Petition for Writ of Certiorari — Dixon v. City of Winston-Salem
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1985
CURTIS E. DIXON,
Petitioner
V.
City OF WINSTON-SALEM, N.C., et al.,
Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
W. STEVEN ALLEN
Counsel of Record
116 Huffman Street
Greensboro, North Carolina 27420
Telephone: (919) 272-1864
Attorney for Petitioner
WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
1. Whether a public empioyer’s policy of promoting
white employees because th~y are cronies constitutes ra-
cial discrimination in violation of Title VII of the Civil
Rights Act of 1964?
2. Whether a public employer’s policy of relying on
word of mouth recommendations in promotion of staff
violates Title VII of the Civil Rights Act of 1964?
3. Whether a trial court’s findings of fact are clearly
erroneous in violation of the clearly erroneous standard
of review when there is no factual evidence in the record
to support it?
4. Whether a trial court’s findings of fact of no dis-
crimination are clearly erroneous in violation of the
clearly erroneous standard of review when documents or
objective evidence contradict the witness’ story?
(i)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED..........................ccccceccccccsscsseee i
SE SE PE TIED cc nvnnncvesnsnassnenncenavensaneeses Cese iv
a cesutsieomnaiantnnnninndnnias 1
a esnirestnmntenteneneiennien 2
STATUTES AND POLICIES INVOLVED .................... 2
yy wy + i ly lt) se te oy | Sane eeeeeennnee 5
REASONS FOR GRANTING THE WRIT ..................... 9
Sa 17
APPENDICES:
APPENDIX A— Opinion of Court Appeals -................... la
APPENDIX B— Judgment of District Court -............... 4a
APPENDIX C— Opinion of District Court..................... 6a
APPENDIX D— Qualifications Chart ............000...00000000.... 29a
APPENDIX E— City of Winston Salem Affirmative Ac-
tion Program For Equal Opportunity
Lodged with the Court......Lodged with Court
(iii)
iv
TABLE OF AUTHORITIES
CASES: Page
Anderson v. City of Bessemer City, North Caro-
lina, 470 U.S. , 84 L.Ed.2d 518 (1985) _...12, 13, 16
Bonilla v. Oakland Scavenger Co., 697 F.2d 1297
CREE GIN, I estes shnerhicnseseeeeciictonninneetiinsivenpcnimaians 10
Brown v. Board of Education, 347 U.S. 483 (1954) .. 10
E.E.O.C. v. Ford Motor Co., 645 F.2d 183, 212 (4th
Cir. 1981; Hoffman, J., Concurring Opinion) ....... 12
Furnco Construction Corp. v. Waters, 488 U.S.
BO I ci ccncdeiscdserciskessnischodiaccaancdameatieglaniemaiberlcnteinbialonens 10, 15
Hishon v. King & Spalding, —— U.S. ——, 104
aa 11, 12
Lamphere v. Brown University, 685 F.2d 743 (1st
RRR SERRE pereipeern seen ss ea ence sten nea aes 10
McDonnell Douglas Corp. v. Green, 411 U.S. 792
STITT i: <csicaicassscleisic deh cnesotpeansieensaahakstabcaneimaiapatianind 9,10, 15
Pullman Standard v. Swint, 456 U.S. 273 (1982)... 16
Texas Department of Community Affairs v. Bur-
RR I Ck Oe CED cittreettrrncememinnes 15,17
Statutes:
BO es I versie inscininntnnincnsncianneininininnansinisantiisinpicmanin 2
BE I i nctesniceneeccnitanneniesicacenenasntiiniapaccstinasenasmnasieiini 2,5
Se ne I iri iit ttcmasesniinitnainhccinin arid banimaitinins 2,5
rc iin iintictiscinctnncntiesncstesintnrtenatnmrinctnnon 3
Oe ae ST ID ieee entccnsnenniativnianinicnemnnsanann 3, 4
Ne is PUI Occ sncctnsienineaiievtnacenivheinanibbbitninn 13
Miscellaneous:
Article I, Section 1, Personnel Policy of City of
RRR TCR ermine RRR aPC a at NAA 4
Article I, Section 3(a), Personnel Policy of City
~ & SEES Ie em eee mame ene 4,5
City of Winston Salem Affirmative Action Program
For Equal Opportunity —.................... Lodged with Court
—
IN THE
Supreme Court of the Wuited States
OCTOBER TERM, 1985
No.
CURTIS E. DIXON,
Petitioner
V.
CITY OF WINSTON-SALEM, N.C., et al.,*
Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
W. Steven Allen, Esquire, on behalf of Curtis E. Dixon,
petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Fourth
Circuit in this case.
OPINIONS BELOW
The opinion of the Court of Appeals (App. la-3a) is
not reported. The opinion of the district court (App.
6a-28a) is not reported.
*The other parties to this case are respondents, Orville W.
Powell, A. R. Beaty, and T. W. Fredericks who were sued individ-
ually and in their representative capacities as officers of the City of
Winston-Salem, North Carolina, and Wayne A. Corpening, Larry
D. Little, Vivian H. Burke, Virginia K. Newell, Eugene F. Groce, .
Robert A. Northington, Jr., Ernestine Wilson and John J. Cava-
naugh, Members of the Board of Alderman of the City of Winston
Salem.
2
JURISDICTION
The judgment of the Court of Appeals (App. 2a)
was entered on November 27, 1985. The judisdiction of
this court is invoked under 28 U.S.C. 1254(1).
STATUTES AND POLICIES INVOLVED
1. 28 U.S.C. Sec. 1254(1)} provides:
1254. Courts of Appeals; certiorari; appeal; certified
questions
Cases in the courts of appeals may be reviewed by the
Supreme Court by the following methods:
(1) By writ of Certiorari granted upon the petition
of any party to any civil or criminal case, before or after
rendition of judgment of decree;
2. 42 U.S.C. Sec. 1981 provides:
1981. Equal rights under the law
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory
to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and property
as is enjoyed by white citizens, and shall be subject to
like punishment, pains, penalties, taxes, licenses, and ex-
actions of every kind, and to no other.
8. 42 U.S.C. Sec. 1983 provides:
1983. Civil Action for Deprivation of rights
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or Ter-
ritory, subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdic-
tion thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,
3
shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.
4. 42 U.S.C. Sec. 2000(e) (2) (a) provides in relevant
part:
Sec. 2000e-2. Discrimination because of race, color, re-
ligion, sex, or national origin
(a) Employers. It shall be an unlawful employment
practice for an employer—
(1) to fail or refuse to hire or to discharge any in-
dividual, or otherwise to discriminate against any in-
dividual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such in-
dividual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would de-
prive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as
an employee, because of such individual’s race, color, re-
ligion, sex, or national origin.
d. 42 U.S.C. Sec. 2000e-3(a) provides:
Sec. 2000e-3. Other un.awful employment practices
(a) Discrimination on account of opposition to unlaw-
ful practices or participation in investigation, proceed-
ing, or hearing. It shall be an unlawful employment
practice for an employer to discriminate against any of
his employees or applicants for employment, for an em-
ployment agency, or joint labor-management committee
controlling apprenticeship or other training or retraining,
including on-the-job training programs, to discriminate
against any individual, or for a labor organization to dis-
criminate against any member thereof or applicant for
membership, because he has opposed any practice made an
unlawful employment practice by this title (42 U.S.C.S.
Sec. 2000e-17), or because he has made a charge, testi-
4
fied, assisted, or participated in any manner in an in-
vestigation, proceeding, or hearing under this title (42
U.S.C.S. Sec. 2000e-2000e-17).
Article I of the Personnel policies of the City of Win-
ston Salem, provides in pertinent part:
Sec. 1. Equal Employment opportunity.
Employment practices in city government shall at all
times adhere to the spirit and letter of federal, state and
local laws, rules and regulations, promulgated thereunder
guaranteeing equal employment opportunities to all per-
sons without regard to race, creed, color, sex, handicap,
age or national origin.
Persons noted above will receive impartial considera-
tion for initial employment and promotion; will possess
equal standing and security as city employees; and will
have equal opportunity to receive training, develop skills
and opportunities to advance. Such opportunities shall
be limited only by the individual’s abilities and the re-
quirements of the work force.
Section 3 of Article I of the Personnel policies of the
City of Winston Salem provides:
Sec. 3. Recruitment for appointments.
(a) It is the policy of the city to fill vacancies in the
city service on the basis of merit and ability. Whenever
possible, and insofar as it is in the interest of the city to
do so, the “promote-from-within” policy of promoting
city employees to higher positions will be follewed sub-
sequent to internal vacancy announcement. The person-
nei director has the responsibility of assisting in recruit-
ing qualified candidates for city employment and of main-
taining records which will facilitate the discovery of city
employees who should be considered for promotion to
higher positions, or for training opportunities which may
accomplish the same purpose. No direct or implied com-
mitment to appoint any individual is to be made by any
5
appointing official until all employment procedural and
policy requirements have been satisfied in conjunction
with the personnel office and in accordance with city per-
sonnel resolutions. Exceptions to this policy shall be made
only by the office of the city manager and, in such cases,
announcement of appointments will be published in the
same manner as position vacancy announcements.
STATEMENT OF THE CASE
1. In 1964, Congress enacted the Civil Rights Act of
1964. Title VII of the Civil Rights Act’s purpose is to
assure equality of employment opportunities and to elimi-
nate those discriminatory practices and devices which
have fostered racially stratified job environments to the
disadvantage of minority citizens.
42 U.S.C. Sec. 1981 was enacted to provide black citi-
zens with the same rights as white citizens to make and
enforce contracts and to secure the benefits of equal citi-
zenry in our country and prevent individuals from dis-
criminating on account of race.
42 U.S.C. Sec. 1983 was enacted to provide a means
of redress to protect the constitutional rights of citizens
who might be denied vigorous enforcement of their rights
in state courts on the account of their color.
