Full opinion text
OPINION LATCHUM, Chief Judge. William Walker (“plaintiff”), a black citizen, brought this action against the Robbins Hose Fire Company (the “Fire Company”) and its directors and officers, alleging that they had denied his application for probationary membership on the basis of race and that the Fire Company’s recruitment, application and membership processes are racially discriminatory. The plaintiff instituted the suit as a class action, and on November 24, 1975, the Court conditionally authorized him to proceed on behalf of all similarly situated “black person of eligible age residing in the Dover, Delaware area.” Two years later, however, the Court decertified the class action aspects of the case because the plaintiff had failed to satisfy the numerosity requirement of Rule 23(a)(1), F.R.Civ.P. In another Memorandum Opinion and Order, filed December 28, 1976, the Court denied the plaintiff’s motion for summary judgment on the issue of liability, but held that the policies, procedures and practices of the Fire Company in connection with the selection of new members constituted state action within the meaning of 42 U.S.C. § 1983. Initially, the plaintiff asserted claims for damages, as well as declaratory and injunctive relief, under 42 U.S.C. §§ 1981, 1983, 1985 and 2000d. He also demanded a 'jury trial. At the pre-trial conference, however, the plaintiff elected to proceed to trial only on his claims of discrimination based on 42 U.S.C. §§ 1981 and 1983. He dropped all other causes of action and abandoned his claims for monetary damages. Because the plaintiff had confined his request for relief to an injunction (1) requiring the Fire Company to grant him probationary membership and (2) prohibiting future use of discriminatory personnel procedures, the Court determined that the parties were not entitled to a jury trial. A three day trial to the Court commenced on June 19, 1978 and the case is now ready for final disposition. This Opinion constitutes the Court’s findings of fact and conclusions of law in accordance with Rule 52(a), F.R.Civ.P. I. BACKGROUND FACTS A. Historical Background The Robbins Hose Fire Company was founded in 1882 and since that date has provided fire fighting protection and services to the Greater Dover area. (PX 11). All members of the Company are volunteers who receive no monetary compensation whatsoever for their services as fire fighters. (PX 11). The Fire Company relies upon donations from the community and appropriations from the State, County and City governments to finance the purchase of its equipment and to sustain its operations. Indeed, more than one-half of the Company’s regular income comes from governmental sources. (PX 11; PX 3, ¶ 6). The Fire Company is incorporated under the laws of Delaware; its corporate officers include a President, Vice President, Secretary and Treasurer. (DX 8). These officers together with the Board of Directors manage the Company’s administrative affairs. The Company also has several operational officers, whose duties are spelled out in the Dover City Charter. (PX 2, §§ 2-51, 2 — 52, 2-53). The Fire Chief is the principal officer and has full control of the Company at all fires. The Charter also provides that: “The City Council shall have general control of the Fire Department and shall enact rules and regulations to govern its conduct.” (PX 2, § 2-46). Based on these and other facts recited in an earlier opinion, the Court has found that “the conduct of the Company in general and its membership policies in particular must be regarded as state action.” (Docket Item 59, p. 17). The Fire Company has never recruited members in its entire history; an applicant has always been expected to step forward on his own and volunteer his services. (PX 1, Answer to Interrogatory No. 17). There are three types of members: auxiliary, probationary and life members. Auxiliary members are between the ages of 16 and 21 and serve under the direct supervision of the Fire Chief. (Hamilton, A-9, 10). In February 1974 there were seventeen auxiliary members. (PX 1, Answer to Interrogatory No. 36). Persons over 21 years of age who apply and are accepted are placed on probation for a period of one year. During that year probationary members must attend at least five-sixths of the regular meetings of the Company, the same percentage of all fire schools, and two-thirds of all alarms of fire, or furnish a reasonable excuse for failing to do so. (PX 3, ByLaws, Art. XVIII, Sec. 5). To become a life member of the Fire Company a person must successfully complete the one-year probationary period, pass examinations in salvage, first aid, and general fire fighting with grades of 75 percent or more in each, and finally, receive the approval of either the