Strong v. Arkansas Blue Cross & Blue Shield, Inc.

87 F.R.D. 496, 23 Fair Empl. Prac. Cas. (BNA) 1386, 1980 U.S. Dist. LEXIS 13302
CourtDistrict Court, E.D. Arkansas
DecidedSeptember 5, 1980
DocketNos. LR-74-C-173, LR-74-C-282, LR-76-C-149, LR-76-C-231 and LR-76-C-244
StatusPublished
Cited by15 cases

This text of 87 F.R.D. 496 (Strong v. Arkansas Blue Cross & Blue Shield, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Strong v. Arkansas Blue Cross & Blue Shield, Inc., 87 F.R.D. 496, 23 Fair Empl. Prac. Cas. (BNA) 1386, 1980 U.S. Dist. LEXIS 13302 (E.D. Ark. 1980).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ROY, District Judge.

The above-captioned cases have been previously transferred from the dockets of individual District Judges for the Eastern District of Arkansas and consolidated for trial and coordinated pretrial proceedings. Each of the cases involves allegations of discriminatory employment practices. Each of the complaints alleges discrimination based on race or sex or both. The jurisdiction of the District Court has been invoked pursuant to the remedial provisions of Title VII of the Civil Rights Act of 1964, as amended, and its jurisdictional counterpart, 28 U.S.C. § 1343(3) and (4). On June 7 and 8,1979, this Court conducted an evidentiary hearing which was limited to a consideration of the issues raised by the plaintiffs’ motion for class certification and the defendant’s opposition to class certification. Based on a review of the transcript of the testimony presented at the hearing, the exhibits, the extensive briefs which have been submitted by the respective parties, the proposed findings and objections thereto, and the depositions and other discovery which have been utilized by the parties throughout these proceedings, the following Findings of Fact and Conclusions of Law are hereby submitted, pursuant to the provisions of Rule 52(a) of the Federal Rules of Civil Procedure, as the Court’s memorandum of decision with respect to the plaintiffs’ motion for class certification.1

[500]*500I.

SUMMARY OF THE PARTIES’ CONTENTIONS

The plaintiffs contend that this action should be certified as a class action. The plaintiffs, citing decisions rendered prior to the United States Supreme Court’s decision in East Texas Motor Freight v. Rodriquez, 431 U.S. 395, 97 S.Ct.1891, 52 L.Ed.2d 453 (1971), have forcefully argued that suits alleging discrimination based upon class characteristics such as race or sex are inherently, or by their very nature, class actions. The plaintiffs have also argued that they have met the requirements of Rule 23 of the Federal Rules of Civil Procedure, the requirements of demonstrating numerosity, commonality, typicality and adequacy of representation. The plaintiffs have further argued that the Court should not consider the major portion of the defendant’s evidence since it is relevant only to the merits of the alleged claims of discrimination rather than the determination of whether a class should be certified. Lastly, the plaintiffs have intimated that the defendant’s “evidence on the merits” establishes that blacks and women have been systematically discriminated against inasmuch as they have been relegated to lower paying clerical positions by virtue of the defendant’s employment practices.

The defendant contends that the statistical evidence establishes that it has not discriminated, particularly on any class basis. The defendant relies upon statistical evidence to support its assertion that it employs larger percentages of blacks and females than are available in the experienced civilian work force encompassed by the Little Rock Standard Metropolitan Statistical Area. Simply stated, the defendant contends that the statistical evidence refutes the plaintiffs’ contention that a class of victims of racial and sexual discrimination exists. The defendant also challenges the ability of the named plaintiffs to adequately represent the interests of putative class members. The defendant suggests that the named plaintiffs are inadequate class representatives because of conflicts of interest among the plaintiffs and the members of the class they seek to represent; the named plaintiffs have little knowledge of the claims of other alleged class members; the named plaintiffs have little knowledge with respect to their potential liability for costs; the plaintiffs do not have adequate financial resources to protect the interests of putative class members, to litigate class claims, or to fund the notices to potential class members; and the named plaintiffs have been less than diligent in the prosecution of the class action aspects of this litigation. Next, the defendant has contended that the plaintiffs should be required to show at least some probability of succeeding on the merits with regard to class claims of discrimination since the plaintiffs are, as a practical matter, “judgment proof” in terms of ability to pay costs and the consequences of an adverse resolution of the class action determination would have an impact upon the “defendant’s wholly innocent policyholders and service beneficiaries” since they would bear the expense, either through increased premiums, reduced benefits, or both.

II.

FINDINGS OF FACT

1. All of the named plaintiffs are black females.

2. All of the named plaintiffs, with the exception of plaintiff Vicki Strong, have been employed by defendant Arkansas Blue Cross and Blue Shield, Inc.

3. Plaintiff Vicki Strong is the only named plaintiff who applied for employment with the defendant and who was not hired by the defendant.

[501]*5014. Arkansas Blue Cross and Blue Shield, Inc., is an Arkansas nonprofit corporation which is engaged in the business of underwriting medical and health care risks for individual and group policyholders.

5. Arkansas Blue Cross and Blue Shield, Inc., has its principal place of business in Little Rock, Arkansas. The defendant employs several hundred people within its various divisions and departments.

6. Arkansas Blue Cross and Blue Shield, Inc., hereinafter referred to as “BCBS,” has utilized the Urban League for the Greater Little Rock Area as a source for obtaining black applicants or prospective black employees. The Urban League is a recognized source of a predominantly black applicant pool.

7. Plaintiff Vicki Strong learned of an opening in the defendant’s Personnel Department through an announcement which the defendant had listed with the Urban League.

8. In response to the job announcement indicated above plaintiff Strong sent BCBS her resumé in the fall of 1971.

9. Plaintiff Strong’s resumé did not indicate her race.

10. Plaintiff Strong had no actual or personal contact with BCBS. The two times plaintiff Strong did communicate with BCBS were by telephone. On each occasion plaintiff Strong spoke to Joanne Bush, a female employee of the defendant. Plaintiff Strong believes that Ms. Bush is black.

11. Plaintiff Strong was never interviewed by BCBS.

12. Plaintiff Strong does not know how many applications BCBS received in connection with the position for which she applied. Approximately 100 applications were received by BCBS for the particular position.

13. Plaintiff Strong does not know how many other applicants for the position for which she applied were not interviewed. The defendant only interviewed a few of the applicants rather than all of them. This procedure does not, however, appear to be unusual under the circumstances.

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87 F.R.D. 496, 23 Fair Empl. Prac. Cas. (BNA) 1386, 1980 U.S. Dist. LEXIS 13302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strong-v-arkansas-blue-cross-blue-shield-inc-ared-1980.