2. On September 12, 1979, Petitioner filed this suit
in the United States District Court for the Middle Dis-
trict of North Carolina challenging respondent city’s pro-
motion practices and failure to promote blacks in gen-
eral, and petitioner specifically... (C.A. App. at 11-21;
35-36)
1In 1961, Petitioner received a B. S. Degree, Magna Cum Laude,
in Mathematics from North Carolina A&T State University, Greens-
boro, North Carolina, and a Masters Degree in Mathematics from
A&T in 1973. Between the years 1974-77, he completed 36 hours
toward a doctoral degree in Administration at the University of
North Carolina at Greensboro, N.C. In 1979, he received a Masters
6
Respondent’s personnel policy provided for equal em-
ployment opportunity in initial employment, training,
development of skills, and opportunities to advance.’ (C.
App. at 602-614) It further provided that respondent
would fill vacancies in the city on the basis of merit and
ability and a promote from within policy. Exceptions
to the policy could be made by the City Manager. Re-
spondent also had in effect an Affirmative Action Pro-
gram to recruit and promote minorities. (C.A. App. at
632-654). In June 1972, respondent appointed Gary
Brown, a white male, as evaluation director. (C.A. App.
at 70) Petitioner, a black male, had performed the iden-
tical duties assumed by Gary Brown but had not been
considered by respondent for the position. (C.A. App. at
155). In 1977, Gary Brown was appointed to a new posi-
tion and Allen Joines, a white male, was appointed by the
City Manager as evaluation director. (C.A. App. at 71)
The vacancy had not been advertised and petitioner had
not been considered. (C.A. App. at 71). In July of 1978,
respondent merged its budget and evaluation office. Allen
Degree in Public Affairs from the University of North Carolina
at Greensboro. He began his employment with the City of Winston
Salem, in 1970. Prior to 1970, Petitioner was a Captain in the
United States Air Force where he served as Chief Maintenance
Officer, Communications Officer, and Commander of a Communica-
tions Detachment. Petitioner received the Bronze Star Medal for
leadership service in Vietnam. After receiving an honorable dis-
charge, Petitioner served as Director of Operations and Training
for the Concentrated Employment Program in the City of Winston
Salem. In 1970, he was hired as Program Evaluation Officer for the
City where he served as Deputy Director of the Model Cities Pro-
gram and served as director of its evaluation function. From 1972
to 1978, he served as Senior Program Analyst and developed in-
ternal management and project evaluation systems.
2 At trial, Petitioner challenged the City’s failure to appoint or
consider him for Evaluation Director (1972), Evaluation Director
(1977), Budget/Evaluation Director (1978), Public Safety Co-
ordinator (1978), Acting Director of Human Services Department
(1979), Community Development Coordinator—2 positions (1978)
Human Services Director (1980); City Secretary (1980).
nn
ey
EOIN ETT IND HOT ETS LY pte er omer
7
Joines, the evaluation director was appointed to Public
Safety Coordinator. Joines had served as staff to a com-
mittee appointed to study the public safety concept and
the City Manager, upon the recommendation of the chair-
man of the committee, a white male, had made the appoint-
ment. (C.A. App. at 73-74) The position was not adver-
tised and petitioner was not considered. Recommendations
by black persons for position vacancies were ignored by
the city manager. (C.A. App. at 569-570) Tom Fredericks,
a white male, the director of the budget office was ap-
pointed director of the merged budget/evaluation office.
In August 1978, Gary Brown assumed the duties as Di-
rector of Community Development. (C.A. App. at 74)
Petitioner applied for four positions in the new depart-
ment, but was not considered. (C.A. App. at 86) Joe
Sauser, a white male, was appointed as Assistant Di-
rector of Community Development/Program Development
and Control. Fran Clark, a white female, was appointed
as Program Development and Evaluation Coordinator.
On July 7, 1978, plaintiff filed a charge of discrimina-
tion with the Equal Employment Opportunity Commis-
sion. (C.A. App. at 79) Thereafter, respondent’s office
location repeatedly changed. His telephone number
changed thirteen times. (C.A. App. at 203-204) Finally,
petitioner was assigned solitary office space in a storage
room, six by six for 11 months where he was surrounded
by boxes. (C.A. App. at 229-230) And petitioner was
denied the right to attend a two hour professional meet-
ing when other employees within the office were allowed
several days off for professional reasons. In October
1979, the respondent’s Human Services Department Di-
rector resigned. (C.A. App. at 189) Walter Farabee, a
black male who had been relieved of his former duties
as Director of Economic Development in January 1979
was appointed as Acting Director by the respondent’s
Acting City Manager. (C.A. App. at 192) Petitioner ap-
plied but was not considered because it was thought he
8
would be an applicant for the permanent position. (C.A.
App. at 111-112) Farabee was later appointed to the
permanent position by respondent’s new city manager be-
cause he thought he was the best qualified candidate.
Petitioner had applied and had been considered. (C.A.
App. at 78)
After filing of amended and supplemental pleadings,
the matter was heard before the district court. The dis-
trict court found no discrimination. The court found that
Gary Brown had been selected as evaluation director
because of his familiarity with respondent’s deputy city
manager, John Bond, a black male. (C.A. App. at 70)
The advancements of Allen Joines were simply put be-
cause he was the city manager’s ally or crony.* (C.A. App.
at 84) That Tom Fredericks was appointed as budget
director when due to tight fiscal constraints the evalua-
tion office became somewhat of a luxury. (C.A. App. at
73) and for all practical purposes there was never a
vacancy.* After the merging of the budget and evalua-
tion office, Allen Joines became a displaced department
head, and after consultation with Al Beaty, respondent’s
black personnel director, Joines was chosen as Public
Safety Coordinator (C.A. App. at 74). The appointment
of Joe Sauser as Assistant Director Community Develop-
ment/Program Development and Control was_ under-
standable because while less versatile than plaintiff, he
had greater level of familiarity and expertise in the
community development area. Gary Brown had selected
Joe Sauser due to his direct experience not race. (C.A.
App. at 75) Likewise, Brown had chosen Fran Clark, a
white female, because she was the best candidate. (C.A.
3 Orville Powell, City Manager, testified he appointed Allen Joines
as Evaluation Director in 1977 because he had served on his staff
and handled a lot of different assignments well and was worthy of
the appointment. He did not consider plaintiff (C.A. App. at 473).
el Se
* Fredericks salary increased after being promoted to Budget/
Evaluation Director. (C.A. App. at 408).
i a
9
App. at 75) Even if Clark was only a CETA participant,
that did not make her less qualified than petitioner (C.A.
App. at 76). Race was not a factor in her selection. (C.A.
App. 76). The appointment of Walter Farabee was filled
on an acting basis only. Farabee was selected upon the
recommendation of Joe Herman Berrier, respondent’s As-
sistant City Manager over the Human Services Depart-
ment (C.A. App. at 77). Petitioner’s testimony that
Lewis Cutright, the respondent’s Acting City Manager,
told him he could not be offered the position because of
his lawsuit was not indicia of retaliation. (C.A. App. at
77-78) Farabee’s permanent appointment as Human
Services Director was not tainted by retaliatory or dis-
criminatory intent (C.A. App. at 78). The court found
no retaliation and that renovations to city hall and plain-
tiff’s own job changes resulted in the office and telephone
number changes (C.A. App. at 79) On Appeal, the
Fourth Circuit Court of Appeals affirmed finding that the
district court’s findings were not clearly erroneous and
that there was no error of law.
REASONS FOR GRANTING THE WRIT
This case presents important questions concerning the
future viability of equal employment opportunity for
blacks and other minorities in the public sector. The
issue presented is a direct opportunity for the court to
define the contours of devices that may or may not be
used to limit the advancement of minorities into the
upper tier of management. In McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), this Court first recog-
nized Congress’ purpose to assure equality of employment
opportunities and to eliminate those discriminatory prac-
tices and devices which tended to relegate certain Ameri-
cans to the low and most undesirable positions in the
market place. Recent job statistics indicate that the job
plight of the majority of black Americans has not ad-
vanced but worsened since implementation of affirmative
action programs. In the last decade, black Americans
10
have become not only underemployed but unemployed.
Over forty percent of young black Americans in the
urban areas are unemployed. Blacks still do not, by and
large, hold upper or middle management positions in
significant numbers. The opportunity to equality of op-
portunity in the job market is certainly no less a right
than the right to equality of education recognized by this
court in Brown v. Board of Education, 347 U.S. 483
(1954). Today, in America, the ability to earn a liveli-
hood is synonymous with the living of a “meaningful”
life. For life, without a means of support is no life at all.
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), established that Congress required the removal of
all artificial, arbitrary and unnecessary barriers to em-
ployment when the barriers operate invidiously to dis-
criminate on the basis of racial or other impermissible
classifications. The question presented here is whether
“eronyism” is an “impermissible” classification. This
question was last visited by this Court in Furnco Con-
struction Corp. Vv. Waters, 488 U.S. 567 (1978). In
Furnco Construction Corp. v. Waters, 488 U.S. 567
(1978), this court held that an employer need not adopt
a hiring procedure that maximized hiring of minority em-
ployees, and need only prove that it based its employment
decision on a legitimate consideration, and not an illegiti-
mate one such as race. In Furnco Construction Corp. V.
Waters, 488 U.S. 567 (1978), the employer hired only
persons it knew to be experienced and competent in
the type work or persons who had been recommended to
it as similiarly skilled. The court was not presented the
question in the same manner presented here.
In Lamphere v. Brown University, 684 F.2d 743 (1st
Cir. 1982) the First Circuit Court of Appeals held that
“friendship” as the basis of selection does not constitute
an illegitimate basis of employment or denial of employ-
ment under Title VII of the Civil Rights Act of 1964.
In Bonilla v. Oakland Scavenger Co., 697 F.2d 1297
il
(9th Cir. 1982) the Ninth Circuit Court of Appeals in
an analogous situation held that Title VII applied. Ac-
ceptance of cronyism as a legitimate exception to the
applicability of Title VII of the Civil Rights Act of 1964
would seriously undermine its efficacy. It is because
whites preferred to work, to live, to go to school with,
even to be buried only with other whites that the Civil
Rights Acts were implemented. This court should allow
certiorari in order to resolve this significant question.
