Ward v. Arkansas State Police, LR-C-77-256.

Citation493 F. Supp. 1315
Decision Date29 July 1980
Docket NumberNo. LR-C-77-256.,LR-C-77-256.
PartiesJames Wesley WARD, Plaintiff, v. ARKANSAS STATE POLICE, Defendant.
CourtUnited States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas

Ralph Washington, John W. Walker, P. A., Little Rock, Ark., for plaintiff.

Debby Nye, Asst. Atty. Gen., State of Arkansas, Little Rock, Ark., for defendant.

MEMORANDUM AND ORDER

PRELIMINARY STATEMENT

HENRY WOODS, District Judge.

Plaintiff James Wesley Ward, a black applicant for employment with the Arkansas State Police, filed suit on August 26, 1977 in the United States District Court under the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Paragraph II of the complaint alleges a class action proceeding for a declaratory judgment declaring the plaintiff's rights, for an award of monetary relief, for a permanent injunction restraining the defendant from maintaining policies, practices, customs and usages of discrimination against plaintiff and other blacks because of their race with respect to hiring, tenure, compensation, job classification, terms, conditions and other privileges of employment. Plaintiff alleged that he had applied for a State Police position in May or June, 1970 and was required to take a test which he was told that he failed. He reapplied in January, 1975 with the same result. He applied again in May of 1976 and was not notified of the status of his application. On the latter occasion he was not scheduled for an examination. The complaint goes on to charge the Arkansas State Police with a historically discriminatory hiring policy. Plaintiff asked for a declaratory judgment that the actions of the defendant violated his rights under 42 U.S.C. § 2000e et seq.; that he and his class receive compensation; and that various discriminatory practices of defendant be terminated.

The Attorney General of Arkansas filed an answer on behalf of the State Police which amounted to a general denial of plaintiff's allegations. Other than a petition to intervene by three other individuals represented by another law firm, there was no activity in this case whatsoever until January 28, 1980, when District Judge G. Thomas Eisele wrote to counsel enclosing a pre-trial questionnaire to be answered by the parties by June 1, 1980. Discovery was cut off on July 1, 1980. Counsel for the plaintiff was directed to file a motion to certify class within sixty (60) days. In response to this letter, Mr. Ralph Washington, one of plaintiff's attorneys, wrote as follows to Judge Eisele on March 26, 1980:

Mr. Walker has requested that I inform you that the above-captioned case has been substantially resolved. We request that this matter be removed from your class action calendar. Also, we request that it be removed from your trial calendar. We are in the process of attempting to resolve this matter on an individual basis in behalf of plaintiff named above.

Since no motion for class certification had been made within the time required and in view of the above letter, the Clerk transferred this case from the class action docket to the individual docket and assigned it to the undersigned for trial on July 16, 1980. On June 9, 1980 Mr. Washington wrote as follows:

Mr. Walker has requested that I respond to your letter of June 4, 1980, regarding the above-captioned case. As requested by you, we are complying with the Pretrial Questionnaire from your office. However, Mr. Walker wants the Court to schedule a conference hearing in the above matter to resolve the settlement agreement entered into between a former partner of Mr. Walker's lawfirm, Honorable Henry L. Jones, Jr. and Frank B. Newell, Deputy Attorney General, with said agreement to be resolved pursuant to the consent degree entered between the United States of America and the State of Arkansas which was signed by the Honorable Terry L. Shell, United States District Judge. We strongly feel that the change of administration does not change the previous settlement agreement between parties. Therefore, we respectfully request a conference hearing before Your Honor regarding the settlement agreement in the above-captioned case.

In response to this letter, the court scheduled a conference on June 24, 1980 with counsel for the respective parties. At this conference it was agreed that a hearing should first be held as to whether a settlement had been effectuated before proceeding to a full trial on the merits.

The basis of the purported settlement, as noted in Mr. Washington's letter of June 9, 1980, was a consent decree entered on February 1, 1978 by the late Judge Terry Shell in civil action LR-C-78-25, styled United States v. States of Arkansas, Douglas W. Harp, Director of the Arkansas State Police, et al. The court takes judicial knowledge of this decree and incorporates it by reference herein.1 The decree provided for back pay for applicants in various categories who had failed the examination and were otherwise qualified. This decree was approved by Frank B. Newell, Deputy Attorney General of the State of Arkansas, and David L. Rose and Katherine P. Ransel for the U. S. Department of Justice.

