Dougherty v. Barry
| Decision Date | 07 March 1989 |
| Docket Number | Nos. 85-5715,85-5716,s. 85-5715 |
| Citation | 869 F.2d 605 |
| Parties | 49 Fair Empl.Prac.Cas. 289, 49 Empl. Prac. Dec. P 38,786, 276 U.S.App.D.C. 167, 57 USLW 2540 Edward F. DOUGHERTY, et al. v. Marion S. BARRY, Jr., as Mayor of the District of Columbia Appeal of Elijah B. ROGERS, as City Administrator of the District of Columbia, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Charles L. Reischel, Deputy Corp. Counsel, District of Columbia, with whom Frederick William F. Causey, Rockville, Md., for appellees.
D. Cooke, Jr., Corp. Counsel, Washington, D.C., District of Columbia, was on the brief, for appellants.
Leonard Schaitman and Sandra Wien Simon, Attys., Dept. of Justice, Washington, D.C., also entered appearances for appellees.
Daniel J. Popeo, Utica, N.Y., and George C. Smith, also entered appearances, for amicus curiae Washington Legal Foundation.
Before RUTH B. GINSBURG, STARR, * and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
This appeal arises from two consolidated civil actions, each charging "reverse" race discrimination in promotion practices of the District of Columbia Fire Department. Plaintiffs-appellees are eight white firefighters; remaining defendants-appellants are the District of Columbia and its former City Administrator, Elijah B. Rogers. The district court found that the District of Columbia and Rogers had discriminated on the basis of race in promoting two black firefighters to deputy fire chief, thereby violating both Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e (1982), 1 and section one of the Civil Rights Act of 1866, 2 id. Sec. 1981 (hereafter, section 1981). 3 As redress, the district court ordered full back pay and retirement benefits for the eight white firefighters as though each had received one of the two promotions. Dougherty v. Barry, 607 F.Supp. 1271, 1290 (D.D.C.1985).
On appeal, the District of Columbia and Rogers do not challenge the district court's finding of discrimination, but raise two subsidiary issues. First, appellees did not bring suit within ninety days of receiving notice of their right to sue from the Equal Employment Opportunity Commission (EEOC or Commission). On that account, should the district court have dismissed the Title VII claims as untimely, thereby precluding relief entirely for three appellees who did not participate in the section 1981 action? Second, should the district court have denied relief because two white firefighters other than appellees might have received the promotions absent discrimination; or, alternately, should the district court have limited the scope of the relief it granted to the monetary value of the two promotions? We hold that the district court should have rejected the Title VII claims as untimely and divided the monetary value of the two promotions among the five section 1981 plaintiffs. We therefore vacate in part the judgment filed April 30, 1985, and remand with instructions for its modification.
At the top of the District of Columbia Fire Department's management hierarchy is the fire chief. Below the chief are two assistant fire chiefs, and below them six deputy fire chiefs. Under the deputy chiefs are the battalion fire chiefs, of which there were thirty-three at the time of the relevant events.
Under District of Columbia law, the mayor selects deputy chiefs from among the battalion chiefs. D.C. CODE Sec. 4-302 (1981). No formal policy governs promotions to deputy chief; it was the common practice before the events at issue, however, for the mayor to select from a short list of senior battalion chiefs, who were designated "acting" deputy chiefs and could be called upon to assume temporarily the duties of absent deputy chiefs. Normally, the mayor simply rubber-stamped the recommendation of the fire chief.
District of Columbia law requires "[e]very District government agency [to] develop and submit to the Mayor and Council an affirmative action plan" with the goal of achieving "full representation, in jobs at all salary and wage levels and scales, in accordance with the representation of all groups in the available work force of the District of Columbia, including, but not limited to, Blacks, Whites, Spanish-speaking Americans, Native Americans, Asian Americans, females, and males." D.C.Code Secs. 1-507-508 (1981). In compliance with this law, the Fire Department had promulgated equal employment plans for fiscal years 1979 and 1980. These plans called for "equal opportunity in all facets of [the Department's] operations, including ... promotion and upward mobility," but did not direct preferential treatment for minorities or establish any numeric goals or quotas. See 607 F.Supp. at 1277.