2. Respondent, the City of Winston Salem had in effect
at all relevant times a personnel policy that called for
equal opportunity for advancement. It also had in effect
an affirmative action program that called for the recruit-
ment of and encouragement of minorities to apply for
promotion. That portion of the personnel policy that
called for the posting of job vacancies was essential to
the Respondent’s affirmative action policy. Employees of
the City, such as petitioner, legitimately could expect
that the respondent would abide by its own employment
policies. Hishon v. King & Spalding, —— USS. , 104
S. Ct. 2229 (1984). The district court recognized that
the failure of respondent to follow its own employment
policies was indicia of discrimination (C.A. App. at 84)
but held that it was not per se illegal. The recommenda-
tion and appointment of Allen Joines to the Public Safety
Coordination position and the appointment and filling of
the other positions sought by petitioner was equivalent to
bird-dogging. As Judge Hoffman sitting with the Fourth
Circuit Court of Appeals stated:
Practices similar to updating and bird-dogging appli-
cations have been condemned by this court. Word-of-
Mouth hiring, which the district court found to be
(the employer’s) primary method of recruiting new
over-the-road drivers, is discriminatory because of its
tendency to perpetuate the all-white composition of a
work-force. Barnett v. W. T. Grant Company, 518
F.2d 548, 549 (4th Cir. 1975). In addition, the use
12
of subjective criteria, such as recommendations of
employees, has been criticized: ““Non-objective hiring
standards are always suspect because of their ca-
pacity for masking racial basis (sic).” Id. at 550.
EEOC v. Ford Motor Co., $45 F. 2d 183, at 212, (J.
Hoffman Concurring opinion) (4th Cir. 1981)
The district court’s finding of legality is in direct con-
flict with this court’s opinion in Hishon v. King &
Spalding, USS. , 104 S. Ct. 2229 (1984) where
this court held that an employer may provide its em-
ployees with benefits that it is under no obligation to
furnish by express or implied contract. Such benefit may
qualify as a privilege of employment under Title VII
that may not be granted or withheld in discriminatory
fashion. In the case at bar, the Respondent contracted to
provide petitioner with equal opportunity for advance-
ment in accordance with its policies. This court should
review the practice of bird-dogging in light of its decision
in Hishon v. King & Spalding, —— U.S. ——, 104 S. Ct.
2229 (1984).
3. In Anderson v. City of Bessemer City, North Caro-
lina, 470 USS. , 84 L. Ed. 2d 518 (1985), this
court reaffirmed the “clearly erroneous” standard of re-
view. Implicit in the court’s holding was a recognition
that there must be some evidence in the record to support
a finding. In the case at bar, the district court made
findings that were predicated upon evidence or testimony
that had been stricken from the record. (C.A. App. at
357-358; C.A. App. at 470-471). In finding of fact # 3,
the district court found that John P. Bond, a black male
and former Deputy City Manager, had chosen Gary
Brown, a white male as Evaluation Director in 1972 be-
cause of his familiarity and not because of race. (C.A.
App. at 70) Bond did not testify at trial (C.A. App. at
70) and the testimony by Gary Brown as to the reason
for his selection was stricken. (C.A. App. at 470-471)
Thus it could not be the basis of a factual finding.
13
Similarly, the court made inferences that were not sup-
ported by the factual evidence (C.A. App. at 78). See
F.R.C.P., Rule 52.
In finding of fact #11, the district court found that
Acting City Manager Cutright was concerned over plain-
tiff’s morale as an employee, as well as the pending law-
suit (C.A. App. at 78). No evidence was introduced to
form a factual base from which this inference could
arise. Therefore it was without a factual foundation.
The court’s reliance on a hypothetical statement made
some two years after the incident in question, during a
deposition as a basis for finding no retaliation where the
witness disavowed making the discriminatory statement
that he couldn’t offer petitioner a position as Acting Di-
rector because of his lawsuit was also error (C.A. App.
429-430). This court in the exercise of its supervisory
power should assume jurisdiction to correct a misappre-
hension of the evidentiary standard to be applied in re-
viewing the district court’s findings under the clearly
erroneous standard of review.
4. In Anderson v. City of Bessemer City, North Caro-
lina, 470 U.S. ——, 84 L. Ed. 2d 518, 106 S. Ct.
(1985), this court set forth those circumstances in which
“clear error” should be found on appellate review of find-
ings of fact.
This is not to suggest that the trial judge may in-
sulate his findings from review by denominating
them credibility determinations, for factors other
than demeanor and inflection go into the decision
whether or not to believe a witness. Documents or
objective evidence may contradict the witness’ story;
or the story itself may be so internally inconsistent
or implausible on its face that a reasonable fact-
finder would not credit it. Where such factors are
present, the court of appeals may well find clear
error even in a finding purportedly based on a
credibility determination. See, e.g., United States v.
14
United States Gypsum Co., supra, at 396. But when
a trial judge’s finding is based on his decision to
credit the testimony of one of two or more witnesses,
each of whom has told a coherent and facially plausi-
ble story that is not contradicted by extrinsic evi-
dence, that finding, if not internally inconsistent,
can virtually never be clear error. Cf. United States
v. Aluminum Co. of America, 148 F. 2d 416, 413
(C. A. 2 1945) Orvis v. Higgins, supra, at 539-540.
At trial, respondent articulaied as reason for failure
to consider petitioner for the appointment of Public Safety
Coordinator that Allen Joines was a displaced department
head. Petitioner offered into evidence on the issue of
pretext, a memorandum dated May 2, 1978 from Allen
Joines to the City Manager some two months before the
appointment which indicated (1) prior discussions be-
tween Powell and Joines about the appointment; and (2)
Joines had the opportunity to accept the new position or
remain in his position as Evaluation Director (C.A.
App. at 653-654). During this same period, the Com-
munity Development Department’s evaluation functions
were being expanded. Federal funds were being used by
respondent. Thus, the documentary evidence belies the
testimony that would support the court’s findings. An
additional! finding contradicted by the objective evidence
is the district court’s findings that petitioner’s experience
in budgetary matters was limited. In the same breath,
the district court found that from December 1971 through
December 1972, petitioner had assumed the additional
duty of Deputy Model Cities Director in charge of
budgeting and was responsible for preparing budgets for
fifty five agencies in addition to being evaluation and
information officer. (C.A. App. at 69). He had assisted
in preparing the budget for respondent from 1972 until
the present. Perhaps, the most obvious indication that
the trial court’s findings were clearly erroneous was
in the failure to appoint petitioner to positions in the
Community Development Department. The trial court
15
found that the other persons were selected because they
were better qualified. The reason articulated at trial by
respondent was that petitioner failed to apply. Petitioner
offered into evidence exhibits 30, 31, and 32 which indi-
cated he had applied, and had been interviewed. In
Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981), this Court quoting from Furnco
Construction Corp. v. Waters, 488 U.S. 567, 577 (1978)
reaffirmed the inference of discrimination that arises
where an employer has failed to articulate a reason for
its rejection of plaintiff or the reason set forth by the
employer is shown to be pretextual:
May succeed in this either directly by persuading the
court that a discriminatory reason more likely moti-
vated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of
credence. See McDonneil Douglas, 411 U. S., at 804-
805, 36 L Ed 2d 668, 93 S. Ct 1817.
In Texas Department of Community Affairs v. Bur-
dine, 450 U.S. 248 (1981), this court also recognized
that irrefutable evidence that an employer has failed to
select the most qualified candidate may be probative and
is indeed relevant, on the issue of pretext. In its findings
of fact, the district court found that Fran Clark, a white
female, was better qualified than the petitioner for the
position of Community Program Development and Eval-
uation Coordinator (C.A. App. at 76). At the time of
selection, petitioner had been employed by the respond-
ent eight years. During those eight years, he had done
the first city wide urban renewal housing study for re-
spondent. The study was used to plan the Community
Development Department (C.A. App. at 185) had done
Manpower Analysis, (C.A. App. at 160), had done Neigh-
borhood Team Policing Report (C.A. App. at 162), had
served for six years as an Evaluation Officer of the City
of Winston Salem, had served as Acting Director of the
Model Cities Program (C.A. App. 152-153), had served
16
as third person in the chain of command in charge of
orientation and assessment of the Concentrated Employ-
ment Program (C.A. App. at 148) ; had completed thirty
hours of a sixty hour program towards a doctor’s degree
and had completed planning and evaluating training.
(C.A. App. at 582) As an evaluation officer petitioner’s
job entailed designing, planning and implementation of
evaluation systems where he planned, implemented, and
managed the city’s first Evaluation Office for 20 months
as an evaluator with Manpower; petitioner had spent the
first six months planning and restructuring the Man-
power Program. (C.A. App. p. 160). Petitioner planned
and implemented the city’s first Emergency Employment
Program for CETA participants. The sole evidence as to
the qualifications of Fran Clark was that she had been
a CETA participant, or at most that she had limited
planning experience (C.A. App. at 75-76; 183-184; 367).
The findings of fact of a trial court may be set aside
when clearly erroneous. Pullman Standard v. Swint, 456
U.S. 273 (1982). Findings of fact are clearly erroneous
when although there is evidence to support it the review-
ing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
Anderson v. City of Bessemer City, North Carolina, 470
USS. , 84 L Ed 2d 518, (1985).
In its finding of fact #15, the district court found
that the claims plaintiff would label as retaliatory were
no more than common disagreements.° The uncontra-
dicted testimony was that after the filing of his law-
suit, petitioner’s office was placed in a 6 x 6 storage room
where persons would come and store boxes. This evidence
itself was enough to establish a prima facie case of
5 Petitioner alleged retaliation and harassment in obtaining ex-
cused sick leave, failure to type a research paper, denial of leave time
to attend a professional meeting, changing of his telephone number,
relocation of his office, and failure to be appointed to the positions
of Human Service Director in 1980 and City Secretary in 1980.
