Friend v. Leidinger

• Citation: 446 F. Supp. 361
• Decision Date: 03 October 1977
• Docket Number: Civ. A. No. 74-0327-R.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Roscoe FRIEND et al. v. William LEIDINGER et al.

446 F. Supp. 361

Roscoe FRIEND et al. v. William LEIDINGER et al.

Civ. A. No. 74-0327-R.

United States District Court, E. D. Virginia, Richmond Division.

October 3, 1977.

COPYRIGHT MATERIAL OMITTED

Kenneth L. Johnson, Evelyn O. A. Darden, Baltimore, Md., Gerald Poindexter, Perry F. Tucker, Jr., Richmond, Va., Anthony W. Robinson, Baltimore, Md., for plaintiffs.

James R. Saul, Asst. City Atty., Richmond, Va., for defendants.

MEMORANDUM

WARRINER, District Judge.

This is a class action for declaratory, injunctive and other relief brought against the City of Richmond, Virginia and several of its employees. The complaint alleged that the Richmond Fire Bureau engages in acts and practices that discriminate against blacks in their employment because of their race. Jurisdiction is conferred upon this Court by 28 U.S.C. § 1343.

The plaintiff class was certified as all Negroes who have, within the applicable period of the statute of limitations, been discriminated against with respect to employment practices by defendants and who (a) are presently employed in the fire department of the City of Richmond or (b) formerly have been employed in the fire department of the City of Richmond.

Prior to trial, plaintiffs dropped their claims under the post-Civil War Civil Rights Acts and their constitutional claims. The case was tried only under the Civil Rights Act of 1964 on the question of liability by the Court. Title VII of the Civil Rights Act of 1964 was made applicable to local government employment by passage of the Equal Employment Opportunity Act of 1972 on 24 March 1972.

The two named plaintiffs in this action, Roscoe Friend and Theodore Fuller, filed a charge with the Equal Employment Opportunity Commission on 11 November 1974, pursuant to 42 U.S.C. § 2000e-5. The statute requires that a charge be filed with the Commission within one hundred and eighty days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e). Therefore, only those acts and practices which occurred on or after 11 May 1974 may be a basis for a finding of liability in this case. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977).

It is abundantly proven and not denied that defendants or their predecessors in office practiced overt and officially-sanctioned racial discrimination up to the year 1963. Such racial discrimination in earlier years was not considered to be in violation of the law of the land; in fact, it was generally deemed to be in obedience to State law and not prohibited by federal law. This nation's evolving concept of decency, morality and constitutional law underwent revolutionary changes during the decades following Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The fire department of the City of Richmond, though clearly not leading the way, followed in the train of that revolution.

In 1950, the first Negroes were hired as firemen in the City of Richmond. They were organized into a separate fire company, Company No. 9, located in a Negro neighborhood. White officers were assigned as their superiors. Change followed as Negro officers were trained and assigned to the segregated fire company. Then, in 1963, the black firemen were dispersed among other units in all areas of the city. As time went on black firemen became assimilated into the fabric of the fire department. The battle had been won but mopping up operations continued. The present case is one such operation.

I

Plaintiffs have compiled extensive statistics on the Fire Bureau's disciplinary policies relating to white and black firemen. Particularly, plaintiffs contend that the Fire Bureau discriminates on the basis of race by using garnishments as the basis of disciplinary action and by taking more severe action against blacks than against whites who are involved in traffic accidents. The two arguments do not follow the same path. Plaintiffs contend that the mere use of garnishments as a basis of disciplinary action is per se a violation of Title VII, since blacks have their wages garnished more often than whites. Plaintiffs contend that the greater frequency of "chargeable" incidents among black firemen who are involved in traffic accidents is evidence of discrimination by those Fire Bureau personnel who determine whether an incident is chargeable or non-chargeable.

A. Garnishments

Plaintiffs' contend that defendants practice racial discrimination by using the fact that a fireman's wages have been garnished as a basis for employment decisions. The evidence purported to show that while only 2% of the white firemen had their wages garnished in the period from 1972 to 1976, 40% of the black firemen had their wages garnished in the same period. Plaintiffs' Exhibit No. 104B. Dr. Gittleson, the plaintiffs' statistics expert, testified at trial that this difference was statistically significant. Record, page 213.

