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DOUGHERTY v. BARRY

April 30, 1985

Edward F. Dougherty, et al., Plaintiffs,
v.
Marion Barry, Jr., et al., Defendants; Edward F. Dougherty, et al., Plaintiffs v. Marion S. Barry, Jr., et al., Defendants; Francis X. Flaherty v. Marion Barry, Jr., Mayor of D.C. Elijah B. Rogers, City Administrator of D.C. District of Columbia; Edward F. Dougherty Andrew T. Buckler, Jr. Wilton E. Watts Henry J. Ford Francis X. Flaherty Bernard M. Bowerman Vincent K. Elmore William H. Phillips v. Marion S. Barry, Jr. Elijah Rogers Government of the District of Columbia Fire Department District of Columbia



The opinion of the court was delivered by: GREEN

 These related actions arise from the June, 1979 and January, 1980 promotions of Norman Richardson, Joseph Kitt and Theodore Coleman, all of whom are black, to deputy fire chief positions within the District of Columbia Fire Department. Plaintiffs, all of whom are white, allege that they were eligible for those promotions and contend that they were not chosen for the positions because of their race.

 Plaintiffs Edward F. Dougherty, Andrew T. Buckler, Jr., Wilton E. Watts, Henry J. Ford, and Francis X. Flaherty bring the earlier case, Civil Action No. 82-1687, against defendants District of Columbia, Mayor Marion Barry, Jr., and City Administrator Elijah B. Rogers (in their individual and representative capacities) challenging the Richardson, Kitt and Coleman promotion decisions made by defendants as violative of plaintiffs' rights under the Civil Rights Act of 1866, 42 U.S.C. § 1981 (hereinafter "section 1981") and the Fifth Amendment to the United States Constitution. *fn1" Joined by plaintiffs Bernard M. Bowerman, Vincent K. Elmore and William H. Phillips, the same plaintiffs allege in Civil Action No. 83-0314 that the same promotion decisions were racially discriminatory in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (hereinafter "Title VII"). Defendants to the Title VII action are Mayor Marion Barry, Jr., and City Administrator Elijah B. Rogers (in their official capacities only), the Government of the District of Columbia Fire Department and the District of Columbia.

 I. Factual Background

 A. Structure and Policies of the Fire Department

 Discussion of the merits of plaintiffs' claims requires some background knowledge of the setting in which they arose. The District of Columbia Fire Department is hierarchical in structure. The fire chief holds the top position in the hierarchy; directly beneath him are two assistant fire chiefs heading the operations and the services sectors of the department. The bulk of the department's manpower is in the operations sector, which at all times relevant to these actions included no more than six deputy fire chiefs ranked one level below the assistants and between 30 and 40 battalion fire chiefs who report to the deputies. Some but not all of the deputies within the operations sector are responsible for firefighting operations, one runs the department's training academy and one serves as fire marshal in charge of fire prevention efforts. Most of the battalion chiefs in operations are involved in firefighting, although one serves under the deputy heading the training academy and others may have comparably specialized duties. One battalion chief is assigned planning and research duties and works directly under the assistant chief in the services sector.

 Promotions through the lower ranks of private, sergeant, lieutenant and captain, up to battalion 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 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.

 During the years relevant to this case, the District of Columbia Fire Department had no formalized system for filling vacancies at the level of deputy fire chief. It was, however, well known among the battalion chiefs that the office of the fire chief (which included the chief and both of his assistants) maintained a list or lists of those battalion fire chiefs who had been designated acting deputy fire chiefs ("acting DFCs"), *fn2" arranged alphabetically or by date of promotion to battalion chief or both. There is no reliable evidence that any list was captioned a seniority list or that a strict seniority system was employed in the filling of vacancies at any level above battalion chief. Instead, it appears that the common practice was to select deputies from among the more senior battalion chiefs with acting deputy status, but to take account of the specialized needs of the position to be filled. Neither regulation nor custom dictated that the most senior or senior-in-grade acting DFC receive preferential consideration, but in general the five or six more senior members of that group were those most likely to be tapped for promotion.

