Full opinion text
FRANK A. KAUFMAN, District Judge. These three cases (Vanguard, Gumpman and Bosworth) involve challenges to alleged sex and race discrimination within the Baltimore City Police Department (“Department”). The sex issues are of two kinds: (a) height-weight requirement; (b) other. The height-weight issues are present in all three cases; the other sex issues are stated only in Vanguard. The race issues are present in Vanguard but not in Bosworth and Gumpman. The cases have been consolidated pursuant to Federal Civil Rule 42(a). Defendants include the State of Maryland, the Governor of Maryland, the Police Commissioner of Baltimore City (collectively referred to as “State Defendants”), the President of the Civil Service Commission of Baltimore City (“Commission”), two members of that Commission, the Mayor and City Council of Baltimore (collectively referred to as “City Defendants”). Jurisdiction exists in these cases pursuant to 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3); the Fourteenth Amendment; 42 U.S.C. § 2000e et seq. (Title VII); and 28 U.S.C. § 1331. The named plaintiffs seek, on behalf of themselves and the members of the classes they represent, declaratory and injunctive relief, back pay and attorneys fees. A number of witnesses testified at trial, and an avalanche of written statements, depositions and other documents have been filed. Counsel have agreed that all such documents and indeed the entire record shall be considered as evidence in these eases. Initially, as suggested by counsel, the cases were divided both on the basis of sex and race, and also on the basis of liability and relief, and proceeded first to trial on the liability phase of the sex issues. Thereafter, however, because of possible overlap of the sex and race questions, this Court decided not to determine liability issues with regard to sex or race until it had received all liability evidence pertaining to both. As of this date, trials on liability phases of both sex and race issues, have been completed. In this opinion, the merits of the sex and race liability issues are discussed, commencing infra 697. Before those merit issues are reached, a number of threshold questions require careful analysis. Issues of relief may still require further trial. Class Certifications Six plaintiff classes have been certified in these cases, two re sex, and four re race. In each instance, one or more of those of the named plaintiffs who raised the issue were named as class representatives. As to the sex claims, one class is comprised “of all female applicants for the position of police officer with the Baltimore City Police Department” from June, 1973 to April 23,1974 “who were rejected because of their height * * *.” As to that class, this Court hereby confirms its certification. The second sex class is comprised of all sworn female (uniformed) employees of the Department on June 14, 1974. Shortly before final argument on the sex issues took place, all defendants sought to decertify that latter class, because thirty-six of the fifty class members had elected to “opt-out” pursuant to Federal Civil Rule 23(c)(2). A class is not appropriate unless it “is so numerous that joinder of all members is impracticable.” Federal Civil Rule 23(a)(1). A numerosity determination in any given case depends upon the facts of that case and is largely committed to the discretion of the district judge. Roman v. ESB, Inc., 550 F.2d 1343, 1347-49 (4th Cir. 1976); Barnett v. W. T. Grant Co., 518 F.2d 543, 546-47 (4th Cir. 1975); Cypress v. Newport News General Non-Sectarian Hospital Association, 375 F.2d 648, 653 (4th Cir. 1967). Defendants’ decertification approach, as aforesaid, stressed lack of numerosity. However, there is also a question of adequacy of class representation, see Federal Civil Rule 23(a)(4), a question which in final preparation of this opinion looms large since Ms. Blackston, one of the five original individual named plaintiffs in Vanguard, is the only named plaintiff in these three cases who is or was a sworn female employee of the Department on June 14, 1974 or, as far as this Court has been informed, at any time thereafter. Ms. Blackston has herself, opted-out as a member of the sworn female class. When Ms. Blackston so opted out, she became at that time an inadequate class representative. Cf. East Texas Motor Freight System, Inc. v. Rodriquez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977); Belcher v. Bassett Furniture Industries, Inc., 588 F.2d 904 at 906 n.2 (4th Cir. 1978); Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir. 1978); Shelton v. Pargo, Inc., 582 F.2d 1298, 1313 and n.53 (4th Cir. 1978); Roman v. ESB, Inc., supra. Because there never has been any other named plaintiff in these cases who qualifies as a representative of the non-height-weight sex class, it is necessary, even as of this date, to decertify that class. Otherwise, its members would be bound by an adverse decision herein without having been represented by an adequate representative. To permit that to occur would surely offend due process. “The binding effect of all class action decrees raises substantial due process questions that are directly relevant to Rule 23(a)(4). If the absent members are to be conclusively bound by the result of an action prosecuted or defended by a party alleged to represent their interests, basic notions of fairness and justice demand that the representation they receive be adequate *.” 7 Wright & Miller, Federal Practice & Procedure, § 1765, p. 617 (1972). However, in order not to deprive the members of the decertified non-height-weight sex class from having their day in court, the class action claims of that class will be retained as open claims in this case for a period of thirty days from the date hereof in order “to permit the presentation of any proper claims” for relief and for an adequate representative of that class to come forward. See Goodman v. Schlesinger, 584 F.2d 1331-33, and cases cited and discussed thereat; Cox v. Babcock & Wilson Co., 471 F.2d 13, 15-16 (4th Cir. 1972). The four classes certified as to race issues are the following: (1) All blacks “who have at any time since November 12, 1970, been applicants for employment with the Baltimore City Police Department as sworn uniform employees and who have not been employed and who assert a claim under the provisions of 42 U.S.C. § 1983.” (2) All blacks “who have at any time since March 24, 1972, been applicants for employment with the Baltimore City Police Department as sworn uniform employees and who have not been employed and who assert a claim under Title VII of the Civil Rights Act of 1964, as amended March 24, 1972, 42 U.S.C. § 2000-e [2000e].” (3) All blacks “who are now employed as sworn uniform employees or who have at any time since November 12, 1970 been employed as sworn uniform employees or who will in the future be employed as sworn uniform employees with the Baltimore City Police Department and assert a claim under the provisions of 42 U.S.C. § 1983.” (4) All blacks “who are now employed as sworn uniform employees or who have at any time since March 24, 1972 been employed as sworn uniform employees or who will in the future be employed as sworn uniform employees with the Baltimore City Police Department