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January 12, 1983


The opinion of the court was delivered by: GREEN

 The plaintiff, Donald Wheeler Jones, a black male lawyer, asserts that his former employer, the Public Defender Service of the District of Columbia ("PDS" or "Service") unlawfully discriminated against him because of his race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., which resulted in his termination from employment following the filing of an Equal Employment Opportunity (EEO) complaint.

 The Service, denying either discriminatory or retaliatory action, contends that plaintiff's allegations are totally unfounded and that he has not even succeeded in presenting a prima facie case of racial discrimination.

 For reasons demonstrated by the findings and conclusions of law noted within this Opinion, the Court concludes that plaintiff has not prevailed on his claim of racial discrimination and that judgment must be entered in favor of the defendant.

 The Public Defender Service is an agency established by the Congress of the United States in 1970 for the purpose of providing equal representation in the District of Columbia, and primarily in the Superior Court of the District of Columbia, for persons financially unable to obtain adequate representation in criminal, juvenile and mental health proceedings. At relevant times herein it has been also responsible for assisting and consulting with the courts and the private bar in administering the assigned counsel program and, through its staff, has performed investigative services for the private bar. The staff of PDS, ranging from eighty to one hundred persons, includes attorneys, investigators, social workers, and administrative-clerical personnel. In addition, PDS employs part-time law student investigators and has, on occasion, operated programs for law student interns.

 The powers of the Service are vested in a Board of Trustees which, at the time pertinent to this cause, was composed of seven members *fn1" with term of office limited to two consecutive terms of three years each. That Board is mandated to establish general policy for the Service.

 The Board of Trustees is responsible for the appointment of both a Director and Deputy Director of the Service, each of whom serve "at the pleasure" of the Board.

The Director shall be responsible for the supervision of the work of the Service and shall perform such other duties as the Board of Trustees may prescribe. The Deputy Director shall assist the Director and shall perform such duties as he may prescribe. The Director and Deputy Director shall be members of the Bar of the District of Columbia. D.C. Code 1981, § 1-2704.

 In this litigation, the plaintiff has designated J. Patrick Hickey, Director of PDS during the period critical to this cause, as the alleged discriminating official. Mr. Hickey, a white attorney and member of the Bar of the District of Columbia, served PDS as its Deputy Director for three years, commencing in 1972. Thereafter he was appointed its Director, effective July 1, 1975.

 An extensive nationwide search ensued to fill the Deputy Director vacancy created by Hickey's promotion to Director. Three Trustees constituted the Search Committee, chaired by then Dean Charles T. Duncan of the Howard University Law School. Several Trustees and Hickey, also, initially and openly supported other candidates, both black and white, as possessing superior qualifications to those of plaintiff. It was, however, Hickey, knowledgeable of Jones' race, who contacted Jones on his own initiative to explore and then develop his interest in the position. It was recognized that Jones had material deficiencies in that he was not current in the criminal law area, was unfamiliar with local law, practice, procedure and personnel, lacked supervisory trial experience, and was absent admission to the Bar of the District of Columbia. Nonetheless, Hickey expressed that Jones "could learn what had to be learned", necessary to satisfy the responsibilities of the post, could promptly remedy the existing problems, secure admission to the bar, master the case law, code provisions and District of Columbia procedural rules, and quickly seize the supervisory reins over both trial and administrative areas. Jones, after all, was not without impressive experience otherwise. A graduate of Howard University Law School, he had seven years of criminal trial experience in the private practice of law and one year's service as a once-a-week municipal judge in Florida. For the seven years immediately prior to joining PDS he had been with the Community Relations Service of the Department of Justice, initially serving as Regional Director in Atlanta, Georgia and subsequently, as Deputy Director in the Washington, D.C. headquarters.

 Accepting the recommendation of Hickey and the Search Committee, plaintiff was appointed on November 3, 1975, as the Service's third Deputy Director, and its first black in that position. Two years later, on November 18, 1977, defendant, asserting Jones' incompetence, terminated him from that position.

