Dougherty v. Barry

• Citation: 607 F. Supp. 1271
• Decision Date: 30 April 1985
• Docket Number: 83-0314.,Civ. A. No. 82-1687
• Parties: Edward F. DOUGHERTY, et al., Plaintiffs, v. Marion BARRY, Jr., et al., Defendants. Edward F. DOUGHERTY, et al., Plaintiffs, v. Marion S. BARRY, Jr., et al., Defendants.
• Court: U.S. District Court — District of Columbia

607 F. Supp. 1271

Edward F. DOUGHERTY, et al., Plaintiffs, v. Marion BARRY, Jr., et al., Defendants.

Edward F. DOUGHERTY, et al., Plaintiffs, v. Marion S. BARRY, Jr., et al., Defendants.

Civ. A. Nos. 82-1687, 83-0314.

United States District Court, District of Columbia.

April 30, 1985.

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Marianne Shannon, Robert W. King, Greenbelt, Md., James Brewster Hopewell, Gaegler & Hopewell, Landover, Md., for plaintiffs.

George C. Valentine, Corp. Counsel, Washington, D.C., for defendants.

MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

These related actions arise from the June, 1979 and January, 1980 promotions of Norman Richardson, Joseph Kitt and Theodore Coleman, all of whom are black, to deputy fire chief positions within the District of Columbia Fire Department. Plaintiffs, all of whom are white, allege that they were eligible for those promotions and contend that they were not chosen for the positions because of their race.

Plaintiffs Edward F. Dougherty, Andrew T. Buckler, Jr., Wilton E. Watts, Henry J. Ford, and Francis X. Flaherty bring the earlier case, Civil Action No. 82-1687, against defendants District of Columbia, Mayor Marion Barry, Jr., and City Administrator Elijah B. Rogers (in their individual and representative capacities) challenging the Richardson, Kitt and Coleman promotion decisions made by defendants as violative of plaintiffs' rights under the Civil Rights Act of 1866, 42 U.S.C. § 1981 (hereinafter "section 1981") and the Fifth Amendment to the United States Constitution.¹ Joined by plaintiffs Bernard M. Bowerman, Vincent K. Elmore and William H. Phillips, the same plaintiffs allege in Civil Action No. 83-0314 that the same promotion decisions were racially discriminatory in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (hereinafter "Title VII"). Defendants to the Title VII action are Mayor Marion Barry, Jr., and City Administrator Elijah B. Rogers (in their official capacities only), the Government of the District of Columbia Fire Department and the District of Columbia.

On July 24, 1979, plaintiff Dougherty filed with the District of Columbia Office of Human Rights ("OHR") a charge of race discrimination with respect to the Richardson promotion. The remaining plaintiffs joined that charge days later, and it was referred by OHR to the Equal Employment Opportunity Commission ("EEOC") for simultaneous processing. On March 27, 1980, the charge was amended to encompass the Kitt and Coleman promotions as well. Details of the problem-fraught administrative processing of plaintiffs' OHR/EEOC complaint are recited in the Order of March 6, 1984 (Civil Action No. 83-0314) and need not be repeated here. In essence, that Order held that plaintiffs' Title VII claim, filed February 4, 1983, was timely brought in response to a notice of right to sue. These civil actions, although not consolidated, were tried together in a four-day trial.

I. Factual Background

A. Structure and Policies of the Fire Department

Discussion of the merits of plaintiffs' claims requires some background knowledge of the setting in which they arose. The District of Columbia Fire Department is hierarchical in structure. The fire chief holds the top position in the hierarchy; directly beneath him are two assistant fire chiefs heading the operations and the services sectors of the department. The bulk of the department's manpower is in the operations sector, which at all times relevant to these actions included no more than six deputy fire chiefs ranked one level below the assistants and between 30 and 40 battalion fire chiefs who report to the deputies. Some but not all of the deputies within the operations sector are responsible for firefighting operations, one runs the department's training academy and one serves as fire marshal in charge of fire prevention efforts. Most of the battalion chiefs in operations are involved in firefighting, although one serves under the deputy heading the training academy and others may have comparably specialized duties. One battalion chief is assigned planning and research duties and works directly under the assistant chief in the services sector.

