Vanguard Justice Society, Inc. v. Hughes

• Decision Date: 20 March 1979
• Docket Number: 73-1106-K and K-74-71.,Civ. No. 73-1105-K
• Citation: 471 F. Supp. 670
• Parties: VANGUARD JUSTICE SOCIETY, INC., et al. v. Harry HUGHES et al. Barbara A. GUMPMAN et al. v. Harry HUGHES et al. Guy V. BOSWORTH et al. v. Harry HUGHES et al.
• Court: U.S. District Court — District of Maryland

471 F. Supp. 670

VANGUARD JUSTICE SOCIETY, INC., et al. v. Harry HUGHES et al.

Barbara A. GUMPMAN et al. v. Harry HUGHES et al.

Guy V. BOSWORTH et al. v. Harry HUGHES et al.

Civ. Nos. 73-1105-K, 73-1106-K and K-74-71.

United States District Court, D. Maryland.

March 20, 1979.

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Kenneth L. Johnson, Baltimore, Md., Dorothy R. Fait, Silver Spring, Md., Ann F. Hoffman, Kenneth A. Reich, Anthony W. Robinson, Baltimore, Md., for plaintiffs.

Stephen H. Sachs, Atty. Gen. of Maryland, Millard S. Rubenstein, Asst. Atty. Gen., Baltimore, Md., for State defendants.

Benjamin L. Brown, City Sol., William Hughes, Associate City Sol., and Glenn Grossman and Alan Winik, Asst. City Sols., Baltimore, Md., for City defendants.

FRANK A. KAUFMAN, District Judge.

These three cases (Vanguard, Gumpman and Bosworth) involve challenges to alleged sex and race discrimination within the Baltimore City Police Department ("Department"). The sex issues are of two kinds: (a) height-weight requirement; (b) other. The height-weight issues are present in all three cases; the other sex issues are stated only in Vanguard. The race issues are present in Vanguard but not in Bosworth and Gumpman. The cases have been consolidated pursuant to Federal Civil Rule 42(a).¹ Defendants include the State of Maryland, the Governor of Maryland, the Police Commissioner of Baltimore City (collectively referred to as "State Defendants"), the President of the Civil Service Commission of Baltimore City ("Commission"), two members of that Commission, the Mayor and City Council of Baltimore (collectively referred to as "City Defendants").²

Jurisdiction exists in these cases pursuant to 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3); the Fourteenth Amendment; 42 U.S.C. § 2000e et seq. (Title VII); and 28 U.S.C. § 1331.³ The named plaintiffs seek, on behalf of themselves and the members of the classes they represent, declaratory and injunctive relief, back pay and attorneys fees.⁴ A number of witnesses testified at trial, and an avalanche of written statements, depositions and other documents have been filed. Counsel have agreed that all such documents and indeed the entire record shall be considered as evidence in these cases.⁵ Initially, as suggested by counsel, the cases were divided both on the basis of sex and race, and also on the basis of liability and relief, and proceeded first to trial on the liability phase of the sex issues. Thereafter, however, because of possible overlap of the sex and race questions, this Court decided not to determine liability issues with regard to sex or race until it had received all liability evidence pertaining to both.⁶ As of this date, trials on liability phases of both sex and race issues, have been completed. In this opinion, the merits of the sex and race liability issues are discussed, commencing infra 697. Before those merit issues are reached, a number of threshold questions require careful analysis. Issues of relief may still require further trial.⁷

Class Certifications

Six plaintiff classes have been certified in these cases, two re sex, and four re race. In each instance, one or more of those of the named plaintiffs who raised the issue were named as class representatives. As to the sex claims, one class is comprised "of all female applicants for the position of police officer with the Baltimore City Police Department" from June, 1973 to April 23, 1974 "who were rejected because of their height * * *."⁸ As to that class, this Court hereby confirms its certification.

The second sex class is comprised of all sworn female (uniformed) employees of the Department⁹ on June 14, 1974. Shortly before final argument on the sex issues took place, all defendants sought to decertify that latter class, because thirty-six of the fifty class members had elected to "opt-out" pursuant to Federal Civil Rule 23(c)(2).

