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PLUMMER v. CHEMICAL BANK

January 31, 1984;

RODERICK PLUMMER, RAYMOND W. ARMORER, NEVILLE F. CAESAR, and all others similarly situated, Plaintiffs,
v.
CHEMICAL BANK, Defendant



The opinion of the court was delivered by: CONNER

OPINION AND ORDER

 CONNER, D.J.:

 Plaintiffs commenced the instant action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, purportedly on behalf of a class of Black officials, managers, and professionals employed by defendant Chemical Bank ("Chemical" or the "Bank"). The case is currently before the Court upon the motion of plaintiff Roderick Plummer ("Plummer") for approval of a proposed settlement and consent decree entered into on October 6, 1983 (the "Consent Decree") by his attorney Judith Vladeck ("Vladeck"), assertedly on behalf of the class, and Chemical. See Rule 23(e), F.R.Civ.P. Contemporaneously with that approval, Plummer seeks to have the Court certify the class described in the Consent Decree pursuant to Rule 23(c)(1), F.R.Civ.P. While defendant Chemical joins in Plummer's motion, the other named plaintiffs, Raymond W. Armorer ("Armorer") and Neville F. Caesar ("Caesar"), and a number of non-party class members oppose it.

 This is not the first time this Court has been asked to approve a proffered settlement of this action. Indeed, the Consent Decree is the third permutation of a proposed decree that was originally before me in early 1981. In an Opinion and Order dated July 10, 1981, familiarity with which is presumed, I refused to approve a proposed consent decree executed on February 10, 1981 by Vladeck, who at that time represented all of the named plaintiffs in this action, and Ronald Green ("Green"), attorney for Chemical (the "First Decree"). See Plummer v. Chemical Bank, 91 F.R.D. 434 (S.D.N.Y. 1981) (Conner, J.) (hereinafter " Plummer I) aff'd, 668 F.2d 654 (2d Cir. 1982). That decision was affirmed by the Court of Appeals for the Second Circuit, without prejudice to a renewed application in this Court after the parties supplemented the record and cured the defects that existed in the First Decree. See generally 668 F.2d 654.

 In December 1982, the parties submitted for Court approval a revised version of the First Decree, entered into on December 13, 1983 by Vladeck, who by this time represented only two of the original four named plaintiffs, *fn1" and by Green on behalf of Chemical (the "Second Decree"). For the reasons set forth in an Opinion and Order dated March 22, 1983, I again refused either to certify the putative class or to approve the revised decree. See generally Plummer v. Chemical Bank, 97 F.R.D. 486 (S.D.N.Y. 1983) (Conner, J.) (hereinafter " Plummer II "). Vladeck and Chemical subsequently agreed upon a further modified version of the First Decree, which is currently before the Court for approval.

 Following a period for notice to members of the putative class, the Court on November 28 and December 2, 1983 held an evidentiary hearing on Plummer's motion for class certification and approval of the Consent Decree. In addition to the evidence adduced at that hearing, *fn2" the Court has considered the depositions, affidavits, and memoranda submitted both in support of and opposition to the motion. This Opinion and Order incorporates the Court's findings of fact and conclusions of law pursuant to Rule 52, F.R.Civ.P. For the reasons stated below, the motion for certification and approval is granted.

 Background

 The genesis of this action arose in the mid-1970's, when a group of Black employees of Chemical, mostly officers of the Bank, formed a semi-formal organization known as the Committee of Concerned Black Employees (the "Committee"). See tr. *fn3" at 75-76. From its inception, the Committee met regularly, normally on a monthly basis, to consider and attempt to enhance the opportunities available for Black professionals at the Bank. See id. Generally, most members of the Committee were displeased with promotion and training opportunities, although some also had salary complaints. See id. at 76.

