Dumas v. Town of Mount Vernon

• Decision Date: 02 September 1977
• Docket Number: Civ. A. No. 77-188-H.
• Citation: 436 F. Supp. 866
• Parties: Joannie Allen DUMAS, Plaintiff, v. TOWN OF MOUNT VERNON, Alabama, Mobile County Personnel Board, John A. Cartman, Charles H. Simison and George H. Pierce, all jointly and severally, Defendants.
• Court: U.S. District Court — Southern District of Alabama

436 F. Supp. 866

Joannie Allen DUMAS, Plaintiff, v. TOWN OF MOUNT VERNON, Alabama, Mobile County Personnel Board, John A. Cartman, Charles H. Simison and George H. Pierce, all jointly and severally, Defendants.

Civ. A. No. 77-188-H.

United States District Court, S. D. Alabama, S. D.

September 2, 1977.

COPYRIGHT MATERIAL OMITTED

Gregory B. Stein and Larry T. Menefee, Mobile, Ala., for plaintiff.

Thomas A. Deas, Mobile, Ala., for defendants Town of Mt. Vernon, John A. Gartman and Charles H. Simison.

Mylan R. Engel, Mobile, Ala., for defendants Mobile County Personnel Bd. and George H. Pierce.

HAND, District Judge.

This cause coming on for hearing before the Court on the 23rd day of August, 1977, on the issue of jurisdiction under Title VII of the Civil Rights Act of 1964, and the Court having heard the evidence and the witnesses and having considered the law applicable, finds as follows:

FINDINGS OF FACT

1. The plaintiff is a black female residing in the Town of Mount Vernon, Alabama. The defendant Town of Mount Vernon is a municipal corporation incorporated under the laws of Alabama, and the defendant Charles Simison was Mayor of the defendant Town of Mount Vernon from 1972 to 1976. Jurisdiction of this Court is sought to be invoked under Title VII of the Civil Rights Act of 1964, Title 42, U.S.C.A., § 2000e et seq.

2. The original complaint included three other defendants, all of whom have been dismissed prior to this Order. The Title 42, U.S.C.A., §§ 1981, 1983, 1985(3), and 1986 claims against defendant John A. Gartman, the present Mayor of the Town of Mount Vernon, were dismissed as time-barred by Title 7, § 26 of the Alabama Code, and by Title 42, U.S.C.A., § 1986. The same claims against defendant George H. Pierce, Director of the Mobile County Personnel Board, were dismissed on the same basis. A third defendant, The Mobile County Personnel Board, against whom Title VII charges were made, was dismissed for failure to state a claim against such defendant under Title 42, U.S.C.A., § 2000e(c) upon which relief could be granted.

3. The only matters remaining for adjudication in this lawsuit are employment discrimination charges by the plaintiff against defendants Town of Mount Vernon and Charles H. Simison. It is averred by the defendants and admitted by the plaintiff that defendant Simison's liability is derivative and that he cannot be held liable unless the defendant Town of Mount Vernon is held liable. Title 42, U.S.C.A., § 2000e(b).

4. Sometime in September of 1974, the plaintiff applied to the Mobile County Personnel Board for the position of assistant town clerk for the defendant Town of Mount Vernon. After submitting to the Personnel Board's competitive examination, the plaintiff was informed that she had been successful in the written test and was requested to appear for an interview at the Personnel Board office. The plaintiff appeared at the stated time and was interviewed by a Personnel Board representative.

5. In a notice dated November 15, 1974, plaintiff was informed that she had received a Personnel Board rating of 75.18, and that her name had been placed first on the employment register for certification for the position of assistant town clerk with the defendant Town of Mount Vernon. The notice, a copy of which was attached to the original complaint, was in no way an offer or promise of employment of the plaintiff, but rather was a certification of plaintiff's name to a list from which the position of assistant town clerk was to be filled.

6. In a second notice dated November 15, 1974 plaintiff was informed that hers was one of three names that had "been sent to the Town of Mount Vernon for consideration for appointment as assistant town clerk" and that she could expect to be notified within three days "when and where to report for interview." If no such notification was forthcoming within three days, the plaintiff was to immediately get in touch with the Town of Mount Vernon, the potential employer. On the third day following the mailing date of the second notice, November 18, 1974, the plaintiff telephoned defendant Charles H. Simison and was informed by him that another person had been hired to fill the position. The plaintiff had not interviewed for the position at this time.

7. On December 16, 1974 the plaintiff filed a charge of employment discrimination against the defendant Town of Mount Vernon with the District Director of the Equal Employment Opportunity Commission, which was supplemented by a second and more complete charge filed January 8, 1975.

