Caton v. Canal Zone Government

• Decision Date: 01 October 1981
• Docket Number: Civ. No. 77-0195-B.
• Citation: 522 F. Supp. 1
• Parties: Joscelyn CATON, et al., Plaintiffs, v. CANAL ZONE GOVERNMENT, Defendant.
• Court: U.S. District Court — Panama Canal Zone

522 F. Supp. 1

Joscelyn CATON, et al., Plaintiffs, v. CANAL ZONE GOVERNMENT, Defendant.

Civ. No. 77-0195-B.

United States District Court, D. Canal Zone, Balboa Division.

October 1, 1981.

Pierce & Kiyonaga, David J. Kiyonaga, Balboa, Republic of Panama, for plaintiff.

Frank J. Violanti, U.S. Atty., A.P.O. Miami, Republic of Panama, for defendant.

JOHN R. BROWN, Circuit Judge:^*

Plaintiffs Caton and Shepherd filed the present civil action against their former employer, the Canal Zone Government,¹ on May 25, 1977, alleging that they (and others similarly employed by the Fire Division) are the victims of discrimination on account of their race (black) and citizenship or national origin (Panamanian). For relief, they asked for both compensatory damages, including back-pay, and temporary and permanent injunctions requiring the defendant to modify the compensation schedules for nonsupervisory Fire Division personnel. For the reasons detailed below, judgment shall be entered for the defendant.

Introduction

Prior to 1956, firefighting responsibilities in the Canal Zone were divided among the various civilian and military components operating in the area. All firefighters were U.S. citizens. During 1956, the Canal Zone Government assumed the entire responsibility for firefighting in the Canal Zone. Facilities were consolidated, and nonsupervisory firefighter positions were opened to non-U.S. citizens. Significant savings resulted because the non-U.S. citizens were paid at local wage rates.

When the 1955 Treaty of Mutual Understanding and Cooperation Between the United States of America and the Republic of Panama and its attached Memorandum of Understandings Reached² were ratified, the United States became obligated to a single wage system in the Canal Zone, which forms the basis of plaintiffs' complaint. Plaintiffs bring the present action primarily under Title VII to have the local pay base raised. Additionally, the plaintiffs challenge the promotional system that, for statutorily defined security reasons, limits certain supervisory positions to U.S. citizens. Various races and nationalities are present in the class that the plaintiffs represent.

This case stems from the employment in 1956 of approximately 120 Panamanians by the Canal Zone Fire Division. Upon discovering that they were being paid less than their U.S. counterparts, these Panamanian firefighters, or more properly, their representatives, began a series of administrative complaints to the Governor of the Canal Zone, the Canal Zone Board of Appeals, the Civil Service Commission, the Civilian Personnel Coordinating Board, and the Secretary of the Army. Even now, the plaintiffs come into this District Court with a multiplicity of claims and numerous grounds for recovery. Compounding the complexity of the issues raised is the difficulty in ascertaining the class bringing this suit. Moreover, the procedural and substantive issues raised in this controversy span a period of over 20 years, beginning with the alleged discrimination in 1956, continuing to the present.

Briefly, the claims involve discrimination on the basis of race or national origin, backpay damages because of an alleged unauthorized (and hence unfair) pay scale, and a challenge to a claimed discriminatory scheme for promotion of firefighters to Fire Sergeant. In the remainder of this opinion, this Court will attempt to identify and isolate each of the plaintiffs' various claims and grounds for recovery, and each claim will be ruled on separately.

The Class Defined

By order of this Court on March 6, 1981, this matter was certified as a class action, the class consisting of nonsupervisory firefighters, including the following subclasses: (i) Black Panamanians, (ii) Black U.S. citizens, (iii) Hispanic Panamanians, (iv) Caucasian U.S. citizens, (v) Caucasian Panamanians, and (vi) Hispanic U.S. citizens. The class consists of approximately 176 black Panamanians, 21 Hispanic Panamanians, 6 black U.S. citizens, 3 Caucasian U.S. citizens, 3 Hispanic U.S. citizens, and 1 Caucasian Panamanian. Members of the class at various times have worked for the Fire Division during the period 1956 to at least 1975. The U.S. citizens in the class were naturalized after employment.

In light of the plaintiffs' claim for backpay, the class seems appropriate. However, the class is problematic from the perspective of plaintiffs' discrimination allegations, because it includes all firefighters, without respect to their race or citizenships. This difficulty merits further analysis.

