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July 13, 1991

GARY L. PALMER, Plaintiff,
MARION BARRY, et al., Defendants

The opinion of the court was delivered by: OBERDORFER



 This Court previously found that defendants implemented a policy of equalizing high level black and white promotions within the Fire Department without establishing an affirmative action plan justified by prior discrimination and that, as a result of such policy, defendants discriminated against plaintiff by not promoting him from 1982 until 1985 when he retired. See Palmer v. Barry, Slip Op., Civ. No. 87-1304 (September 30, 1988). The Court also found that defendants demonstrated non-discriminatory reasons for the failure to promote plaintiff from mid-1984 to 1985 but that defendants offered no evidence that the pre-existing discriminatory policy was abandoned during that time. Id., Slip Op. at 3 & 5.

 Subsequent to that ruling, the Supreme Court announced its decision in Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989). Price Waterhouse supplements the standards and burden of proof established by McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) in cases arising under Title VII involving mixed discriminatory and non-discriminatory motives. Where both discriminatory and non-discriminatory factors play a role in an employer's decision, the Court stated that "an employer shall not be liable if it can prove that, even if it had not taken [the discriminatory factor] into account, it would have come to the same decision regarding a particular person." Price Waterhouse, 109 S. Ct. at 1786 & 1787 n.9. From mid-1984 to 1985 when plaintiff retired, Price Waterhouse, rather than McDonnell Douglas and Burdine, applies to this action. Defendants thus have the burden of proving by a preponderance of the evidence that, from mid-1984 onwards, even in the absence of the Mayor's policy, they would not have promoted plaintiff. See Price Waterhouse, 109 S. Ct. at 1792.



 1. In the 1980's, Mayor Marion Barry directed that promotions in the Fire Department, including promotions to Deputy Fire Chief, should be equalized, i.e., for every qualified white person promoted to such a position, a qualified black person should also be promoted. Elijah Rogers, then City Administrator, concurred in the Mayor's directive.

 2. Promotions in the Fire Department at the level of Deputy Fire Chief were recommended by the Fire Chief and required the approval of the City Administrator.

 3. Gary Palmer was a white Battalion Chief and headed the Fire Department Communications Division from 1980 to 1985. Palmer's job performance was "exemplary." Transcript of Trial Proceedings (April 6, 1988) (testimony of Fire Chief Theodore Coleman) ("Coleman Tr.") at 50. Palmer's technical expertise and mastery of the communications functions was invaluable to the Fire Department. The Fire Department did not have someone with the same expertise who could replace Palmer. Transcript of Trial Proceedings (April 6, 1988) ("April 6 Tr.") at 27.

 5. Between 1982 and 1985, Palmer and Coleman had ten or twenty meetings on other subjects in which the topic of Palmer's promotion was raised by one or the other of them. At those meetings, Coleman cited budgetary concerns, a hiring freeze, and the need to await a vacancy at Palmer's level or above as reasons for the delay in his promotion. See April 5 Tr. at 14-20. However, it is more likely than not likely that in late 1983 and early 1984, Coleman, at the direction of Mayor Barry and Rogers and pursuant to the publicized policy, did not want to promote Palmer because he was waiting for two vacancies for Deputy Fire Chief to become open so that he could recommend a black, most likely Bernard Johnson, for promotion to that position along with Palmer. See April 5 Tr. at 19, 28, 77, 88, & 104.

 6. Prior to mid-1984, Palmer was aware or should have been aware of the Mayor's policy and knew or should have known that that policy affected his own promotion due to his knowledge that the promotion was being withheld pending promotion of Johnson, see April 5 Tr. at 28, and in addition due to the highly publicized nature of the Mayor's policy to equalize promotions, the meeting or meetings attended by Fire Department Chiefs including Battalion Chiefs at which that policy was discussed, and the publicity surrounding numerous lawsuits brought in the early 1980's by both black and white firefighters and chiefs alleging discrimination in the Fire Department. See, e.g., Dougherty v. Barry, 869 F.2d 605 (D.C. Cir. 1989); Hammon v. Barry, 813 F.2d 412 (D.C. Cir. 1987); Bishopp v. District of Columbia, 788 F.2d 781 (D.C. Cir. 1986).

 7. City Administrator Thomas Downs replaced Rogers in mid-1983. Coleman recommended Palmer's promotion to Downs several times during 1984 and 1985. Downs did not approve Palmer's promotion because he felt there were "too many chiefs" in the Fire Department and he was concerned that Coleman was ...

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