Dawson v. Pastrick

• Citation: 441 F. Supp. 133
• Decision Date: 15 November 1977
• Docket Number: No. 71 H 215.,71 H 215.
• Parties: James DAWSON et al., Plaintiffs, v. Robert A. PASTRICK et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

441 F. Supp. 133

James DAWSON et al., Plaintiffs, v. Robert A. PASTRICK et al., Defendants.

No. 71 H 215.

United States District Court, N. D. Indiana, South Bend Division.

November 15, 1977.

COPYRIGHT MATERIAL OMITTED

Jay N. Given, East Chicago, Ind., Dean L. Sutton, Valparaiso, Ind., for plaintiffs.

Terrance L. Smith, East Chicago, Ind., Hilbert L. Bradley, Gary, Ind., Michael E. Connelly, East Chicago, Ind., for defendants.

MEMORANDUM AND ORDER

SHARP, District Judge.

This is an action by a plaintiff class consisting of all Black and Spanish-surnamed persons who, in the past, applied for employment with the East Chicago Fire Department but were not hired for allegedly racially discriminatory reasons. Plaintiffs cite six specific and individual cases of discriminatory acts resulting in denial of employment to support their contentions. These incidents involve plaintiffs, Thomas Brannon, a black United States citizen and an East Chicago resident, who applied for a position on the East Chicago Fire Department in May 1971 but was not hired; Lorenzo Munoz, John Gomez and Carolos Venture, all Spanish-surnamed United States citizens and East Chicago residents who applied for positions on the East Chicago Fire Department in 1966, 1970 and 1971, respectively, but were not hired; Shannon Landers, a black United States citizen and an East Chicago resident, who applied for a position on the East Chicago Fire Department in 1968 and passed the physical examination but was not hired, and Ruben Ceja, a Spanish-surnamed United States citizen and an East Chicago resident, who intended to apply for a position on the East Chicago Fire Department at age 21, but did not.

I. HISTORY OF THE CASE

The present case is one of the oldest pending actions before this Court. Its history has been, to say the least, long and involved. The following is a synopsis of the chronological development of this case:

1. August 3, 1971 — The plaintiffs filed their initial complaint.

2. May 26, 1972 — This Court, by the Honorable George N. Beamer, granted the intervening defendant's, Theodore Sendak as Attorney General of the State of Indiana, motion and dismissed plaintiffs' complaint for failure to state a claim upon which relief can be granted.

3. August 3, 1972 — The plaintiffs filed their amended complaint.

4. April 6, 1973 — The plaintiffs filed their supplementary and second amended complaint.

5. May 23, 1973 — The plaintiffs filed their supplementary and third amended complaint.

6. December 17, 1974 — This Court signed and entered a partial consent decree, which was approved as to form and content by plaintiffs' counsel and counsel for the City of East Chicago.

7. June 4, 1975 — The plaintiffs and defendant, City of East Chicago, filed an additional proposed partial consent decree.

8. January 20, 1976 — This Court held a hearing at which time the East Chicago Fire Civil Service Commission's motion to intervene as a party defendant was granted. This Court also ordered all parties to submit briefs relative to the constitutional status of the consent decree signed by the Court on December 12, 1974 as well as the proposed partial consent decree submitted June 4, 1975. Notice was also given to Theodore Sendak, Attorney General of the State of Indiana, relative to the constitutional status of I.C. 19-1-37.5.

9. May 24, 1976 — This Court ruled that the Indiana Statute in question, I.C. 19-1-37.5 is constitutional and ordered all parties to propose and fashion appropriate remedies accordingly.

10. May 31, 1977 — This case was tried before this Court. Partial judgment as to defendants, Robert A. Pastrick, Charles Pecura, Edward Paganelli, Members of the East Chicago City Council, Members of the East Chicago Board of Safety, The East Chicago Fire Civil Service Commission and The East Chicago Firemen's Pension Board Trustees, approved by counsel, signed by the Court and entered this date. Settlement agreement approved by counsel, signed by the court and filed. Judgment entered for the defendant, Board of Trustees for the East Chicago Firemen's Pension Fund, and against the plaintiffs. Plaintiffs presented evidence, concluded and rested. Defendants presented no evidence. All parties rested. The Court ordered all counsel to submit Findings of Fact and Conclusions of Law which reflect a proper remedy and disposition of this case. Oral Argument was then set for Friday, August 12, 1977.

11. August 12, 1977 — The Court heard oral argument on the respective parties' proposed Findings of Fact and conclusions of Law and appropriate remedies.

