Stambaugh v. Kansas Department of Corrections

151 F.R.D. 664, 1993 U.S. Dist. LEXIS 15923, 1993 WL 461768
CourtDistrict Court, D. Kansas
DecidedOctober 8, 1993
DocketNo. 92-4297-SAC
StatusPublished
Cited by18 cases

This text of 151 F.R.D. 664 (Stambaugh v. Kansas Department of Corrections) 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
Stambaugh v. Kansas Department of Corrections, 151 F.R.D. 664, 1993 U.S. Dist. LEXIS 15923, 1993 WL 461768 (D. Kan. 1993).

Opinion

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the plaintiffs’ motion to certify (Dk. 11) their class action as maintainable pursuant to Rule 23(b)(2) or (b)(3) of the Federal Rules of Civil Procedure. The defendants oppose the plaintiffs’ motion on several grounds. On the plaintiffs’ request, the court conducted an evidentiary hearing on this motion on September 21 and 22, 1993.

I. BACKGROUND

The plaintiffs are female employees with the Department of Corrections (“DOC”). When they filed their underlying charges of discrimination in April and May of 1991 with the Equal Employment Opportunity Commission (“EEOC”) and the Kansas Human Rights Commission, each of them worked at the Ellsworth Correctional Facility. The plaintiff Jacqueline Stambaugh was a Correctional Counselor II; the plaintiff Linda Hoag was an Office Specialist; the plaintiff Susan Lenoir was a Correctional Specialist III; the plaintiff Carol Strutt was a Correctional Counselor I; and the plaintiff Sharon Talebi-Shull was a Correctional Counselor II. In their underlying charges, each of the plaintiffs alleged that she had suffered discrimination on the basis of sex while working at the Ellsworth Correctional Facility.

In their complaint, the plaintiffs allege that the DOC maintains a pattern and practice of discrimination in hiring, promoting and transferring females; in retaliating against female employees who voice opposition to perceived sex discrimination; and in condoning or promoting a discriminatory work enví-ronment that constitutes sexual harassment, They allege such discrimination violates Title VII, 42 U.S.C. § 2000e et seq., and the Kansas Acts Against Discrimination (“KAAD”), K.S.A. 44-1001 et seq.

The plaintiffs’ class action complaint and motion for certification request a class covering all of their claims regarding promotion, hiring, transfers, retaliation, and sexual harassment. At the hearing, the plaintiffs narrowed their proposed class to those female employees of DOC on or anytime after March 4, 1985, who have been denied or will be denied promotions under the selection process required by DOC’s Internal Management Policy and Procedure (IMPP) or who were removed or will be removed as Equal Employment Opportunity (“EEO”) representatives. The plaintiffs also clarified at the hearing that their class action claims are pursued principally on a disparate impact theory while reserving their right to introduce evidence of a pattern or practice of discrimination occurring throughout the DOC’s facilities. As for the employment policy having a discriminatory impact, the plaintiffs point to the IMPPs that purportedly give the wardens, as the appointing authorities, unsupervised discretion to select whomever they want for a particular promotion. The court will focus on the allegations, evidence, and issues pertinent to these promotion and retaliation claims on which class certification is sought.

II. TITLE VII THEORIES

Superimposed on a court’s application of Rule 23’s requirements to an employment discrimination class action is the legal framework governing Title VII theories for disparate treatment and disparate impact. See Stastny v. Southern Bell Tel & Tel. Co., 628 F.2d 267, 273 (4th Cir.1980). A court cannot assess the requirements of commonality, typicality and adequacy of representation are met without examining the specific factual claims and legal theories being advanced by the individual plaintiffs and the class. “Central to both theories of liability where class-wide sex (as other) discrimination is alleged [668]*668is the existence of an identifiable employment pattern, practice or policy that demonstrably affects all members of a class in substantially, if not completely, comparable ways.” Id. In fact, the inquiry into commonality keys on the pattern and practice element shared by both substantive theories. 628 F.2d at 274. Accordingly, a court must keep in mind how the pattern and practice allegations function under the respective Title VII theories.

Class actions pursued under a disparate treatment theory rely on allegations and proof that discrimination in the defendant company was its “standard operating procedure—the regular rather than the unusual practice.” International Broth, of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977). The class must show “more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Id.; see Pitre v. Western Elec. Co., Inc., 843 F.2d 1262, 1267 (10th Cir.1988). Statistical evidence generally plays a major role in proving a pattern and practice. Wagner v. Taylor, 836 F.2d 578, 592 (D.C.Cir.1987). Statistics, however, are not required and do not preclude evidence of individual discriminatory acts. See Pitre, 843 F.2d at 1267; Wagner, 836 F.2d at 592. The class representatives often offer both kinds, of evidence to prove their class disparate treatment claims. Wagner, 836 F.2d at 592.

Class actions pursued under a disparate impact theory have a different focus. Unlike disparate treatment, the disparate impact theory does not require the plaintiff to prove discriminatory motive or intent. International Broth, of Teamsters v. United States, 431 U.S. 324, 336 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977). This theory addresses those “employment practices [and policies] that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Id. “[T]he necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987, 108 S.Ct. 2777, 2785, 101 L.Ed.2d 827 (1988). “To establish a prima facie case of disparate impact discrimination, plaintiffs must show that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group.” Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1242 (10th Cir.1991). The plaintiffs may look to statistics to show the disparate impact. Id. at 1243. “ ‘[Discriminatory impact cannot be established where you have just one isolated decision.’ ” Reidt v. County of Trem-pealeau, 975 F.2d 1336, 1341 (7th Cir.1992) (quoting Coe v. Yellow Freight System, Inc.,

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Bluebook (online)
151 F.R.D. 664, 1993 U.S. Dist. LEXIS 15923, 1993 WL 461768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stambaugh-v-kansas-department-of-corrections-ksd-1993.