Eley v. Morris

• Decision Date: 13 February 1975
• Docket Number: Civ. A. No. 74-1803A.
• Citation: 390 F. Supp. 913
• Parties: Pat ELEY and Sheila Skrine, on behalf of themselves and all others similarly situated v. Leonard MORRIS et al.
• Court: U.S. District Court — Northern District of Georgia

390 F. Supp. 913

Pat ELEY and Sheila Skrine, on behalf of themselves and all others similarly situated v. Leonard MORRIS et al.

Civ. A. No. 74-1803A.

United States District Court, N. D. Georgia, Atlanta Division.

February 13, 1975.

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Myron N. Kramer, David A. Webster, Atlanta, Ga., for plaintiffs.

Arthur K. Bolton, Atty. Gen., Wayne P. Yancey, Asst. Atty. Gen., Atlanta, Ga., for defendants.

Before MORGAN, Circuit Judge, and MOYE and FREEMAN, District Judges.

ORDER

RICHARD C. FREEMAN, District Judge:

This is an action, brought pursuant to 28 U.S.C. §§ 1343, 2201-2202 and 42 U. S.C. § 1983, attacking the manner in which defendants, sued in their official capacity as persons responsible for the administration of the Georgia State Merit System, utilized procedures implemented under that system to terminate plaintiffs' employment. Plaintiffs are former employees of the Georgia Retardation Center covered by the "classified" service provisions of the State Merit System. See Ga. Code Ann. § 40-2204. On August 2, 1974, plaintiffs were notified by written memoranda issued by defendants Masachi and Fossett, officials of the Georgia Retardation Center, that they would be dismissed from their jobs effective August 6, 1974. The memorandum notice to plaintiff Skrine advised her that she was being terminated because of her "attitude toward her supervisors and other cottage personnel and her constant use of profanity . . . ." Plaintiff Eley was advised that she was being dismissed because of her "attitude toward her supervisors, her constant use of profanity in the cottage and her disrespectful and disruptive behavior toward . . . fellow co-workers." Plaintiffs appealed their dismissal to the State Personnel Board, a hearing was held before a deputy hearing officer on September 20, 1974, and on October 23, 1974, the State Personnel Board issued a decision reducing the dismissal to a three-month suspension.

Petitions for intervention have been filed by Barbara Wegman, a former employee of the Georgia Retardation Cener, who was discharged on September 1, 1974, and Annie R. Gilbert, a former employee of the Georgia Regional Hospital in Atlanta, who was discharged on October 10, 1974. Both intervenors have invoked the procedures provided by the State Merit System to challenge their discharges, but the court has not been informed concerning the disposition of their cases.

Plaintiffs seek a declaration that the statutory and regulatory scheme governing the termination of classified state employees covered by the State Merit System is unconstitutional in failing to provide a list of specific charges prior to termination and in failing to provide for a pre-termination hearing or other meaningful opportunity to protect plaintiffs' interests before termination. In addition, plaintiffs seek a preliminary and permanent injunction restraining defendants from terminating or suspending any classified employees covered by the State Merit System absent notice of termination which comports with due process of law and a pre-termination hearing. Plaintiffs also seek an award of back pay, costs, and "such further and additional relief as may be just and proper." At the time the complaint was filed, plaintiffs also sought reinstatement, but, this portion of the complaint has apparently been mooted by the aforementioned action of the State Personnel Board. Presumably reinstatement of intervenors Wegman and Gilbert remains a viable remedy.

This action came before the court on September 11, 1974, at which time Judge Freeman denied plaintiffs' request for a temporary restraining order. Plaintiffs have subsequently filed motions for preliminary and permanent injunctive relief, certification of the action as a class action, as well as the aforementioned petitions for intervention. Defendants have filed a motion to deny the petition for intervention filed by Barbara Wegman, together with a motion to dismiss. A three-judge court was convened pursuant to 28 U.S.C. § 2281 and a hearing conducted in this matter on November 25, 1974. In light of the basic agreement of the parties regarding the salient facts giving rise to this claim, as evidenced by a factual stipulation filed on November 11, 1974, the parties agreed that there was no need to introduce further evidence. Upon completion of the hearing, the court ordered supplemental briefs regarding the constitutional question in this action. Both parties have submitted additional briefs and the constitutional issues are now ripe for decision. However, before turning to these issues, the court will consider the pending procedural motions.

