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February 26, 1985

SIDNEY BISHOPP, et al., Plaintiffs,

The opinion of the court was delivered by: GREEN

 Plaintiffs Sidney Bishopp, John Breen, William Q. Stickley, Floyd E. Yocum and Joseph E. Zeis, all white males formerly employed by the District of Columbia Fire Department, bring this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1981) ("Title VII"), alleging racial discrimination, retaliation and constructive discharge. Plaintiffs' claims arise from the August, 1974 promotion of Jefferson Lewis, a black male, to Assistant Fire Chief-Operations. Lewis was nominated for promotion by then-Fire Chief Burton Johnson; that nomination was approved by then-Mayor Walter E. Washington. Each plaintiff contends that he was better qualified than Lewis to fill the position in question, and that the Lewis appointment was based on race. Plaintiffs further allege that as a consequence of their opposition to Lewis' appointment, they were subjected to retaliatory discrimination and that they were constructively discharged from the fire department.

 Plaintiffs' charges of race discrimination were placed before the Equal Employment Opportunity Commission (EEOC) on or about August 30, 1974. After extensive delay, the EEOC issued findings in plaintiffs' favor on February 25, 1982. A formal notice of right to sue followed on November 18, 1982, and plaintiffs filed this action on February 15, 1983. The Court having denied defendant's motion for dismissal or summary judgment based on laches and other theories, *fn1" the case proceeded to trial in October, 1984. Post-trial memoranda have been filed subsequently.

 Defendant has consistently maintained that the promotion of Jefferson Lewis was based on merit rather than race. Alternatively, defendant defends the Lewis promotion under the fire department's fledgling 1974 affirmative action plan. In light of defendant's uniform statements that race played no part in the selection of Jefferson Lewis, admission of the 1974 affirmative action plan was denied at trial, and that defense will not be given further consideration. Defendant also raised a defense of laches based on plaintiffs' failure to bring their claims to this court when the EEOC proceedings continued beyond 180 days from the date of filing. See footnote 1. The Order of March 16, 1984 stated the applicable legal test:

In the context of a Title VII action, the application of laches is inappropriate unless the defendant proves both that the delay of the plaintiff was unreasonable and that the defendant has been unduly, substantially and materially prejudiced as a result. Rozen v. District of Columbia, 227 U.S. App. D.C. 14, 702 F.2d 1202 (D.C. Cir. 1983).

 March 16, 1984 Order at 5. The laches issue was not ripe for summary judgment at the time of the above Order, but it was indicated that absent evidence that plaintiffs did know or should have known of their opportunity to file suit without an EEOC decision, dismissal on the ground of laches would be inappropriate under Rozen. At trial, each plaintiff testified unequivocally that he did not know of his option under Title VII to institute a lawsuit without awaiting the outcome of EEOC proceedings when those proceedings extended beyond 180 days from filing. In addition, each plaintiff testified that he was not represented by counsel while the EEOC charges were pending. As the authority to file suit before completion of EEOC proceedings is not evident from the face of the statute, see 42 U.S.C. § 2000e-5(f)(1) (apparently authorizing suit only when plaintiff has received notification of option to sue despite agency delay), see generally Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 366, 53 L. Ed. 2d 402, 97 S. Ct. 2447 (1977), the plaintiffs have satisfactorily shown that their delay in filing this action was not unreasonable. Even were plaintiffs' delay unreasonable, defendant has made no showing that the delay has unduly, substantially and materially hampered defendant in its ability to defend this suit. Specifically, there has been no claim that relevant documents were lost over the course of time, and the District of Columbia officials alleged to have discriminated against plaintiffs (former Chief Johnson and former Chief Lewis) both appeared at trial with memories intact. Accordingly, under Rozen, this action is not barred by laches.

 Factual Background

 Discussion of the merits of plaintiffs' claims requires some knowledge of the setting in which those claims arose. The District of Columbia Fire Department is hierarchical in structure. At the top of the hierarchy is the fire chief; directly beneath him are the assistants heading the operations and services sectors of the department. The bulk of the department's manpower is in the operations sector, which includes five deputy fire chiefs (ranked one level below the assistants) and some thirty battalion fire chiefs who report to the deputies. Three of the five operations deputies are responsible for firefighting operations, one runs the training center and the fifth is the fire marshal with responsibility for fire prevention efforts. Of the battalion fire chiefs in operations, most are involved in firefighting, although one serves under the deputy heading the training academy.