and assert a claim under Title VII of the Civil Rights Act of 1964, as amended March 24,1972,42 U.S.C. § 2000-e [2000e].” The certifications of those four race classes are hereby confirmed. Title VII Exhaustion Consideration of Title VII exhaustion questions necessitates a lengthy detour. On August 13, 1973, the Vanguard Justice Society and Victor B. Dennis, Melvin P. Freeman and Earl I. Nesbit, all named plaintiffs in Vanguard, filed charges of race discrimination with the EEOC against the Baltimore City Police Department, Mayor and City Council of Baltimore, the Baltimore Civil Service Commission, and the Governor of Maryland. Thereafter, within the next several months, three persons who are individual plaintiffs in one or more of these cases filed charges with the EEOC of sex discrimination against only the Department based on the 5'7" height requirement: Paulette Nixon on September 4, 1973; Barbara Gumpman on September 13,1973; and Linda Barksdale on November 9, 1973. On November 12, 1973, the Society, Paulette Nixon and others instituted in this Court the Vanguard case against the Governor, the Police Commissioner, the Civil Service Commission and the Mayor of Baltimore City, alleging both race and sex discrimination in the operation of the Police Department and grounding their claims upon 42 U.S.C. §§ 1981, 1983 and the Fourteenth Amendment but not upon Title VII. On that same date, i. e. November 12, 1973, Gumpman and Barksdale commenced the Gumpman case, naming the same defendants as were named in Vanguard, alleging height-weight sex discrimination, and relying on section 1983 and the Fourteenth Amendment but not Title VII. Subsequently, on January 22, 1974, Bosworth, as a sole plaintiff, instituted her case in this Court, alleging sex discrimination based on the height-weight requirement and naming the Police Department’s Director of Personnel, the State of Maryland and the Mayor and City Council of Baltimore as defendants in addition to the defendants named in Vanguard and Gumpman. Bosworth based her complaint on section 1983 and the Fourteenth Amendment but not Title VII. On January 31, 1974, Bosworth filed a charge with the EEOC and named the Department, the State, the City of Baltimore, and the Civil Service Commission as respondents. A week later, her attorney wrote to the EEOC and requested that it issue to Bosworth a “right-to-sue” letter. The EEOC relayed that request to the United States Department of Justice and on April 3, 1974, that Department issued Bosworth a “right-to-sue” notice. In the meantime, the Society, Nixon, Gumpman and Barksdale filed petitions on February 15, 1974 to intervene as plaintiffs in Bosworth’s civil action in this Court. A few days later, on February 19, 1974, Bosworth filed an amended complaint in her case in this Court, restating her previous allegations and adding claims under Title VII. At that time, i. e., on February 19, 1974, neither Bosworth nor any of the intervening plaintiffs had received a “right-to-sue” notice. Only 19 days had elapsed since Bosworth had initiated EEOC proceedings. The time periods which elapsed between the dates the other plaintiffs filed sex discrimination charges with the EEOC and commenced Title VII claims in this Court were somewhat longer: Nixon, 169 days; Gumpman, 160 days; Barksdale, 103 days. Bosworth and Nixon were issued right-to-sue letters by the Department of Justice on April 3, 1974. Seemingly, neither Gumpman nor Barksdale ever received such a letter. The Society received a right-to-sue letter well afterwards on November 1, 1974, with respect to its race discrimination claim. Messrs. Dennis, Freeman and Nesbit, three of the original seven plaintiffs in Vanguard also received their respective right-to-sue letters, with regard to race, from the Justice Department on November 1, 1974. On July 19, 1974, the EEOC referred all charges filed by any of the named plaintiffs in these cases to the Maryland Commission on Human Relations. That latter Commission terminated its proceedings and referred the complaints back to the EEOC, during August, 1974. On January 9, 1975, plaintiffs in Vanguard filed a proposed amended complaint in which Title VII issues were included for the first time in that case. Appended thereto were copies of “right-to-sue” letters issued to the Vanguard Justice Society and to the four individual plaintiffs in Vanguard on November 1, 1974. By inadvertence, this Court did not, prior to trial, formally grant plaintiffs’ said motion to amend their complaint. However, the Court and all parties have, at all times since shortly after January 9, 1975, treated these cases, insofar as the race issues are concerned, as having been brought under Title VII as well as under 42 U.S.C. §§ 1981, 1983 and the Fourteenth Amendment. Accordingly, plaintiffs’ motion to amend the complaint is hereby granted, effective as of January 9, 1975. During an early stage of these cases, counsel for the City defendants raised various questions pertaining to plaintiffs’ exhaustion of plaintiffs’ administrative remedies under Title VII. This Court asked whether plaintiffs desired to refile their charges with the EEOC to include all the defendants named in their civil complaints and to avail themselves of conciliation procedures. However, plaintiffs declined to reinstitute administrative proceedings. The City defendants contend that plaintiffs prematurely stated their Title VII sex charges in these cases because plaintiffs failed to wait the requisite period of time after filing their administrative charges of sex discrimination with the EEOC before plaintiffs amended one or more of their complaints in these cases to include those allegations. Title VII mandates that there be a 180-day “cooling-off” period between the filing of charges with the EEOC and the institution of a civil suit in court during which the EEOC may have an opportunity to pursue conciliation. In Bosworth plaintiffs amended their complaint £o include the Title VII sex discrimination allegations prior to the expiration of that period. The issue is thus whether the premature inclusion of Title VII claims of sex discrimination in Bosworth, with its accompanying negative effect on the potential for conciliation, deprives this Court of jurisdiction under Title VII. There is nothing in the record in these cases indicating that the EEOC either made a determination of reasonable cause or dismissed the charges filed by plaintiffs. Thus, the named plaintiffs who alleged sex discrimination were not entitled to receive a right to sue letter under subsection (b) of the then existing regulation, until the expiration of the conciliation period. Bosworth demanded, and received, apparently contrary to law, a right to sue letter prior to the expiration of 180 days. Although Nixon received her right to sue letter after the expiration of 180 days, her Title VII sex allegations were added to the complaint in Bosworth prior to the running of that period. A plaintiff must exhaust his administrative remedies before filing suit under Title VII. See, e. g., Stebbins v. Nationwide Mutual Insurance Co., 382 F.2d 267 (4th Cir. 1967) cert. denied, 390 U.S. 910, 88 S.Ct. 836, 19 L.Ed.2d 880 (1968); Mickel v. South Carolina State Employment Service, 377 F.2d 239, 242 (4th