II. ISSUES

Many issues in this case are no longer before this Court, as a result of the partial consent judgment entered on May 31, 1977 or as a result of successful negotiation and settlement. However, there still remain several issues that this Court must resolve as defined in the pretrial order. The contested issues of fact are:

1. Whether affirmative compensatory relief relating to hiring is necessary to remedy the effects of past discrimination.

2. The extent of any entitlement to back pay resulting from the failure to hire plaintiffs.

The contested issues of law are:

1. Whether affirmative, compensatory hiring ratios must be imposed.

2. Whether the defendant city's proposed plan for reorganization of the East Chicago Fire Department is racially discriminatory.

3. Whether the plaintiffs and members of the class are entitled to back pay.

4. Whether the plaintiffs are entitled to costs, including reasonable attorney fees.

Additionally, although not raised in the pretrial order or at the trial, the defendant intervenor, Civil Service Commission, raised in its brief and argued in open court on August 12, 1977, the jurisdictional issue of whether the plaintiffs have stated a claim under Title VII. While there is no dispute that the pretrial order controls the issues of the case, there is also no dispute that a party may raise subject matter jurisdictional issues at any time. Federal Rules of Civil Procedure 12(h)(3). See also, Capron v. Van Noorden, Cranch (6 U.S.) 126, 2 L.Ed. 229 (1804). Skolnick v. Bd. of Comm. of Cook Co., 435 F.2d 361 (7th Cir. 1970).

This Court will first turn to the jurisdictional issues.

III. JURISDICTION

From the outset this Court's subject matter jurisdiction over this case was not seriously challenged. Indeed, in the pretrial order, filed on the day of trial of this case, all counsel conceded jurisdiction. It is axiomatic however, that parties cannot stipulate to subject matter jurisdiction if none, in fact, exists. It was not until August 12, 1977, at the post-trial argument that the City of East Chicago and the Civil Service Commission challenged this court's jurisdiction over this case. Consequently this Court has not had the benefit of a full and complete briefing by counsel on the jurisdictional issues raised. Rather than delay further this very protracted case by requiring additional briefing, this Court will now address the jurisdictional issues raised.

By way of the plaintiffs' supplementary and third amended complaint, filed on May 23, 1973, the plaintiffs have advanced three separate theories of recovery. They have alleged facts which they contend state causes of action under the Thirteenth and Fourteenth Amendments to the United States Constitution, Title 42 U.S.C. §§ 1981 and 1983, and the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended in 1972. The plaintiffs also allege that jurisdiction is conferred on this Court by Title 28 U.S.C. § 1343(3), — to redress a deprivation under color of law of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.

(A) CONSTITUTIONAL CLAIMS

With respect of plaintiffs' constitutional claims, this Court has no difficulty in holding that the plaintiffs have stated a cause of action directly under the Thirteenth and Fourteenth Amendments to the United States Constitution. While not specifically alleged by the plaintiffs, this Court has jurisdiction to hear the constitutional claims under 28 U.S.C. § 1331. Several courts have now held that a plaintiff may state a cause of action against a municipal corporation directly under the United States Constitution which is cognizable under § 1331. See, City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Calvin v. Conlisk, 520 F.2d 1 (7th Cir. 1975); United Farmworkers of Florida v. City of Delray Beach, 493 F.2d 799, 802 (5th Cir. 1974); Chavez-Salido v. Cabell, 427 F.Supp. 158 (C.C.Calif.1977); Raffety v. Prince George's County, 423 F.Supp. 1045 (C.D.Md.1976); Williams v. Brown, 398 F.Supp. 155 (N.D.Ill.1975); Robinson v. Conlisk, 385 F.Supp. 529 (N.D.Ill.1974). See also, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), (where the Supreme Court held that, without an enabling statute, liability in damages existed for direct constitutional violations with district court jurisdiction being found in § 1331(a)).

(B) 42 U.S.C. §§ 1981 and 1983 CLAIMS

The plaintiffs have also alleged causes of action under both 42 U.S.C. § 1981 and § 1983. It is with the § 1983 violations that the plaintiffs have failed to overcome jurisdictional infirmities. The plaintiffs' basic contention is that the City of East Chicago, its agencies, subdivisions and officers, have violated certain civil rights secured to the plaintiffs by the United States Constitution and by particular Acts of Congress. However, in order for the City of East Chicago to be held liable under § 1983 for the deprivation of certain civil rights secured to the plaintiffs, the defendant city must be a "person" under § 1983. The Supreme Court in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), extended the holding of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d...