Dickerson v. Metropolitan Dade County
| Decision Date | 19 October 1981 |
| Docket Number | No. 80-5662,80-5662 |
| Citation | 659 F.2d 574 |
| Parties | 27 Fair Empl.Prac.Cas. 41, 27 Empl. Prac. Dec. P 32,180 John H. DICKERSON, Plaintiff-Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, d/b/a The Department of Environmental Resources Management f/k/a Dade County Pollution Control; Paul Leach; Colen Morrison 1 , former directors of Dade County Pollution Control and Edward Gancher, formerly Chief Chemist; Dade County Pollution Control, Defendants-Appellees. Summary Calendar. . Unit B * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Long & Smith, Harold Long, Jr., Miami, Fla., for plaintiff-appellant.
Susan E. Trench, Asst. County Atty., Miami, Fla., for Metropolitan Dade County.
Appeal from the United States District Court for the Southern District of Florida.
Before HILL, VANCE and HATCHETT, Circuit Judges.
The plaintiff, a black person formerly employed as a chemist by the Dade County Department of Environmental Resources Management (DERM), brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging two instances of discriminatory employment practices. 2 Dickerson first alleged that DERM failed to promote him from his position as Chemist II to that of Chief Chemist because of his race. He next alleged that he was subsequently discharged in retaliation for filing a complaint with the Equal Employment Opportunities Commission (EEOC) alleging discriminatory denial of promotion. After the plaintiff filed a complaint with the EEOC and conciliation efforts failed, he received the statutory right to sue letter and suit was timely filed. Following trial the district court held that Dickerson failed to develop a prima facie case of discrimination under either count and entered judgment for defendants.
On appeal Dickerson urges two grounds for reversal. First, he argues that the trial court erred in refusing to allow an EEOC investigator to testify to his reasons for finding probable cause to believe that Dickerson had been denied promotion because of his race. He next argues that there was insufficient evidence to support the lower court's finding that his discharge was not in retaliation for filing the EEOC complaint. We affirm.
Dickerson graduated from Bethune Cookman College in 1962, where he maintained a "C" average while majoring in chemistry and mathematics. He did not hold a job in chemistry, however, until DERM hired him as a laboratory technician on November 25, 1968. Fairly soon thereafter plaintiff applied for a Chemist II position in the department. He did not receive the position at the time, but in July 1969 the department created a Chemist I position for him and froze the Chemist II position until he had gained sufficient experience to qualify for the Chemist II position. On November 23, 1970 he was promoted to the previously frozen Chemist II position and his Chemist I position was abolished. The plaintiff remained in the Chemist II position until he was discharged from DERM on December 10, 1976.
Between November 1970 and April 1972, DERM's Chief Chemist twice evaluated the plaintiff's job performance. In each case the plaintiff received a merit wage increase, but the evaluation rated him weak in personal relations with supervisors and stated that he needed attention in his relations with his fellow employees. Plaintiff did not appeal either rating.
In April 1972 the Chief Chemist was dismissed and replaced by Wynthrop Nystrom, a male caucasian who previously had been employed by DERM as a pollution control inspector but had no experience in the laboratory division which he was to supervise. Although Nystrom did not have a graduate degree in chemistry he had graduated magna cum laude from the University of Miami, had been a Rhodes Scholar, and had begun graduate training in chemistry at the University of Leicester, England. The Chief Chemist job had not been advertised prior to Nystrom's selection. Testimony indicated, however, that Dickerson had been considered for the position but had not received it partly because his past performance evaluations indicated that he did not have the interpersonal skills necessary to supervise the laboratory. 3 On May 12, 1972 plaintiff filed a complaint with the EEOC alleging that DERM had discriminated against him on the basis of race by selecting Nystrom as Chief Chemist.
In September 1972 the defendant Colin Morrissey became Director of DERM. At that time he spoke to the plaintiff concerning the possibility of promoting plaintiff to the Chief Chemist position in the future. He told the plaintiff that before he could be considered for the position he would have to begin graduate level course work in chemistry. Despite this discussion with Morrissey plaintiff never undertook any graduate training. During the next year, however, plaintiff received job evaluations which rated his work and his staff relation skills as satisfactory.
Over the next three years DERM twice passed over Dickerson when it had to replace the resigning Chief Chemist. In April 1973 it selected David R. Barker for the position and in April 1975 it appointed Edward Gancher. Both persons had superior academic qualifications and greater experience than plaintiff. 4 Testimony nonetheless indicated that the plaintiff had been considered for the position each time it opened, but had not been selected at least partially because he had failed to begin graduate training. 5 The job had remained unfilled for six months before Gancher was hired. During that period plaintiff shared the responsibilities of Chief Chemist with another DERM employee. Testimony indicated, however, that plaintiff had been unable during this period to complete adequately the task of budget justification, normally one of the Chief Chemist's major duties.