17
retaliation under the test established in Texas Depart-
ment of Community Affairs v. Burdine, 450 U.S. 248
(1981), petitioner was entitled to a directed verdict
where respondent failed to articulate a reason for the
solitary confinement.
CONCLUSION
The petition for a writ of certiorari should be allowed.
Respectfully submitted,
W. STEVEN ALLEN
Counsel of Record
116 Huffman Street
Greensboro, North Carolina 27420
Telephone: (919) 272-1864
Attorney for Petitioner
February 24, 1986
APPENDICES
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 85-1132 (L)
CuRTIS E. DIXON,
hadi Appellant,
CITY OF WINSTON-SALEM, N.C.; ORVILLE W. POWELL;
A. R. BEATY and T. W. FREDERICKS,
al Appellees,
WAYNE A. CORPENING; LARRY D. LITTLE, VIVIAN H.
BURKE; VIRGINIA K. NEWELL; EUGENE F. GROCE;
ROBERT S. NORTHINGTON, JR.; ERNESTINE WILSON and
JOHN J. CAVANAGH,
Defendants.
No. 85-1139
CURTIS E. DIXON,
cemnnes Appellee,
CITY OF WINSTON-SALEM, N.C.; ORVILLE W. POWELL;
A. R. BEATY and T. W. FREDERICKS,
niet Appellants,
WAYNE A. CORPENING; LARRY D. LITTLE; VIVIAN H.
BURKE; VIRGINIA K. NEWELL; EUGENE F. GROCE;
ROBERT S. NORTHINGTON, JR.; ERNESTINE WILSON and
JOHN J. CAVANAGH,
Defendants.
2a
Appeals from the United States District Court
for the Middle District of North Carolina,
at Winston-Salem
Hiram H. Ward, Chief District Judge—(C/A 79-565)
Argued: November 4,1985 Decided: November 27, 1985
Before WINTER, Chief Judge, SNEEDEN, Circuit Judge,
and HILTON, United States District Judge for the East-
ern District of Virginia, sitting by designation.
W. Steven Allen for Appellant/cross-appellee; Anthony
H. Brett (Roddey M. Ligon, Jr.; Womble, Carlyle, San-
dridge & Rice on brief) for Appellees/cross-appellants.
PER CURIAM:
After plenary trial, the district court gave judgment
for the City of Winston-Salem and several of its officers
in plaintiffs’ suit under 42 U.S.C. §§ 1981, 1983 and
2000e in which he claimed racial discrimination in de-
fendants’ failure to appoint him to any of several desir-
able positions which became vacant from time to time.
Defendants, after prevailing on the merits, sought and
were denied an award of attorney’s fees. Plaintiff and
defendants both appeal and we affirm.
The issues raised by plaintiff, i.e., the failure to ap-
point him and a claim of retaliation when he claimed
racial discrimination, raise essentially factual questions.
The district court found that racial discrimination was
not practiced against plaintiff when others were ap-
pointed to the positions he sought, and the district court
found that there had been no impermissible retaliation.
3a
From our review of the record, we cannot say that these
findings were clearly erroneous or that there was any
error of law.
Similarly, we do not think that the district court’s
findings with respect to the award of attorney’s fees
claimed by defendants or the exercise of its discretion
with respect thereto may properly be disturbed.
AFFIRMED.
4a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WINSTON-SALEM DIVISION
C-79-565-WS
CuRTIS E. DIXON,
Plaintiff
v.
CITY OF WINSTON-SALEM, NORTH CAROLINA, ORVILLE W.
POWELL, A.R. BEATY, T.W. FREDERICKS, individually
and in their representative capacities as officers of the
City of Winston-Salem, North Carolina,
Defendants
[Filed Jan. 30, 1985]
JUDGMENT
The Court tried the claims of plaintiff Curtis E.. Dixon
against defendants City of Winston-Salem, North Caro-
lina, Orville W. Powell, A.R. Beaty, and T.W. Fredericks
in this case without a jury on October 4-6, 1984. Pur-
suant to Rule 52, Fed.R.Civ.P., the Court made Findings
of Fact and Conclusions of Law, filed contemporaneously
herewith, wherein it held that judgment on the claims
should be rendered for the defendants.
NOW, THEREFORE, pursuant to the Findings of
Fact and Conclusions of Law filed herein, IT IS OR-
DERED and ADJUDGED that plaintiff have and re-
5a
cover nothing from defendants and that his claims in
this action be, and the same hereby are, DISMISSED.
/s/ Hiram H. Ward
United States District Judge
January 30, 1985.
6a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WINSTON-SALEM DIVISION
C-79-565-WS
CURTIS E. DIXON,
Plaintiff
v.
CITY OF WINSTON-SALEM, NORTH CAROLINA, ORVILLE W.
PowELL, A.R. BEATY, T.W. FREDERICKS, individually
and in their representative capacities as officers of the
City of Winston-Salem, North Carolina,
Defendants
[Filed Jan. 30, 1985]
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court tried the claims of plaintiff Curtis E. Dixon
against defendants City of Winston-Salem, Orville W.
Powell, A.R. Beaty, and T.W. Fredericks (collectively re-
ferred to as “City”) in this action without a jury on
October 4-6, 1984. Post-trial memorandums in lieu of
closing arguments were submitted to the Court on No-
vember 30, 1984. Plaintiff alleged in his Complaint (Sep-
tember 12, 1979), as supplemented (January 26, 1982)
and amended (June 15, 1983 & July 8, 1983),' that de-
1 While the Court granted plaintiff’s motion for leave to amend,
plaintiff neglected to file an amended complaint. Nevertheless, in
7a
fendants failed to select him for various jobs in city
government, refused to reclassify his job position, and
harassed him because of his race and in retaliation for
complaints of discrimination in violation of 42 U.S.C.
§§ 1981, 1983, and 2000e (Ttile VII) and the first,
fourth, fifth, ninth, thirteenth, and fourteenth amend-
ments to the Constitution. At trial, plaintiff limited his
challenge to nine promotions or positions he did not re-
ceive and several miscellaneous acts of retaliation. Be-
cause any relief to which plaintiff is entitled may be ob-
tained under sections 1981 and 1983 and Title VII, the
Court need not address whether plaintiff suffered a viola-
tion of any right independently secured by the constitu-
tional amendments alleged in the Complaint but there-
after omitted from all future references in pleadings and
at trial. Having duly considered the parties’ oral and
documentary evidence, the Court now enters its Findings
of Fact and Conclusions of Law thereon.
FINDINGS OF FACT
1. Plaintiff, a black male, is employed by the City. He
received a bachelor of science in mathematics from North
Carolina A & T State University in 1961. Following
approximately eight years in the military, plaintiff re-
turned to North Carolina A & T and received a master’s
degree in mathematics in 1973. Between 1974 and 1977,
plaintiff completed thirty-six semester hours toward a
sixty hour doctoral degree in administration at the Uni-
versity of North Carolina at Greensboro. He received
a master’s degree in public affairs from UNC-G in De-
cember 1979.
2. Plaintiff entered the City’s workforce in 1970 as a
program evaluation officer for the Model Cities Program.
light of the Order allowing the amendment and the legal theories
on which the case was tried, the Court will deem the Complaint
amended to include claims pursuant to 42 U.S.C. §§ 1981 and 1983.
8a
The Model Cities Program was, in essence, the coordinat-
ing and administrative body for approximately fifty-five
federally funded municipal programs. As an evaluation
officer, plaintiff designed and implemented a program to
monitor the success of the funded programs to ensure
accountability of the federal funds. For six months
plaintiff also served as deputy director of Model Cities
and in that capacity was responsible for the budgets of
all the individual programs.
8. In 1972, plaintiff was transferred from the Model
Cities Program to the City’s newly created evaluation
office. In creating this office, the City expanded evalua-
tion of local programs and the use of federal funding.
Plaintiff worked as a senior program evaluation analyst
under the supervision of Gary Brown, a white male hired
as evaluation director. Plaintiff contends that he was
passed over by the City as director because of his race.
Evidence regarding the time-barred selection of Brown
was offered as background in an attempt to demonstrate
a pattern of refusals to promote plaintiff to positions for
which he was the best qualified.
John P. Bond, a black male and former deputy city
manager who did not testify at trial, made the decision
to hire Brown. Brown had worked for the federal gov-
ernment for approximately three and one-half years
prior to coming with the City, six months with the De-
partment of Health, Education and Welfare and twenty-
two months with the Department of Housing and Urban
Development (HUD). Brown served as a community
development representative for HUD, representing a
number of HUD programs in which the City partici-
pated. In that capacity, Brown had worked closely with
Bond for nine to ten months.
Plaintiff had experience in performing the duties re-
quired of the evaluation analyst for he had performed
similar duties in a commendable fashion for the Model
Cities Program. He did not apply for the unadvertised
9a
directorship of the evaluation office but testified he would
have applied had he been aware of the vacancy. The
explanation for the selection of Brown rather than plain-
tiff or anyone else lies in the circumstances explaining
plaintiff’s incognizance of the “vacancy.” Bond desired
to establish an evaluation office which in large part would
be concerned with the City’s use of federal money. Hav-
ing worked with Brown as a HUD representative, Bond
was familiar with Brown’s qualifications and because of
that familiarity, not because of race, chose him as the
evaluation office’s first director. The Court does not
credit the testimony that upon assuming this position
Brown expressed shock over the selection and allegedly
characterized plaintiff as much more qualified. Brown,
who came to Winston-Salem specifically for this posi-
tion, had ro recollection of any such comment. At the
time this statement was allegedly made, Brown had not
even had a sufficient opportunity to judge plaintiff’s
qualifications.
4. In 1977, Brown became community development
coordinator, thus creating a vacancy in the evaluation
office. Plaintiff and Joe Sauser, a white male, were at
that time serving as senior program evaluation analysts.