Cir.), cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166 (1967). The Supreme Court has held that the filing of charges with the EEOC and the receipt of a right-to-sue letter are jurisdictional prerequisites to the institution of a Title VII action. However, the issuance of a right-to-sue letter by the EEOC subsequent to the filing of a Title VII complaint which complaint was not filed until after the expiration of the 180 day period cures the jurisdictional defect in the original complaint. See Henderson v. Eastern Freight Ways, Inc., 460 F.2d 258, 260 n.2 (4th Cir. 1972) (per curiam), cert. denied, 410 U.S. 912, 93 S.Ct. 976, 35 L.Ed.2d 275 (1973) and cases cited therein; see also Berg v. Richmond Unified School District, 528 F.2d 1208, 1212 (9th Cir. 1975) vacated and remanded on other grounds, 434 U.S. 158, 98 S.Ct. 623, 54 L.Ed.2d 375 (1977) (per curiam); Black Musicians v. American Federation of Musicians, 375 F.Supp. 902, 906-07 (W.D.Pa.1974) aff’d. mem., 544 F.2d 512 (3rd Cir. 1976). Nevertheless, the question remains as to whether filing suit before expiration of the 180-day conciliation period constitutes a jurisdictional defect which is not cured by the subsequent receipt of a right-to-sue letter even if such letter is issued after the 180 day period. In Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), the Supreme Court held that the 180-day conciliation period of section 706(f)(1) was not a limitation on the EEOC’s power to institute a civil action based on an individual’s charge. In reaching that conclusion, Mr. Justice Stewart construed the 180-day provision as only a limitation on the private right of action provided by Title VII. He wrote (at 361, 97 S.Ct. at 2452): * * * Rather than limiting action by the EEOC, [§ 706(f)(1)] seems clearly addressed to an alternative enforcement procedure: If a complainant is dissatisfied with the progress the EEOC is making on his or her charge of employment discrimination, he or she may elect to circumvent the EEOC procedures and seek relief through a private enforcement action in a district court. The 180-day limitation provides only that this private right of action does not arise until 180 days after a charge has been filed. Nothing in § 706(f)(1) indicates that EEOC enforcement powers cease if the complainant decides to leave the case in the hands of the EEOC rather than to pursue a private action. [emphasis added] See also Johnson v. REA, Inc., 421 U.S. 454, 458, 95 S.Ct. 1716, 1719, 44 L.Ed.2d 295 (1975) in which Mr. Justice Blackmun noted that * * * “the claimant, after the passage of 180 days, may demand a right-to-sue letter and institute the Title VII action himself without waiting for the completion of conciliation procedures.” Although an individual claimant apparently should allow 180 days to pass so that the EEOC has an opportunity to conciliate his charge, actual conciliation efforts by the Commission are not a prerequisite to a private suit. See Johnson v. Seaboard Air Line Railroad Co., 405 F.2d 645 (4th Cir. 1968), cert, denied, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969). In Johnson, (at 652) the Fourth Circuit held “that the individual aggrieved may file a suit in the district court when he has received the statutory notice from the Commission and that he need not await an actual attempt by the Commission to achieve voluntary compliance.” In Johnson, the statutory conciliation period (at that time, 30 days) had expired and each of the plaintiffs had received a right-to-sue letter prior to institution of the suit. Thus, the Court did not have to deal with the question presented in this case, namely, whether commencement of a Title VII action during the conciliation period and prior to issuance of right-to-sue notices affects the jurisdiction of the district court. In circumstances similar to those in this case, several courts have held that there is jurisdiction over Title VII claims for preliminary relief to maintain the status quo pending a plaintiff’s pursuit of administrative remedies. See Berg v. Richmond Unified School District, supra at 1211; Drew v. Liberty Mutual Insurance Co., 480 F.2d 69, 72-76 (5th Cir. 1973) cert. denied, 417 U.S. 935, 94 S.Ct. 2650, 41 L.Ed.2d 239 (1974); cf. Jerome v. Viviano Food Co., 489 F.2d 965 (6th Cir. 1974). The Second Circuit allowed an exception to the 180-day conciliation period when an earlier similar charge by the same party had already been before the EEOC the prerequisite period of time. Weise v. Syracuse University, 522 F.2d 397, 411-13 (2d Cir. 1975). In Weise, the EEOC issued a right-to-sue notice with respect to plaintiff’s second charge of discrimination against defendant only three days after the charge was filed. Since plaintiff’s first charge had already been pending before the Commission for more than 180 days without result, conciliation therefore appeared unlikely. “To require the EEOC to hold the second charge for 180 days would not have advanced the conciliation purposes of the Act and would only have served to delay the proceedings, contrary to the Act’s policy of handling claims expeditiously.” 522 F.2d at 412. The Court therefore held that, under those circumstances, the early issuance of a right-to-sue letter did not violate the procedural requirements of Title VII. In Milner v. National School of Health Technology, 409 F.Supp. 1389 (E.D.Pa.1976), the EEOC, after concluding that conciliation was not possible, issued a right-to-sue letter only 150 days after it had assumed jurisdiction of plaintiff’s charge. Judge Joseph Lord (at 1392), citing to Weise, construed the statutory language to require issuance of such a letter within 180 days rather than to mandate a conciliation period of specific duration. In Howard v. Mercantile Commerce Trust Co., 8 E.P.D. ¶ 9842, p. 6502 (E.D.Mo.1974) Judge Meredith refused to dismiss a complaint on grounds that the right-to-sue notice had been issued prematurely because: (1) the statutory words (“within 180 days”) “connote some measure of flexibility” (at p. 6503); (2) the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), appeared to require only the filing of a charge with the EEOC and receipt of a right-to-sue notice as prerequisites to a Title VII complaint; and (3) even if the EEOC had violated its own regulations with respect to issuance of right-to-sue notices, private plaintiffs should not be penalized for the procedural errors of the Commission. Finally, since the EEOC had held the charge for 90 days and certified that it would not be able to process it within 180 days, there appeared no useful purpose in remanding the case to the EEOC. Judge Meredith warned, however, that, if the EEOC abused its discretion in issuing right-to-sue notices, a case could be remanded to the Commission. See also Lewis v. FMC Corp., 11 F.E.P. Cases 31, 34-35 (N.D.Cal.1975). In that case, since the EEOC had stated that there was no possibility of investigating plaintiff’s charge within 180 days, Judge Peckham concluded that there was no reason to require plaintiff to wait until the expiration of that period to file suit. In Jones v. Pacific Intermountain Express, 10 F.E.P. Cases 914 (N.D.Cal.1975), Judge Schnacke dismissed the complaint for failure to observe the 180-day period, despite the apparent futility of