and without knowing their evaluation of him. He talked with plaintiff three or four times during the plaintiff's year of duty and was unaware of plaintiff's performance evaluation report by the Sergeants. None of the defense witnesses questioned the adequacy of plaintiff's writing skill, although the prime reason for plaintiff's failure to graduate from the school was his failure to submit the Carey report, which was designed to reflect one's writing ability. Chief Pyles did not discuss the possibility of recycling plaintiff, i.e., permitting him to complete his work at the school at the next session. This privilege had been accorded certain black officers.
Chief Lawler was present when former Chief Pyles counselled plaintiff about the note left on the illegally parked Pennsylvania licensed vehicle believed to have some connection with Senator Javits. Plaintiff thought he was correct in warning the driver of the illegally parked vehicle. Chief Lawler stated the school was designed to make the police force more professional. Plaintiff's graduation depended on his submitting the Carey report. Officer Johnson, a black officer, was converted to career status without graduating from the school and permitted to attend the school the following year. Chief Lawler conceded that obtaining a passing grade in school was not a precondition to being converted from probationary status to career status. Though he knew that Sergeant Shaw, plaintiff's supervisor, had given plaintiff a satisfactory rating, he does not recall bringing that to Chief Pyles' attention. He knows of no other officers who were terminated at a time when they had satisfactory ratings. He knew of plaintiff's domestic problems. He does not regard plaintiff's act in assisting Officer Rodebaugh in getting a tractor trailer off the roadway of the Airport where it was impeding traffic as a result of which plaintiff was three minutes late as an excuse for tardiness.
The Assistant Director of the school, Mr. Dooher, was also called as a witness for the defense. He knew of plaintiff's domestic problems but emphasized the importance of completing the Carey report. This report was designed to demonstrate a student's writing skills. Plaintiff got an extension of time within which to file his report after the due date but failed to submit his report within the scheduled time. Accordingly, he got a zero for this course which carried a maximum of 60 points. Plaintiff accumulated 387 points; the minimum passing grade was 428 points. Accordingly plaintiff's failure to submit the Carey report was the cause of his failure to graduate. Plaintiff also failed to complete the Human Relations course and received "0". Mr. Dooher explained that the agency could have elected to withdraw plaintiff from the school and recycle him at a future date. He said there was no question but that plaintiff had the requisite ability to do the work required at the school. A black officer by the name of Good failed to achieve a passing grade at the school but was not terminated by the agency. He noted that plaintiff was cooperative and respectful and thought the reason for plaintiff's failure to complete the course was his personal problems.
Upon consideration of the foregoing facts, the Court concludes as follows: Plaintiff made out a prima facie case within the scope of the Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Plaintiff showed that he was a member of a protected class within the scope of Title VII, see McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976); that as a probationary employee he demonstrated qualifications for continued employment; that in spite of this demonstration of qualifications for continued employment, he was terminated and that other employees who were black and whose qualifications and performance of duty were inferior to plaintiff's were retained and converted from probationary to nonprobationary status.
Plaintiff having met the standards set forth in McDonnell Douglas Corp. v. Green, supra, is entitled to prevail unless the defendant demonstrates a legitimate nondiscriminatory reason for plaintiff's termination. If the defendant meets this burden by clear and convincing evidence
then the Court must determine whether the reasons for the termination were a pretext. The excuses advanced by the defendant in an attempt to justify plaintiff's termination, discussed at length supra, do not in the Court's view amount to a legitimate nondiscriminatory reason for that action. The Court concludes as a result of compelling evidence which seriatim discredits each of the "reasons" that the defendant has advanced
and it finds that they neither individually nor collectively satisfy defendant's rebuttal burden. The overwhelming evidence from witnesses with whom plaintiff worked, both black officers and white officers, was that the manner in which plaintiff performed his duties was at least satisfactory or average. His immediate supervisor, Sergeant Shaw, in half the categories rated his performance as meeting requirements and the remaining half as exceeding requirements.
This supervising Sergeant is black. Most of his fellow officers, black and white, who testified characterized plaintiff as a fine officer, as outstanding, and stated that his performance of his duties exceeded some of their fellow blacks and even in some instances, their own. Nevertheless, these black officers who were named in the testimony were not terminated but were promoted to nonprobationary status.
The explanation offered by several black officers was that severe racial tension existed at the Airport as a result of which the black officers organized a black officers' club. Chief Pyles refused to meet with the black officers' club but did say in substance to one of its members: You think I'm picking on the black officers. I will show you I can pick on the white officers also. The witnesses interpreted this remark as indicating Chief Pyles' determination to make a "scapegoat" of plaintiff, inferring that had plaintiff been black he would not have been terminated. This obviously is no way to demonstrate absence of discrimination. This clearly demonstrates the reason for such remedial legislation as that contained in Title VII.
It is therefore the Court's conclusion that the defense has failed in its burden to demonstrate a legitimate nondiscriminatory reason for plaintiff's termination. The Court finds in favor of the plaintiff. Counsel will submit an appropriate order.
OLIVER GASCH / Judge
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 428 F. Supp.]
This matter having come on for a trial de novo, and upon consideration of all of the evidence adduced, the Court having found that plaintiff should prevail for the reasons briefly set forth in the Court's Memorandum issued this day, it is by the Court this 22nd day of February, 1977,
ORDERED that judgment be, and hereby is, entered in favor of plaintiff, and it is further
ORDERED that plaintiff's counsel shall submit an appropriate order of specific relief as soon as possible after conferring with opposing counsel about the elements of said order, such as back pay and attorney's fees.
OLIVER GASCH / Judge