Section 3(a) of the City’s Personnel Manual indicates
that whenever possible a “ ‘promote-from-within’ policy
of promoting city employees to higher positions will be
followed subsequent to internal vacancy announcements.”
The office of the city manager had the authority to de-
viate from this policy and simply announce the appoint-
ment in the same manner as the vacancy would have been
announced. Plaintiff’s Exhibit No. 11 at 2. The City
also had in effect an affirmative action program to re-
eruit qualified employees and to make internal and ex-
ternal minorities aware of opportunities for promotion
and employment. Plaintiff’s Exhibit No. 18.
Defendant Orville Powell, a white male and city man-
ager from 1972-79, selected Allen Joines, a white male,
10a
to replace Brown as the evaluation office director. The
position was not advertised, and plaintiff would have
applied for it had he known it was vacant. Announce-
ment of the appointment’s exemption from the notice
procedure did not occur during the few months immedi-
ately surrounding Joines’ May 1977 appointment.
Joines had been with the City since 1971. He re-
ceived a master’s degree in public affairs prior to em-
ployment with the City. Joines had held numerous ad-
ministrative positions with the City. As of 1977, he had
served as an administrative assistant in the budget de-
partment, assistant to the mayor, assistant to the city
manager, and senior assistant to the city manager. Be-
cause Joines had been a member of Powell’s staff, Powell
possessed first hand knowledge of Joines’ abilities. Powell
considered Joines to be a person with a logical, analytical
mind who did many things well. Joines had worked in
and with numerous areas of city government, and some
of his experience was relevant to evaluation. He did not,
however, have the years of direct experience in evalua-
tion which both plaintiff and Sauser possessed. The pre-
ponderance of the evidence shows that plaintiff was a
more than adequate evaluation analyst and did quality
work. The most significant shortcoming was that at
times his work was not completed in a timely fashion.
Nevertheless, outgoing director Brown informed plaintiff
and Sauser that he had not been consulted by Powell re-
garding his replacement and that both plaintiff and
Sauser, particularly plaintiff, had the qualifications to
assume the director’s role.
The qualifications of plaintiff, or for that matter
Sauser, were not considered by Powell. The Court finds,
however, that Powell’s failure to notice the vacancy or
consider and select plaintiff for the position was not a
result of plaintiff’s race. Powell simply chose Joines be-
cause he was acutely aware of Joines’ administrative
lla
capabalities and versatility and believed Joines would
serve the City’s needs in that position.
5. Plaintiff testified that following Joines appointment
as evaluation office director, Brown told plaintiff that
chances for plaintiff’s promotion were not good because
of the way the City treated blacks with regard to ad-
ministrative positions. Additionally, Plaintiff’s Exhibit
No. 3 shows that Brown was openly concerned over racial
attitudes among city employees. However, when con-
sidered in the context in which these statements were
made, neither statement rationally suggests that the
City favored Joines over plaintiff because of his race.
The annual performarce review, Plaintiff’s Exhibit No.
3, was made more than two years prior to Joines’ ap-
pointment. Brown had nothing to do with any personnel
decision which at that time affected plaintiff. Bond, de-
fendant Al Beaty, and Florence Creque are all black and
were in administrative positions prior to 1977. Five of
seven administrative positions filled between January
and November 1980 went to blacks. Defendant’s Exhibit
No. 2 (memorandum prepared by plaintiff). While evi-
dence of the City’s racial makeup of administrative posi-
tions was certainly incomplete, that offered belies any
contention that Brown’s statement following Joines’ ap-
pointment, even if made, had any reasonable basis in
fact. Without additional evidence, the Court cannot find
that statements by an employee not responsible for the
decisions plaintiff challenged at trial are sufficient evi-
dence of unlawful motivation.
6. The creation of the evaluation office had in large
part resulted from a need to monitor the City’s many
federally funded programs. When direct funding for the
programs diminished, so did the need for evaluation. To
a city with tight fiscal constraints, the valuation office
became somewhat of a luxury. Consequently, the City
eliminated Joines’ director position and merged the eval-
12a
uation office with another department which plainly was
not a luxury—budget.
Since 1975, Thomas W. Fredericks, a white male, had
been the budget director charged with preparing the
City’s operating and capital improvemment budgets. He
had earned a master’s degree in public affairs in 1972.
Fredericks had only limited experience in evaluation and
management studies. By the same token, plaintiff’s ex-
perience in budgetary matters was limited. He had per-
formed budgetary duties for approximately six months in
the Model Cities Program and at times was temporarily
assigned to the budget office, as were personnel of many
other departments, to assist in budget preparation. The
evaluation functions of the merged budget and evalua-
tion department were secondary. Of three persons who
had previously had evaluation responsibilities, only plain-
tiff remained. Thus, it was reasonable that the City
should weigh budgetary abilities heavier than those for
evaluation in selecting the department director.
Plaintiff testified that he would have applied for this
directorship had it been advertised. The position was not
advertised because for all practical purposes there was
never a vacancy. The position of director of evaluation
had been eliminated and in effect Powell simply gave
Fredericks, already budget director, additional respon-
sibilities. With those additional duties came a pay range
classification inerease. The fact that prior to the merger
plaintiff was classified a range higher than Fredericks
did not warrant bumping Fredericks from a department
head position nor did it make plaintiff more qualified for
a position which emphasized budgetary matters over
matters of evalaution.
7. Upon the 1978 merger of budget and evaluation
and the elimination of his position, Joines became a dis-
placed department head. During this same time period,
the City was preparing to implement a recommendation
13a
of a study commission that someone be designated to pro-
vide administrative direction and support to the City’s
coordinated police and fire departments. (These func-
tions were later absorbed by the assistant city manager
and the position was eliminated).
Once again, the City did not advertise this vacancy.
Its availability was not, however, unknown to Joines who
lobbied Powell for the appointment. Plaintiff’s Exhibit
No. 19. After consultation and agreement with Beaty,
Powell chose Joines to be public safety coordinator.
Joines had been exposed to several police and fire de-
partment matters in his prior administrative positicns.
As evaluation director, he also served as staff to the citi-
zen public safety study commission whose recommenda-
tions were adopted by the board of aldermen. An iso-
lated disciplinary suspension resulting from Joines’ off-
duty conduct with some of his employees was minor and
did not detract from his abilities.
Plaintiff also possessed a certain familiarity with police
and fire department operations by virtue of several stud-
ies he had conducted invoiving, or on behalf of, said de-
partments. However, plaintiff’s current position was not
being eliminated. Considering the City’s desire to avoid
a layoff if possible and Joines’ tested qualifications in
administrative positions, Joines was chosen for the posi-
tion. Race was not a factor in the decision.
8. In the summer of 1978, Gary Brown, then com-
munity development coordinator charged with obtain-
ing federal block grants and coordinating their use, be-
came director of the newly-formed community develop-
ment department. As director, he had the responsibility
for filling four staff positions. Plaintiff applied for all
four positions. Plaintiff’s Exhibit No. 30. One of the
positions was not filled and another went to a black per-
son. Plaintiff does not suggest the presence of discrim-
eT
14a
ination or retaliation in the City’s decision regarding
these two positions.
Joseph Sauser was named to the assistant director,
community development/program development and con-
trol post. Although Brown did not recall specifically con-
sidering plaintiff for this position, Plaintiff’s Exhibit No.
30 shows that Brown interviewed plaintiff. Sauser, called
as a witness by plaintiff, praised plaintiff’s abilities in
evaluation matters. Sauser testified that plaintiff had
worked in the evaluation office longer than he and the
scope of plaintiff’s work, insofar as the variety of city
projects and departments each conducted evaluations of
or for, was broader than his own. Ironically, therein lies
the reason for Sauser’s appointment to the community
development position. Sauser was not as versatile as
plaintiff because his evaluation experience was concern-
trated in the area of community development. However,
Sauser’s lack of versatility was more than compensated
for by his greater level of familiarity and expertise in
the community development area. The extent of his di-
rect experience motivated Brown’s decision, not race.
9. Following advertisement, receipt of numerous ap-
plications, and several interviews, Brown chose Fran
Clark, a white female, as the community development/
program development and evaluation coordinator. Plain-
tiff testified that Brown informed him that Clark’s ex-
perience made her a better candidate for this particular
position. The Court finds this as a fact. Brown described
this position as one primarily involved in planning.
Clark had worked in the city planning department and
came to Brown with a favorable recommendation from
her supervisor. Additionally, she had previously been
employed in a Comprehensive Employment and Training
Act (CETA) planning position in Pennsylvania. Plain-
tiff testified, though not unequivocally, that Clark had
only been a CETA participant. Brown did not qualify
Clark’s CETA experience in this respect. The Court
Whe 6: bm ene AY e
15a
finds that even if Clark was only a CETA participant,
this did not make her less qualified than plaintiff. Brown
received a good recommendation for Clark based on her
previous planning experience. This combined with her
CETA planning experience to make her the better qual-
ified applicant. Race was not a factor in plaintiff’s
rejection.
10. In 1979, the working relationship between plain-
tiff and budget and evaluation office director Fredericks
deteriorated so that both felt plaintiff’s transfer would
be beneficial. In September i979, plaintiff suggested to
city manager Powell that he be assigned as an assistant
to the city manager. Plaintiff stated that he did not
want to be transferred or assigned to the community
development department, human relations department, or
human services department. Defendant’s Exhibit No. 4.
Shortly thereafter, Powell resigned as city manager, and
as of that time plaintiff had not been transferred. Powell
did, however, discuss plaintiff’s desired transfer with
Lewis Cutright, a white male who had worked in numer-
ous administrative positions since becoming a city em-
ployee in 1953 and who was named acting city manager
in October 1979 pending selection of a new manager by
the board of aldermen. Cutright consented to the trans-
fer and placed plaintiff directly under him in the man-
ager’s office. The Court finds that this transfer was
made primarily to alleviate a difficult situation in the
budget and evaluation office, not to fill a job opening.