sending the plaintiff back to the EEOC. He reasoned (at 915): (A)ll charges which are the basis of this action were filed with the EEOC less-than 180 days before this action was commenced * * *. Plaintiffs’ counsel requested issuance of the right to sue notices, some of which weren’t issued until after the present action was commenced and all were issued less than 180 days after the charges were filed with the EEOC, in violation not only of the statutory scheme but also of EEOC regulations * * *. The purpose of requiring resort to EEOC machinery is to give that body an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party is permitted to file a lawsuit. * * * That over 180 days have elapsed since all the plaintiffs filed charges with the EEOC is thus irrelevant, since the EEOC had much less than 180 days to deal with the charges before the matter was effectively taken away from it by the commencement of this action. Therefore, the claims under 42 U.S.C. § 2000e-2 will be dismissed * * *. This result comports with this Court’s obligation, under the constitutional system of separation of powers, to interpret statutes as they are written, not as they might have been written. Plaintiffs argue that the 180-day deferral would serve no purpose here, but this argument should be addressed to Congress, not to this Court. In Budreck v. Crocker National Bank, 407 F.Supp. 635 (N.D.Cal.1976), two plaintiffs had failed to defer filing their actions until 180 days after the Commission assumed jurisdiction of their charges. They subsequently received right-to-sue letters. Judge Renfrew first construed Title VII to establish two conditions precedent to a civil action: (1) passage of 180 days from filing of charges with the EEOC; (2) issuance of a right-to-sue letter. He thus concluded, as did Judge Schnacke in Jones, that under a literal reading of the statute the 180-day provision was a jurisdictional requirement. However, Judge Renfrew then examined the legislative history of the 1972 amendments to Title VII, which added the 180-day provision. He found that the provision was the result of a congressional attempt to accommodate two policies: “On the one hand, Congress was concerned that the vindication of legitimate claims not be excessively delayed, and, on the other, it was concerned that the preferred process of conciliation of disputes have an ample opportunity to work.” 407 F.Supp. at 641. Judge Renfrew noted that while certain language in McDonnell Douglas favor a restricted interpretation of the jurisdictional prerequisites of a Title VII action, statements by the Supreme Court in Johnson v. REA, Inc., supra, support the contrary approach. Judge Renfrew also rejected the reasoning of Lewis and Howard as inconsistent wit,h the legislative history of the Act, noting (at 642-44) the “sharp division” in the case law “illustrated by a consideration of two opinions from this District,” namely, Jones v. Pacific Intermountain Express, supra, and Lewis v. FMC, supra. As to Lewis and also as to Howard v. Mercantile Commerce Trust Co., supra, Judge Renfrew stated: [T]he Lewis and Howard decisions also fail to take into account certain policy considerations which support a jurisdictional interpretation of the 180-day provision despite the inability of the Commission to take any action during that period. The 180-day provision gives the employer an opportunity to make an investigation of the charge and to attempt to resolve the matter before positions become hardened by the onset of litigation. Congress undoubtedly expected most conciliation agreements to result from the efforts of the Commission but, even without the intervention of the Commission, informal conciliation may be possible in some cases. * * * [T]he filing of a law suit alters in a very significant way the posture of the parties and their ability to reach an informal settlement. It is not feasible for the courts to make a case-by-ease determination of whether informal conciliation might be possible; the rule must be enforced on an across-the-board basis. The possibility of informal conciliation during the 180-day period further supports the Court’s previous conclusion that a jurisdictional interpretation is appropriate. Judge Renfrew subsequently qualified to some extent the views he expressed in Budreck, in a later opinion he authored in Eldredge v. Carpenters Joint Apprenticeship and Training Committee, 440 F.Supp. 506, 515-18 (N.D.Cal.1977) in which he again (at 515) noted “a sharp division in the authorities” illustrated on one side by Budreck and Jones and on the other side by Lewis and Howard. In Eldredge, the EEOC, issued right-to-sue letters only 18 days after assuming jurisdiction over plaintiffs’ charges, stating that it would be unable “to investigate, conciliate or file suit within 180 days.” 440 F.Supp. supra at 513. Plaintiffs filed suit the following day. Citing Budreck Judge Renfrew wrote (at 515) that “the Court adheres to the view that compliance with the statutory waiting period is ordinarily a prerequisite to the assumption of jurisdiction.” However, given that the EEOC had stated that it would be unable to reach the case within 180 days, that no administrative disposition of the quest for permanent relief could be expected during the statutory period, and that plaintiffs were already properly before the court in their quest for preliminary relief, Judge Renfrew concluded that the premature filing of a complaint for permanent relief was unlikely to impair the prospects for conciliation. “To hold that the action was barred by an EEOC error having no effect on statutory policy [of conciliation] would indeed be pointless.” Id. at 517. Judge Renfrew also noted the lapse of 180 days between the EEOC’s assumption of jurisdiction and the hearing on defendant’s motion. Judge Renfrew viewed dismissal of the case, which he refused to grant, as a possible means of discouraging the EEOC from divesting itself of claims prematurely. “Where the backlog of cases prevents an administrative disposition in any case, however, this result has insufficient practical impact to justify the imposition of hardship in a particular case.” Id. at 517-18. In two opinions of this Court, Loney v. Carr Lowrey Glass Company, 458 F.Supp. 1080 (D.Md.1978) (Miller, J.) and Scott v. Board of Education of Harford County, et al., Civil Action No. N-76-1513 (D.Md. 9/2/77) (Northrop, C. J.), the Budreck approach was adopted and Judge Renfrew’s opinion therein was cited and specifically relied upon by Judge Northrop in Scott. The named plaintiff in Bosworth instituted that case on January 22, 1974, stating only non-Title VII claims. Thereafter, on January 31, 1974, Bosworth filed with the EEOC sex charges based on the height-weight requirement. On February 19,1974, the complaint in Bosworth was amended to include Title VII claims. On April 3, 1974, before the expiration of the 180-day period, right-to-sue letters were issued to Bosworth and to Nixon, who had intervened in Bosworth. Thus, at the time the complaint was amended in Bosworth, this Court did not have jurisdiction of plaintiffs’ Title VII sex claims. However, as was true in Eldredge, supra, plaintiffs in these cases originally sought both preliminary and permanent relief based on section 1983 and the