Eslinger v. Thomas
| Decision Date | 28 March 1972 |
| Docket Number | Civ. A. No. 71-153. |
| Citation | 340 F. Supp. 886 |
| Parties | Victoria Lamonte ESLINGER, for herself and for all other women similarly situated, Plaintiffs, v. Lovick Oliphant THOMAS, as Clerk of the Senate of South Carolina, et al., Defendants. |
| Court | U.S. District Court — District of South Carolina |
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Laughlin McDonald, Columbia, S. C., Charles Morgan, Jr., and Norman Siegel, Atlanta, Ga., Jean Hoefer Toal, Columbia, S. C., for plaintiffs.
Dan McLeod, Atty. Gen. Hubard W. McDonald, Jr., Columbia, S. C., E. N. Zeigler, Florence, S. C., for defendants.
This matter was tried before the Court on January 17 and 18, 1972 without a jury. Following completion of the testimony the parties requested additional time to submit briefs and legal authorities. These have now been received and duly considered and the case is ripe for decision.
The plaintiff commenced this action on February 11, 1971, by service of a summons and complaint and a Motion for Preliminary Injunction. The complaint alleges that the plaintiff, a female law student at the University of South Carolina Law School and over the age of 21, has been denied employment as a Page in the Senate of South Carolina solely because of her sex, and that such denial of employment discriminates against her in violation of her right to equal protection of the laws under the Fourteenth Amendment of the United States Constitution.
Plaintiff also alleges that she is representative of a class composed of all female citizens of South Carolina and asks that this be declared a class action under Rule 23, Federal Rules of Civil Procedure, and that defendants be enjoined from discriminating against females in its employment practices.
Defendants in their answer contend, (a) that plaintiff's recommendation for appointment as a Page was withdrawn by Senator Walter J. Bristow, Jr., her sponsoring Senator, and that Senatorial endorsement or sponsorship is required for the appointment to the temporary job as Senate Page; (b) that the defendants believe that the Senate's refusal to employ females as Senate Pages is reasonable and necessary in order to prevent the appearance of impropriety because of the personal nature of some of the errands run and services performed by Pages for members of the Senate; and (c) that plaintiff has failed to exhaust her administrative remedies in not petitioning the Senate itself to employ her and overrule the actions of the Senate Clerk, defendant Thomas.
The plaintiff's motion for a preliminary injunction and Temporary Restraining Order was denied by Order of Honorable Robert W. Hemphill dated April 1, 1971, 324 F.Supp. 1329, and such Order was thereafter affirmed by the United States Court of Appeals for the Fourth Circuit, dated May 28, 1971. The Court of Appeals remanded the case for a decision on the merits.
Thereafter, all parties moved for summary judgment under Rule 56 and these motions were denied by this Court on November 16, 1971.
The original action did not seek monetary damages, but plaintiff amended her complaint on February 25, 1971, claiming a loss of Forty and No/100 ($40.00) Dollars per week wages as a result of the defendants' discriminatory refusal to hire her as a Page.
Prior to this action the Senate of South Carolina hired only males as Senate Pages. These Pages were usually college students and a large number were law students from the University of South Carolina Law School. Pages performed various duties as assigned to them by members of the Senate, the Clerk of the Senate and other employees thereof. These duties were quite varied, but included running various errands, both personal and official, for members of the Senate, preparation and distribution of Acts, proofreading, indexing, bookkeeping, obtaining food, drink and refreshments for Senators, assisting with committee records, relaying messages to Senators, attending committee meetings, acting as assistants and helpers to Clerks of various committees and otherwise taking care of the needs of the Senators.
These Pages are considered temporary employees. They work only the months that the Senate is in session. The position was and still is one of political patronage, since a Page must be recommended by a member of the Senate before his application will be considered by the Clerk of the Senate. These positions are sought by and are quite attractive to college students because of the pay of approximately Forty and No/100 ($40.00) Dollars per week and the fact that the Pages are required to work only 28 hours per week, and these hours may be adjusted to suit the convenience and school schedule of the Page. Also, these positions are highly regarded by law students, since it provides an opportunity to watch the Governmental and lawmaking process, to meet Senators, state officials and other dignitaries, and also appeals to their natural interest in politics.
Although sponsorship by a Senator is a prerequisite to employment as a Page, the number of appointments a Senator may secure varies, depending upon the size of the Senator's county, his seniority and other considerations.