On April 22, 1975 the EEOC determined that there was probable cause to believe that DERM had discriminated against plaintiff by hiring Nystrom as Chief Chemist. The EEOC, however, did not compile any statistical data to indicate a pattern or practice of discriminatory promotional practices within DERM, nor did it interview the person responsible for hiring Nystrom. 6
Two months after he began work at DERM, defendant Gancher evaluated plaintiff's job performance. He rated the plaintiff as needing attention in personal relations with fellow employees and weak in his relations with his supervisors, but otherwise satisfactory. Dickerson appealed this determination and an appeals panel overturned the rating because Gancher had not judged plaintiff's work for the entire year. The panel recommended that the two discuss the problems and try to resolve the alleged shortcomings that Gancher had perceived. Gancher and the plaintiff met during the summer of 1975 to discuss their differences but the plaintiff walked out of the meeting when Gancher began to outline specific objections.
Dickerson injured his back on September 23, 1975 and was awarded a four months disability leave by Metropolitan Dade County. In a letter dated December 3, 1975 his doctor, Dr. Walter Jones, informed defendants that Dickerson was able to return to work. He did not return to work, however, until after he had been informed that his disability leave had been terminated and that any absence after February 1 would be charged against his accrued sick leave. Even after this letter, plaintiff remained absent for most of February. On February 25, 1976 DERM's administrative officer wrote to plaintiff's doctor to request medical confirmation that plaintiff was unable to return to work. Dr. Jones responded in a letter dated February 26, 1976 that he had advised him to return to work and had thought that he had done so. In a subsequent letter dated March 12, Dr. Jones stated his belief that the plaintiff was exaggerating his symptoms and that he should be able to return to work. 7
After his return to work plaintiff's attendance was sporadic. Between February 1 and June 16, he was absent approximately forty-two days. In August he took a vacation of approximately three weeks. While on vacation plaintiff reinjured his back. Consequently he failed to report to work between August 23, 1976 and September 20, 1976.
Plaintiff's job evaluation covering the six months ending September 30, 1975 rated his performance as satisfactory, except that it again indicated that he needed attention in his personal relations with his staff and his supervisors. His next performance evaluation, covering the period to April 8, 1976, rated plaintiff's performance as unsatisfactory in three areas: (1) quantity of work produced; (2) work habits; and (3) personal relationships with the staff. He was rated as needing attention in quality of work and in his supervisory abilities. The primary basis for this rating was excessive absenteeism and a generally hostile attitude which affected his ability to perform the job satisfactorily. Plaintiff appealed both evaluations. The performance appeals panel affirmed the evaluation covering the period through September 30, 1975 and affirmed in part the evaluation covering the period to April 8, 1976. The panel recommended that the latter evaluation be upheld as to his personal relations and his work habits, but it recommended that the other three evaluations be modified. 8
After Dickerson returned to work on September 20, 1976 he was assigned two jobs to perform on his own. He was to set up an air monitoring system and to requisition a new mobile air van and operate it when it arrived. He was also to conduct certain air monitoring tests pursuant to detailed written instructions and to order any chemicals necessary for those tests. Plaintiff failed to perform either of the assignments. 9
On December 2, 1976 a disciplinary action report was filed charging plaintiff with excess absenteeism, inability to get along with fellow employees or supervisors, and incompetent work. Plaintiff responded to the...
To continue reading
Request your trial
-
Thomas v. Exxon, U.S.A.
...connection exists between the protected activity and the adverse action. See Goff, 678 F.2d at 599 (citing Dickerson v. Metropolitan Dade County, 659 F.2d 574, 580-81 (5th Cir. 1981)); see also Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th Cir.1995); Pierce v. Texas Dep't of Crim......
-
Sharp v. City of Houston
...activity and the adverse action. See Goff v. Continental Oil Co., 678 F.2d 593, 599 (5th Cir.1982) (citing Dickerson v. Metropolitan Dade County, 659 F.2d 574, 580-81 (5th Cir.1981)); accord Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th Cir. 1995); Pierce v. Texas Dept. of Crimin......
-
E.E.O.C. v. Federal Reserve Bank of Richmond
...performance. Section 704(a) was never intended to be a shield for the admittedly delinquent employee. See Dickerson v. Metropolitan Dade County, 659 F.2d 574, 580-81 (5th Cir.1981); Hochstadt v. Worcester Foundation, Etc., 545 F.2d 222 (1st Cir.1976). To make out a case of retaliatory disch......
-
Evans v. Texas Dept. of Transp.
...107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); Be Anda v. St. Joseph Hosp., 671 F.2d 850, 854 n. 6 (5th Cir. 1982); Dicker son v. Metropolitan Dade County, 659 F.2d 574, 581 (5th Cir. 1981). Here, there is substantial evidence in the record that Barton investigated and verified the complaints voice......