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September 15, 1989

GUY A. GREEN, Plaintiff,

The opinion of the court was delivered by: REVERCOMB

 The plaintiff, Guy A. Green, alleges that the defendant, his former employer, discriminated against him on account of his race in violation of Title VII of the Civil Rights Act of 1964 (codified at 42 U.S.C. § 2000e-2), 42 U.S.C. § 1981, and D.C. Code Ann. § 1-2512, and that the defendant constructively discharged the plaintiff. Trial was held on May 15-19, 1989. The jury considered the § 1981 claim, the D.C. Code claim, and the constructive discharge claim; the Court considered the Title VII claim. The jury returned a unanimous verdict finding no liability for each claim it considered. The plaintiff then filed a motion for a mistrial and the defendant filed a motion to dismiss the § 1981 claim. In this Opinion, the Court denies the post-trial motions. In the Findings of Fact and Conclusions of Law, the Court finds no liability on the Title VII claim.


 A. Guy Green's Employment

 The defendant, Kinney Shoe Corporation, operates "Foot Locker" stores, which sell shoes and other items to the public. Foot Locker specializes in selling athletic shoes.

 Mr. Green, who is black, was hired by the defendant's Foot Locker division in 1983 in the Washington, D.C., area. He entered Foot Locker's management training program soon thereafter and had no complaints about the treatment of him by his superiors. He worked at a number of stores in the Washington area and completed his training in early 1985. He was promoted to "manager-in-waiting" in February 1985.

 Mr. Green was assigned to manage the Foot Locker outlet store in Fort Worth, Texas, on November 5, 1985. The outlet sold primarily to black and Hispanic customers. He managed the outlet until June, 1987.

 By all accounts, the Fort Worth outlet was very successful under Mr. Green's management. The store made more than $ 781,000 in sales during Mr. Green's first year as manager -- a figure nearly twice the amount that Foot Locker had predicted. Mr. Green received praise from his supervisors.

 In January 1987, Mr. Green informed his District Manager, Donald Singleton, that because he and his family wanted to return to the Washington area, he would resign from Foot Locker. Mr. Singleton asked Mr. Green to stay on as manager of the Fort Worth outlet for six months, in order to allow Foot Locker time to find a suitable replacement. In return, Mr. Singleton told Mr. Green that Foot Locker would pay for his move back to Washington and would ensure a Foot Locker job for him in the Washington area. Mr. Green agreed.

 Despite Mr. Green's testimony, the court does not believe that Mr. Singleton promised Mr. Green that he would be given the first management position that became available in the Washington area. Such decisions were made by Larry Bresnick, Foot Locker's Washington District Manager.

 During the first half of 1987, a few management positions became available in the Washington area. The Court concludes that the failure of Mr. Bresnick to assign Mr. Green to any of these openings was because Mr. Green was still working in Texas, and thus was unavailable. In addition, Mr. Bresnick also wanted Mr. Green, who had not worked in a regular store since 1985, to be given some training in the current state of the athletic shoe market. The Court concludes that Mr. Bresnick's failure to assign Mr. Green to any of the openings was not racially motivated.

 In July 1987, Mr. Green moved to the Washington area and was assigned to be a manager-in-waiting at the Foot Locker in Forestville, Maryland. The Forestville store sells primarily to black customers, as do many stores in the Washington area.

 Very soon after his return to Washington, Mr. Green went out on disability leave from work because of an injury not related to work. Mr. Green informed Mr. Bresnick that he was uncertain when he would be able to return to work -- it was a "week to week" thing. Mr. Green returned to work on August 11, 1987.

 While Mr. Green was on disability leave, there was a vacancy for the manager spot of the store in Ballston Commons in Arlington, Virginia, just outside Washington. The Ballston Commons store had a low volume of sales. Mr. Bresnick on August 17, 1989 appointed someone other than Mr. Green to manage the Ballston Commons store.

 The Court concludes that Mr. Bresnick's decision not to appoint Mr. Green manager of the Ballston Commons store was not racially motivated. Although Mr. Bresnick knew that Mr. Green arrived back in Washington from a successful tenure at the outlet in Texas and wanted a management position, Mr. Bresnick had misgivings about placing Mr. Green in the management position at Ballston Commons. First, Mr. Green had no experience working in a "regular" Foot Locker since 1985 and thus probably was unfamiliar with the current trends and demands for athletic shoes in the rapidly changing and cutthroat regular store market. See Rudolph, "Foot's Paradise," Time, August 28, 1989, at 54-55 (citing the need to keep up with the rapidly changing market in athletic shoes). Mr. Bresnick wanted Mr. Green to learn about the current trends in the market, through his work at the Forestville store, before being promoted to manager. Second, although Mr. Bresnick knew that Mr. Green had done a good job in Texas, Mr. Bresnick had never seen Mr. Green work, and had not had a chance to evaluate his performance as a manager in a crowded regular store.

 Soon after returning to work from his medical absence, Mr. Green's work performance at Forestville deteriorated rapidly. Mr. Green showed up for work late or left early a number of times. On October 16, 1987, Mr. Green was presented with a written warning after he failed to open the store on time. The warning stated that it was the second time in two weeks that Mr. Green had been more than two hours late to work. In another instance, Mr. Green was reprimanded by his supervisor for taking six hours off for lunch.

 Mr. Green also was involved with conflicts with fellow Foot Locker employees. Once, he disciplined a part-time worker by picking him up and pinning the employee's back to the wall. Mr. Green testified that the action was done in good spirits; the fellow employee disagreed. In another instance, Mr. Green engaged in a shouting match with a co-worker in front of customers.

 Mr. Green admits that his work deteriorated during this time, that he became moody, and that he started to drink heavily. Mr. Green attributed his poor performance to disillusionment about not being given a management position upon his return to Washington. An expert called by the plaintiff, Dr. Hamilton, testified that Mr. Green's feelings and behavior were consistent with a perception of being a victim of racial discrimination. In January 1988, Mr. Green began to see Dr. Manizade, a psychiatrist, who prescribed for him medicine to help relieve stress and to enable him to sleep.

 Mr. Bresnick heard of Mr. Green's problems and saw the deficiencies in Mr. Green's work first hand when he visited the Forestville store. Mr. Bresnick told Mr. Green that his work would have to improve before he ...

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