 In both fiscal year 1979 (10/1/78-9/30/79) and fiscal year 1980 (10/1/79-9/30/80), the District of Columbia Fire Department had in effect equal employment opportunity plans, in keeping with D.C. Code §§ 1-507 et seq.3 See DX-K, DX-L. Despite introductory language calling for "programs of definite affirmative action", the plans do not on their face call for preferential treatment of minorities over whites in filling vacancies or designate specific positions or numbers of positions to be set aside for minority hires or promotions. The focus of the FY-1979 and FY-1980 plans is on the goal of "equal opportunity in all facets of [the department's] operations, including but not limited to recruiting, assignment, selection, appointment, training, promotion and upward mobility", and the need for officers to develop and exercise "an increased awareness of the personal potential of employees within their operational responsibility, as well as the barriers that may consciously or unconsciously impede their progress," DX-L at 2. The stated objectives of both plans include improving the processing of discrimination complaints, upgrading minority recruitment, and encouraging upward career mobility by providing on-the-job training, devising career development plans for minority employees, and disseminating information about advancement opportunities to underrepresented groups. The general language and policies of both plans, although particularly geared to assist the rank and file of the department, could apply equally to all levels of the departmental hierarchy.

 In the area of promotion, the FY-1979 plan states that "the department endeavors to promote present [minority] employees to higher-graded positions, where possible, rather than hire new employees from the outside to fill vacant positions." DX-L at 19. The FY-1980 plan takes the following stand:

 
Minority officers should be detailed into positions of higher ranks for training and experience. This could be done when a position is vacant due to sick leave, annual leave or retirement. New positions could be created where necessary or feasible, either permanent or temporary.

 DX-K at 15 (unnumbered pages). The plans do not set forth racial quotas and in fact make no specific provisions for implementation of their goals. Furthermore, they do not indicate that preferences are to be afforded to minorities or that non-minority department members will be denied equal consideration for promotion.

 B. The Events of 1979 and 1980

 The related actions now before this Court arise from three promotion decisions made while the plans described above were in effect at the District of Columbia Fire Department. All three promotions at issue elevated blacks from battalion fire chief positions to the deputy fire chief level. The relevant chain of events began in the spring of 1979, when then-Fire Chief Jefferson Lewis turned his attention to the task of finding a candidate to fill an existing or impending vacancy at the position of deputy fire chief in charge of the department's training academy ("DFC-Training"). At meetings held in May, 1979, top management officials of the department offered their recommendations for appointees to that position, and upon consideration of their suggestions, Lewis, who is black, decided to recommend Alfonso Torre for the job. Torre, a white man of Italian descent, was the battalion fire chief assigned to the training academy at that time. Lewis submitted his recommendation to the office of Mayor Marion Barry and at approximately the same time he directed Torre to complete a department physical examination. From past experience with the prior mayoral administration, Lewis expected his recommendation to be approved without challenge, and his expectation was shared -- among the officers, an order to appear for a physical had come to mean that promotion was a virtual certainty. Unbeknownst to Lewis, the Barry administration, then in office some six months, had decided to take an active role in awarding promotions within the fire department, and Mayor Barry, who is black, had delegated his authority to do so to then-City Administrator Elijah Rogers, who is also black. Having anticipated a rubber-stamp approval of his recommendation, Lewis was surprised to be called upon by Rogers to discuss the matter in June, 1979.