investigating committee or a majority of the life members present and voting at the next regular meeting. (DX 8). The original by-laws of the Company, adopted December 11, 1882, limited membership to “respectable white male[s].” On June 27, 1960, the requirement that an applicant be white was deleted. (DX 7, p. 17). In February 1974 when the plaintiff applied for probationary membership, the applicable provision read as follows: Any respectable citizen residing in the City of Dover or Robbins Hose Company fire district and [sic] is twenty-one (21) years of age, may apply for membership in the Company. . (PX 3, Art. XVIII, Sec. 1). The Fire Company has never publicized the fact that its by-laws no longer exclude blacks from membership. (PX 1, Answer to Interrogatory No. 16). In 1960 when the change was made, however, a local newsman reported it over a local radio station and in the local newspaper. (DX 21 (McSherry dep.), p. 8). No black expressed an interest in applying for membership in the Fire Company until the latter part of 1973, when three blacks, including the plaintiff herein, requested and obtained applications. (DX 1). None of those applications were returned to the Company with the requisite ten dollar application fee, however. (DX 1). Thus, the plaintiff Walker became the first black actually to apply for membership when he submitted his application with the fee on February 4, 1974. (DX 1). In 1973 the Company received a federal revenue sharing grant through the City of Dover in the amount of $600,000 to be used for renovating and adding to the fire house. (PX 3, ¶ 1). Upon hearing of the proposed revenue sharing grant, Wilbert L. Cooper, president of the Central Delaware Branch of the NAACP, filed a complaint with the Office of Revenue Sharing contending that the Fire Company discriminated against blacks. (Cooper, B-41, 58). Thereafter, the Office of Revenue Sharing halted the funding of the project and instituted an investigation. (Pusey, A-178). As a result of the investigation, the Company was asked to amend certain portions of its constitution and by-laws. (Pusey, A-178). The Company agreed to make the suggested amendments and formally adopted them on April 1, 1974. (Pusey, A-178; DX 8). Soon after the federal funds were restored, Walker’s application for probationary membership was rejected and Cooper filed another complaint alleging racial discrimination with the Office of Revenue Sharing. (Cooper, B-59; DX 14). During the pendency of the second investigation, the federal funding was again halted. (Pusey, A-179). The office of Revenue Sharing eventually resumed the funding and the building program was completed. (Pusey, A — 179). Between the time of Walker’s rejection and the trial in this case, four other black persons applied for membership. The Company accepted all four blacks as probationary members, but none of them became life members. Thus, the Fire Company had no black members at the time of trial. Raymond Mitchell, Jr., applied for probationary membership on April 1, 1974, and was accepted on May 6, 1974. (Mitchell, A-146). Five months later, Mitchell resigned because he had moved out of the Robbins Hose fire district. (DX 12). A second black, David Lewis, became a probationary member on May 3,1974. (Mitchell, A — 147). Lewis resigned on December 30,1974, citing personal problems that caused him to take a second job. (DX 11). Another black, Benny Smith, also voluntarily resigned after being accepted as a probationary member (Mitchell, A-147; Grady Stipulation, A-203). Finally, Carl Williams became a member of the Fire Company in late 1974. Williams did not complete his probationary year because he failed one of the examinations required for life membership. (Boyer, A — 205). In February 1974 when Walker applied for probationary membership, there were approximately 116 life members of the Fire Company in the Dover area and roughly 50 other life members living elsewhere. (PX 1, Answer to Interrogatory No. 36). B. The Challenged Membership Practices The plaintiff alleges that the recruitment, application and membership processes of the Fire Company are racially discriminatory. As noted earlier, the Company has never actively recruited members. The record indicates, however, that while no one actively solicits applicants, many of those who have applied, have had friends or reíatives who are or were members of the Fire Company. (Mitchell, A — 118, 119). In 1974 approximately 20 percent of the members were related to each other. (Mitchell, A— 97, 98; Kemp, B-21). Family traditions also appear strong; in one case, men from four generations of the same family had served in the Company. (PX 11, pp. 68, 69). Membership in the Company is open to any respectable citizen who is 21 years