and that she intended to recommend the denial of his regularly scheduled step increase. Plaintiff then addressed a memorandum to Dean Johns appealing the recommendation of the denial of the step increase and requesting a meeting on the matter. (D. Ex.-25.) Dean Johns responded immediately, stating that he was affirming Ms. McLeod's recommendation to deny the step increase. (D. Ex.-26.)
On September 30, 1982, Ms. McLeod issued another memorandum to plaintiff regarding his job performance. This memorandum stated that plaintiff's performance continued to be unsatisfactory -- noting his absenteeism, unprofessionalism and failure to complete leave slips. (D. Ex.-12).
In early December 1982, Mr. Terry Samuels, Assistant Director for Programs, issued a memorandum to Ms. McLeod which discussed an incident of insubordination involving the plaintiff. (D. Ex.-13.) Samuels stated that he had directed plaintiff to allow a typing room to remain open until 10 p.m. and that plaintiff had refused to do so. Id. This incident prompted Ms. McLeod to recommend a five-day suspension on December 6, 1982. (D. Ex.-14, pp. 1, 2.) That recommendation was subsequently approved by the University on December 8, 1982. On December 10, 1982, plaintiff was notified of the suspension. (D. Ex.-15.)
Father Nathanial Porter, plaintiff's co-worker who was similarly employed as a night and weekend manager at the Center, testified that a meeting he was having with Ms. McLeod was interrupted when Johnson appeared at the door of her office. Father Porter, called by Johnson as his first witness, testified that a loud and boisterous discussion ensued and that plaintiff initiated and provoked an extremely unpleasant episode. Ms. McLeod testified that on this occasion, plaintiff demanded that she "take back" the December 10th suspension. Plaintiff admitted that the episode occurred but did not consider his behavior at the time as improper or inappropriate. Several days later on December 28, 1982, plaintiff filed a claim of sex discrimination against Howard University with the Equal Employment Opportunity Commission. Specifically, he claimed that McLeod discriminated against him because he was a male. This claim was later amended to assert a retaliation claim. (P. Ex.-32.)
On January 17, 1983, McLeod issued plaintiff an annual performance evaluation noting his unsatisfactory work performance. (D. Ex.-16.) Specific deficiencies noted included failure to abide by established University policies, to notify the Director's office of tardiness and absences, to submit leave slips for absences, and to secure advance approval of extended periods of leave. The evaluation also noted Johnson's failure to use sound judgment in interpersonal relationships, including instances in which he consumed intoxicating beverages while on duty, disruption of the work of other employees, engaging in loud and obscene conversations while on duty, and conduct which demonstrated contempt and disrespect toward his supervisor. On the same day, by a separate memorandum, Ms. McLeod also advised the plaintiff that she was recommending the denial of his regularly scheduled step increase. (D. Ex.-17.) Ms. McLeod testified that she was not aware of plaintiff's December 28, 1982 complaint to the EEOC when she issued this notice.
The testimony presented during the trial established other incidents involving plaintiff's improper conduct and work performance. One involved plaintiff's allowing student workers to close the Blackburn Center before the scheduled closing time and to have a party at which alcoholic beverages were served. Ms. McLeod testified that she was on the University campus at the time and decided to check on the Center. During her unplanned visit, she found the Center closed and observed the students drinking beer. This incident was discussed in a notice of unsatisfactory performance issued to plaintiff. On another occasion, plaintiff allowed a fraternity to serve alcoholic beverages at a party despite a University rule prohibiting serving of alcoholic beverages at student parties at the Blackburn Center.
The final and decisive factor leading to the plaintiff's dismissal was an incident occurring during the May 1983 commencement activities of the University. On May 14, an awards program was scheduled at Blackburn Center by one of the University divisions -- the College of Allied Health and Science. Present were graduating students of the college, their families, University personnel, and the general public. More than several hundred persons were attending the program. Mr. Johnson interrupted the ongoing ceremony and removed a microphone and other equipment from the assembly hall stage.
From all of the testimony presented, the Court concluded that the plaintiff's intrusion and removal of the microphone was tactless and demonstrated poor exercise of discretion and judgment. The incident was a source of great embarrassment to the University.
As a result, on June 6, 1983, Dean Vincent Johns served plaintiff a letter of dismissal. At the time of this incident Ms. McLeod was off -- on extended sick leave. The letter specified failure to exercise sound judgment in interpersonal relationships and discourteous treatment of employees, students, faculty, staff and visitors. Other reasons for the adverse personnel action were also noted including problems with the plaintiff's time and attendance. Plaintiff was afforded a hearing following which the decision to terminate his employment was upheld by the University Personnel Office. Complaints registered by the plaintiff with the D.C. Office of Human Rights, as well as the EEOC, were likewise decided adversely with a finding that there was no probable cause to proceed with the plaintiff's formal grievances.
This Court concludes from all the trial testimony and evidence, that there was solid justification for the action taken by the University. There were legitimate, bona fide and nondiscriminatory reasons for such action. The University attempted to accommodate and work with the plaintiff for three years. At best, the plaintiff was a considerably less than average and a marginal employee in his work performance, attitude toward the public, and relation with his peers and supervisors. In dismissing the plaintiff, he was afforded all procedures and the letter and spirit of the University's personnel policies were complied with. There was no subterfuge or irregularity in the manner in which plaintiff's separation from service was achieved.
Finally, it might be said that from a careful consideration of all the testimony presented by both the plaintiff and the defendant during the several days of trial, that this is a case which had little, if any, merit. It is a wonder to the Court why the case was ever accepted and brought on behalf of the plaintiff.
CONCLUSIONS OF LAW
Mr. Allen Johnson, a male, claims that he was discharged in retaliation and because he filed official complaints with the Equal Employment Opportunity Commission about the discriminatory treatment accorded by Howard University. There was no proof that he was discriminated against because of his sex. The order and allocation of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), has been applied to retaliation cases. In Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir., 1980), the Second Circuit Court of Appeals announced the order and allocation of proof as follows:
In order to establish such a claim, the plaintiff must show: first, protected participation or opposition under Title VII known by the alleged retaliator; second, an employment action or actions disadvantaging persons engaged in protected activities; and third, a causal connection between the first two elements, that is, a retaliatory motive playing a part in the adverse employment action . . . . The plaintiff must first establish a prima facie case; the burden then shifts to the employer to articulate some legitimate, non-discriminatory reason for the alleged acts of reprisal; and lastly, the burden returns to the plaintiff, who is given an opportunity to demonstrate that the employer's reasons are a mere pretext or discrimination taken in retaliation for participation in protected activities.