Thompson v. Bd. of Ed. of Romeo Community Schools

• Decision Date: 21 August 1981
• Docket Number: No. G75-557 C.A.,G75-557 C.A.
• Citation: 519 F. Supp. 1373
• Parties: Darlene THOMPSON, et al., Plaintiffs, v. BOARD OF EDUCATION OF the ROMEO COMMUNITY SCHOOLS, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

519 F. Supp. 1373

Darlene THOMPSON, et al., Plaintiffs, v. BOARD OF EDUCATION OF the ROMEO COMMUNITY SCHOOLS, et al., Defendants.

No. G75-557 C.A.

United States District Court, W. D. Michigan, S. D.

August 21, 1981.

Mary Job, Lansing, Mich., for plaintiffs.

Butzel, Long, Gust, Klein & VanZile, Detroit, Mich., Cholette, Perkins & Buchanan, Grand Rapids, Mich., for defendants; Robert M. Vercruysse, Detroit, Mich., Anthony A. Derezinski, Grand Rapids, Mich., of counsel.

OPINION

FOX, Senior District Judge.

I. Introduction.

This is a case in which the plaintiffs, women teachers employed by defendant school districts, allege that defendant districts and their officials discriminated against them by treating disabilities resulting from pregnancy differently than other temporarily disabling conditions. This alleged sexual discrimination is challenged under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., 42 U.S.C. § 1983, and the due process and equal protection clauses of the fourteenth amendment to the United States Constitution. There also has been a pendent state claim raised under the Michigan Elliot-Larsen Civil Rights Act, M.C. L.A. § 37.2101 et seq.

In a previous opinion, this court has certified both a defendant class and a plaintiff class as follows:

Defendant class: All school boards in the State of Michigan which, since March 24, 1972, have treated or now treat pregnancy related disabilities differently than other temporary disabilities, limited to the school boards in districts wherein the MEA has female members who have been or will be subject to such policies or practices.

Plaintiff class: All female teachers of such school boards who have been since March 24, 1972 or will be in the future, denied the benefits of a sick leave policy which treats pregnancy related disabilities the same as other temporary disabilities.

71 F.R.D. 398, 418 (W.D.Mich.1976).

Additional plaintiffs are the Michigan Education Association and the Warren Education Association, each acting for itself and for its members affected by defendants' policies. The Michigan Association of School Boards is also a defendant for purposes of effectuating any declaratory and injunctive relief against the class and of representing the members of the defendant class.

After a lengthy dormant period due, in part, to a desire to await several pending Supreme Court decisions in the area of the proper treatment of pregnancy disabilities, this case has again been brought before this court for consideration of several pretrial motions.

Plaintiffs have moved this court for partial summary judgment as to the liability of defendants under Title VII and under the Elliot-Larsen Civil Rights Act. Plaintiffs further request the court to bifurcate the trial into liability and relief aspects.

Defendants have responded with their own motion for partial summary judgment. They argue that Title VII, as a matter of law, has not been violated by defendants' policies and actions. Additionally, it is asserted that Elliot-Larsen (1) is preempted by the Employee Retirement Income Security Act of 1974, (2) is unconstitutional under the one-object rule of the Michigan Constitution, article 4, section 24, and (3) should not be considered by the federal court at this time under an abstention doctrine.

In a separate motion, defendants ask this court to decertify both of the classes originally recognized in this action.

II. Reconsideration of Class Certification.

Defendants have moved this court to decertify both the plaintiff and defendant classes that originally had been recognized. They argue that this court's legal foundation for certifying a defendant class has been removed by the decision in Paxman v. Campbell, 612 F.2d 848, 854 (4th Cir. 1980), reversing the district court's decision certifying a defendant class made up of members of school boards in districts that improperly discriminated against pregnant school teachers. Defendants also challenge the standing of plaintiffs, named and unnamed, to bring suit against school districts for which they did not work. This latter issue will be considered first because if there is no broad standing, the plaintiff class would have to be broken down into subclassifications and the defendant class would necessarily be decertified.