The dispute at issue stemmed from two sets of promotions in 1979 and 1980. In June 1979, District of Columbia Mayor Marion S. Barry, Jr. promoted Norman Richardson, a black battalion chief, to deputy chief. The fire chief had originally recommended Alfonso Torre, a more senior white battalion chief, for the promotion. Instructed by City Administrator Elijah Rogers to "rethink his recommendation in light of the department's 'affirmative action goals,' " however, the fire chief ultimately recommended Richardson. 607 F.Supp. at 1278. Richardson was only twentieth in seniority out of thirty-three battalion chiefs and, unlike Torre, was not on the short list of acting deputy chiefs.
On July 24, 1979, Edward F. Dougherty filed a racial discrimination charge with the District of Columbia Office of Human Rights (OHR) on behalf of himself and sixteen other battalion chiefs, including the seven other appellees; all of the complainants 4 had more seniority than Richardson. The OHR referred the charge to the EEOC for simultaneous consideration.
In October 1979, the list of acting deputy chiefs was expanded from under ten to nineteen. Two of the new acting deputies, Joseph Kitt and Theodore Coleman, were black. Of all the officers on the list of nineteen, Kitt and Coleman had served the least time as battalion chiefs. In January 1980, three vacancies occurred at the deputy chief level. City Administrator Rogers, to whom Mayor Barry had delegated his authority to choose the Fire Department's top management, selected Kitt, Coleman, and Torre for the jobs. Rogers testified that race was a factor in those selections. See Brief for the District of Columbia at 15. On March 27, 1980, appellees amended their OHR and EEOC charges to include the Kitt and Coleman promotions.
Eventually, on March 13, 1981, the OHR issued a determination that there was no probable cause to credit appellees' discrimination claims. Appellees requested reconsideration of that determination on April 9, 1981. On April 23, 1981, the EEOC similarly determined that there was no cause to support the charges, and specifically informed appellees: "This determination con Appellees, however, apparently believed their request for reconsideration had kept their claim alive at the OHR and that failure to exhaust their OHR remedies precluded suing on the EEOC charge. See Order, Dougherty v. Barry at 3 (D.D.C. Mar. 6, 1984) [hereafter March 1984 Order]. They therefore did not sue within ninety days of receiving the EEOC's notice. On December 9, 1981, the OHR dismissed appellees' request for reconsideration.
cludes the Commission's processing of the subject charge." Id. at 19. Attached to the EEOC's determination was a notice of right to sue, which stated, inter alia, in boldface capital letters: "IF YOU DECIDE TO SUE, YOU MUST DO SO WITHIN NINETY (90) DAYS FROM RECEIPT OF THIS NOTICE OF RIGHT TO SUE; OTHERWISE YOUR RIGHT TO SUE IS LOST." Id. at 20
On May 10, 1982, the EEOC District Director, acting sua sponte, notified appellees of her intent to "reopen and reconsider" the Commission's earlier determination of no probable cause. On June 10, she issued a notice of reconsideration. That notice revoked the April 23, 1981 no probable cause determination but it explicitly stated that "[r]evocation of the Letter of Determination does not revoke the Notice of Right to Sue issued to you [on April 23, 1981]." See id. While the EEOC was reconsidering whether there was cause to support a Title VII charge, on June 17, 1982, five of the appellees, Dougherty, Andrew T. Buckler, Jr., Wilton E. Watts, Henry J. Ford, and Francis X. Flaherty, filed suit in the district court under section 1981.
On July 9, 1982, the EEOC District Director issued a determination finding probable cause to believe that the promotions were based on race and violated Title VII. The EEOC therefore referred the matter to the Department of Justice for possible civil action. The Justice Department decided not to pursue litigation; on November 4, 1982, however, it issued a "Notice of Right to Sue Within 90 Days." See id. at 4.
In February 1983, within ninety days of receiving the second right to sue notice, the five section 1981 plaintiffs and three other appellees, Bernard M. Bowerman, Vincent K. Elmore, and William H. Phillips, filed a Title VII action in the district court. That action was consolidated for trial with the earlier-filed section 1981 action.
The defendants in the district court moved for summary judgment in the Title VII action on the ground that the complaint in that case was not filed within ninety days of the plaintiffs' receipt of the EEOC's April 23, 1981 right to sue notice. The district court denied the motion on two grounds. First, that court held that "the issuance of a second notice of right to sue effectively revoked the first notice." Id. at 5. Second, the district court thought equitable considerations justified maintenance of the Title VII action. Id. at 6-7. Appellees, then without counsel, were understandably confused about the relationship between the OHR and EEOC, the court said. They thought...
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