Harris v. Birmingham Board of Education

90 F.R.D. 263, 1981 U.S. Dist. LEXIS 12453, 32 Fair Empl. Prac. Cas. (BNA) 78
CourtDistrict Court, N.D. Alabama
DecidedFebruary 27, 1981
DocketCiv. A. No. CV 76-G-1725-S
StatusPublished
Cited by1 cases

This text of 90 F.R.D. 263 (Harris v. Birmingham Board of Education) is published on Counsel Stack Legal Research, covering District Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. Birmingham Board of Education, 90 F.R.D. 263, 1981 U.S. Dist. LEXIS 12453, 32 Fair Empl. Prac. Cas. (BNA) 78 (N.D. Ala. 1981).

Opinion

MEMORANDUM OPINION

GUIN, District Judge.

This action came before the court on September 16, 1980, to determine whether the plaintiffs, George C. Moore, Rufus Harris, Jr., and Bobby Minard, satisfy the requirements of Rule 23, Federal Rules of Civil Procedure, to maintain a class action as representatives of a class. In the complaint, the plaintiffs purport to represent a class composed of “all past, present and future black applicants for employment or black employees of the Birmingham Board of Education and on behalf of those persons in the past, present or future who would have applied for employment but for the defendants’ racially discriminatory recruitment and employment practices and reputation therefor.” No formal motion for class certification has been made. However, in plaintiffs’ initial memorandum in support of class certification plaintiffs’ counsel states the class seeking certification is composed of “black employees and former employees assigned to physical education or athletic coaching positions since March 1972.” This court finds for alternative reasons that whichever proposed class definition is advocated, class certification is due to be denied.

First of all, and most importantly, in this case the putative class constitutes a subclass in Dwight Armstrong v. Board of [265]*265Education of the City of Birmingham, 430 F.Supp. 595, D.C., (commonly referred to as “the Birmingham School Case”). During the years of litigating the Armstrong case no request to intervene as a part of the subclass was ever made by counsel for the plaintiffs herein, although said counsel repeatedly admitted knowledge of the proceedings in Armstrong. In addition, there was certainly adequate publicity of Armstrong in the news media. The Armstrong casé was by its nature a class action and by virtue of the court order of June 19, 1970, based on the mandate of the Fifth Circuit Court of Appeals, the adoption of the desegregation plan of faculty and staff as set forth in Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 at 1218 (1969), was required in order to achieve a unitary school system for the Birmingham schools. With regard to faculty ratios, the Armstrong case is in the final decree stage and intervention is no longer appropriate. The only aspect left in the pending Armstrong case is the achievement of certain student ratio goals. All class issues involving faculty are fully resolved.

Under the decrees of this court, great progress has been made by black faculty members and administrative employees. For example, by order of the court dated August 9, 1979, no elementary school or high school with a student enrollment exceeding 50 percent black students shall have a percentage of black teachers which exceeds the percentage of black elementary or high school teachers in the system as a whole in such year by over ten percentage points. The same was ordered with regard to white teachers at elementary schools and high schools with student enrollments which exceed 50 percent white. Under the 1970 order aforementioned, the Birmingham Board of Education is obligated to avoid racial considerations in all faculty hiring and assignment. The appropriate vehicle for the faculty claims presented in this case is not a separate class action, but a complaint in intervention timely filed in the Armstrong case.

The Fifth Circuit said in Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044 (5th Cir. 1975) that where the Singleton unitary plan is adopted (as it was in Armstrong)

[T]his court held that the proper and orderly procedure to be followed by third parties in seeking to question deficiencies in the implementation of desegregation orders or for further relief in ongoing school cases is by petition to intervene.

Id. at 1046. See also Hines v. Rapides Parish School Board, 479 F.2d 762 (5th Cir. 1973) and Lee v. Macon County Board of Education (Conecuh County), 482 F.2d 1253 (5th Cir. 1973).

Intervention will serve to avoid a proliferation of litigation over the same subject matter, and is within the spirit of Rule 24(b), F.R.Civ.P. The same reasoning, which supported our prior decisions requiring intervention, is supportive of requiring that a Title VII plaintiff-school employee likewise intervene. Lastly, our policy of required intervention is analogous to the discretionary power in the court to require consolidation. See Rule 42(a) F.R.Civ.P.

Id. at 1049, footnotes omitted.

Alternatively, Rule 23(a) of the Federal Rules of Civil Procedure requires the presence of four factors before a class action can be certified:

(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.

The adequate representation requirement of Rule 23(a)(4) is typically construed to foreclose the class action not only where the representative parties lack competent counsel, but also where there is a conflict of interest between the named plaintiffs and the members of the putative class. General Telephone Co. v. EEOC, 446 [266]*266U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980); East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977). The facts of this case present such a conflict of interest between the class members and their representatives. The complaint includes within the class all black employees of defendant Birmingham Board of Education. Yet the Supreme Court recently, in General Telephone Co., supra, at 446 U.S. 331, at 100 S.Ct. 1707, at 64 L.Ed.2d 330, stated as dictum the following:

In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes.

In their complaint, plaintiffs prayed that the class members be offered the opportunity to qualify for and transfer into positions from which they had been excluded, with carry-over seniority and their benefits.

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Bluebook (online)
90 F.R.D. 263, 1981 U.S. Dist. LEXIS 12453, 32 Fair Empl. Prac. Cas. (BNA) 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-birmingham-board-of-education-alnd-1981.