Plaintiffs' evidence on the number of garnishments for black and white firemen is contained in Plaintiffs' Exhibits Nos. 103 and 104. Plaintiffs' Exhibit No. 103 contains notations made on the basis of observations from Fire Bureau personnel files. Plaintiffs' Exhibit No. 104 is a summary of the data found in 103. Dr. Gittleson testified that he had no knowledge of the meaning or accuracy of the data he was given, which was taken directly from Plaintiffs' Exhibit No. 104. To the extent there are any inaccuracies in these exhibits, Dr. Gittleson's testimony must be discounted.

Plaintiffs' Exhibit No. 104B shows a total of 41 garnishments of black firemen from 1 July 1972 to March 1977. However, analysis of the documents on which this compilation is based shows that 15 of these garnishments involved the same fireman, one A. Irving. Plaintiffs' Exhibit No. 103, page 71. Five of the 41 involve one Irving S. Friend. Plaintiffs' Exhibit No. 103, page 34. Thus, almost half of all garnishments of black firemen are attributable to two individual firemen. The Court cannot say what Dr. Gittleson's testimony would be on the statistical significance of the so-called "garnishment rate" between black and white firemen if the garnishments attributable to these atypical individuals were removed from the sample.

Another serious error appears from analysis of Plaintiffs' Exhibit No. 103. On page 34 of that Exhibit there appears an entry for one Irving, Andrew, who was hired on 3 July 1965. Among other things, the entry records garnishments for Mr. Irving dated 27 October 1975 and 20 August 1975. On page 71 of that Exhibit there appears an entry for one A. Irving, hired 3 July 1965, with garnishments on 27 October 1975 and 8 August 1975. It is apparent that these two entries concern the same individual, and that at least two garnishments have been counted twice. These errors cast a pall over the plaintiffs' whole case on garnishments and disciplinary actions. Dr. Gittleson's testimony on the statistical significance of data compiled from Exhibits 103 and 104 can only be significant if the data are correct.

In addition to the errors above noted, defendants presented the testimony of Chief Julian L. Madison, who said he could not find in Plaintiffs' Exhibit No. 103, upon which Dr. Gittleson depended, any instance where a fireman was suspended for 60 days for a garnishment or any instance where one lost 3 vacation days for a garnishment as claimed by plaintiffs. The first exception refers to an entry for Robert Myers on page 8 of Exhibit 103. The entry "Lost 60 days of work" appears immediately below the entry "Counselled 6/73 for Garnishment." According to Chief Madison, counselling is not a disciplinary action in the Fire Bureau, but only an admonition intended to prevent the necessity for future disciplinary action. Record, page 82. It is inconsistent that Myers would be suspended for 60 days for a garnishment and at the same time be noted as "counselled" for the same offense. The likely explanation is that the two entries are separate, and plaintiffs erred in confusing them in Exhibit 104B.

The entry indicating a loss of 3 vacation days for a garnishment appears on page 53 of Exhibit 103 under the name John Raspberry, Jr. The entry "3 vac days 12/2, 3, 4, 1975" appears immediately over the entry "garnish. 7/2/75." It is difficult to believe that the Fire Bureau would allow 5 months to pass before taking disciplinary action. In fact, Chief Madison testified that Raspberry lost 3 vacation days for failing to mark off duty properly and produce a doctor's certificate saying he was sick. It appears that in this case also, Exhibit 104B is in error.

Plaintiffs failed to explain any of these errors. In their post-trial brief, plaintiffs say, "In an attempt to point out inaccuracies, defendants called Acting Chief Madison as a witness. The witness failed to point out any inaccuracies." Plaintiffs' Post-Trial Brief, page 17. As above noted, this claim is patently incorrect. Had the errors not been discovered plaintiffs' exhibit would have led the Court to believe that the punishment given blacks for garnishments was far more severe than the punishment given whites. These errors are serious and their existence makes the Court uneasy in placing firm reliance on the statistical evidence.

According to Chief Finnegan, after a fireman receives one garnishment he is counselled on his financial affairs. Subsequent garnishments result in written reprimands which become a part of a fireman's records. No disciplinary action beyond a reprimand is used. Record, pages 432-33. Chief Finnegan also testified that he does not consider one or two garnishments in determining who should be promoted. Record, page 483. Except as mentioned at page 444 of the Record, noted infra, Chief Finnegan expressed the view that the Fire Bureau should take no disciplinary action with respect to garnishments. Record, page 442.

Finnegan testified that when a fireman's wages are garnished it places an administrative...