 As part of the Committee's ordinary activities, members met on occasion with Bank representatives in an effort to bring the group's concerns to Chemical's attention. See id. at 77-78. On March 30, 1979, following a March 19th meeting with several top officers and directors of Chemical, the Committee sent these officials a memorandum summarizing its grievances and proposing recommended solutions. See Ex. B to Vladeck Aff.; tr. at 79. The memorandum was signed by five members of the Committee, including plaintiff Plummer and objectors Herman Taitt ("Taitt") and Lewis Straker ("Straker"). See id. The four primary concerns of the group, as identified in that memorandum, were included: (1) inadequate opportunities for development and career advancement for Black employees; (2) disparate salary treatment for Black employees when measured against their White counterparts; (3) lack of any effective grievance committee to handle individual complaints of Black employees; and (4) inadequate training program opportunities for Black employees. See Ex. B to Vladeck Aff.

 Following Chemical's failure adequately to respond to the suggestions contained in the memorandum, see tr. at 79, some members of the Committee, including Plummer, became dissatisfied with the Bank's efforts and began to consider other methods of pressing their grievances. See id. at 81-82. Sometime in the spring of 1979, these employees consulted Vladeck about the possibility of commencing legal action against Chemical to remedy the allegedly discriminatory employment practices which they believed were impairing their career opportunities as well as those of other Black officials, managers, and professionals employed by the Bank. See tr. at 82; Vladeck (12/13/82) Aff. at para. 3. Following that initial contact, Vladeck met during the summer of 1979 with numerous Black employees and accumulated extensive information in order preliminarily to evaluate the potential scope and strength of the Black officers' case. See tr. at 82-83; Vladeck (12/13/82) Aff. at paras. 4, 9. After satisfying herself that the Black employees appeared to have a prima facie claim for discriminatory promotion and placement, Vladeck advised the individuals who had consulted her of the various ways they could proceed. See tr. at 83; Vladeck (12/13/82) Aff. at paras. 10-18.

 After receiving this advice, the Committee voted formally not to take a position. See tr. at 83. Several individuals, including the named plaintiffs in the instant action, were willing to move forward, however, and they authorized Vladeck to attempt to negotiate a settlement with Chemical as an alternative either to litigation or to simply dropping the matter. *fn4" See tr. at 83; Vladeck (12/13/82) Aff. at paras. 19-20. Accordingly, in August 1979, Vladeck initiated discussions with Chemical's counsel, Green. See Vladeck (12/13/82) Aff. at para. 20.

 In November and December 1979, as these negotiations continued, the original four named plaintiffs filed complaints against Chemical with the Equal Employment Opportunity Commission ("EEOC"). See Vladeck (12/13/82) Aff. at para. 22. On September 29, 1980, each of the named plaintiffs obtained a "right to sue" letter from the EEOC. Then, on December 24, 1980, just four days before the statutory 90-day period for instituting suit expired, the complaint in the instant action was filed. See id. at P 34.

 The Consent Decree

 Although the Consent Decree is identical in form and concept to both the First and Second Decrees, previously rejected by this Court, it differs in several significant respects. In denying plaintiffs' motion for approval of the First Decree, I was influenced primarily by the following: (1) the record in support of the proposed decree was inadequate; (2) the unorthodox manner in which the settlement was negotiated militated against approval on the basis of the record then before the Court; and (3) the proffered decree provided, without explanation, substantially greater benefits for named plaintiffs than for other class members. See Plummer I, 91 F.R.D. at 438. Although the parties negotiated several modifications of their agreement on remand from the Court of Appeals, these changes failed to address the essential deficiencies inherent in the First Decree. Like the First Decree, the Second Decree inexplicably provided greater guaranteed relief for named plaintiffs than for ordinary class members. While this condition, standing alone, would have mandated denial of the motion for approval, the Second Decree also provided for an unstructured grievance procedure that, in view of its importance in the overall framework of the decree, rendered the proposed settlement inadequate from the perspective of the absent class members. See generally Plummer II, 97 F.R.D. at 488-89. In the Consent Decree, the parties have addressed both of these concerns -- removing all disparate relief for named class members and placing definite time constraints on each step of the grievance process -- and have also provided that interest generated on the monies set aside by Chemical under the decree will be added to the fund established for the benefit of class members.

 The major provisions of the Consent Decree can be summarized as follows:

 Section II: The Court will retain jurisdiction over the matter to resolve any disputes that may arise ...


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