Fourteenth Amendment. Plaintiff had a right to seek such relief without pursuing any of the administrative remedies provided by Title VII. The injection of Title VII claims into these pending suits hardly retarded conciliation efforts more than the lawsuits themselves. Moreover, the EEOC had the full opportunity accorded by statute to attempt conciliation of Nixon’s charges and the Attorney General specifically stated that the EEOC would not be able to conciliate Bosworth’s claims within the requisite time period. Thus, no useful purpose would be served in these cases in forcing plaintiffs to return, insofar as their Title VII claims are concerned, to the administrative process, even if the approach espoused in Budreck and Jones rather than in Howard and in Lewis is adopted. Judge Renfrew’s analysis and holding in Eldredge would so indicate. Accordingly, this Court concludes that in Bosworth it has jurisdiction over the individual claims of Bosworth and Nixon. That jurisdiction extends to the claims of other members of the sex class certified as to the height-weight requirement, whether or not other class members individually or otherwise exhausted their own EEOC remedies with regard to the height-weight requirement. Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Boyd v. Ozark Air Lines, 568 F.2d 50, 54 n.5 (8th Cir. 1977); Troy v. Shell Oil Co., 378 F.Supp. 1042, 1045 (E.D.Mich.1974), appeal dismissed, 519 F.2d 403 (6th Cir. 1975), and cases cited thereat. There remain, however, certain other exhaustion issues which require consideration. One of them is present in Gumpman, in which the only two named plaintiffs are Gumpman and Barksdale. Neither of them ever received a “right-to-sue” letter with regard to their sex claims stated in Gumpman under Title VII and based on the height-weight requirement. Thus, those Title VII sex claims, stated by them as individuals, must be and hereby are dismissed. But that dismissal is of little or no practical import because the claims of the members of the applicant class with regard to the height-weight sex issue are in any event before this Court. See the authorities cited supra on this page. An additional exhaustion issue with regard to the non-height-weight sex issues is present in Vanguard. Only Blackston exhausted her administrative remedies with regard to those issues. Blackston opted out of the sworn female class in these cases. Thus, the class originally certified in these cases with regard to the non-height-weight issues is today being decertified because of a lack of adequate class representation. However, since these cases were tried on the basis that there were in existence all classes certified prior to today’s decertification of the non-height-weight issue class, the merits of all Claims — race, height-weight, and non-height-weight sex alike— are discussed infra and findings with regard to the non-height-weight sex issues are made on a conditional basis so that if this Court’s within decertification of the non-height-weight sex class is determined, on appeal, to be erroneous, no further trial on remand will seemingly be required for that reason alone. As to Blackston’s individual claims, she, on February 28,1975, requested exclusion from the sworn-employee female class and stated, using the form sent to her by the Clerk: “I understand that by this request, I will not be entitled to share in the benefits of the judgment if it is favorable to the Plaintiffs and that I will not be bound by the judgment rendered in this case if it is adverse to the Plaintiffs.” Accordingly, if Blackston hereafter desires to assert her individual non-height-weight sex claim, she must do so subject to whatever limitations and/or laches bars she may encounter. Naming Proper Respondents in EEOC Charge In Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir.), cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166 (1967), Judge Boreman wrote (at 241): It seems clear from the language of the statute that a civil action could be brought against the respondent named in the charge filed with the Commission only after conciliation efforts had failed, or, in any event, after opportunity had been afforded the Commission to make such efforts. * * * But in Mickel the defendant not named as respondent in the EEOC proceeding was the alleged offending employer and was not as herein, an important official of an entity named in the administrative charge. In Mickel, the naming requirement was not substantially met That is important because the failure of a plaintiff to name a defendant in an EEOC charge “does not bar the maintenance of a subsequent court action if the purposes of the naming requirement were substantially met.” Langsner v. Morgan State College, Civil No. HM-74-1359 (D.Md. 1/9/76) (Murray, J.), and cases cited at slip op. pp. 13-15; see Van Gerrell v. Maryland State Highway Administration, Civil No. B-74-121 (D.Md. 1/5/76) (Blair, J.), and cases cited at slip op. pp. 6-7. In Evans v. Sheraton Park Hotel, 164 U.S.App.D.C. 86, 503 F.2d 177 (1974), the question arose as to whether an international union which had not been named as a respondent in plaintiff’s EEOC charge was properly joined by the District Court as a party to plaintiff’s subsequent federal suit. The Court’s answer (164 U.S.App.D.C. at 92, 503 F.2d at 183) was “Yes”: * * * Where, as here, the chartering International was an obscure party, requiring court action to determine whether or not its presence in the action was necessary for complete relief among those already parties, to deny joinder under 19(a) would cripple the rights of the charging party as well as those of the party charged. Further, dismissal of the action under 19(b) would frustrate the intent of Congress in this type of case. Surely the means devised cannot be more important than the end envisioned. We do not believe that the procedures of Title VII were intended to serve as a stumbling block to the accomplishment of the statutory objective. To expect a complainant at the administrative stage, usually without aid of counsel, to foresee and handle intricate procedural problems which could arise in subsequent litigation, all at the risk of being cast out of court for procedural error, would place a burden on the complainant which Congress neither anticipated nor intended. Appellant Evans filed a Charge of Discrimination with the EEOC against the Hotel which was her employer, Waitresses Local 507, and the Joint Board alleging violations of the Civil Rights Act of 1964. She was timely advised by the Commission of its failure to obtain voluntary compliance and of her right to file suit. She then brought this action, naming the same parties as those charged before the EEOC in her complaint. It is our conclusion that appellant Evans exhausted her administrative remedies as anticipated by Congress. In Glus v. G. C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977), the Third Circuit suggested certain factors to be considered when a defendant has not been named in a plaintiff’s complaint to the EEOC. In so doing, Judge Biggs wrote: Factors which we believe the district court should look to are 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Consideration of these factors should be initially in the hands of the district court. The