 In the services sector, the assistant fire chief is aided by one deputy and a battalion fire chief for planning, both of whom report directly to the assistant chief. Despite the staffing imbalance, positions in the two sectors are considered equivalent for purposes of rank and promotion. Promotions through the lower ranks of private, sergeant, lieutenant and captain, up to and including battalion fire chief, are based on test scores and years in rank or grade. Under D.C. Code § 4-302 (1981) promotions above battalion fire chief are made at the discretion of the Mayor upon the recommendation of the fire chief. Moreover, no fire department policy, rule or regulation mandates rank by rank advancement above the level of battalion fire chief: the only prerequisite to promotion to deputy, assistant or even fire chief is that the officer must have attained the rank of battalion fire chief. See DX-A.

 During the summer of 1974, it was apparently well known throughout the fire department that then-AFC-Operations Doyle E. Harpster's position would become vacant upon his imminent retirement. After reviewing the backgrounds of all battalion and deputy chiefs, then-Fire Chief Johnson prepared a list naming the eight individuals (including plaintiffs and Jefferson Lewis) who were considered the "best candidates" to fill the upcoming vacancy. PX-71, DX-JJ. Formal applications for the job were neither solicited nor received. In late August, 1974, defendant, through Chief Johnson (who is black) and the office of Mayor Walter E. Washington (who is also black) announced that the AFC-Operations vacancy created by Harpster's retirement would be filled by Jefferson Lewis. The promotion took effect within days.

 Race Discrimination Claim

 With that background, we turn to the merits of plaintiffs' claim that they were passed over for promotion (in the case of the deputies) or simply not promoted because they are white. The structure of Title VII discrimination litigation is by now well settled law. Under United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), the plaintiffs bear the burden of proving by a preponderance of the evidence a prima facie case of race discrimination. Burdine at 253. The burden of establishing a prima facie case is not onerous. Id. at 253; see also Ethnic Employees of the Library of Congress v. Boorstin, 751 F.2d 1405, slip op. at 23 (D.C. Cir 1985). In the context of a failure to promote, plaintiffs must show (1) that they belong to a protected group, (2) that they were qualified for and applied for a promotion, (3) that they were considered for and denied the promotion, and (4) that a similarly-qualified employee from outside the protected group was promoted at the time that plaintiffs were denied promotion. Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 957 (D.C. Cir. 1981); see also Parker v. Baltimore & O.R.R. Co., 209 U.S. App. D.C. 215, 652 F.2d 1012, 1017 (D.C. Cir. 1981); Sales v. Dep't of Justice, 549 F. Supp. 1176, 1184 (D.D.C. 1982), aff'd, 230 U.S. App. D.C. 423, 717 F.2d 1480 (D.C. Cir. 1983); see generally Burdine, 450 U.S. at 253 n.6 (model for prima facie case of discrimination in hiring set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), is adaptable to varying factual situations). By establishing a prima facie case, the Title VII plaintiff creates a "rebuttable presumption" of unlawful discrimination by the employer. Aikens, 460 U.S. at 714, citing Burdine, 450 U.S. at 254; McDonnell Douglas Corp. v. Green, supra. To rebut the presumption, the defendant must produce evidence that the plaintiffs were rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. If defendant does so, the presumption "drops from the case", Burdine, 450 U.S. at 255 n.10, and the ultimate factual issue -- whether or not the defendant intentionally discriminated against the plaintiffs -- is placed before the Court. See Lanphear v. Prokop, 227 U.S. App. D.C. 89, 703 F.2d 1311, 1314 (D.C. Cir. 1983). Throughout the proceedings

'The plaintiff retains the burden of persuasion. He may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.' 450 U.S. at 256.
In short, the district court must decide which party's explanation of the employer's motivation it believes.

  Aikens, 460 U.S. at 714-16; see also Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, , 104 S. Ct. 2794, 2799, 81 L. Ed. 2d 718 (1984); Ethnic Employees of the ...

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