U. S. Magistrate Henry Jones, who represented plaintiff in 1977 and 1978 as a member of the present law firm of plaintiff's counsel, and Mr. Frank Newell, who represented the State Police at that time, were present at the conference held on June 24, 1980 between court and counsel. They were directed to prepare a joint Report to the Court concerning the settlement negotiations carried on between them.

These gentlemen prepared and filed two documents with the Court, and these have been introduced in evidence by the Court without objection from the parties:

REPORT TO THE COURT BY HENRY L. JONES, JR. AND FRANK B. NEWELL
(1) The below signed attorneys entered into settlement discussions concerning the above styled case in 1977 and 1978. Henry Jones represented the Plaintiff on behalf of Walker, Hollingsworth and Jones, and Frank Newell represented the Defendant on behalf of the Attorney General's office. Frank Newell's primary contact with the Arkansas State Police was through discussions with Major Lawrence E. Gwyn, the Director of Personnel and Training. Henry Jones consulted with John Walker who represented Mr. Ward.
(2) Mr. Jones and Mr. Newell agreed that Mr. Ward would be permitted to take a written examination administered by the Arkansas State Police. The examination was being prepared or had been prepared pursuant to the tentative terms of a consent decree proposed to be entered in United States v. State of Arkansas, et al. United States District Court, Eastern District of Arkansas, Docket No. LR-C-78-25. Mr. Jones understood that Mr. Ward would be hired upon successful completion of the examination. It is agreed that this understanding was reasonable. See the attached correspondence dated July 1, 1980, from Mr. Newell to Mr. Jones.
(3) The only reference made to the consent decree described in paragraph (2) above in connection with the back-pay terms of a settlement of Mr. Ward's claim was to the back-pay provision contained therein. References were made at other times to consolidation of Mr. Ward's suit with that of the United States.
(4) Neither Mr. Jones nor Mr. Newell recall any mention during their discussions of a background check, and the assumption of both attorneys was that, upon successful completion of the examination, there would be no problem with Mr. Ward receiving employment with the Arkansas State Police, subject to the considerations set out in the attached correspondence referenced above. This understanding was based on Mr. Newell's communications with Major Gwyn and Mr. Jones.
(5) Mr. Newell and Mr. Jones agreed that, if hired, Mr. Ward should receive back-pay, but no amount was agreed upon. Mr. Newell and Mr. Jones discussed the amounts listed in the categories found in the consent decree and the amounts mentioned in a January 24, 1978, letter from Mr. Jones to Mr. Newell.
(6) Mr. Newell and Mr. Jones never entered into a formal, final settlement agreement. However, to the extent indicated above, counsel did have an understanding based on good faith, and neither counsel anticipated any problems concerning resolution of the matter, although Mr. Newell, for the reasons indicated in the attached correspondence, believes that he lacked authority to guarantee his client's acquiescence to any proposed settlement agreement.

/s/ Henry L. Jones, Jr. /s/ Frank B. Newell

Date: July 3, 1980

The second document is a letter from Mr. Newell to Judge Jones dated July 1, 1980 regarding the settlement.2

On January 15, 1979 Ward appeared and successfully passed a new test formulated pursuant to the Consent Decree. The test results were known approximately one month later. On February 20, 1979 Major Gwyn requested that Investigator Bill Eddins of the State Police begin the background investigation on plaintiff Ward. Eddins contacted Ward on March 1, 1979 to advise him of the ongoing background check and the upcoming personal interview. On April 4, 1979 Sgt. Eddins wrote Ward the following letter:

On March 1, 1979, reference our telephone conversation, you were informed that a background investigation was being conducted, and that I would contact you the following week to conduct a required personal interview, and also pick up the grade transcripts of your high school and completed college hours.
On March 6, I called your residence, and was informed your whereabouts were unknown. I left a message for you to call me at the earliest possible date regarding your application.
On March 8, I again called your residence and spoke with a female who identified herself as your mother, and was again informed that your whereabouts were unknown. I left a message for you to contact me as soon as possible.
Mr. Ward, it is imperative that you contact me as soon upon receipt of this letter as possible, either by telephone or at my office at the Personnel Division, Arkansas
...

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