Prior to this action, the title "Page" was used to designate almost all of the temporary employees of the Senate. On June 2, 1971, the Senate of South Carolina adopted Resolution S.5251 by which it set forth classifications and duties of its part-time employees, formerly known as Pages.
Under this Resolution females may be employed as "clerical assistants" and as "committee attendants", but may not be employed as "Senate Pages, whose primary duty shall be assisting the regular high school pages (three) in performing, the various errands and duties requested by the Senators, President and Clerks..."
The record shows that following the adoption of S.525 female college students have been employed as "clerical assistants" and "committee attendants", but plaintiff has not applied for such employment. She insists that she has the right to be a "Senate Page" with its present duties and she asserts that under S.525 the Senate of South Carolina still discriminates unconstitutionally against her and other females in its employment practices of temporary employees.
The case raises two basic questions which are now before the Court: (1) Did the Senate of South Carolina unconstitutionally discriminate against the plaintiff in failing to employ her for the term beginning January 1971, when she was recommended by a Senator, made application for employment and appeared qualified in every way, except for her female gender? (2) Is Senate Resolution S.525 in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution in allowing only males to serve as "Senate Pages" and perform the duties of running personal errands for Senators?
After careful consideration of the law and the evidence the Court makes the following
1. Plaintiff is a female citizen of South Carolina over the age of 21 and a student at the University of South Carolina Law School.
2. Defendant Lovick Oliphant Thomas is the Clerk of the Senate of South Carolina; defendant Earle Elias Morris, Jr. is the present Lieutenant Governor of South Carolina and is President Ex-Officio of the Senate of South Carolina and the defendant Edgar Allan Brown is the present Senator from Barnwell County and serves as President Pro Tempore of the Senate of South Carolina. Each defendant is sued as an official of the Senate and not as an individual.
3. That on or about the 18th day of November 1970, plaintiff was recommended for appointment as a Page for the 1971 session of the Senate of South Carolina by Senator Walter J. Bristow, Jr. of Richland County, and thereafter she went to the office of the defendant Thomas to make application for such employment. She was there advised by a secretary to the defendant Thomas that she could not be employed as a Page, because she was a female.
4. Approximately one week later, plaintiff talked with defendant Thomas about employment, and was advised by him that she would not be employed as a Page, because she was a female. Thomas suggested that she apply for a job as a tour guide in the State House.
5. After the plaintiff unsuccessfully appealed to the Lieutenant Governor and the Governor for South Carolina, Senator Walter J. Bristow, Jr. interceded on her behalf with the defendant Thomas, but was unsuccessful in getting Thomas to change the custom of the Senate to allow the employment of a female Page.
6. That under the custom and procedures of the Senate of South Carolina, a person must be recommended by a Senator for employment as a Page, but the final appointment is made by the Clerk of the Senate, defendant Thomas.
7. Thereafter Senator Bristow changed his recommendation for prospective Pages and removed the plaintiff from a preferred position on his list, but this action was taken only after Senator Bristow learned that defendant Thomas would not employ the plaintiff because of her sex and any continued effort by him to secure her appointment as a Page would be futile under the then existing custom of the Senate.
8. That plaintiff was denied employment as a temporary employee of the Senate of South Carolina at the beginning of the January 1971 session solely because of her sex.
9. That on June 2, 1971, the Senate of South Carolina adopted Resolution S. 525, which changed its employment practices to allow the employment of females in positions known as "clerical assistants" and as "committee attendants", with duties which comprised almost all of the duties formerly performed by Pages.
10. After adoption of S.525 a number of females applied to defendant Thomas for employment and were employed as "clerical assistants" and "committee attendants". That these young ladies have never been called "clerical assistants" and "committee attendants" but have always been referred to as "Pages" by...
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State v. Taylor
...two of these States, an in Florida, the exemption is automatic, unless a woman volunteers for such service. * * *' Cf. Eslinger v. Thomas, D.C., 340 F.Supp. 886 (1972). We conclude that under the jurisprudence of this Court and the above ruling of the United States Supreme Court, Art. VII, ......
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Eslinger v. Thomas
...it found that employment as a page was denied her solely because of her sex, the district court denied her any relief. Eslinger v. Thomas, 340 F.Supp. 886 (D.S.C. 1972). In large part, we disagree and remand with directions to grant equitable I. In November, 1970, plaintiff, a law student a......