Consequently, plaintiff had few concrete job responsibili-
ties and felt under-utilized. He did prepare organiza-
tional charts of the city employee structure. Defendants’
Exhibit No. 1.
11. In spite of plaintiff’s representation that he was
not interested in any position in the human services
department, Defendants’ Exhibit No. 4, he contends that
he was unlawfully denied both the acting and permanent
directorship of that department. Inasmuch as the city
16a
manager makes department head appointments, Cutright
had the responsibility for filling the vacancy at the top
of the human services department. Because Cutright was
to be city manager only temporarily, he did not want
to make any permanent appointments. Accordingly, the
human services vacancy was filled on an acting basis
only. Since it was an acting position, the vacancy was
not posted or advertised. Rather, Cutright asked Joe
Herman Berrier, then assistant city manager over the
human services department, for a recommendation. With
Berrier’s recommendation, Cutright appointed Walter
Farabee, a black male.
Berrier did not formally seek applicants or conduct
interviews for the position. Instead, he looked for a suit-
able transfer candidate with the City. Farabee was the
suitable candidate. He had served as coordinator of eco-
nomic development activities for the City and had perti-
nent administrative and supervisory experience gained in
private sector employment. Cutright was interested in
filling the acting directorship with someone who would
not be interested in the permanent position. Cutright
testified he had no idea that Farabee would apply for
the permanent position. The deposition of Berrier, which
was received in evidence, indicates that Berrier knew
Farabee might become interested in the permanent posi-
tion. However, the Court finds that Berrier’s knowledge
does not vicariously render Cutright’s explanation for
not selecting plaintiff as acting director unworthy of be-
lief. Farabee had not worked in the human services de-
partment before and in Cutright’s mind was an interim
administrator to keep the department functioning until
such time as the new manager permanently filled the posi-
tion. Cutright had no way of knowing who the new city
manager would permanently appoint, and he knew from
his experience as acting police chief and acting city man-
ager that persons appointed on an “acting” basis often
did not receive the permanent appointment.
17a
According to plaintiff, Cutright told plaintiff that he
was better qualified than Farabee but could not be of-
fered the position because of his lawsuit. Cutright had
no recollection of any such statement and plainly denied
that any retaliatory motive existed against plaintiff. In
fact, Cutright testified that if he was going to offer plain-
tiff that or any other position, he would have contacted
the lawyers involved to determine if a promotion could
settle the lawsuit. The Court does not find this to be
indicia of retaliation. As acting city manager, of course
Cutright was concerned over a pending lawsuit against
the City. However, he was simultaneously concerned over
the impact it had on plaintiff’s morale as an employee.
Cutright’s hypothetical “settlement offer” illustrates his
honesty and practicality. The Court is convinced that no
retaliatory motive played a part in selection of the acting
director of human services.
12. Bryce A. Stuart became the new city manager in
January 1980. Plaintiff’s assignment in the manager’s
office continued. Stuart discussed plaintiff’s previous
problems with and charges against the City and informed
him that they were exactly that—previous. In Stuart’s
mind, plaintiff had a clean slate.
13. In April 1980, Stuart considered five or six ap-
plicants, including plaintiff, for the permanent director
position in the human services department. Farabee, the
black male made acting director by Lewis Cutright, was
chosen. Stuart found Farabee qualified through his back-
ground and experience and was particularly impressed
with Farabee’s performance as acting director.
Stuart did not know that Cutright chose an acting di-
rector whom he thought would not be interested in the
permanent position. The fact that Farabee in fact be-
came interested is not evidence of retaliation because
Stuart’s decision was independently made based on
Farabee’s proven qualifications. The Court finds Stuart’s
testimony that his rejection of plaintiff was not tainted
by retaliatory or discriminatory intent credible.
18a
14. Plaintiff also applied for the position of city sec-
retary in 1980. Plaintiff’s characterization that he was
“eminently qualified” fails when compared with the qual-
ifications of Sanders Hudson, the white male who was se-
lected. The city secretary is secretary to the board of
aldermen. He is responsible for maintaining all records
for and from the board of aldermen. He prepares their
agenda and minutes, and generally facilitates the flow of
their meetings. Hudson had gained a general working
knowledge of somewhat similar administrative duties as
administrative assistant to the public works director.
Additionally, he had served as secretary to the board of
aldermen’s public works committee doing essentially the
very nature of work which was required of the city secre-
tary. Plaintiff’s additional seniority in evaluations of ap-
proximately two years did not make him more qualified
than Hudson. The decision to appoint Hudson, made by
Stuart after consultation with Beaty, was not influenced
by race or retaliation.
15. Plaintiff filed his first charge with the Equa’ Em-
ployment Opportunity Commission on July 7, 1978. He
contends that subsequent to that filing, the City retaliated
against him in several respects. The Court finds no re-
taliation. With respect to the June 1981 two week sick
leave request, the City understandably sought documenta-
tion greater than that presented by plaintiff. Plaintiff’s
Exhibits Nos. 5-9 illustrate that the City merely sought
reasonable compliance with its employee sick leave policy,
not that plaintiff was being harassed. There is also in-
sufficient evidence to substantiate plaintiff’s claim that his
frequent office and telephone changes were retaliatory.
The renovations to city hall and plaintiff’s own job
changes resulted in these changes.
In the early summer of 1980, plaintiff, who was dis-
satisfied with his workload in the city manager’s office,
was assigned to work on an energy conservation project.
Plaintiff was also dissatisfied with this assignment, feel-
19a
ing that he lacked needed technical expertise. Technical
expertise came from an engineer assigned to the project.
The City felt that plaintiff was qualified to contribute to
the project but unduly delayed it. The claims plaintiff
would label as retaliatory were no more than common
disagreements and conflicts which arise in the course of
employer/employee relationships. Nothing else appearing,
the mere fact that they occurred after protected conduct
by plaintiff does not make then unlawful. The same may
be said of plaintiff’s testimony concerning a denial of two
hours leave to attend a professional meeting. Leave was
not possible because plaintiff’s job required that he at-
tend a budget meeting. Evidence on the one other in-
cident set forth in plaintiff’s Post Trial Memorandum
(criticism of plaintiff by Fredericks to other employees)
and those apparently abandoned in the Memorandum
(notification of duties through secretary, work during
Christmas holidays, refusal of secretary to type one per-
sonal paper) was patently insufficient.
DISCUSSION
Plaintiff alleged disparate impact and disparate treat-
ment because of race retaliation for his charges and
complaints of discrimination in violation of 42 U.S.C.
§§ 1981, 1983 and 2000e. The Court has jurisdiction to
hear these claims pursuant to 28 U.S.C. § 1843(a) (4).
To establish disparate or adverse impact on a protected
group under Title VII, a discriminatory motive need not
be proven, but a plaintiff must show that a facially neu-
tral employment policy or practice had a significantly dis-
proportionate impact on the protected group. If such a
prima facie case is shown, the employer must demonstrate
manifest job relatedness of the policy. Connecticut v.
Teal, 457 U.S. 440, 446-47, 102 S.Ct. 2525, , 3
; L.Ed.2d 130, 187 (1982); Cuthbertson v. Biggers Broth-
| ers, Inc., 702 F.2d 454, 461-62 n.3 (4th Cir. 1983). By
definition, the employment practice questioned in an ad-
FT
20a
verse impact challenge affects a large group of persons
rather than just the individual plaintiff. For that rea-
son, statistical evidence is often paramount. B.Schlei and
P.Grossman, Employment Discrimination Law at 1324
(2d ed. 1983). Nevertheless, the principle focus of Title
VII is protection of the individual employee, as opposed
to a minority group. Connecticut v. Teal, 457 U.S. at
453-56, 73 L.Ed.2d at 141-43.
Plaintiff’s attempt to show disparate impact amounted
to little more than mentioning it as a theory of recovery.
The City’s appointments to some positions without notice
perhaps presented the potential for some evidence of ad-
verse impact, but plaintiff offered little or none. In the
absence of sufficient evidence of disparate impact, plain-
tiff’s recovery depends on proof of unlawful disparate
treatment.
In a disparate treatment case, the factual inquiry is
whether the employer intentionally discriminated against
the employee because of race. United States Postal Serv-
ice v. Aikens, 460 U.S. 711, , 103 S.Ct. 1478, ——,
75 L.Ed.2d 403, 410 (1983). The flexible scheme of proof
contemplated in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 92 S.Ct. 1817, 36 L.Ed.2d 668 (1973), guiding
the inquiry in Title VII actions is also applicable to
claims of unlawful retaliation and claims of discrimina-
tion under sections 1981 and 1983. Lewis v. Central
Piedmont Community College, 689 F.2d 1207, 1209 n.3
(4th Cir. 1982), cert. denied, 460 U.S. 1040 (1983);
Burrus v. United Telephone Co., 683 F.2d 339, 343 (10th
Cir.), cert. denied, 459 U.S. 1071 (1982). It is well
suited for analyzing the evidence in this case.
In order to prove disparate treatment the claimant
must first make a prima facie showing of racial discrimi-
nation, which is accomplished by production of evidence
of actions by the employer which permit an inference
that, more likely than not, those actions were based un-
lawfully on the claimant’s race. If the claimant makes
a rt
2la
this showing, then the burden of production shifts to the
employer to articulate, through the introduction of ad-
missible evidence, a clear and reasonably specific legiti-
mate, nondiscriminatory reason for its actions. The ar-
ticulation of such a reason dispels the adverse inference
arising from the claimant’s prima facie showing and
entitles the employer to judgment unless the claimant can
show that the stated reasons are pretexts for discrimina-
tion. Texas Department of Community Affairs v. Bur-
dine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981). A claimant can show pretext by “persuading the
court that a discriminatory reason more likely motivated
the employer or . . . the employer’s proffered explanation
is unworthy of credence.” Texas Department of Commu-
nity Affairs v. Burdine, 450 U.S. at 256, 101 S.Ct. at
, 67 L.Ed.2d at 217. Such evidence must support with
“substantial” or “reasonable probability,” as distinguished
from “possibility” or “speculation,” the claimant’s con-
tention that the employer’s proffered explanation is pre-
textual. Fink v. Western Electric Co., 708 F.2d 909, 916
(4th Cir. 1983). The burden of persuasion remains
throughout on the claimant.
