Opinion
Civ. No. JFM 99-2032.
November 1999.
Memorandum
Michael S. Matthews claims in this action that he was improperly denied the opportunity to proceed to the final stages of a probationary police officer hiring process initiated by the Howard County Police Department in 1995 due to his race and gender. He asserts claims under Title VII and 42 U.S.C. § 1981, 1983, and 1985. Defendants have filed a motion to dismiss. The motion will be granted.
Plaintiff originally also claimed discrimination on the basis of age, but has amended his complaint to exclude such a charge.
Plaintiff has filed a motion for partial summary judgment on the issue of liability. Since, for the reasons stated in Section II of this memorandum, he has failed to state a claim upon which relief can be granted because he claims no cognizable relief, any opinion I would render on the lawfulness of the selection method used by the County in the 1995 hiring process would be entirely advisory. Accordingly, plaintiff's motion will be denied.
Plaintiff has also moved for certification of a plaintiff class. That motion too is denied for four reasons. First, the questions of law and fact common to the members of the purported class do not predominate over questions affecting only individual members, such as issues relating to damages and limitations. Second, a class action is not superior to other available methods for the fair and efficient adjudication of the controversy. To the extent that individual members of the proposed class have cognizable claims against defendants, the common issues relating to the lawfulness of the selection method used in the 1995 hiring process can be adjudicated in a single proceeding and have res judicata effect in any other actions. Third, plaintiff's claim is not typical of the claims of all the members of the purported class since some members of the class received three excellent scores and others (including plaintiff) received only two excellent scores on their interview questions. Fourth, since plaintiff's claim is weaker on the merits than the members of the purported class who received three excellent scores, he could not adequately protect the interests of the latter. See Fed.R.Civ.P. 23.
I.
Howard County initiated a hiring process in 1995 to fill 26 vacant probationary police officer positions within the Police Department. The process consisted of the following components: recruitment, physical ability testing, written testing, personal history questionnaire, oral interview, background investigation, conditional offer of employment, polygraph examination, psychological screening, medical examination, and final selection. At the time the hiring process was initiated in 1995, the Department maintained an affirmative action plan to address a recognized under-representation of women and minorities in the Department and to serve better a diverse urban population.
Matthews applied for a position and began the hiring process. All applicants were required during the physical ability testing to drag a 160-pound body for a distance of 50 feet. After the testing, the dummy was weighed and found to weigh in excess of 160 pounds. All those failing the physical agility test were invited to take the test again. Thirteen women who had failed the test availed themselves of this opportunity, but the one male who failed the test did not. Those candidates who had passed the test with the heavier dummy were not tested again.
During the interview process, each candidate was asked the same interview questions by each panel of interviewers, and each panel rated the candidate as "excellent," "acceptable," or "unacceptable." Because the Department had limited resources and could not conduct background investigations for a large pool or applicants, and "[b]ecause white males predominated in the group receiving three ratings of `Excellent,'" the Department determined that it would move all persons receiving three scores of excellent and all women and minorities receiving two scores of excellent and one of acceptable to the background stage of the process. Def.'s Mot. Dismiss at 8. This was done "in an effort to address the goals and objectives established by the Department's Affirmative Action Plan." Id. Overall, 50 white males, 27 minority males, 10 white females, and 6 minority females receiving three scores of excellent, as well as 14 minority males, 10 white females, and 6 minority females receiving two scores of excellent and one of acceptable, were moved forward to the background phase. There were 30 white males, including the plaintiff, who had received two ratings of excellent and who were not moved forward to the background phase. The final class of 26 officers chosen included three individuals who had received only two excellent ratings.
The EEOC issued a determination on June 25, 1998, finding that there was cause to believe that "minority and female candidates were treated more favorably than white male candidates with regard to selection decisions for police officer positions," and that there was cause to believe that the County "engaged in a pattern and practice of discrimination with regard to white males as a class." EEOC Determination (June 25, 1998). Although conciliation efforts failed between Matthews and the County, the EEOC and the County reached a conciliation agreement that resolved the EEOC's pattern and practice finding as to white men as a class. As part of that agreement, the County agreed never again to employ the selection method used in the 1995 hiring process that favored women and minorities over white males.