 At trial, Lewis' and Rogers' memories of that meeting were basically in accord. According to both parties to the conversation, Rogers chided Lewis for proceeding to order Torre to appear for a physical before Rogers had cleared the promotion. He then reminded Lewis of the Barry administration's "affirmative action goals" and inquired whether Lewis had considered those goals in making his recommendation. Rogers asked whether Lewis had considered promoting Norman Richardson, the battalion fire chief for planning and research, to the vacant post. Richardson is black. Lewis responded that he had not, at which point Rogers directed Lewis to "go back to the drawing board" and rethink his recommendation in light of the department's "affirmative action goals". According to Lewis, Rogers did not specifically state that he would approve only Richardson for promotion or that he would approve only a black officer for promotion. Nonetheless, Lewis left the conversation with the distinct impression that Richardson was the preferred candidate of the mayor's office for the DFC-Training position. After apologetically explaining to Torre that the City Administrator was blocking his promotion, Lewis ordered Richardson to appear for a physical exam. The Richardson promotion recommendation was approved without delay.

 At the time of the Richardson promotion, nine battalion fire chiefs, including Torre and plaintiffs Dougherty, Phillips, Watts, and Ford, had been designated to serve as deputy fire chiefs. Richardson was not among that group. Moreover, he was not one of the more senior battalion chiefs. Many of his peers, including all of the plaintiffs, had held that rank for longer periods of time. Based on those facts and their knowledge of the circumstances surrounding the Richardson promotion, the plaintiffs joined in an administrative complaint alleging that the promotion was the product of discrimination.

 In October, 1979, while administrative processing of that complaint continued, the group of battalion fire chiefs with acting DFC designation was expanded by eleven to a total of nineteen. *fn4" Nine of the newly inducted members of the group, including plaintiffs Bowerman, Buckler, Elmore and Flaherty, were white; two -- Joseph Kitt and Theodore Coleman -- were black. Kitt and Coleman had the least in-grade seniority of the eleven: they had been promoted to battalion chief in January 1977 and August 1977, respectively, whereas the nine white officers had promotion dates ranging from May 1976 to October 1976. Nonetheless, when three deputy fire chief vacancies (the first at that level since the DFC-Training opening) arose in January 1980, Kitt and Coleman were promoted to fill two of the three slots. The third promotion was awarded to Torre.

 The selection process behind the Kitt and Coleman promotions bore little resemblance to the process which led to the Torre recommendation or the Richardson promotion in the summer of 1979. Jefferson Lewis retired from the position of fire chief in December, 1979 and he did not participate in the evaluation of potential candidates for promotion to deputy chief in January, 1980. Rather than looking to the acting fire chief for recommendations, Elijah Rogers personally assumed the task of locating suitable candidates. Rogers testified that his approach was not simply to caucus with top management officers (which he did to some degree) but also to go out to the fire stations to elicit the opinions of the department's rank and file. Rogers further testified that he personally interviewed some fifteen candidates at his office; however, upon cross examination he could not clearly recall whether he had or had not interviewed any of the plaintiffs (all of whom were present in the courtroom) or any of the other white acting deputy chiefs with in-grade seniority over Kitt and Coleman in January, 1980. Rogers acknowledged that race was a factor in his search, but testified that other relevant factors included the candidate's managerial philosophy and his ability to work with people of diverse backgrounds, to supervise well, and to command maximum efficiency from the workforce. Although none of the assistant or deputy chiefs with whom Rogers discussed the matter recommended Kitt, Coleman or Torre over their peers, he decided, "upon consideration of both subjective and objective factors", to promote those three men to the deputy level. Tr. 577.

 At trial, former Assistant Chief John Devine offered a different perspective on Rogers' selection process. In late 1979, Devine (who is white) held one of the two assistant fire chief positions (AFC-Operations) and was under consideration for promotion to fire chief. In the course of his discussions with the mayor's office in that regard, the subject of minority promotions arose. According to Devine's testimony, Rogers told him in December, 1979 that he was the choice of both Mayor Barry and Rogers to be fire chief, but that certain conditions attached to his promotion. Specifically, Devine stated, Rogers indicated that if Devine were promoted to fire chief, the two open assistant chief positions and two deputy posts would necessarily be filled by blacks. Devine testified that he objected to the terms of Rogers' offer in that he saw no place in the department for promotions based strictly on race, although he was not opposed to the department's affirmative action program. Devine voiced his objections to Rogers and the two agreed to disagree: Devine withdrew from consideration for the fire chief appointment, but he felt no pressure from Rogers to resign from the department. Nonetheless, Devine saw no possibility for his own further advancement under the Barry administration, and he retired within the year. Rogers recalled the discussion to which Devine referred and remembered exchanging ideas with Devine about at least one potential deputy chief appointment, but he denied that he or Mayor Barry attached conditions to the selection of Devine as fire chief and offered nothing to counter Devine's explanation for his decision to pass up the opportunity to become fire chief.

