The opinion of the court was delivered by: BECKER
EDWARD R. BECKER, District Judge.
This is a civil rights action. Plaintiff, Catherine S. Leslie ("Leslie"), was formerly the Coordinator of Community Development of the defendant Philadelphia 1976 Bicentennial Corporation ("Bicentennial Corp."). She was discharged from that employment on October 20, 1970, following a series of events which form the basis for the final stage of this lawsuit. In the first stage, following the taking of testimony on the subject, we held that Bicentennial Corp. was the surrogate or corporate instrumentality of the State for purposes of planning a bicentennial celebration, and that whatever it does partakes of state action, including actions involving its personnel. See Leslie v. Philadelphia 1976 Bicentennial Corp., 332 F. Supp. 83 (E.D. Pa. 1971). For purposes of this litigation, Leslie is therefore tantamount to a public employee.
Proceeding from the well-settled proposition that the employment of a public employee may not, in general, be terminated for exercise of constitutionally protected rights,
Leslie's claim for relief is predicated upon her allegation that her discharge resulted from her exercise of First Amendment rights of speech and association, and more particularly, from criticism by her of the leadership of the Bicentennial Corp. and of its policies which she claimed were racist in character. Leslie seeks declaratory and injunctive relief, as well as damages for lost wages. She claims that her employment was to extend through the winding up of the Bicentennial which she estimated to be around 1978, but possibly as late as 1983.
The Bicentennial Corp. denies Leslie's allegations. First, the corporation contends that the true and immanent cause of Leslie's discharge was her lack of competence and capacity to perform from her assigned duties. Second, conceding that the "last straw" which precipitated her discharge was a public statement accusing the Bicentennial Corp. of racist policies, the corporation submits that Leslie's dismissal was nonetheless justified by the language of the Supreme Court in Pickering v. Bd. of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). Pickering rephrased the general rule stated above and held that absent proof of false statements knowingly or recklessly made, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. However, the Pickering court posited certain exceptions to the general rule and enunciated a "balancing test" which is applicable here. For the reasons which follow (see discussion infra), we hold that under the principles of Pickering, the nature of Leslie's employment was such that she could indeed be properly discharged for utterances accusing the Bicentennial Corp. of racist policies. We turn first however to a recitation of our findings of fact upon which our legal conclusions are founded.
Leslie was hired as Bicentennial Corp.'s Coordinator of Community Development in December 1969 after interviews with Bicentennial Corp. Executive Director Robert McLean ("McLean") and Board Chairman Henderson Supplee ("Supplee"). The role of the Coordinator of Community Development was clearly portrayed for Leslie during those interviews.
As a counterpoint to its physical development program which had generated antipathy in Philadelphia's black community because of the amount of neighborhood displacement which it was expected to cause, the Bicentennial Corp. had conceived of the so-called "Agenda for Action" program. The Agenda for Action was conceived as a means of contributing to the betterment of the urban condition, particularly in the black areas of North and West Philadelphia, by an expenditure of substantial funds for community development in those areas. Leslie was informed by McLean that the principal duties of the Coordinator were: (1) to create and develop the Agenda for Action program; (2) to involve the black community in the program; and (3) to foster good community relations between the community in general, but particularly the black community, and the Bicentennial Corp. As to the latter point, McLean went so far as to say that they needed someone who could "walk a tightrope", i.e., defend the Bicentennial and sell its programs to the black community. Thus Leslie, a black woman with apparent credentials in working in the black community, was aware from the outset that tact and discretion were the order of the day. Leslie was also made aware that she would be expected to work in close cooperation with the other units within the Bicentennial Corp., especially the physical development staff.
The employment relationship was not confirmed by any written contract. McLean informed Leslie that he could make no guarantees or contracts. (No one on the Bicentennial Corp. professional staff had an employment contract.) Neither was any employment term agreed upon. Leslie was informed that the whole enterprise was rather "iffy," and that no one knew for certain whether there would be an exposition in Philadelphia because of the necessity of approval from Washington and Paris, about which there yet was doubt, or whether the Bicentennial activities would go on until 1976.
Leslie was informed that her salary would be $18,000 per year and that "promotions would be based upon performance." Under these terms she commenced work with the Bicentennial Corp. on January 12, 1970.
