Bishopp v. District of Columbia, 85-5329

• Decision Date: 18 April 1986
• Docket Number: No. 85-5329,85-5329
• Citation: 252 U.S. App. D.C. 156,788 F.2d 781
• Parties: 40 Fair Empl.Prac.Cas. 903, 39 Empl. Prac. Dec. P 36,048, 252 U.S.App.D.C. 156 Sidney BISHOPP, et al., Appellants, v. DISTRICT OF COLUMBIA, a municipal corporation, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 781

788 F.2d 781

40 Fair Empl.Prac.Cas. 903,

39 Empl. Prac. Dec. P 36,048, 252 U.S.App.D.C. 156

Sidney BISHOPP, et al., Appellants, v. DISTRICT OF COLUMBIA, a municipal corporation, Appellee.

No. 85-5329.

United States Court of Appeals,

District of Columbia Circuit.

Argued Jan. 6, 1986.

Decided April 18, 1986.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-00417).

Douglas B. Huron, with whom Eileen M. Stein, Washington, D.C., was on brief, for appellants.

William J. Earl, with whom John H. Suda and Charles L. Reischel, Washington, D.C., were on brief, for appellee.

Before: WALD, SCALIA and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Concurring opinion filed by Circuit Judge WALD.

I

SILBERMAN, Circuit Judge:

Five white males, Sidney Bishopp, John Breen, William Q. Stickley, Floyd E. Yocum and Joseph E. Zeis appeal from the district court's judgment in favor of the District of Columbia denying their Title VII claims. Appellants, now retired from the District of Columbia Fire Department, allege that in 1974 they were discriminatorily denied promotion to the position of Assistant Fire Chief--Operations (AFCO). The position was filled instead by Jefferson Lewis, a black male. Appellants further claim that the Fire Department retaliated against them because they filed charges with the Equal Employment Opportunity Commission (EEOC) and that, eventually, they were constructively discharged. The district court found for the District of Columbia on all counts. We reverse the district court's judgment on the promotion claim, vacate the judgment as to the retaliation and constructive discharge claims, and remand all the claims for further consideration.

The ultimate factual issue, the question of discriminatory motivation in the promotion decision, is at the heart of this legal dispute. But the subordinate facts are, for the most part, undisputed. In August 1974 the incumbent AFCO retired. The AFCO, whose office we surmise from the record is a "line" position in management parlance, and the Assistant Fire Chief--Services, whose office we understand to be a "staff" position, are the immediate subordinates of the Fire Chief. The AFCO directly supervised five Deputy Chiefs, three of whom worked in the Firefighting Division and in turn supervised a number of Battalion Chiefs. The fourth Deputy Chief served as Fire Marshal and the fifth ran the department's training center. Promotions up to and including the rank of Battalion Chief were made on the basis of test scores and years of service, but promotions above that rank were within the discretion of the Mayor, D.C. Code Ann. Sec. 4-302 (1981). The only requirement for promotion to the top jobs was that the candidate be of Battalion Fire Chief rank or higher. Thus, the Mayor was free to promote a Battalion Fire Chief directly to an Assistant Fire Chief position, but in practice that rarely happened. By August 1974 the position of Assistant Fire Chief had been filled nine times. Only on one occasion had a Battalion Fire Chief been elevated directly to the rank of Assistant Fire Chief without serving first as a Deputy Fire Chief, and that was in the Services branch of the Fire Department where the Battalion Chief promoted had been a direct subordinate of the Assistant Fire Chief. All of the individuals selected for the AFCO position had been, in the past, selected from the rank of Deputy Fire Chief.

At the time of the promotion decision in August 1974, four of the appellants, Bishopp, Stickley, Zeis and Breen, were serving at Deputy Fire Chief rank. Yocum was a Battalion Fire Chief. Jefferson Lewis, eventually selected to fill the AFCO position, was also a Battalion Fire Chief although he had not held that rank as long as had Yocum.