goal of conciliation without resort to the already overburdened federal courts is of great importance and should not be lost. However, equally important is the availability of complete redress of legitimate grievances without undue encumbrance by procedural requirements especially when demanding full and technical compliance would have no relation to the purposes for requiring those procedures in the first instance. In our view the district court should evaluate the failure to name the party before the EEOC by consulting the four factors discussed supra. In this case, plaintiff Bosworth named as respondents in her EEOC charge the State of Maryland, City of Baltimore, and the Civil Service Commission of Baltimore. Plaintiff Nixon named as respondent only the Baltimore City Police Department. Accordingly, in this consolidated proceeding, in which each of the individual defendants has been sued only in his or her official capacity, it would appear that the only defendants in this proceeding not specifically named in EEOC proceedings are defendants Pomerleau and Rowlett. It has not been asserted that either of those defendants lacked actual notice of plaintiffs’ charges filed with the EEOC, or that the EEOC’s actions with regard to conciliation of those charges were in any way affected by plaintiffs’ failure to have named such defendants. Indeed, it is rather clear that both Pomerleau and Rowlett knew of the EEOC proceedings. Accordingly, plaintiffs’ failure to name each of defendants in their initial EEOC charges does not deprive this Court of jurisdiction over plaintiffs’ claims against those defendants. Definition of Employer Under Title VII Whether plaintiffs are entitled, in any event, to relief under Title VII against any of the defendants hinges upon whether the latter have allegedly committed an “unlawful employment practice for an employer” [emphasis added] as those words are used in 42 U.S.C. § 2000e-2(a) and 42 U.S.C. § 2000e(b). None of the parties to this litigation have disputed that by all conventional indicia of control the State of Maryland is an “employer” of the employees of the Baltimore City Police Department, for purposes of Title VII. However, the City Defendants have raised the question of whether they have exercised, or should have exercised, sufficient control over the Department’s hiring and promotion practices to qualify any of the City Defendants as an “employer” under Title VII. The Department, as established by section 16-2 of the Baltimore City Public Local Laws (the “Code”), is “an agency and instrumentality of the State of Maryland.” Supervising its “affairs and operations,” Code § 16-4, is a Police Commissioner. At the time these suits were instituted in 1973 and 1974, the Baltimore City Police Commissioner was, pursuant to Code § 16-5, “appointed by the Governor of Maryland for a term of six years” and could be removed for “official misconduct, malfeasance, inefficiency or incompetency, including prolonged illness . . . ” However, in 1976, the Maryland Legislature amended the Baltimore City Local Laws to transfer those appointive powers to the Mayor and City Council of Baltimore. 1976 Md.Laws Ch. 920. Under the amended version of Code § 16-5, the Mayor appoints the Police Commissioner subject to confirmation by a majority of the City Council. The amendment also transferred the Governor’s removal powers to the Mayor. The 1976 legislation specifically provided that the amendment was not to affect the term of the then current Commissioner which was to expire on July 1,1978. Id. Ch. 920, § 2. In Mayor & City Council of Baltimore v. Silver, 263 Md. 439, 283 A.2d 788 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 38, 34 L.Ed.2d 65 (1972), Judge Finan, quoting from Upshur v. Baltimore, 94 Md. 743, 51 A. 953 (1902), set forth (at 263 Md. 447-48, 283 A.2d at 792-93) an historical explanation of the State’s control over the Baltimore City Police Department: “* * * For some years prior to the adoption of the Act of 1860, ch. 7, and, therefore, during a period when the police force was wholly under the control of the municipality, the city authorities failed to suppress the disorder and lawlessness which prevailed to an alarming extent, and the riots and blood-shed which invariably accompanied a general or local election. The law was defied; the public peace was disturbed; the constabulary were powerless, if not in sympathy with the mob, and reputable citizens were driven by violence from the polls. Relief from the intolerable conditions which existed was finally sought by an appeal to the General Assembly, and the Act of 1860, ch. 7, completely separating the police department from the city government, was the result. The Police Board was created and its members and the force enrolled by them were made state officers and the city was denied, in the most positive manner, any right to interfere with or control the policemen. The underlying purpose was to deprive the city of all power over the police * * 94 Md. at 756, 51 A. at 958. An informative and entertaining account amply documenting the reasons for “The Police Reform Bills” is found in an article by H. H. Walker Lewis, “The Baltimore Police Case of 1860,” 26 Md.L.Rev. 215 (1966). [Footnote omitted.] Pursuant to Code § 16-7, the Police Commissioner’s authority over the operations of the Department is plenary, with two exceptions, only one of which is relevant in this case. That exception appears in Article VI of the Charter of Baltimore City which establishes a Board of Estimates for Baltimore City and entrusts to that Board responsibility for formulating the fiscal policy of Baltimore City. In accordance with § 16-8 of the Code, the Police Commissioner is required to submit his anticipated budget requirements to the Board of Estimates, which thereafter is generally required to treat that proposal in the same way as any other budgetary request submitted by a municipal agency of Baltimore City and, upon final approval of the same, to incorporate it in a proposed ordinance known as the ordinance of estimates. The latter, in turn, is delivered to the President of the City Council for introduction before the City Council. Subsequent to approval by the City Council with appropriate changes, if any, and after approval by the Mayor, the proposed ordinance of estimates is known as the “Ordinance of Estimates for the fiscal year _____” Article VI, §§ 2(b), (g) of the Charter of Baltimore City, 1964 Revision. Section 2(g) of Article VI of the Charter of Baltimore City empowers the City Council to make its budgetary allocations to the Department subject to certain contingencies. That provision states, in part: * * * If the carrying out of a particular program, purpose, activity, or project depends upon action by some private or governmental body other than the City, the City Council may insert a specific provision in the proposed ordinance of estimates making the appropriation for the particular program, purpose, activity or project contingent upon such action. Article II, § 27 of the Charter of Baltimore City delineates the authority of the Mayor and City Council as follows: To have and exercise within the limits of Baltimore City all the power commonly known as the Police Power to the same extent as the State