8. In a notice dated April 28, 1975 the plaintiff was informed that her name had again been "sent to the Mayor and Council of Mount Vernon for consideration for appointment as assistant town clerk," such notice containing the same three day caveat concerning notification for an interview. Shortly after receipt of this notice the plaintiff was interviewed for the position by defendant Charles H. Simison and other members of the Town Council of Mount Vernon, but no representations were made to the plaintiff concerning her chances for employment.

9. In a letter dated May 12, 1975 the plaintiff was informed by the defendant Simison that "upon a recommendation by the Mobile County Personnel Board, the Town Council of the Town of Mount Vernon had agreed not to fill the position of assistant town clerk at this time, since Mrs. Thigpen (the former assistant town clerk) has one year from the date of her resignation to reapply for the position . . . Therefore, the assistant town clerk position will remain open until further notice from the Town Council." The position has remained open pursuant to this letter at all times since May of 1975.

10. By separate letters dated May 20, 1975 and May 22, 1975 the plaintiff supplemented her discrimination charge with the Equal Employment Opportunity Commission by alleging that the defendants' actions constituted a case of continuing discrimination by their refusal to hire her for the position of assistant town clerk.

11. In a letter from the United States Department of Justice dated January 13, 1977, the Plaintiff was advised that she had the right to institute a civil action under Title VII against the defendants, and that such suit must be filed in the appropriate United States District Court within ninety (90) days of receipt of the notice. The complaint in this action was filed on March 31, 1977 well within the ninety (90) day period.

12. In November of 1974, the defendant Town of Mount Vernon had nine full-time employees: a town clerk, a police chief, four police patrolmen, a maintenance and mechanical inspector, a utility service man, and a truck driver. Each of these employees worked five days a week and had a forty hour work week. Besides these full-time employees, there were an undisclosed number of part-time employees who usually worked five hours a week and did not work every day. The above total also does not include the Mayor and Town Council, or the City Attorney and City Judge.

13. Aside from the nine full-time employees set out above, the Town of Mount Vernon has other full-time employees who are paid under the CETA Program. None of these employees were working in 1974, but there have been several employed since the program was initiated in Mount Vernon in January of 1975. These employees are paid by and selected for employment by the CETA office, with the Town of Mount Vernon having no voice in the hiring process. The only control retained by the Town is the power to inform the CETA office that certain employees are ineffective or need to be replaced.

14. It appears from the evidence that the defendant Town of Mount Vernon employed twelve different persons during the year of 1973. Not all of these employees were full-time workers, but since the total is less than fifteen such a distinction is unnecessary. There were no CETA employees in 1973.

15. During the year of 1974, the defendant Town of Mount Vernon employed thirteen different persons. Not all of these employees were full-time workers, but since the total is less than fifteen such a distinction is also unnecessary. Again in 1974 there were no CETA employees working for the Town of Mount Vernon.

16. During the year of 1975, the defendant Town of Mount Vernon employed twenty-four different persons. Twelve of these employees worked directly for the Town of Mount Vernon, but the other twelve were CETA employees.

17. During the year of 1976, the defendant Town of Mount Vernon employed twenty-four different persons again. As in 1975, twelve of these employees worked directly for the Town of Mount Vernon, but the other twelve were CETA employees.

18. During the present year, the defendant Town of Mount Vernon has employed eighteen different persons. Ten of these employees are working directly or have worked directly for the Town of Mount Vernon, but the other eight were CETA employees.

CONCLUSIONS OF LAW

1. The claims of the plaintiff against defendants Simison, Gartman, and Pierce that were grounded upon Title 42, U.S.C.A., §§ 1981, 1983, and 1985(3) were properly dismissed as being time-barred. There is no statute of limitations set down for actions brought pursuant to §§ 1981, 1983, and 1985(3) so state law must be considered in determining whether such claims are time-barred. Bryant v. Potts, 528 F.2d 621 (5th Cir. 1976); Boshell v. Alabama Mental Health Board, 473 F.2d 1369 (5th Cir. 1973). Further, the fact that a plaintiff has filed a charge of discrimination with the Equal Employment Opportunity Commission during the period allowed by the statute of limitations does not toll the statute as it applies to claims arising under Title 42, U.S.C.A., §§ 1981, 1983, or 1985(3). Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). The Fifth Circuit has announced that the rule set down in Johnson is applicable retroactively. Williams v. Phil Rich Fan Manufacturing Company,...