Promotions through the lower ranks of private, sergeant, lieutenant and captain, up to battalion chief, are based on test scores and years in rank or grade. Under D.C.Code § 4-302 (1981), promotions above battalion fire chief are made at the discretion of the mayor upon the recommendation of the fire chief. Moreover, no fire department policy, rule or regulation mandates rank by rank advancement above the level of battalion chief: the only prerequisite to promotion to deputy, assistant or even fire chief is that the officer must have attained the rank of battalion fire chief.

During the years relevant to this case, the District of Columbia Fire Department had no formalized system for filling vacancies at the level of deputy fire chief. It was, however, well known among the battalion chiefs that the office of the fire chief (which included the chief and both of his assistants) maintained a list or lists of those battalion fire chiefs who had been designated acting deputy fire chiefs ("acting DFCs"),² arranged alphabetically or by date of promotion to battalion chief or both. There is no reliable evidence that any list was captioned a seniority list or that a strict seniority system was employed in the filling of vacancies at any level above battalion chief. Instead, it appears that the common practice was to select deputies from among the more senior battalion chiefs with acting deputy status, but to take account of the specialized needs of the position to be filled. Neither regulation nor custom dictated that the most senior or senior-in-grade acting DFC receive preferential consideration, but in general the five or six more senior members of that group were those most likely to be tapped for promotion.

In both fiscal year 1979 (10/1/78-9/30/79) and fiscal year 1980 (10/1/79-9/30/80), the District of Columbia Fire Department had in effect equal employment opportunity plans, in keeping with D.C. Code §§ 1-507 et seq.³ See DX-K, DX-L. Despite introductory language calling for "programs of definite affirmative action", the plans do not on their face call for preferential treatment of minorities over whites in filling vacancies or designate specific positions or numbers of positions to be set aside for minority hires or promotions. The focus of the FY-1979 and FY-1980 plans is on the goal of "equal opportunity in all facets of the department's operations, including but not limited to recruiting, assignment, selection, appointment, training, promotion and upward mobility", and the need for officers to develop and exercise "an increased awareness of the personal potential of employees within their operational responsibility, as well as the barriers that may consciously or unconsciously impede their progress," DX-L at 2. The stated objectives of both plans include improving the processing of discrimination complaints, upgrading minority recruitment, and encouraging upward career mobility by providing on-the-job training, devising career development plans for minority employees, and disseminating information about advancement opportunities to underrepresented groups. The general language and policies of both plans, although particularly geared to assist the rank and file of the department, could apply equally to all levels of the departmental hierarchy.

In the area of promotion, the FY-1979 plan states that "the department endeavors to promote present minority employees to higher-graded positions, where possible, rather than hire new employees from the outside to fill vacant positions." DX-L at 19. The FY-1980 plan takes the following stand:

Minority officers should be detailed into positions of higher ranks for training and experience. This could be done when a position is vacant due to sick leave, annual leave or retirement. New positions could be created where necessary or feasible, either permanent or temporary.

DX-K at 15 (unnumbered pages). The plans do not set forth racial quotas and in fact make no specific provisions for implementation of their goals. Furthermore, they do not indicate that preferences are to be afforded to minorities or that non-minority department members will be denied equal consideration for promotion.

B. The Events of 1979 and 1980

The related actions now before this Court arise from three promotion decisions made while the plans described above were in effect at the District of Columbia Fire Department. All three promotions at issue elevated blacks from battalion fire chief positions to the deputy fire chief level. The relevant chain of events began in the spring of 1979, when then-Fire Chief Jefferson Lewis turned his attention to the task of finding a candidate to fill an existing or impending vacancy at the position of deputy fire chief in charge of the department's training academy ("DFC-Training"). At meetings held in May, 1979, top management officials of the department offered their recommendations for appointees to that position, and upon consideration of their suggestions, Lewis, who is black, decided to recommend Alfonso Torre for the job. Torre, a white man of Italian descent, was the battalion fire chief assigned to the training academy at that time. Lewis submitted his recommendation to the office of Mayor Marion Barry and at approximately the same time he directed Torre to complete a department physical examination. From past experience with the prior mayoral administration, Lewis expected his recommendation to be approved without challenge, and his expectation was shared — among the officers, an order to appear for a physical had come to mean that promotion was a virtual certainty. Unbeknownst to Lewis, the Barry administration, then in office some six months, had...