Responsibility for the selection of the new AFCO was shared by Fire Chief Burton Johnson and the Mayor, Walter Washington, both of whom are black. But it was undisputed that Fire Chief Johnson had de facto responsibility for the decision because the Mayor routinely adopted his recommendations. Applications to fill the vacant position were not sought, apparently because the Fire Department did not have a formal application process for the AFCO position. Instead, Chief Johnson prepared a list of "best qualified candidates" that included all of the appellants as well as Lewis. Chief Johnson selected Lewis, even though as the district court found, appellants were superior candidates to Lewis in terms of ordinary personnel criteria: "seniority, education, breadth of experience and the like." Bishopp v. District of Columbia, 602 F.Supp. 1401, 1408 (D.D.C.1985). Each of the appellants had longer service than Lewis and all except Yocum had attained higher rank than Lewis. Breen, Bishopp and Zeis "had taken courses in such relevant matters as fire engineering and nuclear safety; Lewis did not have comparable credits." Id. at 1407. All of the appellants except Yocum had served satisfactorily as Acting AFCO, whereas Lewis, as a Battalion Chief, did not serve as acting AFCO until Johnson decided to recommend his promotion.

After Lewis' selection, appellants filed a grievance with the Fire Department alleging racial discrimination and thereafter, in the autumn of 1974, filed charges with the EEOC. The EEOC issued findings in appellants' favor on February 25, 1982 and issued a right to sue ¹ letter on November 18 of that year.

Shortly thereafter suit was filed in the district court. At trial, appellants introduced evidence of their relative qualifications vis-a-vis Lewis, and appellant Breen testified that Chief Johnson had admitted to Breen before the selection that Johnson was under pressure from the District's black community to promote Lewis. The district court also noted that the Fire Department was beginning to develop an affirmative action plan at that time. The court refused, however, to admit as evidence the District's affirmative action plan or to consider an alternative defense based on that plan, ruling that it was inconsistent with the District's assertion that race did not play a factor in the selection of Mr. Lewis. ²

Former Fire Chief Johnson testified as to why he had chosen Lewis over the appellants: Bishopp and Stickley were too indecisive (Johnson could not recall any specific examples supporting his conclusions based on observations made ten or more years earlier). Zeis and Yocum were unsuitable because during the period they were responsible for the Fire Department's training facility Johnson recalled unofficial complaints concerning excessive black failure rates (the district court found that "[e]xhibits produced at trial do not document the [allegedly high] failure rate among blacks," 602 F.Supp. at 1407; the evidence tended to show that it was under three percent for all trainees). Finally, Johnson rejected Breen, the Fire Marshal, because he was doing too good a job, and he wished to keep him in that position. (Johnson acknowledged that Breen had a capable assistant who later did replace Breen).

Johnson's affirmative reasons for selecting Lewis did not relate to his personal experience with Lewis; they had not worked together for over twenty years. Rather, Johnson testified he wanted Lewis because the panel that had recommended Johnson as Fire Chief eighteen months earlier had ranked Lewis third among the candidates. Johnson was, however, unaware of the criteria utilized by that panel and Johnson did not list as a candidate for selection Jack Webb, a white male who had been ranked second by that same 1973 panel. According to Johnson, Webb, who was the Battalion Chief in charge of the Fire Department's Ambulance Service, was, like Breen, too valuable in that position to promote. This reason for selecting Lewis--his number three ranking by the 1973 panel--was offered by Johnson for the first time at trial; he had not mentioned this justification to the EEOC or in deposition, and was unable to explain to the court why he had not raised this point before.

The district court held that the appellants had presented a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), although it had just barely met its burden as to one prong of the prima facie case: showing " 'background circumstances' " that " 'support the suspicion that the defendant is that unusual employer who discriminates against the majority.' " 602 F.Supp. at 1406 (quoting Parker v. Baltimore & O.R.R., 652 F.2d 1012, 1017 (D.C.Cir.1981) ). To satisfy this prong, the district court relied in part on evidence that an affirmative action plan was under consideration in the Department in 1974 (the department was "drafting if not adopting" such a program), ³ and in part on the District's failure to contest the existence of this aspect of this prima facie case.

Having concluded that appellants had met their burden of presenting a prima facie case, the district court turned to the District's justification, which the court fully credited. Noting that the District was not required to consider only the candidates' objective qualifications, the court held that the preponderance of the evidence supported Johnson's reasons for rejecting appellants and selecting Lewis. In the process of so reasoning the district court concluded that complaints emanating from the training facility about Zeis and Yocum were nondiscriminatory grounds for rejecting both of them even though the District's own statistics revealed no basis for the complaints; that Breen, and, inferentially, Webb ⁴ might have a legitimate complaint for being passed over because they were too good--but not one based on Title VII; and that Breen's testimony concerning Johnson's admission that he was under pressure from the black community to promote Lewis was "flatly...