The opinion of the court was delivered by: HARRIS
Before the Court are plaintiffs' motion for class certification, defendant's response and plaintiffs' reply, and defendant's motion to dismiss, or in the alternative, for summary judgment, plaintiffs' response, and defendant's reply. The Court denies plaintiffs' motion for class certification and grants defendant's motion for summary judgment in part. Although findings of fact and conclusions of law are unnecessary when ruling on a summary judgment motion, Fed. R. Civ. P. 52(a), the Court nonetheless sets forth its reasoning, partly because this Opinion does not fully dispose of the case.
Plaintiffs, Juanita Batson, Latina Bailey, Marjorie Harvey, Tawania Harvey, Valarie Mathis, and Altina Sumter, were employed or remain employed as security guards at the National Gallery of Art (NGA) in Washington, D.C. They sue under 42 U.S.C. § 1981a and 42 U.S.C. § 2000e-16, or Title VII, § 17 of the Civil Rights Act of 1964, claiming: (1) defendant's dress code adversely impacted upon females; (2) defendant wrongfully treated males differently than plaintiffs; and (3) defendant retaliated against plaintiffs for filing a discrimination complaint. Defendant Powell is the NGA's director. He is sued in his official capacity, pursuant to 42 U.S.C. § 2000e-16(c).
A. The Uniform Dress Policy
On October 1, 1992, the NGA's Office of Protection Services (OPS) issued Guard Force Order No. 12, a Uniform Dress Policy (UDP) requiring each security officer to wear a clean, complete uniform and to maintain a neat and orderly appearance while on duty. Between October 6 and 13, 1992, all security guards employed by OPS, including plaintiffs, were issued a copy of the UDP.
Specifically, the UDP required OPS guards to wear black, military-style shined shoes with plain black or navy blue socks. Uniforms had to be neatly pressed, with all badge and metal work cleaned. Hair was to be kept clean, neatly styled, and arranged so that it did not extend over the collar. Caps were to be worn squarely on the head. Beards or moustaches were to be neatly trimmed. Nose jewelry, dangling earrings, and earrings larger than the size of a lead pencil's eraser were not permitted; also, no more than two earrings per ear, or two rings per hand, were allowed, and neck jewelry could not be openly displayed. Excessive facial makeup, unreasonably long fingernails, and decorative nail polish were prohibited.
B. Enforcement of the Uniform Dress Policy
OPS supervisors began enforcing the UDP approximately three months after it was issued. OPS supervisors inspected their squad's appearance each day prior to public hours. Guards found in violation of the order were counseled.
If the offending guard complied immediately, or on the next day of duty, no further disciplinary action was taken.
Thirteen males were found to be in violation of the UDP during the period it was enforced. Male offenders were counseled for violating the earring clause, the hair clause, the sock clause, and the shoe clause. Except in one instance,
these violations were corrected immediately, or by the next day, so no male guard was disciplined. Over the same period, 13 female guards (six of whom are the plaintiffs in this action) were found to be in violation of the UDP. Female offenders were counseled for violating the nose ring clause, the hair clause, the sock clause, and the earring clause. Each of these offenses was either corrected immediately, or by the next day, so no female non-plaintiff guards were disciplined.
Among the plaintiffs, M. Harvey was first to be counseled. On January 6, 1993, she was warned that her dangling earrings were non-conforming. Batson was counseled for wearing her hair over her collar on February 14, 1993. Bailey also was counseled for a hair clause violation on March 1, 1993. Mathis was counseled for violating the earring clause, and Sumter was counseled for violating the hair clause on March 21, 1993. T. Harvey was counseled for violating the cap and hair clauses on March 22, 1993. Unlike the other counseled guards, plaintiffs failed to immediately or soon after comply with the UDP requirements. For each successive instance of offending behavior, they were subjected to further disciplinary action, and each plaintiff was formally reprimanded on more than one occasion. All were sent home and charged absence without leave Batson, Bailey, Mathis, and Sumter were suspended from duty without pay. Batson, N. Harvey, and Mathis ultimately were terminated.
C. Cancellation of the Uniform Dress Policy
On November 30, 1994, a Federal Labor Relations Authority Administrative Law Judge determined the NGA violated the Federal Service Labor-Management Relations statute when drafting the UDP. After this finding, the order was no longer enforced. On December 19, 1994, the OPS issued a memorandum to all staff officially rescinding the order.
III. Plaintiffs' Motion for Class Certification
Plaintiffs seek to maintain their suit as a class action by a class consisting of all female guards employed by the NGA since January 1, 1992, and filed a motion for class certification pursuant to Federal Rule of Civil Procedure 23(c)(1) on January 31, 1995. Defendant opposes their motion, and requests it be denied as untimely.
Local Rule 203(b) of this court provides that "within 90 days after the filing of a complaint in a case sought to be maintained as a class action, unless the Court in the exercise of its discretion has extended this period, the plaintiff shall move for a certification under Rule 23(c)(1), Federal Rules of Civil Procedure, that the case may be so maintained." Plaintiffs filed their class complaint with the Court on October 14, 1994, but did not file their motion for class certification until January 31, 1995, 110 days after they filed their complaint. As this Court has made clear, the 90-day limit of Local Rule 203(b) has been "strictly enforced in this Circuit." Weiss v. Int'l Bhd. of Elec. Workers, 729 F. Supp. 144, 148 (D.D.C. 1990); accord McCarthy v. Kleindienst, 239 U.S. App. D.C. 247, 741 F.2d 1406, 1411 (D.C. Cir. 1984) ("It would manifestly be within the District Court's discretion to refer to the [local] rule as a non-binding benchmark against which the timeliness of a class certification motion could be measured"); Coffin v. Secretary of Health, Educ., and Welfare, 400 F. Supp. 953, 956-957 (D.D.C. 1975). Plaintiffs, relying on Chambers v. McLean Trucking Co., Inc., 550 F. Supp. 1335, 1345 (M.D.N.C. 1981), contend the Court should not dismiss their motion for untimeliness without a showing of prejudice to defendant. Although defendant claims to have been prejudiced by plaintiffs' failure to move for certification within the time frame required by the local rule, as he treated the complaint as being brought only by the named plaintiffs for purposes of his alternative motion, he certainly had the opportunity to know plaintiffs' intentions.
Nonetheless, plaintiffs fail to offer a compelling reason why the Court should not follow the local rule in this case. Plaintiffs' motion for class certification was filed 20 days later than required. Had they moved for an enlargement of time in which to respond, as allowed by the comment to Rule 203(b) as amended on October 10, 1990,
the Court could have excused them from Rule 203(b)'s 90-day requirement. Since plaintiffs did not take advantage of the available procedures, they have failed to satisfy the timeliness requirements of Local Rule 203(b). Plaintiffs' motion for class certification is denied.
IV. Defendant's Motion for Summary Judgment
Defendant has moved to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), and, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Both parties have presented exhibits and affidavits to the Court which the Court has considered in deciding the matters before it. As the last sentence of Rule 12(b) provides, a motion to dismiss is to be treated as a motion for summary judgment whenever matters outside the pleadings are presented to and not excluded by the Court. Fed. R. Civ. P. 12. Accordingly, defendant's alternative motion will be treated as a ...