Firing of DATA manager illegal

$172,844 awarded for discrimination

DURHAM -- City officials said Wednesday they remain committed to a diverse work force in the wake of an arbitrator's ruling last month that the company hired to operate Durham's bus system unlawfully fired a white general manager in 2005 because of his race.

MV Transportation was ordered to pay Thomas Hartley $172,844 for replacing him with a black woman of "questionable qualifications," according to Jonathan Harkavy, a Greensboro attorney brought in by a judge to arbitrate the case with the consent of both MV and Hartley.

Federal law states that race shouldn't be considered when making any employment decisions, but the city will give preferences to minorities and women if their qualifications are equal to those of nonminority applicants, Human Resources Director Alethea Bell said.

One legal expert called that "laudable" but said the policy could expose the city to lawsuits.

The city wasn't directly involved in the lawsuit brought by Hartley, who was fired in 2005 and replaced by Yolanda White.

But Harkavy cited comments by Mayor Pro Tempore Cora Cole-McFadden as one reason Hartley was fired.

Cole-McFadden said that MV "needed some diversity in [its] management ranks" and that "we are proud of diversity in Durham, and we just can't have that [an all white management team]," according to Harkavy's ruling.

Cole-McFadden did not return phone calls seeking comment.

Shortly after Cole-McFadden's remarks, Harkavy wrote, Russell Tieskotter, an MV vice president, told Tom Irvin, then the assistant manager of DATA, "we need a black manager here."

"The evidence was shocking," said Caitlyn Fulghum, the Durham attorney who represented Hartley. "It is unlawful for an employer to consider race at all in making employment decisions. Even if part of the reason was they were getting political pressure to get a black manager in Durham and wanted to do that in order to placate city officials, that's an unlawful action."

Harkavy found that White was not even disciplined for failures more severe than the ones MV cited in firing Hartley. He noted that DATA failed to get the full fleet out on the road much more frequently under White than the one time it happened during Hartley's 14 months on the job.

"It is telling that Ms. White did not meet MV's own published qualifications for the job of general manager, as she lacked a college degree and prior relevant experience managing a contract," Harkavy wrote. "Instead of making a legitimate and measured business judgment about the qualifications of other potential applicants both inside and outside of MV, the skids were greased to ensure that Ms. White was the selectee."

White was replaced last year as general manager but still holds a job with MV.

MV spokeswoman Nikki Frenney wrote in e-mail that the company disputes the arbitrator's assessment that White performed worse than Hartley. "We stand by our position that we made no decision in a retaliatory or discriminatory manner concerning Mr. Hartley," Frenney wrote.

Hartley was fired because of "specific issues surrounding [his] job performance that we will not go into," Frenney wrote.

City population

About 46 percent of Durham's work force is black, roughly mirroring the proportions of the city's population. Other minorities make up a tiny fraction of employees, while about 50 percent of workers are white.

At council meetings, Cole-McFadden frequently stresses the importance of a diverse staff. She recently chided Public Works Director Katie Kalb for not putting enough black people in management positions, though Kalb noted that one of her division heads hails from Africa.

The 14th Amendment and Title VII of the 1964 Civil Rights Act prohibit making any employment decisions on the basis of race.

But a recent Supreme Court ruling that allowed the University of Michigan to consider race when admitting students could open the door slightly for cities, said Bob Joyce of the UNC-Chapel Hill School of Government. He pointed to a federal court ruling that cited the Michigan case to allow the Chicago Police Department to consider race when hiring officers.

The court ruled that racial diversity was a "compelling need" for a department "charged with protecting a racially and ethnically divided major American city like Chicago."

But Joyce noted the legal question about how far that can be extended remains unsettled.

"It's a laudable goal," he said of Durham's desire for racial diversity in its ranks. "To what extent it might prove problematic in some type of hypothetical lawsuit remains to be seen."

Mayor Bill Bell said city leaders will continue to try to encourage managers to be "sensitive" to hiring minorities but said the city doesn't have anything approaching a quota system.

He noted that the City Council voted unanimously to hire a white man as the next city manager, over some minority candidates.

"You try to be reflective of the community you serve, but hoping to have that and actually achieving that are two different things," Bell said. "There's never been a case where we say, 'You have to have a certain number of males or females or black or Hispanic or white employees.' "