has or could exercise said power within said limits; provided, however, that no ordinance of the City or act of any municipal officer shall conflict, impede, obstruct, hinder or interfere with the powers of the Police Commissioner, In the Silver case, Judge Finan (263 Md. at 450-51, 283 A.2d at 794) described the effects of the City’s power over the police department’s budget: However, an appreciation of the relationship between the City and the police department cannot be fully grasped unless it is understood that the City is the agency responsible for appropriating money for the operation of the police department and that the police commissioner must annually appear before the Board of Estimates of the City to defend his budgetary requests. * * * Certainly, although this in itself could not be construed as a method of indirect control over the police department by the City, nonetheless one would be overly naive not to think that such a situation would provide the occasion for the flow and exchange of communications, accommodations and cooperative action between the City and the police commissioner. At the time these suits were instituted, the Police Commissioner was required under § 16-9 of the Code, to make annual reports, and such special reports as might be requested, to both the Governor and to the Mayor and City Council concerning the operations of the Department. That provision was amended in 1976 to eliminate the requirement that reports be made to the Governor. 1976 Md.Laws Ch. 920. Section 16-10 of the Code describes the role of the Civil Service Commission of the City of Baltimore and the Police Commissioner in the establishment of entrance and promotional qualifications. That section reads in part: 16-10. Members; qualifications, appointments, promotion, probation. (a) Examinations. The [Civil Service Commission] shall ascertain the relative qualifications for all candidates for appointment at the entrance level to the department and for promotional appointment within the department by competitive examinations and such other tests as in its judgment may be necessary. The examinations shall be public and of such character as to test fairly the relative capacity and fitness of the candidates to discharge the duties of the position for which they are seeking to qualify. In preparing said examinations the examining authority shall consult with and may be guided by a nationally recognized policy agency or testing group as designated by the police commissioner. The examining authority shall prepare graded lists of qualified candidates determined from the written examinations and other tests established by the examining authority. (b) Appointments at the entrance level. Those applicants for appointment to the department at the entrance level who possess the minimum qualifications and meet the other eligibility criteria established by the commissioner after consultation with examining authority, as determined by the tests and procedures administered pursuant to subsection (a) shall be included on an eligible list prepared by the examining authority setting forth the names of the successful applicants listed in order from the highest to lowest qualifying score. When making appointments to the department, the commissioner shall be required to make such appointment from those applicants who place within the top or highest five positions on the eligible list. When an applicant is so appointed, the commissioner shall be required to fill the next vacancy in the department, if any, from a list of applicants composed of the remaining and available four highest candidates on such list, plus the next or sixth highest scoring available applicant appearing on the eligible list. The procedure herein established for appointment to the department shall be known and designated as the “Rule of five” and all subsequent appointments shall be made only in accordance with this procedure until the eligible list is exhausted by such appointments. * * * (c) Promotional appointments. Those applicants for promotional appointments within the department who possess the minimum qualifications and meet the other eligibility criteria established by the commissioner after consultation with the examining authority, as determined by the tests and procedures administered pursuant to subsection (a) shall be included on an eligible list prepared by the examining authority setting forth the names of the successful applicants listed in order from the highest to lowest qualifying score. When making a promotional appointment within the department, the commissioner shall be required to make such appointment from those applicants who place within the top or highest five positions on the eligible list. When an applicant is so appointed, the commissioner shall be required to fill the next vacancy in the department, if any, from a list of applicants composed of the remaining and available four highest candidates on such list, plus the next or sixth highest scoring available applicant appearing on the eligible list. The procedure herein established for promotional appointment within the department shall be known and designated as the “Rule of five” and all subsequent promotional appointments shall be made only in accordance with this procedure until the eligible list is exhausted by such appointments. * * * (d) Appointments without examination. Notwithstanding any provisions of this section, or of this subtitle, the Commissioner may make any appointment to the Department above the rank of Captain, without examination, except that no such position shall be filled by a police officer within the Department of a rank less than Lieutenant, and where any such appointment is made the police officer so appointed shall, upon the termination of his service in such position, be returned to the rank from which he was elevated, or to such higher rank as he became eligible to serve in during his appointment. In Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964), in reversing a determination by the Fifth Circuit that Greyhound Corporation was as a matter of law not an “employer” of certain porters, janitors and maids at four Florida bus terminals, Mr. Justice Stewart stated (at 481, 84 S.Ct. at 898-899): * * * The respondent points out that Congress has specifically excluded an independent contractor from the definition of “employee” in § 2(3) of the Act. It is said that the Board’s finding that Greyhound is an employer of employees who are hired, paid, transferred and promoted by an independent contractor is, therefore, plainly in excess of the statutory powers delegated to it by Congress. This argument, we think, misconceives both the import of the substantive federal law and the painstakingly delineated procedural boundaries of Kyne. Whether Greyhound, as the Board held, possessed sufficient control over the work of the employees to qualify as a joint employer with Floors is a question which is unaffected by any possible determination as to Floors’ status as an independent contractor, since Greyhound has never suggested that the employees themselves occupy an independent contractor status. And whether Greyhound possessed sufficient indicia of control to be an “employer” is essentially a factual issue, unlike the question in Kyne, which