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DOUGHERTY v. BARRY

March 7, 1985

EDWARD F. DOUGHERTY, Plaintiff
v.
MARION S. BARRY, JR., et al., Defendants



The opinion of the court was delivered by: HOGAN

 Plaintiff, Edward F. Dougherty, a former District of Columbia firefighter, seeks injunctive and monetary relief for defendants' alleged retaliation against him when he was employed by the District of Columbia Fire Department ("Fire Department"). Specifically he claims that defendants failed to promote him from Battalion Fire Chief to Deputy Fire Chief because he had filed administrative complaints alleging racial discrimination in the promotion of other firefighters and because he had participated in a firefighters' rally which was organized to voice criticism of the Fire Department. He seeks relief under the First Amendment pursuant to 42 U.S.C. § 1983 and under the District of Columbia Human Rights Act, D.C. Code §§ 1-2501, et seq. (1981).

 The Court conducted a three day trial of this action and after reviewing the trial transcript, exhibits and post trial briefs of the parties, issues these Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52 and enters judgment in favor of the plaintiff.

 FINDINGS OF FACT

 1. Plaintiff Edward F. Dougherty joined the District of Columbia Fire Department as a firefighter on March 9, 1953. He was promoted to Sergeant on February 3, 1963, Lieutenant on May 9, 1965, and Captain on June 4, 1967. On May 14, 1972, plaintiff was promoted to Battalion Fire Chief in the Department's Fire Fighting Division. Plaintiff was designated as an Acting Deputy Fire Chief on June 5, 1975 and remained so designated until his retirement on August 30, 1980. (Joint List of Stipulated Facts, "Stipulated Facts" para. 1.)

 2. Plaintiff originally sued Marion S. Barry, Jr., the Mayor of the District of Columbia, Elijah B. Rogers, the City Administrator, Norman Richardson, and the District of Columbia. Prior to trial, plaintiff dismissed his claim against Norman Richardson. He proceeded to trial against the remaining defendants.

 3. Defendant Marion S. Barry, Jr. has been the Mayor of the District of Columbia since January 1979. Defendant Elijah B. Rogers was the City Administrator of the District of Columbia from January 1979 to May 1983. Norman Richardson was the Chief of the Fire Department from January 1980 to March 1982. (Stipulated Facts paras. 3, 4, 5.)

 4. The District of Columbia is divided geographically into eight firefighting battalions. Each battalion is headed by three Battalion Fire Chiefs, each of whom is in charge of one of three platoons assigned to it. The three platoons, which are roughly equal in number of firefighters, are regularly rotated to "day duty" (8 A.M. to 6 P.M.), "night duty" (6 P.M. to 8 A.M.) and off-duty. The Battalion Fire Chief is generally the Department's highest field supervisory rank. Battalion Fire Chiefs report directly to the next highest permanent ranking officers, the Deputy Fire Chiefs. The Fire Department is headed by the Fire Chief. (Stipulated Facts paras. 6, 8, 9.)

 5. Pursuant to Fire Department regulations, a Battalion Fire Chief may be temporarily assigned as an Acting Deputy Fire Chief in order to gain experience when a Deputy Fire Chief is absent. Plaintiff served in such a capacity on various occasions from June 5, 1975 until his retirement in 1980. (Stipulated Facts para. 10.)

 6. Promotions to the positions of Sergeant, Captain and Lieutenant, positions below the rank of Battalion Fire Chief, are based upon scores obtained on competitive examinations. Promotions to the ranks of Battalion Fire Chief and above within the Fire Department are committed to the discretion of the Mayor. D.C. Code § 4-302 (1981). All Battalion Fire Chiefs are eligible for promotion to Deputy Fire Chief. D.C. Code § 4-302. The positions of Assistant Fire Chief and Deputy Fire Chief are exempt from Civil Service Merit promotions. D.C. Code 4-302. This statute, which has been in effect since 1920, provides no objective criteria to be used in making such promotions. *fn1" (Stipulated Facts para. 2, 6, 7.)

