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FAHIE v. THORNBURGH

August 13, 1990

REALDALIST A. FAHIE, PLAINTIFF,
v.
RICHARD THORNBURGH, UNITED STATES ATTORNEY GENERAL, DEFENDANT.



The opinion of the court was delivered by: Robert L. Carter, District Judge.

OPINION

Plaintiff Realdalist A. Fahie was employed by the Federal Bureau of Prisons (the "Bureau") as a probationary correctional officer at the Metropolitan Correctional Center ("MCC") in New York City, from November 13, 1983, to September 14, 1984, when he was terminated. Fahie brought this action in January, 1986, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., alleging that he was terminated because of his race and national origin. On January 12, 1989, the court dismissed this action as abandoned. It was later reopened pursuant to a motion by the plaintiff and a bench trial was held in April, 1990.

I.

Fahie was born in St. Thomas, Virgin Islands and is African-American. He joined the Navy in 1975, rising to the position of Master of Arms in which he performed various security functions. After receiving an honorable discharge from the Navy, Fahie attended the University of Alabama and received a Bachelor of Arts degree in criminal justice in 1982.

Fahie was hired by the Bureau and began work as a probationary correctional officer at MCC on November 13, 1983. All correctional officers employed by the Bureau must successfully complete a one-year probationary period before they may become permanent employees. All races are represented as correctional officers at MCC and it was estimated that at the time Fahie was employed 70-80% of the correctional officers were African-American.

Like all new correctional officers, Fahie spent his first week in training. Fahie began actual work in his second week and had what might fairly be called a difficult week on the job. Fahie testified that on his first day working the inmates were not behaving properly during strip searches. According to Fahie, he insisted on their compliance with the regulations and the inmates plugged the lock to his office door in retaliation. On his second day, this time in response to his enforcement of kitchen duty rules, the inmates serving food refused to do so and there was general bedlam in the kitchen. On his fourth day, as a result of disciplining a male inmate for talking to a female inmate rather than doing his work, the inmate retaliated by throwing a trash can full of garbage on the floor. All three of these incidents required one of Fahie's superiors to come restore order to the floor.

Beginning in May, 1984, Fahie was assigned to Unit 7 North.*fn1 While stationed there, Fahie had disagreements with both inmates and other staff members. There was testimony from John Sanders, the Unit 7 North correctional counselor at the time Fahie was associated with the unit, that the inmates complained about Fahie, and that Fahie had argued with other staff members in front of inmates. In Sanders' opinion, Fahie treated the inmates in an unprofessional manner, and this led to their resentment of him. Additionally, Fahie and Sanders had a personality conflict which apparently arose from their incompatible philosophies regarding prison administration.

There was testimony that Fahie had an unexcused absence on June 24, 1984, when he was scheduled to work a double shift beginning at 3:30 p.m. and continuing until 8 a.m. the next day.*fn2 It is undisputed that Fahie called MCC at approximately 2:00 p.m. that day and told Lieutenant Smith that he could not come in, but here the recollections of the parties part ways. According to Fahie, he told Lieutenant Smith that he was sick and that he was vomiting blood, but that Lieutenant Smith insisted that Fahie come to work or he would be marked AWOL and possibly terminated from his job. Lieutenant Smith's recollection of the event is that although Fahie told him he was sick, he refused to provide anymore information. Lieutenant Smith then told him that if he did not provide more information, he would be put on AWOL status for Captain Bettencourt's review. It is undisputed that Fahie showed up for the second half of his shift, midnight to 8 a.m.

There was also testimony regarding Fahie's observance of the Bureau's uniform policy. The basic uniform for a correctional officer is grey pants, blue or white shirt, navy blazer and a tie. The uniform requirement is meant to be strictly observed and correctional officers are given an allowance to purchase the uniform. It is undisputed that Fahie did not wear a regulation uniform, but there is disagreement over whether or not he received a uniform allowance. The Bureau was unable to produce any sort of record showing that Fahie received the allowance.

While employed by the Bureau, Fahie received a number of evaluations. He received second, fourth and sixth month evaluations at MCC, and an evaluation in connection with training at the Federal Law Enforcement Training Center in Glynco, Georgia ("Glynco"). These reports all have various categories in which the employee is rated on a predefined scale. There is also room for general written comments.

Fahie's second month evaluation rated him as "marginal" in one-half of the categories and as "fully meets requirements" in the other half. Fahie was given an overall rating of "fully meets requirements." Plaintiff's fourth month evaluation rated him as "fully meets requirements" in every category. Fahie's sixth month evaluation, prepared in April 1984, rates him as fully successful in all areas, and as exceeding the performance standard in the areas of "Care and Accountability of Equipment, Tools and Keys" and "Supervision of Inmate Details and Activities." In all the evaluations, the written comments were mixed. In particular, there were a noticeable number of comments indicating that Fahie required much supervision.

Fahie's final report card for Glynco rated him as satisfactory in all categories and he was awarded a certificate of graduation. Among other things, the narrative summary of overall performance stated that Fahie "cannot accept constructive criticism as a means of improving his performance" and that with the proper training and guidance he should develop into an "average correctional employee."

Under the Bureau's guidelines, a probationary correctional officer may be terminated based on "deficiency in duty performance, lack of aptitude or cooperativeness, or undesirable suitability characteristics evidenced by his/her activities either during or outside official working hours." Federal Personnel Manual § 8-4(a)(1), (2). No sanction other than termination is available for probationary employees and approximately 30% of probationary employees are terminated.

On August 24, 1984, Captain Bettencourt recommended that Fahie be terminated. A termination letter signed by the Warden was given to Fahie on September 11, 1984, which stated that he was being terminated for his "continued marginal performance." More specifically, the termination letter mentions that Fahie was AWOL on June 23, 1984; that on July 13 and 14, 1984, he was involved in confrontations with other Bureau personnel; that he was unable to accept constructive ...


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