To prove retaliation a claimant must similarly estab-
lish a prima facie case and if it is rebutted must show
the employer’s reasons to be pretextual. A prima facie
ease of retaliation is accomplished by establishing (1)
protected activity by the claimant, (2) occurrence of ad-
verse employment action, and (3) presence of a causal
link between the protected activity and the adverse action.
Payne v. McLemore’s Wholesale and Retail Stores, 654
F.2d 1130, 1186 (5th Cir. 1981), cert. denied, 455 U.S.
1000 (1982); Grant v. Bethlehem Steel Corp., 622 F.2d
43, 46 (2d Cir. 1980). In the absence of direct or suffi-
cient circumstantial evidence, see Cline v. Roadway Ex-
press, Inc., 689 F.2d 481, 485 (4th Cir. 1982) (prima
facie case may be proved under ordinary principles of
proof without resort to McDonnell Douglas presumptive
inference), the causal connection may be demonstrated
22a
through evidence which justifies an inference of retalia-
tory motive. Such evidence may inciude protected conduct
closely followed by adverse employment action. Burrus
v. United Telephone Co., 683 F.2d at 343.
Plaintiff contended at trial that he was unlawfully de-
nied nine positions, six solely because of his race, two in
retaliation for protected conduct, and one on combined
grounds of race and reprisal. One position, that of eval-
uation director given to Gary Brown in 1972, was filled
outside the ‘imitations period applicable to this action.
King v. Seaboard Coast Line Railroad Co., 588 F.2d 581,
584 (4th Cir. 1976) (statute of limitations for claims
under 42 U.S.C. §§ 1981 and 1983 governed by state law
—three years pursuant to N.C.Gen.Stat. § 1-52(5)); 42
U.S.C. § 2000e-5(e) (f) (1) (timely filing of Title VII
charge and action). While evidence of Brown’s selection
was relevant, United Air Lines, Inc. v. Evans, 481 U.S.
5538, 558, 97 S.Ct. 1985, , 52 L.Ed.2d 571, 578
(1977), it did not illustrate a discriminatory background
to the timely relevant claims or otherwise bolster plain-
tiff’s case.
Plaintiff established a prima facie case as to each of
the positions he contends were denied him on racial
grounds. While his qualifications for evaluation director
were greater than those for the other positions, his eval-
uation experience had exposed him to a variety of city
operations such that he was at a minimum facially quali-
fied for the other positions. Plaintiff did not formally
apply for all of these positions, but he sufficiently estab-
lished that he would have applied had notice of the va-
cancy been provided. See International Brotherhood of
Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843,
52 L.Ed.2d 396 (1977) (lack of a formal application re-
sulting from employer discrimination does not bar claim).
The appointments of evaluation director, budget and
evaluation director, and public safety coordinator were
made by Powell without prior vacancy announcement.
23a
Consequently, plaintiff, as well as all other potential ap-
plicants, regardless of race, were not given an opportu-
nity to seek formal consideration. While this seemed to
follow a consistent pattern in upper level administrative
| positions, it is of considerable concern to the Court be-
cause the failure to post job vacancy notices. and the lack
of objective guidelines for hiring and promition may be
indicia of discrimination. Brown v. Gaston County Dye-
ing Machine Co., 457 F.2d 1377 (4th Cir.), cert. denied,
409 U.S. 982 (1972).
The City’s personnel policies provided that the city
manager could make appointments without prior vacancy
announcement. In such cases, it is contemplated that the
appointment be announced in the same manner as a va-
eancy. Plaintiff’s Exhibit No. 11. The appointments of
evaluation director, budget and evaluation director, and
public safety coordinator were made without due an-
nouncement, either of the vacancy or the appointment.
The City’s failure to follow its own policies is of addi-
tional concern to the Court for as plaintiff points out,
the failure to follow one’s normal procedures can also be
indicia of discrimination. Williams v. DeKalb County,
577 F.2d 248, 255, modified, 582 F.2d 2 (5th Cir. 1978).
The City’s failure to announce these three openings,
however wise or unwise it may have been, was not per se
illegal. Reman v. ESB, Inc., 550 F.2d 1848, 1854 (4th
Cir. 1976) (no showing that absence of job posting re-
sulted .in discrimination). It did, however, cause the
Court to give extraordinary review to the appointments.
After careful scrutiny, the Court finds that the City pre
sented legitimate, nondiscriminatory reasons why plain-
tiff was not appointed to any of these three positions and
that the evidence does not establish any of the proffered
reasons as pretextual. Simply put, Joines was chosen
evaluation director because he was Powell’s ally or crony.
This is not to say that Joines was not a capable admin-
istrator. He had proven that through his prior work with
_
Balers rae wena
Nie terre reer
24a
Powell or under Powell’s observation. On the other hand,
there is evidence that both plaintiff and Sauser, a white
male, were better qualified in evaluation than Joines.
However, comparative qualifications were not the reason
fer appointment of Joines. Powell admitted he did not
consider plaintiff.2 The reason plaintiff (or for that mat-
ter Sauser) was not considered is because unlike Joines,
he had not been fortunate enough to illustrate his abilities
to Powell and procure Powell’s confidence. Yet, this is not
discrimination on the basis of race. An employment deci-
sion challenged in a race discrimination action is not
legitimate only if it is based on race.* Furnco Construc-
tion Corp. v. Waters, 488 U.S. 567, 577, 98 S.Ct. 2943,
, 57 L.Ed.2d 957, 968 (1978) (an illegitimate con-
2 There was evidence of Joines’ qualifications and plaintiff sought
to impeach those qualifications with evidence of “bad acts.” How-
ever, inasmuch as Powell testified he did not recall considering
plaintiff to be evaluation director, the City’s suggestion (in De-
fendants’ Proposed Findings and Conclusions (Post-Trial Revision)
at 15 & 19 (November 19, 1984)) that the relevant question with
respect to this job turns on comparative qualifications is misplaced.
Powell’s effective disclaimer of considering plaintiff essentially
makes the comparative qualifications a reason not proffered by the
City. See Texas Department of Community Affairs v. Burdine,
450 U.S. at 254 n.9, 67 L.Ed.2d at 216 n.9.
3 Plaintiff cites Harris v. Birmingham Board of Education, 712
F.2d 1377, 1383 (11th Cir. 1983), which states that under a selec-
tion process which failed to post vacancies and significantly utilized
subjective criteria, “no legitimate reason can be shown.” The Court
cannot apply this broad statement to the instant case. While a
selection procedure may be a vehicle for carrying out discrimina-
tion, in this case it did not foreclose all legitimate reasons for the
City’s actions. A particular selection procedure is not per se unlaw-
ful; it is the result, the ultimate employment decision which, is
potentially unlawful. Roman v. ESB, Inc., 550 F.2d at 1854. While
employers may be well advised to operate under a job posting or
other procedure which maximizes the opportunity for applicant
consideration, they “need not prove that [they] pursued the course
which .. . allow[ed consideration of] the most employment applica-
tions.” Furnco Construction Corp. v. Waters, 438 U.S. at 577, 57
L.Ed. at 968.
25a
sideration is one such as race). Powell’s familiarity with
Joines was the reason Joines was selected, or in other
words plaintiff was “rejected.” This is a credible legiti-
mate, nondiscriminatory reason, and the evidence does
not establish it as pretextual. Lamphere v. Brown Uni-
versity, 685 F.2d 748, 750 n.2 (1st Cir. 1982) (rejection
of argument that friendship is not a legitimate reason) ;
Waters v. Furnco Construction Corp., 688 F.2d 39, 40
(7th Cir. 1982) (on remand from Supreme Court) em-
ployer’s use of list of persons with whom he had previ-
ously worked was a legitimate, nondiscriminatory rea-
son).
While the position of budget and evaluation director
was filled without advertisement, Powell’s selection of
Tom Fredericks is readily justified. The emphasis in the
new budget and evaluation office was budget. Fredericks,
then in charge of the budget office, retained his budget
responsibilities, for which he was better qualified than
plaintiff, and simply assumed additional duties in evalu-
ation. The Court is persuaded by Powell’s testimony that
in his mind, the position was never really open and that
there was no reason to consider anyone other than Fred-
ericks to continue administration of the budget office and
assume new but decreasing duties in evaluation.
Powell approached the public safety coordinator posi-
tion in a fashion similar to his 1977 appointment of
evaluation director. Once again, he relied on a familiar
* Plaintiff correctly pointed out in its post trial memorandum
that the city may not rely on comparative qualifications as a non-
discriminatory reason when the evidence shows plaintiff was not
considered for a particular position. See footnote 2 supra. When
such is the case, a nondiscriminatory reason may be found, if at
all, only through evidence apart from the contended superior quali-
fications of the appointee. However, this does not mean that relative
qualifications of various individuals played no part in this case.
Plaintiff testified as to his own qualifications and his perception
of others abilities. Consequently, the City had a right to offer
qualifications of its employees.
26a
administrative face, Allen Joines. However, at that time,
Joines had yet another factor in his favor (and against
plaintiff and all those who might have applied for this
position) ; he was a displaced department head. Powell’s
selection of Joines again was not motivated by any dis-
criminatory intent.
With respect to the community development positions,
plaintiff argues he is entitled to recover because the evi-
dence demonstrates the City’s proffered reasons to be
false. The Court disagrees. The proffered reason for the
rejection of plaintiff for these positions was the superior
qualifications of Sauser and Clark based on greater ex-
perience in particular areas related to the specific job
duties of the positions. Brown testified that he did not
recall whether plaintiff applied for these positions. If
this was all the evidence showed, the Court could not ac-
cept the proffered reason. However, it shows more. Not-
withstanding Brown’s failure of recollection, he did ad-
mit to interviewing several candidates and Plaintiff’s
Exhibit No. 30 confirms that plaintiff was interviewed
for the assistant director position and applied for the
community development evaluation coordinator position.