A class is not appropriate unless it "is so numerous that joinder of all members is impracticable." Federal Civil Rule 23(a)(1). A numerosity determination in any given case depends upon the facts of that case and is largely committed to the discretion of the district judge. Roman v. ESB, Inc., 550 F.2d 1343, 1347-49 (4th Cir. 1976); Barnett v. W. T. Grant Co., 518 F.2d 543, 546-47 (4th Cir. 1975); Cypress v. Newport News General Non-Sectarian Hospital Association, 375 F.2d 648, 653 (4th Cir. 1967). Defendants' decertification approach, as aforesaid, stressed lack of numerosity. However, there is also a question of adequacy of class representation, see Federal Civil Rule 23(a)(4), a question which in final preparation of this opinion looms large since Ms. Blackston, one of the five original individual named plaintiffs in Vanguard, is the only named plaintiff in these three cases who is or was a sworn female employee of the Department on June 14, 1974 or, as far as this Court has been informed, at any time thereafter. Ms. Blackston has herself, opted-out as a member of the sworn female class.¹⁰ When Ms. Blackston so opted out, she became at that time an inadequate class representative. Cf. East Texas Motor Freight System, Inc. v. Rodriquez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977); Belcher v. Bassett Furniture Industries, Inc., 588 F.2d 904 at 906 n.2 (4th Cir. 1978); Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir. 1978); Shelton v. Pargo, Inc., 582 F.2d 1298, 1313 and n.53 (4th Cir. 1978); Roman v. ESB, Inc., supra. Because there never has been any other named plaintiff in these cases who qualifies as a representative of the non-height-weight sex class,¹¹ it is necessary, even as of this date, to decertify that class.¹² Otherwise, its members would be bound by an adverse decision herein without having been represented by an adequate representative. To permit that to occur would surely offend due process. "The binding effect of all class action decrees raises substantial due process questions that are directly relevant to Rule 23(a)(4). If the absent members are to be conclusively bound by the result of an action prosecuted or defended by a party alleged to represent their interests, basic notions of fairness and justice demand that the representation they receive be adequate * * *." 7 Wright & Miller, Federal Practice & Procedure, § 1765, p. 617 (1972). However, in order not to deprive the members of the decertified non-height-weight sex class from having their day in court, the class action claims of that class will be retained as open claims in this case for a period of thirty days from the date hereof in order "to permit the presentation of any proper claims" for relief and for an adequate representative of that class to come forward. See Goodman v. Schlesinger, 584 F.2d 1331-33, and cases cited and discussed thereat; Cox v. Babcock & Wilson Co., 471 F.2d 13, 15-16 (4th Cir. 1972).

The four classes certified as to race issues are the following:¹³

(1) All blacks "who have at any time since November 12, 1970, been applicants for employment with the Baltimore City Police Department as sworn uniform employees and who have not been employed and who assert a claim under the provisions of 42 U.S.C. § 1983."

(2) All blacks "who have at any time since March 24, 1972, been applicants for employment with the Baltimore City Police Department as sworn uniform employees and who have not been employed and who assert a claim under Title VII of the Civil Rights Act of 1964, as amended March 24, 1972, 42 U.S.C. § 2000-e 2000e."

(3) All blacks "who are now employed as sworn uniform employees or who have at any time since November 12, 1970 been employed as sworn uniform employees or who will in the future be employed as sworn uniform employees with the Baltimore City Police Department and assert a claim under the provisions of 42 U.S.C. § 1983."

(4) All blacks "who are now employed as sworn uniform employees or who have at any time since March 24, 1972 been employed as sworn uniform employees or who will in the future be employed as sworn uniform employees with the Baltimore City Police Department and assert a claim under Title VII of the Civil Rights Act of 1964, as amended March 24, 1972, 42 U.S.C. § 2000-e 2000e."¹⁴

The certifications of those four race classes are hereby confirmed.

Title VII Exhaustion

Consideration of Title VII exhaustion questions necessitates a lengthy detour.

On August 13, 1973, the Vanguard Justice Society and Victor B. Dennis, Melvin P. Freeman and Earl I. Nesbit, all named plaintiffs in Vanguard, filed charges of race discrimination with the EEOC against the Baltimore City Police Department, Mayor and City Council of Baltimore, the Baltimore Civil Service Commission, and the Governor of Maryland. Thereafter, within the next several months, three persons who are individual plaintiffs in one or more of these cases filed charges with the EEOC of sex discrimination against only the Department based on the 5'7" height requirement: Paulette Nixon on September 4, 1973; Barbara Gumpman on September 13, 1973; and Linda Barksdale on November 9, 1973.¹⁵

On November 12, 1973, the Society, Paulette Nixon and others instituted in this Court the Vanguard case against the Governor, the Police Commissioner, the Civil Service Commission and the Mayor of Baltimore City, alleging both race and sex discrimination in the operation of the Police Department¹⁶ and grounding their claims upon 42 U.S.C. §§ 1981, 1983 and the Fourteenth Amendment but not upon Title VII. On that same date, i. e. November 12, 1973, Gumpman and Barksdale commenced the Gumpman case, naming the same defendants as were named in Vanguard, alleging height-weight sex discrimination, and relying on section 1983 and the Fourteenth Amendment but not Title VII.

Subsequently, on January 22, 1974, Bosworth, as a sole plaintiff, instituted her case in this Court, alleging sex discrimination based on the height-weight requirement and...