Lamphere v. Brown University

71 F.R.D. 641, 24 Fed. R. Serv. 2d 305, 1976 U.S. Dist. LEXIS 14014, 13 Empl. Prac. Dec. (CCH) 11,486, 16 Fair Empl. Prac. Cas. (BNA) 747
CourtDistrict Court, D. Rhode Island
DecidedJuly 21, 1976
DocketCiv. A. No. 75-140
StatusPublished
Cited by14 cases

This text of 71 F.R.D. 641 (Lamphere v. Brown University) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lamphere v. Brown University, 71 F.R.D. 641, 24 Fed. R. Serv. 2d 305, 1976 U.S. Dist. LEXIS 14014, 13 Empl. Prac. Dec. (CCH) 11,486, 16 Fair Empl. Prac. Cas. (BNA) 747 (D.R.I. 1976).

Opinion

OPINION AND ORDER

PETTINE, Chief Judge.

This is a Title VII sex discrimination action brought by a former member of the Brown University faculty against Brown University and several of its officers and agents. Jurisdiction is based on 28 U.S.C. §§ 1331(a) and 1343. The case is presently before the court on plaintiff’s motion for class certification.

A. The Plaintiff’s Claim

In May, 1974, the plaintiff Louise Lam-phere, who was at that time an Assistant Professor in the Department of Anthropology at Brown University, was denied tenure and promotion by the defendants. As a result of defendants’ actions, plaintiff’s employment at Brown was terminated in June, 1975. The plaintiff alleges that the denial of tenure and promotion was made on the basis of sex, in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. and that the discrimination the plaintiff suffered is but one instance of a pattern and practice of sex discrimination that has pervaded and continues to pervade the employment practices of the defendants with respect to recruitment, hiring, promotion, contract renewal, and tenuring of women faculty members. The class which the plaintiff seeks to represent is described in the Amended Complaint as:

“Women faculty members who are now employed at Brown University; might become employed at Brown University; were employed at Brown University since 1972; or might have been employed at Brown University, but for the discrimination complained of herein.”

The plaintiff, as the party seeking to utilize the class action device in this case, has the burden of showing that the requirements of Fed.R.Civ.P. 23 have been satisfied. Senter v. General Motors Corp., 532 F.2d 511, 12 F.E.P. Cases 451, 459 (6th Cir. 1976); Davis v. Romney, 490 F.2d 1360, 1366 (3d Cir. 1974); Cook County College Teachers, Local 1600 v. Byrd, 456 F.2d 882, 885 (7th Cir.), cert. denied, 409 U.S. 848, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). The plaintiff must first demonstrate that the four prerequisites to a class action outlined in Rule 23(a)1 have been met, and then show that the class she seeks to represent falls within [644]*644one of the three subcategories of Rule 23(b).2

Most courts have held that in cases brought under Title VII of the 1964 Civil Rights Act, the requirements of Rule 23 must be applied liberally. See, e. g., Rodriguez v. East Texas Motor Freight, 505 F.2d 40, 50 (5th Cir. 1974), cert. granted, - U.S.-, 96 S.Ct. 2200, 48 L.Ed.2d 814, 44 U.S.L.W. 3670; Bing v. Roadway Express, Inc., 485 F.2d 441, 446 (5th Cir. 1973); 7 Wright & Miller, Federal Practice and Procedure: Civil § 1771 at 663. Cf. Yaffe v. Powers, 454 F.2d 1362, 1366 n. 2 (1st Cir. 1972). The justification for this liberal application of Rule 23 is both the important public policy in vindicating the right to equal employment opportunities guaranteed by Title VII and the fact that in almost every ease, a “suit for violation of Title VII is necessarily a class action as the evil sought to be ended is discrimination on the basis of a class characteristic; i. e., race, sex, religion, or national origin.” Bowe v. Colgate-Palmolive Corp., 416 F.2d 711, 719 (7th Cir. 1969). The plaintiff is not entitled to automatic class certification simply because she has brought a Title VII action, of course. While the requirements of Rule 23 may be applied liberally in Title VII cases, they certainly cannot be waived altogether.

B. Defendants’ Objections to Scope of Plaintiff’s Class

The plaintiff’s proposed class, as described in her Amended Complaint, consists of 20,100 members.3 A class this large clearly satisfies the requirement of Rule 23(a)(1) that the class be “so numerous that joinder of all members is impracticable.” The defendants, however, vigorously object to certification of a class of such broad scope, on the ground that the class fails to satisfy the remaining three requirements of Rule 23(a): that there be questions of law or fact common to the class; that the claims of the class representatives be typical of the class; and that the class representatives fairly and adequately protect the interests of the class.

More specifically, the defendants contend that the class should be restricted to women faculty in Brown’s Anthropology Department and not extended to women faculty in other academic departments at Brown, and further that the class should include only those women faculty • members allegedly discriminated against in tenure decisions, [645]*645and not those women faculty members and potential women faculty members who have allegedly been discriminated against in decisions relating to initial hiring, promotion at lower levels, and contract renewal. Thus defined, the plaintiff class, in the defendants’ view, would be too small to satisfy the numerosity requirement of Rule 23(a)(1).4 Finally, the defendants argue that, no matter how the class is defined, the plaintiff cannot be its fair and adequate representative because, in seeking a promotion and tenure, she places herself in a position directly adverse to the interests of other class members, given the limited number of tenured positions expected to be opening at Brown in the near future.

C. The Across the Board Approach

In support of the large scope of the class she purports to represent, the plaintiff relies on the so-called “across the board” approach first developed by the Court of Appeals for the Fifth Circuit. See, e. g., Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969). The plaintiff has alleged that the discrimination she has suffered in being denied tenure is merely one example of a pattern and practice of discrimination employed by the defendants which affects women faculty members and potential women faculty members in all academic departments and in all aspects of hiring and promotion. Such allegations of across the board discrimination underlying a defendant’s employment policies have been viewed by many courts as allegations of facts sufficiently common to and typical of employment claims which are based upon different manifestations of that single underlying policy to permit the joinder of all such claims in a class action. E. g., Rich v.

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71 F.R.D. 641, 24 Fed. R. Serv. 2d 305, 1976 U.S. Dist. LEXIS 14014, 13 Empl. Prac. Dec. (CCH) 11,486, 16 Fair Empl. Prac. Cas. (BNA) 747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamphere-v-brown-university-rid-1976.