl Smith, Plaintiffs, v. TRAVENOL LABORATORIES, INC., Baxter Laboratories, Inc., Baxter Travenol Laboratories, Inc., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

675 F. Supp. 342

Thomas Lee BYRD, Freddie Funchess, Arthur Mae Hampton, Walter Bernell Scott, Printress Earl Smith, Plaintiffs, v. TRAVENOL LABORATORIES, INC., Baxter Laboratories, Inc., Baxter Travenol Laboratories, Inc., Defendants.

Civ. A. No. DC 83-228-D-O.

United States District Court, N.D. Mississippi, Delta Division.

October 8, 1987.

On Motion For Reconsideration December 15, 1987.

Richard T. Seymour, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., Nausead Stewart, Jackson, Miss., for plaintiffs.

Stephen N. Shulman, Cadwalader, Wichersham & Taft, Washington, D.C., T.H. Freeland, III, Oxford, Miss., for defendants.

MEMORANDUM OPINION

DAVIDSON, District Judge.

This cause is presently before the court on the defendants' motion to dismiss for failure to state a claim. Having reviewed the parties' briefs and being otherwise fully advised in this matter, the court is of the opinion that the defendants' motion should be sustained in part and denied in part.

I FACTUAL BACKGROUND

The history of this action dates back to 1967. In this employment discrimination action, plaintiffs allege that they were discriminated against during the years 1967 through 1976. Plaintiffs seek relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and pursuant to 42 U.S.C. § 1981. The plaintiffs are applicants for intervention in another employment discrimination action pending before this court, Payne v. Travenol Laboratories, Inc., Civ. Act. No. 72-13-D-D. The Payne action has been underway before this court since 1972. The present action was filed allegedly to preserve plaintiffs' rights under the Notices of Right to Sue issued by the Equal Employment Opportunity Commission on June 30, 1983. If plaintiffs had not filed their own suit within the 90-day period prescribed by 42 U.S. C. § 2000e-5(f), and if intervention in the Payne action is not permitted, plaintiffs might be barred from filing a new suit. In order to rule on the present motion to dismiss, the court is of the opinion that an abbreviated review of the history of the Payne case would be helpful at this juncture.

A. Brief History of Payne v. Travenol

The Payne litigation in which plaintiffs seek to intervene was commenced on March 2, 1972, when Payne and two other individuals filed a class action complaint alleging race discrimination in certain of Travenol's employment practices. On November 16, 1972, this court defined a class for that action consisting of all black employees and applicants for employment at Travenol since March 3, 1970. This class certification became obsolete or meaningless on December 1, 1972 when the Payne plaintiffs sought and were granted leave (on May 1, 1973) to amend their complaint to allege sex discrimination. Thereafter, on May 8, 1973 the sole male plaintiff in Payne, Mr. James Williams, voluntarily withdrew from the case. On July 31, 1973, the court permitted an additional complaint in intervention by Delilah Cherry and Birdie Lee Griffin, alleging discrimination on the basis of both race and sex.

On December 20, 1974, this court in Payne determined that a conflict between the original sex discrimination claims and the interests of black males prevented the Payne plaintiffs from adequately representing the interests of the males. The court, therefore, redefined the class so that it did not include males. A two-week trial was held in March 1975 and Judge Orma Smith handed down his decision on liability in the case on February 19, 1976. In that decision Judge Smith found that the defendants had discriminated against blacks and women in various respects, including discrimination in the imposition of a 10th-grade education rerequirement. See Payne v. Travenol Laboratories, Inc., 416 F.Supp. 248 (N.D.Miss.1976). Limited injunctive relief was granted at that time as to this educational requirement and the parties' proposals for a final decree were sought. Id. at 265-266.

On March 19, 1976, the defendants took an appeal to the Fifth Circuit. The scope of the appeal was limited to the partial injunction entered on February 19, 1976. The Fifth Circuit deferred ruling on the appeal until entry of a final order, so that an appeal from the final order could be consolidated with the limited appeal before the Court of Appeals.