depended solely upon construction of the statute. * * * [footnote omitted] The reasoning of Mr. Justice Stewart, expressed in a National Labor Relation Act context, has subsequently been adopted by the EEOC, see, e. g., Decision No. 72-0679, 4 F.E.P. Cases 441 (12/27/71); Decision No. 72-1301, F.E.P. Cases 715 (3/8/72), and seemingly by the few federal Courts which have had occasion to consider the meaning of the word “employer” under Title VII. In Puntolillo v. New Hampshire Racing Commission, 375 F.Supp. 1089, (D.N.H. 1974), plaintiff, a driver-trainer of harness horses, sued “the New Hampshire • Racing Commission * * *, the regulatory agency which is responsible for horse racing activity in New Hampshire, and the New Hampshire Trotting and Breeding Association, Inc., * * * which conducts the harness racing activities at Rockingham Park, Salem, New Hampshire,” 375 F.Supp. at 1090, asserting that those defendants had deprived him of employment opportunities because of his Italian national origin. In rejecting defendants’ contention that the employment relationship between plaintiff and defendants required by Title VII was lacking, Judge Bownes, then a District Judge, wrote (at 1091-92): The first issue for consideration is whether the relationship between driver-trainers and the defendants is one contemplated by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Admittedly, the relationship here is not the traditional one. Nonetheless, the statutory language is broad. * * * * * * Throughout the Act and the applicable federal regulations, an intent to deal with more than the conventional employer-employee situation is indicated. This intent is demonstrated by the specific prohibition against discrimination by employment agencies and labor organizations, and by the prohibition of discrimination against individuals (as opposed to employees who are defined as “individuals] employed by an employer.”) See generally Sibley Memorial Hospital v. Wilson, 160 U.S.App.D.C. 14, 17-18, 488 F.2d 1338, 1341-1342 (1970); and see 29 C.F.R. § 1600 et seq. Congress’ concern with the “prevalence of discriminatory employment practices” and its desire to deal with the problem in an effective and thorough manner is further supported by the legislative history surrounding the Civil Rights Act of 1964 and the Equal Employment Act of 1972. 1964 U.S.Code Cong, and Admin.News p. 2355; 1972 U.S.Code Cong, and Admin.News p. 2137. More specifically, the Act is aimed at providing equal employment opportunities. Its purpose is to “achieve equality of employment opportunities and remove barriers that have operated in the past” in a discriminatory fashion. Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) [Emphasis added.] * * * The courts have consistently recognized that “Title VII of the Civil Rights Act of 1964 should not be construed narrowly.” [citations omitted] Like the court in Sibley, which considered the very question in issue here, I am impressed with the fact that the Act has addressed itself directly to the problems of interference with the direct employment relationship by labor unions and employment agencies— institutions which have not a remote but a highly visible nexus with the creation and continuance of direct employment relationships between third parties. 488 F.2d at 1342. Moreover, the 1972 amendments to Title VII clearly indicate an intent to “include State and local governments, governmental agencies and political subdivisions within the definition of an ‘employer’ under Title VII.” 1972 U.S.Code Cong, and Admin.News pp. 2137, 2152. Defendants here are certainly employers within the meaning of 42 U.S.C. § 2000e(b); and they certainly “control . access to [plaintiff’s] job market.” Sibley, supra, [160 U.S.App.D.C. 14] 488 F.2d at 1341. Plaintiff has alleged discriminatory actions which fall within the purview of 42 U.S.C. § 2000e-2(a), and I cannot say that these alleged actions fall completely without the scope of activities sought to be prohibited by Title VII. Sibley, supra [160 U.S.App. D.C. at 18], 488 F.2d at 1342. [footnote omitted] In Sibley Memorial Hospital v. Wilson, 160 U.S.App.D.C. 14, 488 F.2d 1338 (1973), faced with the question of whether a hospital, certain supervisory nurses of which had allegedly refused to refer a male private duty nurse’s name to female patients who had requested private nursing services, was an “employer” of that private duty nurse within the meaning of Title VII, Judge McGowan wrote (160 U.S.App.D.C at 16-17, at 1340-41): Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to engage in certain enumerated forms of discrimination on the basis, inter alia, of sex. For purposes of the Act, an “employer” is, with certain exceptions not here relevant, defined as a “person engaged in an industry affecting commerce who has twenty-five or more employees.” That appellant falls within this definition is not disputed. Appellant takes the position, however, that, since no direct employment relationship between itself and appellee was ever contemplated by either of them, it is not an employer under the Act with respect to him. The Supreme Court has said that the Congressional objective in Title VII is “plain from the language of the statute,” and that it is “to achieve equality of employment opportunities . . .” (Emphasis supplied). Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1969). In prohibiting discrimination in employment on the basis of sex, “one of Congress’ main goals was to provide equal access to the job market for both men and women.” Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 386 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971). Control over access to the job market may reside, depending upon the circumstances of the case, in a labor organization, an employment agency, or an employer as defined in Title VII; and it would appear that Congress has determined to prohibit each of these from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited, [footnote omitted] In Smith v. Dutra Trucking Co., 410 F.Supp. 513 (N.D.Cal.1976), aff’d mem., 580 F.2d 1054 (9th Cir. 1978), the plaintiff ran a trucking business with her husband. They entered into a “subhauling” agreement with the defendant trucking company to provide plaintiff’s customers with transportation service. The agreement specified that the subhauler was an “independent contractor.” Plaintiff alleged that the president of the defendant trucking company refused to let her drive on jobs for defendant solely on the basis of her sex. Judge Renfrew held that the plaintiff was not the trucking company’s “employee” within the meaning of Title VIL He distinguished Sibley and Puntolillo on the grounds that (1) both of those cases concerned interference with creation of direct employment relationships; (2) in each of those cases the defendant exercised greater control over the plaintiff’s job market than did the defendant in Dutra. In Curran v. Portland Superintending School Committee, 435 F.Supp. 1063 (D.Me. 1977), a school teacher sued the City of Portland, the local school committee, and numerous city and school officials alleging sex discrimination in the recruitment, hiring, and promotion of school employees. Judge Gignoux (at 1073) held that the city exercised sufficient control