Waldon et al v. Cincinnati Public Schools
Filing
23
OPINION AND ORDER denying 18 Motion to Certify for Immediate Appeal. Signed by Judge S Arthur Spiegel on 5/28/2013. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
GREGORY WALDON, et al.,
Plaintiffs,
v.
CINCINNATI PUBLIC SCHOOLS,
Defendant.
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NO:
1:12-CV-00677
OPINION AND ORDER
This matter is before the Court on Defendant Cincinnati
Public Schools’ Motion to Certify Order for Immediate Appeal (doc.
18),
Plaintiffs’
Memorandum
Defendant’s Reply (doc. 22).
in
Opposition
(doc.
21),
and
For the reasons indicated herein,
the Court DENIES Defendant’s motion.
I.
Background
The Court recently issued an Order denying Defendant’s
Motion to Dismiss (doc. 16), and in the instant motion, Defendant
seeks an immediate interlocutory appeal of such decision (doc. 21).
In its Order the Court found Plaintiffs had adequately pleaded a
case for disparate impact employment discrimination where Defendant
implemented a policy requiring the termination of employees with
particular criminal records (doc. 16).
The Court noted that nine
of the ten employees that Defendant discharged pursuant to the
policy were African-American (Id.).
questionable
any
legitimate
The Court further found
business
justification
where
Plaintiffs’ offenses were extremely remote in time, where Plaintiff
Britton’s
offense
was
insubstantial,
and
where
both
had
demonstrated decades of good performance (Id.).
Defendant contends the Court should certify its Order for
immediate
appeal
pursuant
to
28
U.S.C.
1292(b)
because
its
termination of Plaintiffs was compelled by a facially neutral state
statute (doc. 22).
It contends it will argue on appeal that it
cannot be held liable under Title VII when it was merely complying
with a state mandate (Id.).
view
Defendants
interlocutory
meet
review,
Plaintiffs respond that in their
none
of
and
the
as
statutory
such,
the
requirements
Court
should
for
deny
Defendant’s motion (doc. 21).
II.
The Applicable Standard
Section 1292(b) provides in pertinent part:
When a district judge, in making in a civil action an
order not otherwise appealable. . .shall be of the
opinion that such order involves a controlling question
of law as to which there is a substantial ground for
difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination
of the litigation, he shall state so.
28 U.S.C. § 1292(b).
The Supreme Court has stated, “[r]outine
resort to § 1292(b) requests would hardly comport with Congress’
design to reserve interlocutory review for ‘exceptional’ cases
while generally retaining for federal courts a firm final judgment
rule.”
Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996).
In the
Sixth Circuit, “[r]eview under § 1292(b) is granted sparingly and
only in exceptional circumstances.”
2
In re City of Memphis, 293
F.3d 345 at 350 (6th Cir. 2002).
III.
Discussion
Defendant argues the Court’s Order involves a controlling
question of law, that is, the question of whether an employer can
be held liable for disparate impact litigation where it was
compelled to terminate employees by a facially neutral state
statute (doc. 18).
Plaintiffs respond this is not a pure question
of law, because there are facts to be discovered that could affect
Defendant’s liability: whether Defendant took note of the disparity
it confronted, whether it communicated with the state board of
education, what actions it took after the rules were changed so
Plaintiffs could demonstrate rehabilitation, and whether Plaintiffs
applied or were considered for re-employment (doc. 21).
The second prong of the statute requires that there be
substantial grounds for a difference of opinion regarding the
relevant legal issue.
Defendant cites to the fact that the
Solicitor General from the last presidential administration filed
a brief criticizing the decision in Gulino v. New York State Educ.
Dept., 460 F.3d 361 (2nd Cir. 2006), the only relevant authority
holding that compliance with state law was not a defense to Title
VII
liability
(docs.
18,
22).
Plaintiffs
respond
that
the
Solicitor General conceded the Guilino decision did not conflict
with any Supreme Court or court of appeals decision (doc. 21).
Plaintiffs further argue that Defendants contend this is an issue
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of first impression in the Sixth Circuit, and that the fact an
issue is one of first impression “does nothing to demonstrate a
difference of opinion as to the correctness of the ruling” (Id.
quoting U.S. v. Atlas Lederer Co., 174 F.Supp.2d 666 at 669 (S.D.
Ohio, 2001).
The final statutory requirement is that an interlocutory
appeal would materially advance the termination of the litigation.
Plaintiffs essentially concede that, as in any case, an appeal
could cut both ways depending on the outcome of any appeal–-but
that if the Court’s Order were affirmed, the main impact would be
a delay in justice (doc. 21).
Defendant contends Plaintiffs
concerns about delay are “disingenuous,” because Plaintiffs filed
this lawsuit in 2012 after being terminated in 2008, and they were
eligible for re-employment since September 2009 (doc. 22).
Having reviewed this matter, the Court does not find this
case
one
of
such
exceptional
interlocutory review.
circumstances
so
as
to
merit
Caterpillar Inc. v. Lewis, 519 U.S. 61, 74
(1996), In re City of Memphis, 293 F.3d 345 at 350 (6th Cir. 2002).
If anything, the exceptional circumstances of this case are that
Plaintiffs, long-serving good employees, were among the nine out of
ten African-American employees Defendant terminated under the
policy.
Although it may be a close question whether there is a
controlling question of law at issue, the Court simply finds no
4
significant difference of legal opinion as to whether Title VII
liability extends to implementation of facially neutral state
mandates.
The only relevant legal authority answers in the
affirmative, and the fact this is an issue of first impression does
not constitute grounds for interlocutory appeal.
361,
Atlas Lederer Co., 174 F.Supp.2d at 669.
Gulino, 460 F.3d
Moreover, as noted
in its Order, the Court’s conclusion is consistent with the
language of Justice Powell in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 806 (1973), as explained by the Eighth Circuit in Buck
Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 at 1296 (8th
Cir. 1975)(“a sweeping disqualification for employment resting on
solely past behavior can violate Title VII where that employment
practice has a disproportionate racial impact and rests on a
tenuous or insubstantial basis.”)
Finally the Court finds well-taken Plaintiffs’ position
that an interlocutory appeal is as likely to cause material delay
as it is to cause material advancement of the termination of the
litigation.
The Court rejects Defendant’s characterization of
Plaintiffs’ concerns about delay as “disingenuous.”
The record
does not show Plaintiffs have slept on their rights, but to the
contrary that they have made repeated efforts in other judicial
fora to address their terminations.
There is no record evidence
that Defendant ever alerted Plaintiffs they were re-eligible for
rehire, or that Plaintiffs knew of such possibility to demonstrate
rehabilitation as of September 2009.
5
Accordingly, the Court does not find that Defendant has
established a basis for interlocutory review pursuant to 28 U.S.C.
§ 1292(b), and therefore it DENIES Defendant Cincinnati Public
Schools’ Motion to Certify Order for Immediate Appeal (doc. 18).
SO ORDERED.
Dated: May 28, 2013
s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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