 The promotions of Torre, Kitt and Coleman took effect on January 24, 1980, three days before the promotion of Norman Richardson to fire chief. Shortly thereafter, in February 1980, all officers were invited but not required to attend a meeting held by the fire department and city administration for the purpose of introducing the newly promoted officers. Little testimony about this meeting was taken at trial. Plaintiff Bowerman testified as to certain statements allegedly made at the February meeting; however, his statements match the testimony of his fellow plaintiffs as to a separate meeting, and thus Bowerman's accuracy on this subject must be doubted. In consideration of the entire record, the Court must conclude that the February, 1980 meeting was uneventful.

 Throughout the spring of 1980, discontent as to the Kitt and Coleman promotions festered among the white battalion chiefs, particularly those with acting deputy status. *fn5" In response to that discontent, the fire department and city administrators called a second meeting of all officers in May, 1980 with attendance mandatory. On this topic the plaintiffs' speak essentially with one voice: all agree that the purpose of the meeting, as stated to them, was to set forth in no uncertain terms the Barry administration's promotional policy. Mayor Barry stated that just as it had been in January, 1980, race would continue to be a factor in future fire department promotions, and he declared that he had a "commitment to achieve racial balance" and a "mandate" to promote blacks at all levels of the department in light of past racial discrimination in promotions within the department. Mayor Barry further stated that he was displeased by the officers' unwillingness to come to terms with his policy and admonished them to "get on the team" or retire. Upon hearing Mayor Barry's remarks, plaintiff Dougherty, who was sitting nearby, shook his head slightly. When asked by Barry to explain that gesture, Dougherty responded that he disagreed with the basis of the mayor's policy, his finding of past discrimination. At that point, Mayor Barry discontinued the conversation. After Mayor Barry left the floor, Elijah Rogers addressed the group. Among other things, he expressed his own displeasure with recent public and interdepartmental criticism of the Barry administration promotions and angrily told the officers, "If I could, I'd fire half of you." Neither Barry nor Rogers mentioned racial quotas.

 This synopsis of the May, 1980 meeting reflects not only the eight plaintiffs' testimony but that of other witnesses who attended the gathering. Norman Eberhard, who was at that time the fire department administrator, could not recall at trial any mention of past discrimination, but remembered the mayor's declaration that race had been and would be a factor in promotions. Tr. 494. Elijah Rogers' memory of Barry's statements was very cloudy, but he testified that the mayor may have referred to using race as a factor. Officers Devine and Torre, neither of whom is a plaintiff, offered versions of the story very similar to those of plaintiffs. *fn6"

 According to all attending the May, 1980 meeting who testified at trial, the thrust of the meeting was that the use of race as a factor in fire department promotions was an immutable policy. One by one, the plaintiffs stated at trial that their reaction to the mayor's blunt message was one of shock: after their many successive promotions through the department, none of the plaintiffs could see any opportunity for his own further career advancement under the Barry administration's policies. Each of the plaintiffs resigned from the department less than four months after the critical meeting and no later than August 30, 1980.

 Between the time of the Kitt, Coleman and Torre promotions and plaintiffs' retirements, there were no promotions to deputy chief awarded in the fire department. However, on October 5, 1980, only two months after the last of the plaintiffs departed, four officers were promoted from battalion chiefs to deputy chiefs. All four of those men were white, and three of the four had been designated acting DFCs. The plaintiffs testified that when they retired, ...


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