 7. As Mayor of the District, Marion S. Barry, Jr. appoints and maintains supervisory control over the City Administrator and the Chief of the Fire Department. He has delegated the task of selecting individuals for promotion to the positions of Deputy Fire Chief and Fire Chief to his City Administrator, Elijah B. Rogers (Testimony of Rogers, July 20 Transcript, "July 20 Tr.," 5-7.)

 9. Edward Eberhard, the Administrator for the Fire Department, explained that Battalion Fire Chiefs are evaluated either "satisfactory" or "unsatisfactory" every two years while they are at step one to step four. (Eberhard, July 19 Tr., 130-31.) Plaintiff received a satisfactory rating on each of his evaluations. (Dougherty, July 18 Tr., 30-31.) After 1978 he received no further evaluations since he was then at the fourth step of the Battalion Fire Chief rank. Id.

 10. A Battalion Fire Chief is in charge of from three to six firehouses, from three to eight companies and thirty-five to sixty-five firefighters. They are responsible for the training, pay, leave and other administrative activities of the firefighters under their supervision. (Id. at 29.) While he was a Battalion Fire Chief, Dougherty served on the departmental board of awards, and on the trial and disciplinary trial boards as both a member and chairman. (Id. at 30.)

 11. An Acting Deputy Fire Chief assumes all of the duties of the Deputy Fire Chief when the Deputy Fire Chief is unavailable. (Id. at 31.) Dougherty served as an Acting Deputy Fire Chief most frequently in the Firefighting division but also the Training, Apparatus and Fire Prevention division. (Id. at 32.) Dougherty served as an Acting Deputy Fire Chief on 12 shifts in 1975, 33 shifts in 1976, 24 shifts in 1977, 47 shifts in 1978, 47 shifts in 1979 and 27 shifts in 1980 before his retirement on August 30, 1980. (Plaintiff's Exhibit ("Pl. Ex.") 79 and Testimony of Cerretani, July 20 Tr., 45-46.) *fn2"

 12. In early June of 1979, plaintiff was the senior Battalion Fire Chief and the senior Acting Deputy Fire Chief. (Dougherty, July 18 Tr. at 32.) The senior Battalion Fire Chief is the "Battalion Fire Chief among all the Battalion Fire Chiefs that is senior in rank." Id.

 13. In June of 1979, Norman Richardson, a black firefighter, was promoted to the rank of Deputy Fire Chief, Training Division; he was the nineteenth Battalion Fire Chief in rank on the Battalion Fire Chief seniority roster. (Id. at 32-33.) Richardson had never been designated to serve as an Acting Deputy Fire Chief. ("Stipulated Facts," para. 11.)

 PLAINTIFF'S ADMINISTRATIVE COMPLAINTS AND "PASSING OVER" IN FIRE DEPARTMENT PROMOTIONS

 14. In June, 1979, plaintiff, on behalf of himself and sixteen other white Battalion Fire Chiefs, filed a complaint with the Fire Department's Equal Employment Opportunity ("EEO") officer in June, 1979, challenging Norman Richardson's promotion on grounds of racial discrimination. After an investigation, the Department's EEO officer denied the complaint. (Stipulated Facts, para. 12; Dougherty July 18, Tr., 33.)

 15. In July, 1979, plaintiff filed a complaint on the same grounds with the District of Columbia Office of Human Rights ("OHR") on behalf of himself and sixteen other white Battalion Fire Chiefs against the Fire Department, Mayor Barry, Elijah Rogers and the District of Columbia. Plaintiff filed the complaint because he felt that Norman Richardson "had not been -- or was not any place near the senior Battalion Fire Chief and he was promoted solely on his -- on the basis of his race." (Dougherty, July 18, Tr., 33.)