II.
Defendants first argue that plaintiff has failed to state a claim upon which relief can be granted because he has asserted no claim for cognizable relief. The argument is meritorious.
A.
There is no doubt that, assuming plaintiff was unlawfully discriminated against during the hiring process, this court has the power to order the Police Department now to consider his application for employment. See generally Franks v. Bowman Trans. Co., 424 U.S. 747, 763 (1976) (holding that Title VII "vest[s] broad equitable discretion in the federal courts to `order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring or employees, with or without back pay . . ., or any other equitable relief as the court deems appropriate'") (citing 42 U.S.C. § 2000e-5(g));Darnell v. City of Jasper, 730 F.2d 653, 655-56 (11th Cir. 1984) (ordering city to administer a civil service exam to the plaintiff, and to hire him as a police officer if he passed the examination and met the other qualifications for the position). Plaintiff, however, has advised defendants (and stated during oral argument) that he does not wish to be considered for employment by the Police Department at the present time. Thus, plaintiff does not seek as relief an order that his application be considered.
One of the reasons plaintiff does not want to seek employment with the Police Department is that since he submitted his original application, he has been involved in an automobile accident and does not believe that he could pass the physical examination.
Instead, plaintiff claims monetary damages stemming from the fact that he was not hired in the first instance. He has alleged no facts that would entitle him to such relief. On the undisputed factual record, it would be speculative to infer that plaintiff would have been hired but for the alleged unlawful discrimination. It is true, as plaintiff alleges, that he was among 30 white males who received two ratings of excellent on his interview questions but who, unlike 14 minority males, 10 white females, and 6 minority females receiving only two excellent scores, was not moved forward to the background phase of the hiring process. However, there were 50 white males who had received three, not two, scores of excellent on the interview questions, and there were only 26 slots to be filled. No reasonable fact finder could find that plaintiff would have been hired over the white males who had received better scores than he. Therefore, the underlying factual premise of plaintiff's damage claim is fatally flawed.Cf. Alexander v. Estepp, 95 F.3d 312 (4th Cir. 1996), cert. denied, 520 U.S. 1165, aff'd, 181 F.3d 86 (4th Cir. 1999) (finding that applicants could not be awarded any personal relief in action challenging county fire department's affirmative action program, since they did not rank high enough to have been offered a job even in absence of program); Pennsylvania State Police v. Penn. Human Relations Comm'n, 517 A.2d 1253 (Pa. 1986) (holding that awarded enrollment in state police academy and back pay was inappropriate because it is impossible for the employer to anticipate the results of uncompleted steps in an application process).
In his memorandum opposing defendants' motion to dismiss, plaintiff suggests that he is also seeking compensatory damages for intangible harms, including emotional distress, mental anguish, and damage to his reputation. He asserted no such claim in his amended complaint. More fundamentally, he has alleged no facts that would meet the standards of proof established by Fourth Circuit law for a plaintiff seeking such damages. See Price v. City of Charlotte, 93 F.3d 1241, 1254-56 (4th Cir. 1996), cert. denied, 520 U.S. 1116 (1997).
The only other relief sought by plaintiff is an injunction prohibiting defendants from employing in the future the same affirmative action selection process they used during the 1995 hiring process. This claim is insufficient for two reasons. First, since plaintiff has forsworn any interest in again applying for employment with the Police Department, the granting of such relief would be entirely academic as to him. Second, the granting of any such injunction lies in my discretion, see 42 U.S.C. § 2000e-5(g)(B) (1991), and I would not exercise my discretion to order the County to refrain from doing something that it has already agreed in its conciliation agreement with the EEOC that it will not do again.
III.
Defendants further assert that even if plaintiff has alleged facts sufficient to state a justiciable claim, all of his claims, other than his Title VII claim, are time-barred.
