Simmons v. City of Kansas

129 F.R.D. 178, 1989 U.S. Dist. LEXIS 16011, 52 Fair Empl. Prac. Cas. (BNA) 640, 1989 WL 162770
CourtDistrict Court, D. Kansas
DecidedDecember 5, 1989
DocketCiv. A. No. 88-2603-O
StatusPublished
Cited by5 cases

This text of 129 F.R.D. 178 (Simmons v. City of Kansas) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simmons v. City of Kansas, 129 F.R.D. 178, 1989 U.S. Dist. LEXIS 16011, 52 Fair Empl. Prac. Cas. (BNA) 640, 1989 WL 162770 (D. Kan. 1989).

Opinion

MEMORANDUM AND ORDER

EARL E. O’CONNOR, Chief Judge.

Before the court in the above-captioned matter is plaintiffs’ motion for class certification, pursuant to Rule 23 of the Federal Rules of Civil Procedure. By order dated July 5, 1989, the court directed plaintiffs to file supplemental suggestions in support of their motion, to which defendants were allowed to respond. Having received and carefully considered said supplemental briefing by both sides, the court is prepared to rule.

Plaintiffs are current and former black police officers employed by defendant City of Kansas City, Kansas (“the City”). Plaintiffs claim that the City’s policy governing promotions within the police department discriminates against them in violation of Title 42, United States Code, sec[179]*179tions 1981 and 1983, 2000e et seq. (“§ 1981,” “§ 1983,” and “Title VII,” respectively). The City’s policy is contained in Article 11 of the Memorandum of Understanding Between The City of Kansas City, Kansas and Fraternal Order of Police Lodge #4 of Kansas City, Kansas. The class for which plaintiffs seek certification is “All black police officers of the City of Kansas City, Kansas, at any time on or after the first day of January, 1977.” Defendants deny that plaintiffs can meet any of the prerequisites for class certification.

The court discussed many of the relevant considerations in ruling upon a motion for class certification in Smith v. MCI Telecommunications Corp., 124 F.R.D. 665 (D.Kan.1989):

Federal Rule of Civil Procedure 23(a) lists the following prerequisites to a class action:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all parties [sic] 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.
These requirements are often referred to as numerosity, commonality, typicality, and adequacy of representation. Additionally, for a case to proceed as a class action, it must fit into one of the categories described in Rule 23(b).
^ * * # sic *
[Plaintiffs have] the burden of demonstrating satisfaction of the Rule 23 requirements. However, the Tenth Circuit has stated that if there is error to be made, let it be in favor and not against the maintenance of the class action. In determining whether a class should be certified, the court must not delve into the merits of the action; nonetheless, the court often must, to some extent, analyze the elements of the claims and defenses of the parties.

Id. at 674 (footnote, citations, and internal quotation marks omitted). The court will first consider defendants’ general objections to the proposed class and then turn to the requirements of Rule 23.

Defendants object to the proposed class extending back to January 1, 1977, for two reasons. First, defendants maintain that, because actions under §§ 1981 and 1983 are subject to a two-year statute of limitations, Garcia v. University of Kan., 702 F.2d 849 (10th Cir.1983), the class cannot include officers whose claims arose prior to December 7, 1986. Second, defendants argue that no Title VII claim will lie for class members not employed by the City on or after May 25, 1987.1 See Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). Plaintiffs allege that the discriminatory promotional practices commenced on January 1, 1977, and constitute continuing violations of their rights.

Suits under § 1981 and § 1983 challenging allegedly discriminatory practices are not barred by statutes of limitations, provided there is a violation during the limitations period. Pike v. City of Mission, 731 F.2d 655 (10th Cir.1984). The “continuing violation” theory also applies in cases under Title VII. See Bruno v. Western Elec. Co., 829 F.2d 957 (10th Cir.1987). Merely feeling the effect of a past violation during the limitations period, however, is not sufficient to preserve the cause of action. Id.

In the case at bar, the City’s promotional policy has been in effect from January 1977 to the present. By definition, however, only the rights of those police officers actually employed by the City during the above limitations periods could be violated by a discriminatory promotional policy. Thus, while officers employed by the City during the limitations periods may [180]*180seek damages for alleged violations occurring outside the limitations periods, those officers not so employed may not recover at all. See Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); accord, Long v. Florida, 805 F.2d 1542 (11th Cir.1986), rev’d on other grounds, 487 U.S. 223, 108 S.Ct. 2354, 101 L.Ed.2d 206 (1988); Christman v. American Cyanamid Co., 92 F.R.D. 441, 448 (E.D.Pa.1981). Because the statute of limitations period for claims under § 1981 and/or § 1983 is longer than that for Title VII claims, the court will allow those officers employed by the City on or after December 7, 1986, to proceed as a class. If plaintiffs are successful on the former claims, then any recovery under Title VII will further depend, inter alia, upon their dates of employment.

With respect to the issue of numerosity, Rule 23 directs a court to consider both the number of potential class members and the feasibility of their joinder in one action. Defendants herein do not claim that class membership of at least forty-nine persons is insufficient. Rather, they attack plaintiffs’ demonstration that joinder is not practicable. Plaintiffs contend that the court should permit said members to proceed as a class, to minimize the likelihood of retaliation against individual members. As evidence of the likelihood of such retaliation, plaintiffs point to certain racial graffiti discovered on a wall of the police station after filing of the instant suit. Exhibit H, Plaintiffs’ Suggestions ... Class Certification. In Frazier v. Southeastern Pa. Transp. Auth., 123 F.R.D. 195, 197 (E.D.Pa.1988), the court found that alleged fear of retaliation against individual potential members of a class is a proper consideration when determining whether the numerosity requirement is met. We agree and, considering plaintiffs’ evidence of potential retaliation, find that plaintiffs have satisfied the first condition for class certification.

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Bluebook (online)
129 F.R.D. 178, 1989 U.S. Dist. LEXIS 16011, 52 Fair Empl. Prac. Cas. (BNA) 640, 1989 WL 162770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-city-of-kansas-ksd-1989.