 16. Plaintiff's complaint alleged that defendant Richardson was promoted to Deputy Fire Chief and that plaintiff was denied promotion to that post as a result of unlawful racial discrimination for which the Fire Department and defendants Barry, Rogers and the District of Columbia were responsible. Plaintiff's complaint further alleged that the racial discrimination was made possible by the fact that the Fire Department's promotion system lacked any objective standards or guidelines. (Stipulated Facts para. 13.)

 17. Plaintiff testified that he believed he was sent a notice to appear for a fact finding conference with regard to his July, 1979 OHR complaint in October 1979 but that conference was cancelled. (Dougherty, July 18 Tr., 34.)

 18. In January 1980, Mayor Barry announced the promotion of Norman Richardson from Deputy Fire Chief to Fire Chief. (Stipulated Facts para. 14.)

 19. In January 1980, the promotions of Joseph Kitt, Theodore Coleman and Alphonse Torre from Battalion Fire Chief to Deputy Fire Chief were announced. (Dougherty, July 18, Tr. at 34.) Plaintiff amended the OHR complaint he had filed in July 1979 to allege that the promotions of Joseph Kitt and Theodore Coleman had been made on the basis of their race. (Id.) At the time of their promotions, Joseph Kitt was ranked 19th on the seniority list of Battalion Fire Chiefs and Theodore Coleman was ranked 20th on that list. (Dougherty, July 18 Tr. at 34; Defendants' Exhibit ("Def. Ex.") 3.) Plaintiff testified that he did not amend his complaint to challenge the promotion of Alphonse Torre, a white firefighter, because Torre was ranked fourth on the seniority list and "he was close." (Dougherty July 18 Tr. at 66-67; Def. Ex. 3.) At the time of the January 1980 promotions, plaintiff was the senior Battalion Fire Chief (Finding of Fact, para. 12).

 20. Plaintiff testified that his OHR complaint had no adverse effect on his work and it did not affect his relationship with his subordinates or his superiors in the Fire Department. (Dougherty, July 18 Tr. at 35.) There was no evidence proffered by defendants that his OHR complaint disrupted plaintiff's work or the efficiency of the Fire Department.

 21. Plaintiff was "passed over" on three occasions before he filed his July, 1979 OHR complaint. (Dougherty, July 18 Tr. at 69.) "Passing over" is a term used to describe the promotion of firefighters with less seniority before those with greater seniority. (Id. at 63, 69; Testimony of Eberhard, July 19, Tr. at 85.) Before filing his OHR complaint, plaintiff was passed over by Chief Healy (white), Chief Hanback (white) and Chief Logan (black). (Id. at 69, Def. Ex. 3.)

 22. Plaintiff testified that when he was passed over by Chief Hanback and Chief Logan he asked then Chief Jefferson Lewis why he had been passed over in promotions. Plaintiff testified that Chief Lewis acted evasively but told him that he had a "tremendous outside pressure." Plaintiff interpreted this to mean that Chief Lewis was getting some pressure "either from he Mayor's office or from citizens' groups or whatever." (Dougherty, July 18 Tr. at 67.)

 23. Plaintiff recalled that Battalion Fire Chiefs DelBalzo, Torre and Gates had been promoted to the Deputy Fire Chief position after being passed over for promotion to that rank. (Id. at 70) According to plaintiff all Battalion Fire Chiefs have eventually been promoted to Deputy Fire Chief unless they retire prior to that promotion. (Id. at 72) Plaintiff could not recall any instance where persons on the Acting Deputy Fire Chief list were not promoted to Deputy Fire Chief (Id. at 72-73).

