Schaefer v. Tannian

164 F.R.D. 630, 1996 U.S. Dist. LEXIS 1916
CourtDistrict Court, E.D. Michigan
DecidedFebruary 16, 1996
DocketCivil A. No. 73-39943
StatusPublished
Cited by2 cases

This text of 164 F.R.D. 630 (Schaefer v. Tannian) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schaefer v. Tannian, 164 F.R.D. 630, 1996 U.S. Dist. LEXIS 1916 (E.D. Mich. 1996).

Opinion

MEMORANDUM AND ORDER DENYING PETITIONER’S MOTION TO INTERVENE

GADOLA, District Judge.

Petitioner, Deborah Cherry, filed this motion to intervene, seeking to receive benefits as a member of the class of women who were injured by discriminatory employment practices of the Detroit Police Department (hereinafter “the Department”). The Schaefer class action of behalf of these women was filed in 1973 and the class was certified under Fed.R.Civ.P. 23(b)(2) in 1974. After winding its way through the court system for 22 years this matter was finally put to rest when a consent judgment incorporating the terms of a settlement was entered by this court on September 26,1995. Attempting to revive this dormant litigation, on October 25, 1995 petitioner filed the present motion to intervene to file a late claim to the settlement funds. On November 30, 1995, without holding an evidentiary hearing, Magistrate Judge Morgan issued a Report and Recommendation recommending that the motion be denied as untimely and unmeritorious. Petitioner filed objections to the Report and Recommendation on December 8,1995 and requested an evidentiary hearing. The parties to the Schaefer action, upon this court’s order, responded to the objections. This court, for the following reasons, will deny the petitioner’s motion. This court will not, however, adopt the November 30, 1995 Report and Recommendation of Magistrate Judge Morgan.

I. Factual Background

A. Petitioner Cherry’s Background

Petitioner applied for a position with the Department in September, 1973. Apparently, she was not hired until 21 months later, in June, 1975. Petitioner left the Department in 1980.1 Petitioner had not been with the Department long enough to receive a pension when she left. The city states that she was not entitled to a pension, but may have been entitled to a disability retirement allowance. It is unclear whether petitioner receives a disability allowance or has ever received such an allowance. Apparently, the records of the Department indicate that petitioner does receive a disability retirement allowance, but the Police and Fire Retirement System2 (hereinafter “the Retirement System”) does not have any record of petitioner receiving such an allowance. Petitioner claims that she has never received any pension or disability allowance from the Department.

When petitioner left the department, she lived on Vassar Drive, in Detroit. In 1980, [632]*632she moved away from Yassar Drive. In 1984, she changed her Michigan driver’s license address to Ewald Circle, in Detroit. Apparently, the Department and the Retirement System were not aware of her change of address until the filing of this motion.

B. The Lawsuit’s Background

This Title VII class action lawsuit, seeking injunctive and monetary relief, was filed in 1973. The class was certified under Fed. R.Civ.P. 23(b)(2) in 1974. There are approximately 800 class members, divided into three subclasses, the hiring subclass, the promotion subclass, and the compensation subclass. The present motion involves only the hiring subclass, which is comprised of those women who were not promptly hired by the Department after first applying because of the Department’s discriminatory practices. Members of the hiring subclass were, however, eventually hired by the Department. Petitioner is a member of the hiring subclass.

Over the years, several injunctions providing relief to the class were granted. These injunctions forced the Department to hire and promote more women and give additional credit for time with the Department to the hiring subclass, pursuant to a formula agreed upon by the parties. As a result of this injunctive relief, petitioner has received seven months of additional credit for time served with the Department.3 By 1991, the only remaining issue in the lawsuit was the amount of monetary damages to be awarded to the class. The parties reached a settlement, with the hiring subclass receiving $5,000,000 to be distributed among its members.4 The case was referred to Magistrate Judge Morgan to oversee the equitable distribution of the money among the individual class members.

The hiring subclass members were entitled to back pay equal to the amount they would have made at the Department had they been promptly hired, less any amounts they earned from other sources during the period in which they were wrongly denied employment at the Department. To determine the amount of money earned by class members from other sources, in June, 1993, each hiring subclass member was sent a letter with a “Request for Social Security Information” (hereinafter “the Request”) asking for the relevant earnings information. The letter advised that failure to return the Request would preclude a claim for back pay. Those women in the hiring subclass who did not receive back pay still received “noneconomic damages” from the money left in the settlement fund after back pay awards had been calculated.5

In addition to the June, 1993 correspondence sent to class members, in August, 1993 the Department publications, The Tuebor and Bars and Stripes carried notice of the pending determination of back pay. Petitioner did not return the Request. In December, 1994, Magistrate Judge Morgan recommended that those women in the hiring subclass who did not return the Request be precluded from seeking back pay. The magistrate’s report and recommendation was sent to the last known addresses of the 94 women who had not returned the Request. No objections were filed to the report. Later, a Notice of Proposed Settlement was sent to all class members. This also stated that the women who did not return the Request would not receive back pay. It also notified the members that they could voice opinions on the settlement at a public hearing set for February 21, 1995. The hearing was also publicized on the front page of the Detroit Free Press (and undoubtedly received other media attention) on February 3, 1995. Petitioner did not attend the hearing or object. On April 17, 1995, Magistrate Judge Morgan recommended approval of the settlement. Petitioner again did not file ob[633]*633jections to the Report and Recommendation. On August 7, 1995, this court adopted the April 17, 1995 Report and Recommendation. On September 26, 1995, this court entered the consent judgment that incorporated the terms of the settlement. On October 25, 1995, petitioner filed this motion.

Petitioner claims that the reason she did not respond to the numerous correspondences sent to class members was that she never received them, or any other notice of the then-pending litigation. No notice was ever sent to Ewald Circle, petitioner’s current address. The Department and the Retirement System listed Vassar Drive as petitioner’s last known address. Thus, the city explains, letters were sent to petitioner at Vassar Drive. When the letters sent to Vassar Drive were returned, the city attempted to update her address through the Retirement System, rather than the Secretary of State, because it mistakenly thought she was receiving a pension.

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Bluebook (online)
164 F.R.D. 630, 1996 U.S. Dist. LEXIS 1916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaefer-v-tannian-mied-1996.