Charting These Troubled Seas

The opinion that follows is often as complex and difficult as the facts forming the basis for this lawsuit. It is thus helpful, at the outset, to outline the nature and direction of this Court's analysis.

For convenience, this opinion will be divided into two sections. Section I deals with the entire class's claim that the locally hired firefighters in 1956 were underpaid. Within this generic back-pay claim lies the claim that the reason the class was underpaid was that the vast majority of the locally hired firefighters were black by race, Panamanian by citizenship, and West Indian by national origin. This Court will treat the certified class as if all members share in all of its general complaints. However, it should be noted that the white U.S. citizens' only discrimination claim is that they were paid less because hired locally. The single white Panamanian's claim could conceivably be based on both citizenship and the fact that he was hired locally. The Hispanic U.S. citizens' claim is apparently limited to disparate treatment because they were locally hired, because no allegations have been made regarding discrimination toward Hispanics. The six black U.S. citizens share in this general claim on the basis of race, but these six also have a separate and identifiable claim that this Court will deal with separately. The Hispanic Panamanians share in the claim of wage discrimination on the basis of local hiring, and possibly citizenship or national origin. Finally, the greatest number of plaintiffs (176) are the black Panamanians who claim that they were discriminated against in an unfair wage system, giving as reasons the facts that they were hired locally, are black, are Panamanian citizens and are of West Indian national origin. Since all of the smaller subclasses share in one or more of the large subclass's allegations, the allegations of this largest subclass will be the primary target of this Court's analysis.

Section I begins with the historical background of the present lawsuit and identifies several stumbling blocks along the way to the merits of a claim for back-pay or wage discrimination. These include the six-year statute of limitations, the fact that the District Court of the Canal Zone is not a Constitutional Court under the Tucker Act, and the fact that Title VII provides the exclusive remedy for the plaintiffs' claims, thus eliminating many of the statutory, Treaty, and Constitutional grounds under which the plaintiffs bring this suit. Concluding that Title VII is the proper basis for the plaintiffs' claim, this Court next addresses the procedural roadblocks on the way to a consideration of the merits of their Title VII claim. At the end of Section I, this Court, by entertaining several assumptions in favor of the plaintiffs' claim, reaches the merits of their Title VII action, and finds neither discrimination nor violations, statutory or under the treaties, on which the plaintiffs might prevail.

Section II addresses the plaintiffs' second major claim that they were discriminated against by a promotion system that prevented non-U.S. citizens from holding supervisory positions. This claim includes the allegation that the establishment of "security positions" (open only to U.S. citizens) was a discriminatory tool used by the Canal Zone Government. Obviously, the three subclasses of U.S. citizens do not share in this claim. Following this Court's conclusion that the "security positions" were necessary and statutorily justifiable, the unique claim of the six black U.S. citizens regarding promotion will be addressed.

In light of the probability that this Court's decision will be appealed to the Fifth Circuit Court of Appeals, and retrial, if ordered, could not be had before the closing of the District Court for the Canal Zone, the following opinion will be structured so as to cover exhaustively all possible claims of the plaintiffs, as well as all possible avenues of recovery. In this way, this Court hopes to avoid the necessity for a remand to a trial court.

Structuring the opinion in this fashion for possible appellate review necessarily entails a lengthier opinion. However, the necessity of resolving all litigation in this Court by April 1, 1982, compels this Court patiently to address as many actual and potential issues as possible.

I. Historical Background

In 1956, the various fire departments in the Canal Zone consolidated into a Fire Division. Before 1956, the non-supervisory firefighter positions were filled by U.S. citizens who were being paid wage rates based on District of Columbia firefighter wages. For obvious economic and political reasons, firefighter positions were opened up to Panamanians, and following a recruitment effort, approximately 1,700 applicants came forward, out of whom approximately ten percent were employed. Because English proficiency was required, almost all of those selected were black Panamanians (many blacks came to Panama during the building of the canal and stayed on). The pay that these new firefighters were receiving was considerably less than that received by the small number of U.S. citizens who had been previously employed as firefighters and were retained, doing the same work as the new Panamanian firefighters. Therein began the present conflict.

The plaintiffs argue that Public Law No. 82-207 (P.L. 207), enacted in 1951, reinforced the...