Maryland has a three year statute of limitations that applies to actions brought under 42 U.S.C. § 1981, 1983, and 1985. See Burnett v. Grattan, 468 U.S. 42 (1984). Section 1986 specifically provides for a one year statute of limitations for claims. Federal law determines the accrual of constitutional claims, and dictates that a civil rights claim accrues when facts that would support a cause of action are or should be apparent to the individual who asserts the cause of action, namely at the "point in time when the plaintiff knows or has reason to know of the injury which is the basis of his action." Bireline v. Seagondollar, 567 F.2d 260, 263 (4th Cir. 1977), cert. denied, 444 U.S. 842 (1979); see also Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975); Lewis v. Clark, 534 F. Supp. 714, 716-17 (D. Md. 1982).
Matthews knew of the operative facts giving rise to his cause of action by at least February 20, 1996. On that date, the plaintiff wrote a letter to Raquel Sanudo, the County's Chief Administrative Officer, containing information that formed the basis of his later claim. In that letter Matthews alleged discrimination in the hiring process on the bases of sex and race. He wrote, "I believe that I am the casualty of a well intended but misapplied Affirmative Action Plan." Letter from Michael S. Matthews to Raquel Sanudo, Chief Administrative Officer, Howard County 3 (Feb. 20, 1996). Matthews timely pursued his claim with the EEOC, but did not file this suit until July 9, 1999, three months after the EEOC mailed to Matthews a "Notice of Right to Sue" letter.
To circumvent his limitations problems, Matthews asks the Court to apply either the continuing violation theory or the doctrine of equitable tolling in evaluating his constitutional claims. He also suggests that the County may have waived a limitations defense when the County's personnel officer waived time limitations for filing an employee appeal under the Howard County Code. These arguments are unpersuasive.
First, Matthews contends that the Court should toll the operation of limitations for the pendency of the EEOC investigation, which timely began in April 1996 and did not conclude until June 1998. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462-67 (1975), is squarely against his position. There, the Supreme Court rejected the argument that the applicable state law limitations period, in an action brought pursuant to § 1981, will be tolled because a Title VII complaint was pending in the administrative agency. The Court addressed the plaintiff's contention that an individual should not be forced to "split his cause of action." While acknowledging that it was both conceivable and expected that the failure to toll would press a § 1981 complaint into court before the EEOC had concluded its administrative proceedings, the Court identified one obvious answer to this dilemma: that a plaintiff could initiate his § 1981 action, and then ask the Court to stay proceeding until the administrative efforts at conciliation and voluntary compliance were complete. See id. at 465. Indeed, after the passage of 180 days from the filing of his charge of discrimination, Matthews could have demanded a right-to-sue letter in order to institute the action himself, without waiting for the completion of EEOC conciliation procedures. see 42 U.S.C. § 2000e-5(f)(1), so that he could join his Title VII claim with timely filed constitutional claims.
Second, as for his allegation of a continuing violation, Matthews cannot use the unsubstantiated claims of unnamed persons participating in selection processes after 1996 to resurrect retroactively constitutional claims as to the discrete wrongs he suffered in 1995. See Marshall v. Manville Sales Corp., 6 F.3d 229, 231 (4th Cir. 1993) (holding that a case involving refusal to hire, unlike a case involving continuous pay disparity, does not raise a present or continuing violation).
Third, Matthews' contention that a factual issue may exist as to whether the County's personnel officer waived the applicable time requirements in her letter dated March 4, 1996, is without merit. The letter offered to waive time frames specified by the Howard County Code in order to hear a personnel grievance, not to waive the limitations periods for filing constitutional causes of action in federal court. Moreover, Matthews does not state that he refrained from filing his constitutional claims based on this written statement.
A separate order effecting the rulings made in this memorandum is being entered herewith.
Order
For the reasons stated in the memorandum entered herewith, it is, this _____ day of November 1999
ORDERED:
1. defendants' motion to dismiss is granted;
2. plaintiff's motion for partial summary judgment is denied;
3. plaintiff's motion for class certification is denied; and
4. this action is dismissed for failure to state a claim upon relief can be granted.