Thus, the superior qualifications of Sauser and Brown
have not been shown to be a pretext for discrimination.
Plaintiff feels that the City effectively “sandbagged”
his chance te become human services director. Cutright
explained why he discouraged plaintiff and others from
applying for the acting position. Unfortunately for plain-
tiff the very thing which he feared, that the acting direc-
tor would gain an advantage in the new manager’s mind
for the permanent position, occurred. Nevertheless, the
Court recognizes the reason behind Cutright’s explana-
tion and finds him to be a credible witness. Cutright dis-
couraged applications from plaintiff and all others whom
he thought were interested in the permanent position.
While his concern to avoid influencing the new manager
backfired, potentially to plaintiff’s detriment, it did so
in the absence of unlawful motivation.
27a
Plaintiff’s challenge to the city secretary position is
his weakest. He argues in his post trial memorandums
that an inference of retaliation arises from the fact that
the position was awarded to junior employee (by approx-
imately two years) who held no higher degrees in public
administration. Plaintiff himself testitied to the contrary
on direct examination, stating that Hudson received a
master’s degree in public administration the same month
he received the post. Moreover, mere seniority is out-
weighed by more direct experience. Young v. Lehman,
748 F.2d 194 (4th Cir. 1984). With this position and
others, plaintiff testified that he was “eminently quali-
fied” for the promotion. However, an employee’s percep-
tion of himself is not relevant. “It is the perception of
the decision maker which is relevant.” Smith v. Fiaz.
618 F.2d 1062, 1067 (4th Cir. 1980). Hudson was
chosen because of the City’s perception of his superior
qualifications, not plaintiff’s race or protected activity.
Finally, the miscellaneous acts of alleged retaliation
presented a prima facie case but only because chronologi-
eally they occurred after plaintiff filed his E.E.O.C.
charges and/or lawsuit. The evidence, when considered
in terms of the McDonnell Douglas proof scheme or un-
der ordinary modes of proof, fell markedly short of es-
tablishing anything more than a paltry inference of re-
talaition. No inference of retaliation existed at the close
of all the evidence.
Consideration of the defendants’ request for attorney’s
fees pursuant to 42 U.S.C. §$ 1988 and 2000e-5(k) need
not await future submission to the, Court in accordance
with Local Rule 210. A prevailing defendant may be
awarded counsel fees only when the plaintiff’s claim is
“frivolous, unreasonable, or groundless.” Christiansburg
Garment Co. v. EEOC, 484 U.S. 412, 422, 98 S.Ct. 694,
, 54 L.Ed.2d 648, 657 (1978), quoted in Roadway
Express, Inc. v. Piper, 447 U.S. 752, 762, 100 S.Ct. 2455,
, 65 L.Ed.2d 488, 498 (1980). Although plaintiff
28a
has not prevailed, the Court cannot say that plaintiff’s
action was unreasonable or without foundation.
CONCLUSION
1. The Court has jurisdiction over the parties and
their dispute.
2. The defendants did not refuse to consider or select
plaintiff for any employment position or otherwise treat
the plaintiff unfavorably because of his race or claims
of discrimination against the defendants. 42 U.S.C.
§§ 1981, 1983, & 2000e.
3. The defendants are not entitled to attorney’s fees.
42 U.S.C. $§ 1988 & 2000e-5 (k).
A Judgment for defendants wil lbe entered accordingly.
/s/ Hiram H. Ward
United States District Judge
January 30, 1985.
29a
APPENDIX D
The relative qualifications of Petitioner and the persons appointed were:
Exper
Advertised Yrs Yrs
Position or Year Hired Adm/ Work
Sought Type Posted Employees by City Seniority Education Experiences Supv Exper Other
Eval Dir Adm/Supv No Dixon (B) 1970 Yes B.S. LT- CPT USAF- 1014 11 Graduated Magna
72 Completed 71%, Div Opns, Cum Laude
Course Work Dev & Trng Earned Bronze
for M.S. (CEP-Manpower ) Star Medal, 2
Plan & Eval 11% yrs, tours in Vietnam
Trng Eval Officer Planned imple-
114 yrs, Deputy mented and
Dir. MC 1% yr managed City’s
first Eval. Off
for 114 yrs
Completed the
City’s first
evaluation plan
Brown (W) 1972 No B.A. Carpenter 3 mos None 4 Graduated with
SGT USA 4% mos Given honors
Epidermologist
6 mos
Ment Trainee 1 yr
Hous. Spec 1 yr
Comm Dev Rep-
10 mos
Eval Dir Adm/Supv No Dixon (B) 1970 Yes M.S. Same as above 101% 16 Same as above
17 Completed 36 Sr. Prog. Eval Received very
Semester hrs
Planning, imple-
good to superior
toward Doctor- menting, evalu- performance
ate in Adm ating and manag- rating
Completed Eval ing Program in 7 years City
Director’s housing, manpower Evaluation Exp.
Trng police, etc.
Joines (W) 1971 No M.P.A. Adm Asst No City Evalu-
Sr. Adm Asst ation Exp.
Limited Supv
Experience. Sold
Beer illegally
at Streetscene
in 1977 according
to Fredericks
testimony
* Eval —Evaluation
Dir —Director
Trng —Training
Comm —Community
USAF -—United States Air Force
Dev -—Development
Mgnt —Management
Rep -—Representative
Supv —Supervisor
LT -—Lieutenant
Prof —Professional
Edu —Education
CD —Community
Development
CPT —Captain
MC —Model Cities
Opns —Operations
USA —United States
Army
30a
Exper
Advertised Yrs Yrs
Position or Year Hired Adm/ Work
Sought Type Posted Employees by City Seniority Education Experiences Supv Exper Other
78 Adm/Supv No Dixon (B) 1970 Yes Same as above Special plan- 1014 17 Completed Team
Public ning and eval- Policy Evaluation
Safety uation assignment Plan. Completed
Coordi- with Police Fire Opns Stud
nator Fire Opns that saved
thousands of
dollars.
a 2 Joines (W) = 1971 No Same as above Special assign- 3 7 Suspended 5 days
ments with from his job
Police Dept for drinking
beer with subor-
dinates while on .
duty.
Budget Adm/Supy No. Dixon (B) 1970 Yes B.S., M.S. Evaluation 101% 17 Budget & Evalu-
& Eval Completed Officer ation Experience
Dir. Pianning & Deputy Dir. at the adm/supv
Eval Tech. Tng MC in charge of
Completed Budgeting. 8 yrs
Eval Dir Tng budgeting &
Completed 36 Evaluation
semester hrs Experience
toward Doctor-
ate in Adm
ee eg earn e a coor Fredericks 1972 No M.P.A. Adm Asst 3 6 No City Eval.
(W) Budget Dir. Experience. Sold
Beer illegally
at Streetscene
in 1977 and was
counselled
Asst Adm/Supv Yes * Dixon (B) 1970 Yes B.S., M.S. Evaluation 1014 17 Completed the
Com Completed Officer. Deputy City’s first
Dev Dir Planning & Director MC in Housing Impact
Eval Tech Trng charge of Bud- Study which
Completed geting was used to
Eval Dir Trng 8 years Budget- form CD Dept.
Completed 36 ing evaluation
semester hrs experience
toward Housing plan-
Doctorate in ning & Eval.
Adm. Housing Experience
Trng from 1970-78
Satara Red 26 Sauser (W) 1972 No B.A. Planner 2 6-8 Considered Dixon
Completed Sr. Planner to be the most
Some Graduate
Studies
Sr. Program
Eval Analysis
qualified for
1977 Eval Dir.
based on his
people analytic
and writing skills
3la
Exper
Advertised Yrs Yrs
Position or Year Hired Adm/ Work
Sought Type Posted Employees by City Seniority Education Experiences Supv Exper Other
Program Prof/Supv Yes * Dixon (B) 1970 Yes Same as above 10% 17 Received very
Dev & good to Superior
Eval performance rating
Coordi- from Brown, the
nator selecting Officer
Played major role
in the establish-
ment of the CD
Dept
Planned and
implemented
Employment
Program (CETA)
Clark (W) 1978 No None Given CETA Planner None amount Past Supervisor
in PA given not in PA said she
CETA Partici- did noted was a good worker
pant with city not
testify
Human Adm/Supv- Yes Dixon (B) 1970 Yes B.S., MS & Director, Opns 1014 9 Planned, imple-
Service M.P.A. Dev & Trng mented and assisted
Director 36 Semester (CEP—Manpower ) with the
hrs toward 115 yrs Mgnt management of
doctorate Consultant for The Human
in admini- Human Service Services (Man-
stration Dept-2 yrs power) Dept,
Planned, imple- Completing
mented 1 million budgets, operation
Dollar Emergency procedures,
Employment designing floor
Programs space, getting
manpower programs
started from
; 1974-76
en aro tae Farabee(B) 1975 — No B.S. & M.S. Chemistry Not Not Relieved of his
in Edu Adm Teacher given Noted Economic Develop-
Goodwill did Speci- ment duties in
Coordinator not fically Jan 1979.
Economic testify Had no Manpower
Development Experience when
Coordinator assigned duties
with city as Acting Human
Service Director
and was considered
less qualified
than Dixon by
Joe Berrier, the
* Dixon applied but Brown testified that Dixon did not apply and that he (BROWN) did not consider Dixon for any position
32a
Exper
Advertised + Seg Yrs
Position or Year Hired Adm/ Work
Sought Type Posted Employees by City Seniority Education _ Experiences _Supv Exper Other
ra Farabee Superior over
(continued ) the Human Services
This position was filled in 1980 as a Retaliatory action against Dixon.
Dept. Had only
the Human Services
Dept. Had only
5 months learning
experience in
Manpower compared
to Dixon’s 4 yr
of planning
implementation
evaluation and
management
experience in
Manpower
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.