One and one half years later the Office of Human Rights rendered a determination that there was probable cause to believe that the Public Defender Service had engaged in racial discrimination against plaintiff. EEOC subsequently issued plaintiff his notice of right to sue.
In this litigation, plaintiff seeks restoration to his former position with defendant agency as its Deputy Director, back pay, injunctive relief, costs and attorneys' fees.
Asserting the defendant racially discriminated against him not only as to "terms, conditions and privileges of employment", but also as to his "compensation", see Complaint para. 7, plaintiff subsequently clarified and altered his position. He explained the alleged disparate compensation as: "spiritual, psychic and ego-related in that plaintiff was not allowed the normal compensation of knowing that he was participating fully in performance of the duties that he was hired to perform", Pl's Ans. to Def's Interrogatories, No. 7. Hired at a salary of $37,800 per year, benefiting from at least two cost-of-living increments during his tenure as Deputy Director and terminated when earning $46,400 annually, Jones withdrew, at pretrial, his claim of discrimination as it related to his compensation.
He also conceded that he, second in rank at PDS, could not, and did not, contend denial of promotion, acknowledging the absence of a vacancy in the Directorship.
It is then of interest to observe that, although the two deputy directors preceding plaintiff were both white males, the deputy director succeeding Mr. Jones was Francis D. Carter, a black, who, in turn, upon the later resignation of Hickey, succeeded him as Director.
Clear and convincing testimony, noted above, has demonstrated why Jones did not receive the full duties performed by prior deputy directors. Although the whole complement of responsibilities awaited passage to him from the outset of his career with PDS, the agency's best interests required Jones to first fortify his foundation with basic, indeed essential, substantive and procedural skills. Until the angry communications commencing July 1977, Jones understood fully that logic, acknowledged his lack of preparedness and affirmed that much remained to be done by him. Yet, in a sweeping indictment, Jones averred that the policies, practices, prerequisites, procedures and criteria maintained by the defendant created an atmosphere of racial discrimination, Complaint para. 10, citing, among other allegations, his perception that he did not receive assignments exercised by his two white predecessors. See Pl's Ans. to Interrogatories, No. 8a-d.
Examination, briefly, of but a few contentions, promptly demonstrates the invalidity of other allegations of like character.
Apparently overlooking the fact that he as Deputy, and second in command at the agency, bore overall responsibility and could not therefore be likened to "other supervisors", Jones still protested that his monthly activity reports were more detailed than those of "white supervisors".
Although the original charge of racial discrimination against Hickey contained no allegation of any kind regarding discrimination in the hiring of minority professionals, this charge was added three days later by an "Amended Complaint".
Stating the fact that white attorneys predominated and black personnel filled the bulk of non-professional positions, Jones and several of his witnesses criticized Hickey for "refusing to adopt criteria" to recruit black attorneys primarily on a local, rather than national, basis. Understandably concerned that qualified black professionals were not rapidly increasing at PDS, and quarrel as they did with criteria utilized by the agency in its recruitment efforts, even the most zealous did not characterize the criteria, the agency's practices, or Hickey, as "racist", or "prejudiced". As an example, Michael Rankin testified that he had sought but not been appointed to the Deputy's vacancy, but still was asked to increase the number of qualified black attorneys in PDS, that there was at least one black attorney on each hiring committee during his several years' tenure there, that "I cannot delineate any clear racial prejudice from Hickey's actions," that "I enjoyed a very good relationship with Pat", and that Hickey and the Board "gave the general impression and articulated a great concern" for increasing the number of blacks on the staff. He also observed that "our staff attorneys were more familiar with Superior Court practice than Jones . . . who was still in the learning stages of his job".
Francis Smith, who worked for PDS from 1973 to March 1976, vehemently disagreed with the hiring criteria emphasis on quality "law schools rather than skills." Nonetheless, he would not label this criteria "racist" nor did he see it as evidence of racial predisposition. While free to do so, he did not consult Jones concerning trial strategy since Jones did not know about Superior Court trial work. He did, however, confer several times with Hickey, when he was Deputy Director. Smith "thought" PDS treated white applicants differently than blacks, but admitted he never viewed the issue as racial, suggesting instead it was a "socio-economic problem."
Other witnesses criticized PDS' perceived lack of sensitivity and success in recruiting at "elite" schools rather than local ones. The fact is PDS, and Jones himself, recruited vigorously at several local schools, including Howard, and others with predominantly black student population.
Defendant's witnesses, including Hickey and members of the Board of Trustees, credibly defended the charges. Those involved in the process had realistically, but helplessly recognized for some time that highly qualified black attorneys, eagerly sought by PDS, were rejecting PDS' work offers in favor of employment with large, prestigious law firms which offered substantially augmented monetary and supplementary benefits not available to any staff attorneys at PDS, white or black.
Hickey had "frequently solicited Mr. Jones' thoughts and suggestions on minority recruitment since he came here [but] he has contributed little or nothing in the way of ideas regarding this important program." That program, the subject of the Trustees' concern and discussion over many years, consisted of techniques substantially unchanged for five years and obviously used prior to Jones' involvement with PDS. New methods were those suggested since by Hickey, which efforts included:
(1) Obtaining minority enrollment data at ABA-approved law schools and utilizing it in selecting the schools at which we schedule interviews and where we send recruiting materials;
(2) Utilizing PDS employees who are law students active in the Black American Law Students Association to make contacts with other BALSA chapters and sending recruiting materials to those chapters;