 During the hiring interviews and repeatedly after he was employed by PDS, Jones was advised by Director Hickey that PDS's primary mission was to provide "first quality" representation to its clients, that Jones had to promptly seek admission to the D.C. Bar and, pending that, establish familiarity with the basics of criminal law practice and procedure in the District of Columbia as an absolute prerequisite to acquiring actual trial experience in its Superior Court in the representation of the clients served by PDS. It is self-evident, and constantly so conveyed to Jones, that he could only be valued as a supervisor of trial lawyers when possessed of these basic qualifications. To ready himself Jones was asked to immediately participate in the annual six-weeks' intensive training session which commencement coincided with his first day of entry on duty and which, among other matters, included not only active participation therein but also reading approximately 350 cases to provide the substantive foundation of criminal law in this jurisdiction as well as refresh his knowledge of criminal law in general. From this base, Jones could then begin acceptance of assigned cases in the Superior Court, gain local trial experience through direct representation of PDS clients, and thereafter supervise the other trial attorneys. As Hickey envisioned it, and as he expressed to Jones over and over again, the most important responsibilities of the Deputy Director were supervision and oversight of attorney performance in trials and appeals and supervision/participation in attorney training programs, including consultations with staff attorneys and other supervisors on issues of law, tactics and professional responsibility.

 Jones candidly admitted at trial that he attended no more than two and one-half days of the first training session in November, 1975, and did not attend any of the sessions in 1976 or 1977 although urged to do so, that he did not read the 350 cases involved as part of that training, that he became a member of the bar of the District of Columbia only ten months later, by motion, in September, 1976, that he neither participated as counsel nor as co-counsel in any District of Columbia case, although Hickey continuously urged him to do so, that he remained essentially unfamiliar with the rules, practices and procedure of the Superior Court and that, at no time was he ever ready or able to supervise trial attorneys, even at the time of his dismissal from PDS two full years later. To excuse these derelictions, Jones recited his list of other activities, contending that the "staggering" volume of work delegated by the Director imposed an insurmountable barrier to scheduled accommodation of those essential work predicates.

 It was Hickey's view, reflected in his drafting of the Deputy's job responsibilities, prior to Jones' selection, that the duties of the Director and his Deputy should be nearly interchangeable, consonant with equal talents and interests, and subject to frequent informal reassignment of tasks as needs required and circumstances warranted, similar to his own experience when Deputy to Norman Lefstein, Director. The latter two, and their predecessors, had successfully meshed their talents and stretched their resources in precisely this manner, while fully cognizant of the primary responsibilities for various areas being assigned to one or the other.

 Hickey persuasively contended that in 1975 and 1976 he told Jones he was not assigning him additional responsibilities so that Jones would have ample time to devote to the task of familiarizing himself with the local criminal practice. Yet Jones admittedly did not do so even to the point of failing to attend, save rarely, the twice weekly PDS bag luncheons, the purpose of which was to share information on current court happenings, usually on a practical level.

 Dissatisfied as he was with Jones' inability to perform substantively as contemplated, Hickey nonetheless delegated him to prepare memoranda for the staff on several issues of general interest and distributed other tasks to him.

 Jones attended meetings of the Board of Trustees and prepared for its personnel his analysis of proposed speedy trial legislation, drafts of the Service's annual reports for fiscal years 1975 and 1976 and a draft of a proposed amendment to the Criminal Justice Act.

 He participated in the hiring process and other personnel decisions, attended local minority recruiting programs (a matter of special interest to him), and did most of the out-of-town interviewing of attorney applicants in the fall of 1976. Indeed, plaintiff focused on this task to bolster his argument that the time devoted to recruiting precluded his accomplishment of other assignments. Although Jones interviewed 37 potential staff attorneys in his first two months (frequently 4-6 on the same day), Pl's Exh. 33, there remained ample opportunity to complete the basic requirements of his position should Jones have elected to so engage his time.

 While recognizing that all activities are not necessarily noted, his daily office calendar reflected few other appointments, frequently listing no more than one conference or meeting for a specific date. Several days were absent any notation other than personal, such as dental appointments.

 While unproductive to recite the parties' sparring on each activity Jones did or did not perform, the matter is readily clarified by several observations.

 Finding Jones' performance of his administrative functions as unsatisfactory as his substantive preparation, Hickey emphasized Jones' shortcomings on his oversight of the non-legal supervisory staff of the Investigative and Offender Rehabilitation Divisions and his review of statistical data and record keeping practices in those Divisions.

 As to the Investigative Division, Hickey had expressed concern to Jones about both the productivity of that Division and the quality of the work performed by the five full-time investigators. He asked Jones to review the statistical data to provide recommendations for a normal staff workload and, while monitoring the monthly reports, to suggest other means for evaluating the quantity and quality of the work. Six months later the information requested by Hickey as to success rate of timely completion was still not reflected on the monthly reports. Hickey spurred Jones to activity, but it took three separate written requests and nearly ten months before this statistical item began appearing on the Division's monthly reports. Even though Jones had suggested that he was requiring the supervisor to monthly include an explanation for any deviation from the completion level of past years, as well as comments about the quality of the work, this was not done. Again time was engulfed before Hickey's suggestion to draft a brief questionnaire to the attorneys using the investigators' services, pending six months, was prepared by Jones and implemented for the Service's benefit.