INTERVENTION AND CERTIFICATION OF THE CLASS

Defendants' motion to deny intervention by Barbara Wegman is based solely on the fact that "the main action is not properly before this Court." Defendants have not filed a motion or other response in opposition to the petition for intervention filed in behalf of Annie R. Gilbert. Pursuant to Local Court Rule 91.2, "failure to file a response shall indicate that there is no opposition to the motion." Review of the intervenors' claims reveals that they raise questions of law and fact similar, if not identical, to the questions presented in the complaint filed by the named plaintiffs. Similarly, there is no indication that intervention would cause undue delay or prejudice the rights of defendants. Accordingly, considering the relevant factors and defendants' failure to substantively oppose intervention, the court finds that intervention would be proper under Rule 24(b), Fed.R.Civ.P. See Burney v. North American Rockwell Corp., 302 F.Supp. 86, 91-93 (C.D.Cal. 1969); C. Wright & A. Miller, Federal Practice and Procedure § 1911 (1972). Defendants' motion to deny intervention is DENIED and the motions for intervention are GRANTED.

The motion for certification as a class action pursuant to Rule 23, Fed.R.Civ.P., is also unopposed by defendants. This motion, however, presents questions which are somewhat more complex. Plaintiffs do not submit a proposed class definition with this motion. They presumably seek to represent "every present (and future) employee of the State of Georgia who is a covered employee under the Georgia State Merit System." Similarly, plaintiffs have not argued the point of whether or not some form of notice should be sent to the unnamed members of the class. See Freeman v. Motor Convoy, Inc., Civil Action No. 16185 (N. D.Ga., Nov. 6, 1974), reconsideration denied (Jan. 9, 1975). By analogy to the Title VII cases, back pay may be awarded in class actions maintained under Rule 23(b)(2), Fed.R.Civ.P., assuming the case is not one in which the "appropriate final relief relates exclusively or predominantly to money damages." Franks v. Bowman Transportation Co., 495 F.2d 398, 422 (5th Cir. 1974). Conversely, where the action is predominantly or exclusively for money damages, the action is a Rule 23(b) (3) action which requires that individual notice be sent to all class members at the expense of the named plaintiffs. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L. Ed.2d 732 (1974). In Freeman v. Motor Convoy, Inc., supra, this court adopted a bifurcated approach to this problem, concluding that the court should proceed with the b(2) aspects of the case in order to determine the proper parameters of the action. Then, if

it later becomes apparent that the action is "predominately" or "exclusively" concerned with the question of a potential monetary award, or if certain members of the general class are primarily interested in monetary relief, it may become necessary to rule that the entire action, or a portion thereof, should be considered under the provisions of Rule 23(b) (3). In that event, it may become necessary to impose the Rule 23 (c) (2) notice requirement on the class representatives, or alternatively, subdivide the class into (b) (2) and (b) (3) subclasses, thereby easing the overall burden required by the (c) (2) notice requirement.

Id. at n. 5.

In the present case, given the fact that the named plaintiffs have been reinstated, it is possible to argue that they are primarily interested in their potential for an award of back pay. However, if the court were eventually to decide, as discussed below, that a monetary award in the form of back pay is precluded by the doctrine of sovereign immunity, the only possible remedy would be in the nature of declaratory and injunctive relief. Furthermore, since the petitions for intervention have been granted, intervenors may represent a class of classified employees seeking equitable relief in the nature of an order for reinstatement. In any event, the bifurcated approach to the class action problem adopted in the Freeman case should be equally applicable here.

Accordingly, as it appears that this action fulfills the requirements of Rule 23(a) regarding numerosity, common questions of law or fact, standing, and adequacy of representation, and in the absence of opposition by defendants, plaintiffs request for certification of this action as a class action is granted. This action is hereby ordered to proceed as a class action pursuant to Rule 23(b)(2). The class shall include, subject to redefinition as required, all permanent, classified employees covered by the Georgia State Merit System and all prospective employees. See Long v. Sapp, 502 F.2d 34 (5th Cir. 1974); Freeman v. Motor Convoy, Inc., supra. Plaintiffs are hereby ordered to provide the potential class members with adequate notice of this action, as set forth in appendix one to this order, either by publication or by posting such notice in the various state agencies and employment centers where potential class members congregate.¹

THE MOTION TO DISMISS

The motion to dismiss is predicated on three theories: (1) Sovereign immunity; (2) lack of a substantial federal question; and (3) failure to state a claim. The third theory...