Shortly after joining the Bicentennial Corp. staff, Leslie received permission and funds from McLean to conduct a small informal meeting at her home for leaders of the various black communities in Philadelphia so that she could establish her credibility with them. Subsequently, a series of three meetings were planned at Chamounix Mansion in Philadelphia's Fairmount Park to inform community leaders about Bicentennial plans and to help them formulate their own plans for participation in the Bicentennial. These were supposed to be public meetings. They were conducted by Leslie with the assistance of one James Shelton ("Shelton"), president of New Dimensions in Training, Inc., a consultant to the Bicentennial Corp., which was responsible for training community representatives as part of the Agenda for Action program. At the second such meeting, on February 28, 1970, Leslie and Shelton asked all whites to leave. A Mrs. Marie Shumate, Director of the Haddington Leadership Conference, was in attendance and was also asked to leave until she protested that her "light skin betrayed her heritage." Shortly afterward, the Rev. Charles H. Riley, pastor of the Church of the New Life and New Horizons, arrived accompanied by his white assistant, Miss Barbara Blaisdell. They were also asked to leave by Shelton, who told them that the meeting was for black people only. An argument ensued, and Reverend Riley left after his white assistant ran from the meeting. Many of the black leaders who were present protested.
The following Saturday, March 7, 1970, another meeting was scheduled at the Chamounix Mansion. Reverend Riley again appeared, this time with another white assistant, and again they were asked to leave by Shelton, who said that the meeting was by invitation only and was for blacks only. When they refused and said they would conduct a "sit-in" to protest black racism, they were physically removed. Following these incidents, McLean received a telegram signed by Augustus Baxter, Andrew Jackson, Mansfield S. Neal, and Harold J. Haskins, all black members of the Board of Directors of the Bicentennial Corp., expressing their displeasure and urgently requesting a meeting to discuss the future direction of the community development function and of Leslie's association with Bicentennial Corp. McLean and Supplee met with Baxter and Haskins, who strongly disagreed with Leslie's handling of the park incidents and asked that she be severed from the Bicentennial Corp. staff. However, McLean and Supplee felt that it was too early for such action, that Leslie was qualified for the work, and that there would be correction of any errors of judgment. Reverend Riley also charged Bicentennial Corp. with reverse racism and met with McLean and Leslie about these incidents.
On April 8, 1970, Bicentennial Corp. officials, including Leslie and Physical Development Director John Gallery ("Gallery") and representatives of the Pennsylvania State Highway Department, met with the West Philadelphia Bicentennial Committee, a community advisory group in that area of the city most affected by Bicentennial Corp. physical development plans. The meeting was called to elicit community reaction to the 30th Street site plan and the Schuylkill Expressway Bypass. Leslie was present to give a general Agenda for Action progress report, Gallery was to speak about physical development, and the highway consultants were to speak specifically about the bypass plans. There were about twenty-five community representatives at the meeting, racially mixed, but mostly black. As the Highway Department representative was giving his presentation, Leslie rose and interrupted him and urged the audience not to listen. She admonished the group that the present Bicentennial Corp. Board couldn't be trusted, that it did not represent the community interest, and that the community not only should not listen to it, but should organize to make its own demands on the corporation. A shouting match ensued and an angry mood prevailed.
At a relatively early stage in her employment, Leslie made known to the staff and to the Agenda for Action Committee of the Board, chaired by John Bunting, her views that the Bicentennial Corp. did not believe in and was not supporting the Agenda for Action program, that it was going to scuttle it, and that the physical development program was receiving undue emphasis. In the wake of these expressions, at a meeting with McLean, Leslie was instructed that she was not to present herself in opposition to the Bicentennial Corp. policies, but was to represent them to the community and defend them. McLean conceded that this was a difficult role, but nonetheless stressed its importance. Leslie nodded assent. As it will appear, Leslie repeatedly violated these instructions.
Leslie testified at length about her doubts as to the sincerity of the Bicentennial Corp. commitment to the Agenda for Action program. However, we find that she in fact inadequately discharged her assigned task of developing the substance of that program. The record shows that she was not particularly innovative and resourceful, and that she was not particularly diligent either. She did not prepare a detailed "white paper" with respect to the Agenda, as she had agreed to do in March 1970. The reports which she was supposed to prepare for various committee meetings were invariably submitted too late for adequate review prior to the meetings, and a number of meetings had to be postponed on that account. Moreover, Leslie's reports were vague, general, lacking in factual data, devoid of reasoning and noted for the absence of specific recommendations. Leslie was not always cooperative with other members of the Bicentennial Corp. staff, often failing to supply material when needed, and was also often late for or absent from work. Leslie's failure to live up to the Community Development ...