 Hickey discussed his concerns with Jones in December, 1976, advising that his performance was unsatisfactory, that it would have to improve markedly, and that he had either failed to complete or delayed too long in completing most tasks given. Jones assured Hickey he would do better but those assurances rarely produced the fruit of the promise.

 In February, 1977 Hickey conducted his own review of the Division's statistical records. Shocked to discover that most of the investigators appeared to be generally doing a totally inadequate amount of work (e.g. contacting only two or three witnesses in a 40-hour work week) he advised Jones of his findings and demanded improved productivity in the Division. Under Jones' administration the problems continued.

 Similarly, Jones had been directed in early 1976, and subsequently, to devise methods to evaluate the work of the Offender Rehabilitation Division and a work plan. Months went by with promises of action from Jones but no results. Nine months later Jones advised that he and the Division's Chief had "basic questions" about the purpose of the evaluation. Jones' proposal, approximately one year after the initial request, was deemed unsatisfactory.

 These illustrations, only two of many credibly detailed at trial through testimony and documentation, reflect Hickey's accelerating frustration and assured perception that Jones consistently demonstrated an inability to perform, in timely and appropriate manner, the duties of his position.

. . . Work which he has completed has been all too often characterized by an absence of careful thought, judgment, or independent responsible consideration of the project before him (e.g., his consistent delegation of his duties to other subordinates, and his unquestioning acceptance of their reports to him). His failure to prepare himself to discharge adequately the highly important duty of working with the staff attorneys reflects a particular lack of diligence, especially in light of the readily accessible opportunities available to him here.
My discussion has focused mainly on Mr. Jones' failure or inability to perform even routine tasks, but it should not be overlooked that I was also requesting from him some creative thinking and judgment, of a quality reflecting the executive nature of his position and his compensation. Satisfactory responses to these requests (e.g., in devising methods for monitoring the productivity of the investigators, or in identifying appropriate factors for evaluating the Offender Rehabilitiation Division) were simply not forthcoming.

 Def's Exh. EE, containing Hickey's letter of Sept. 2, 1977 to the Chairman of the Board of Trustees, at 16.

 Since fall 1976, Hickey had periodically expressed not only to Jones but also to the then Chairman of the Board of Trustees his concern and dissatisfaction with the quality and quantity of plaintiff's work performance and persistent failure to prepare himself for assumption of the tasks awaiting delegation to him. Nevertheless, Hickey gave constant extensions to Jones for completion of assignments and provided innovative suggestions for material resolution of chronic problems. By June 1977, however, Hickey verbally suggested to Jones that he consider seeking other employment.

 Plaintiff's response to criticism of similar vein, which had been frequently imparted verbally and through writing, was to request on July 1, 1977, for the first time in his tenure at PDS, and without specificity, that Hickey "prescribe duties for me . . . which are in accord with my job description . . . ." (Def's Exh. I). Noting his interest in succeeding Hickey as Director, when Hickey left the agency, Jones observed that "it is obvious that much, if not most, of what you are doing should have been done by me." Alluding to their various discussions on this point, Jones proffered his belief that the "frustration generated by your workload has a deleterious effect on our ability to function together."

 On July 6, 1977, twenty months after accepting the Deputy's position, knowing Hickey's expectations from the outset, but blithely ignoring his own inadequacies, Jones addressed Hickey again on "Making the Transition to the Full Deputy's Duties" by reassigning certain delegated tasks "because I will suggest hereinafter a light caseload for myself . . ." having decided, now, that "I should become familiar with the kinds of records, files, indicators and guidelines that are used by the supervisors," and suggesting a caseload of four cases since "ultimately, the only way to get oriented to criminal cases in Superior Court is to begin doing some."

 Another memorandum to Hickey, also dated July 6, 1977 (attached to Pl's Exh. 25) and captioned "Possible Effects and Perceptions Within the Agency" was viewed by Jones, its author, as

. . . not intended to be, nor are they accusatory. Rather, I view them as an opportunity for us to be introspective and sensitive about our actions, inactions, and attitudes as they may bear upon employee relations generally, and their possible ...

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