Defendants rely heavily on Vulcan Society v. Fire Department of the City of White Plains, 82 F.R.D. 379 (S.D.N.Y.1979), where several black fire fighters and an organization brought an action against various townships in Westchester County alleging employment discrimination. Plaintiffs sought class certification but defendants opposed on the ground that individual plaintiffs had no cause of action or standing against those municipalities for which they had not worked and that creating a class of those plaintiffs could not be used to avoid standing difficulties. The court held that each plaintiff only had standing to sue the municipality for which he worked since municipalities are separate legal entities, individually responsible for their practices and policies. If there was no complaining plaintiff from a particular municipality, there could be no cause of action against that municipality. 82 F.R.D. at 399. The court found no conspiracy or joint liability in that case though joinder of the defendants was valid since the defendants used the same state-administered test in making their hiring and promotional decisions. The court noted that plaintiffs did not attempt to certify a defendant class in that action, as had been done in Marcera, thereby leaving open the possibility of a different result in that instance.

Plaintiffs raise Marcera v. Chinlund, 595 F.2d 1231 (2nd Cir. 1979), remanded for reconsideration of the merits in light of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) sub nom. Lombard v. Marcera, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 282 (1979). In Marcera, pretrial detainees in a county jail sued the county sheriff to permit contact visits. The Court of Appeals allowed the plaintiffs, as class representatives, to sue a defendant class of county sheriffs even though it was not alleged that each member of the plaintiff class was incarcerated by each member of the defendant class. The Court reached this result despite the fact that the defendants were not administering a single state statute or state policy, but rather were each engaging in similar administrative practices. The Court of Appeals thought this difference was immaterial since the challenged behavior of all of the defendants was virtually identical, 595 F.2d at 1238, n.10, and any variations were insignificant, making classwide relief clearly beneficial to all class members. Id. 1240.

Pennsylvania v. Local 542, IUOE, 469 F.Supp. 329 (E.D.Pa.1979), also allowed a plaintiff class to sue employers for whom all the members of the class had not worked. However, the close relationship of the defendant class and the Local, which served as the common hiring hall for all of the defendant class members, was used to justify this result.

What seems to be developing out of these cases is a narrow exception to strict standing requirements. A class of plaintiffs has standing to sue a group of defendants even though each individual member of the plaintiff class may not have been injured by each individual member of the defendant class only if the individual defendants are all acting to enforce a single statutory or administrative scheme or if the common practice of all defendants is virtually identical.

The question then becomes whether the plaintiff class of female teachers fits into this narrow category. In the case presently before the court, there has been no allegation or evidence that the defendant class is pursuing a single policy in the formulation of their pregnancy disability programs. There is no state law or directive which they uniformly administer and nothing indicates a conspiracy directed against the members of the class. Each member of the defendant class is free to develop, through negotiations and individual board policy, their own pregnancy disability program.

Despite the fact that the precise policies of each defendant may vary in their particulars, that which allegedly makes them illegal is the same. 71 F.R.D. at 409. The ultimate result of these policies is claimed to be that plaintiffs, and the class that they represent, have been discriminated against on the basis of their sex. The common question of law is "whether a school board, which refuses to allow pregnancy-related disabilities to be treated as are all other temporary disabilities, is illegally discriminating on the basis of sex, within the meaning of Title VII." 71 F.R.D. at 402. It is this court's preliminary opinion that all of defendants' policies relating to pregnancy disabilities can be dealt with in one lawsuit, either to validate or to invalidate them, even though they are not exact duplicates of each other. If, following the presentation of proofs in this action, it becomes clear that these policies are not sufficiently similar to justify plaintiffs' broad standing, this court can take corrective measures at that time.

Defendants also requested this court to reconsider the certification of a defendant class in light of the decision of the United States Court of Appeals for the Fourth Circuit in Paxman v. Campbell, 612 F.2d 848, 854 (6th Cir. 1980), reversing the district court opinion that served, in a large part, as the basis of the earlier decision of this court in certifying a defendant class under Federal Rule of Civil Procedure 23(b)(2).

The court in Paxman overturned the district court's use of Rule 23(b)(2) to certify a defendant class. 612 F.2d 854. Despite its apparently broad holding, it is clear that there are situations in which defendant class certification under (b)(2) is appropriate, e. g., Marcera...