 24. In defendants' behalf, Edward Eberhard testified that he knew of three instances where Battalion Fire Chiefs had been promoted directly to Assistant Fire Chief; these were the promotions of Fire Chiefs Glass, Lewis and Burger. (Testimony of Eberhard, July 19 Tr. at 85-87.) These officers had all been senior to Mr. Dougherty. (Id. at 117) Mr. Eberhard explained that approximately twelve officers who had become Battalion Fire Chiefs after plaintiff had "passed over" plaintiff in their promotions from Battalion Fire Chief to Deputy Fire Chief (Id. at 97-100; Def. Ex. 3) and that blacks and whites had passed over each other in promotions. (Id. at 100) On cross examination, Edward Eberhard testified that of the twelve officers he had mentioned only Chiefs Healy, Logan and Jeffrey passed over plaintiff prior to plaintiff's filing of his discrimination complaint. (Id. at 118-119) The only person who was Fire Chief when Healy, Logan and Jeffrey were promoted was Chief Jefferson Lewis. (Id. at 119-120) Additionally on cross examination Mr. Eberhard testified that while Battalion Fire Chiefs were passed over on from one to three occasions, they were eventually promoted to Deputy Fire Chief. (Id. at 121-126) In response to the Court's questioning concerning those Battalion Fire Chiefs who were not promoted to Deputy Fire Chief, Mr. Eberhard stated that this group of firefighters included those Battalion Fire Chiefs who were named as plaintiffs in plaintiff's OHR complaint and those who had retired early. (Id. at 133-136)

 25. On or about August 26, 1980, five promotions were announced from the ranks of Battalion Fire Chief to Deputy Fire Chief. (Id. at 70; Def. Ex. 3 (noting promotion dates of 10/5/80); Testimony of Edward Eberhard, July 19 Tr. at 119.) These were Officers Granados, Shaffer, O'Connell, Burks and Clarke and they are all white (Id.). Respectively, they occupied the first, second, third, fourth and fifth positions of seniority below plaintiff. (Id. at 45, 70) These men had been passed over previously by Chiefs Richardson, Kitt and Coleman and had been named in plaintiff's OHR complaint. (Id. at 71) According to plaintiff, these men did not take an active part in the prosecution of his OHR complaint. (Id.)

 THE MAY 1980 FIREFIGHTERS' RALLY AND SUBSEQUENT EVENTS

 26. In early May 1980 employees of the Fire Department staged a rally at the District Building. The rally was reported the following day in the Washington Post. (Stip. Facts para. 15.) The rally was organized to protest the budget cuts of the City Administration, interference by the City Administration in the Fire Department administration, and racial discrimination in the promotion system. (Dougherty, July 18 Tr. at 36.) According to plaintiff the men formed a line, walked peacefully and carried placards around the District Building several times; some of the council members came down to speak to the rally participants. (Id.) Plaintiff's photograph was taken at the rally and was prominent in the Washington Post the next day. (Id.) City Administrator Elijah Rogers made reference to the fact that the rally participants had made personal attacks against Mrs. Barry during the rally. (Rogers, July 20 Tr. at 36.) Defendants did not ask the rally participants whether those comments had indeed been made, nor did plaintiff contradict Rogers' statement. The Court finds that even though some such comments may have been made, they played a minor role in the overall purpose for which the rally was organized and conducted and were not the main reason that the Administration called a meeting with the firefighters several days later.

 27. William Phillips, a former Battalion Fire Chief, testified that he was one of approximately three hundred officers and firefighters who attended the rally. (Phillips, July 19 Tr. at 9.) He testified that the Union organized the rally because they felt "the problems in the Fire Department at that time were caused in large measure by (the Barry) administration." (Id.) He explained that he

 
had worked through the system for several years to try to effect changes that were sorely needed. The morale of the Fire Department was at an all-time low. The men were frustrated. I worked with them every day and I knew this. I had to resolve their problems and I had reached a point where I could no longer function in my job, and this was my effort to accomplish the changes.

 (Id. at 10.)

 28. A few days after the rally, Mayor Barry and City Administrator Rogers called a meeting at the District Building with Norman Richardson and the other chief officers in the Fire Department, including plaintiff. During the meeting, defendants Barry and Rogers expressed unhappiness about the rally. (Stipulated Facts para. 15.) Plaintiff stated that Mayor Barry and Elijah Rogers essentially told those at the meeting that "they were either on the team or could get off" and that Mayor Barry had made recent promotions of ...


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