On December 8, 1976, the district court made final the definition of the class which had been conditionally entered on December 20, 1974. See Payne v. Travenol Laboratories, Inc., 74 F.R.D. 14 (N.D.Miss. 1976). In 1978, the Court of Appeals handed down its first decision on appeal of this case. The Fifth Circuit affirmed in part and reversed in part the limited injunction entered below. See Payne v. Travenol Laboratories, 565 F.2d 895 (5th Cir.1978) (Payne I), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978). The court's reversal of the injunction against the 10th-grade education requirement was made on the grounds that: (1) the named plaintiffs had all finally satisfied the requirement by the date that suit was filed; (2) any inability of plaintiff Payne to satisfy the 10th-grade education requirement before March 3, 1970 was irrelevant because the trial court's class definition had removed from consideration all applications for employment submitted prior to March 3, 1970; and (3) the class, by definition, excluded persons who had been harmed by the requirement.

On August 20, 1980, the court adopted the United States Magistrate's recommendation for entry of a final decree. Both parties appealed. On April 22, 1982, the Fifth Circuit handed down its second decision on appeal. See Payne v. Travenol Laboratories, Inc., 673 F.2d 798 (5th Cir. 1982) (Payne II), cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982). The Court of Appeals upheld the exclusion of black males from the class on the ground that black females alleging claims of both race and sex discrimination had a conflict of interest with black males whose interests lay only in the claims of race discrimination. Id. at 810-811. The Court of Appeals noted that there was no black male plaintiff and thus a separate subclass of black males could not be created; the Fifth Circuit also held that the district court's decision not to give black males notice of their impending exclusion from the class was not reversible error. Id. at 811-813. The Court of Appeals also reversed the opening date restriction on class membership. The Court of Appeals held that the class on the Title VII count should extend back to October 31, 1969, and that the class on the Section 1981 count for claims of racial discrimination should extend back to March 2, 1966 if the district court found that there was racial discrimination going back to that date. Id. at 813-815. The Fifth Circuit then remanded Payne for additional proceedings before this court.

B. The Byrd Plaintiffs

On February 17, 1983, six black applicants, each one a plaintiff in this cause, moved for leave to intervene as additional plaintiffs in Payne. These plaintiffs sought to intervene to resolve the conflict of interest cited by the Fifth Circuit and to expand the class definition to include black males harmed by the same types of racial discrimination which had already been found as to black females. The present plaintiffs were never included as plaintiffs in Payne; however, they now allege race discrimination against black males in Travenol's hiring and promotion practices and race discrimination against blacks allegedly harmed by the prior 10th-grade education requirement. The alleged discrimination reportedly occurred between 1967 and 1976. The motion to intervene is presently pending before this court and will be addressed in a separate manner at a later date.

The EEOC issued Notices of Right to Sue dated June 30, 1983 to each of the applicants for intervention in Payne. To avoid the possibility of losing their right to bring suit during the pendency of their application for leave to intervene, these plaintiffs filed this action on September 29, 1983. With their complaint plaintiffs filed a Related Case Statement and a Motion to Consolidate this action with Payne.

On October 21, 1983, the defendants filed the present motion to dismiss this action for failure to state a claim. By its order of October 26, 1983, the court permitted the defendants until 10 days after the court has ruled on the motion to dismiss to respond to the plaintiffs' motion to consolidate. A status conference in this cause was held in December 1986.

II CONCLUSIONS OF LAW

A. Plaintiffs' Title VII Claims

Defendants argue that the plaintiffs have done nothing to pursue their claims for alleged discrimination since black males were excluded from the Payne litigation in 1974.¹ Accordingly, defendants contend the present action is untimely and cannot be maintained by the plaintiffs because it is barred by the applicable statutes of limitations. Plaintiffs understandably contend that this action is not time-barred.

In reviewing a matter on a motion to dismiss for failure to state a claim, Fed.R. Civ.P. 12(b)(6), the court must permit the complaint to stand "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). This restriction is generally applicable as to the factual allegations and the substantive aspects of the plaintiffs' claim. In this cause, however, defendants argue a jurisdictional type question in alleging that the plaintiffs' action is time-barred. Defendants would have the court dismiss this action without looking closely at the merits.

The court notes initially that since there was no notice given to absent class members when black males were excluded from the court's redefined class,² these black males were not given an opportunity to decide whether to "opt out" or to pursue their own...