of age and resides in the City of Dover or the Robbins Hose Company fire district. When Walker applied, applicants were required to complete a short application, obtain the signatures of three life members and submit the completed application with a $10 application fee. Once received, applications are read at the Company’s next regular meeting and then referred to the Investigating Committee. (By-Laws (PX 3), Art. XVIII, Sec. 1). The Investigating Committee, composed of three life members elected annually by the Company, is responsible for making “the most diligent inquiry into an applicant’s character and standing in society.” The Investigating Committee also arranges for a physical examination of each applicant and presents a report of the physician’s findings and their own investigation to the Company at its next regular meeting. (ByLaws (PX 3), Art. VIII, Sec. 1). Among the matters typically examined by the Investigating Committee are: criminal records, employment records, driving records, and previous fire company experience. (Hamilton, A — 14, 26). At the time Walker applied, an applicant had to receive a majority vote of the life members present and voting at the meeting to be admitted to probationary membership. (By-Laws (PX 3), Art. XVIII, Sec. 3). Anyone rejected could reapply after the expiration of six months from the date of the rejection. (Constitution (PX 3), Art. VI). On April 1, 1974, the by-laws pertaining to the application and membership procedures were amended. (DX 8). The requirement of the signature of three life members was deleted and a new provision was added requiring the Investigating Committee to make a recommendation on each applicant it investigated. The amended bylaws further provided that unless a life member objected to the recommendation of the Investigating Committee on some ground other than race, color, creed, or religion, the recommendation would become final. In the event of an objection, a vote would be taken and a majority vote would be necessary to overcome the Investigating Committee’s recommendation. (By-Laws (DX 8), Arts. VIII and XVIII). C. Application of William Walker William Walker first obtained an application for probationary membership in the Fire Company in November 1973. Walker submitted the application, but it was later returned to him for failure to forward the required $10 application fee. (Boyer, A-186). Walker did not'pursue the application because a death had occurred in his family. (Walker, B-61). Around February 1, 1974, Walker obtained a second application form which he filled out and returned with the $10 application fee. (Boyer, A-188). The application gave Walker’s address, stated his age to be 48, named Playtex Corporation as his present employer, stated that he had been a member of the Belvedere Fire Company, and bore the signatures of three life members. (PX 13). The application was read at the regular membership meeting on February 4, 1974, and turned over to the Investigating Committee. (PX 4, p. 21). Walker’s application received widespread publicity in the community. (Walker, B-92). The local newspaper published an article indicating that Walker was the first black applicant to the Fire Company and that he was a former prizefighter. (Mitchell, A — 151, 152; Walker, B-92; Hamilton A-30). The publicity also gave rise to an unprecedented amount of public comment and community input. (Mitchell, A-152). In February 1974 the Investigating Committee comprised James I. Mitchell, James Melvin, and W. W. Postles, Jr. (PX 1, Answer to Interrogatory No. 2). However, because Postles and Melvin were inactive, the responsibility for conducting the investigation of Walker fell primarily on Mitchell. (Hamilton, A — 16). Recognizing that fact and that Walker’s application had received widespread publicity and followed closely on the heels of the Office of Revenue Sharing’s investigation, the Company’s Président Harry T. Pusey decided to follow the matter closely. (Hamilton, A — 28; Pusey, A-158). When Mitchell scheduled an interview with Walker for February 21, 1974, Pusey asked his Vice President, William C. Hamilton, to attend the interview in his place. (Hamilton, A-28; Pusey, A-158). Although the by-laws provide that the president is an ex officio member of all committees (PX 3, Art. Ill, Sec. 2), neither Pusey nor Hamilton had previously attended any Investigating Committee meetings in an ex officio capacity. (Mitchell, A-134, 153). Mitchell and Hamilton interviewed Walker on February 21, 1974. (PX 14). Because the application form requested only the name of Walker’s present employer, they asked him to name his prior employers in the Dover area. (Hamilton, A-33, 34; Mitchell, A-Í39). In response Walker mentioned the Dover Air Force Base and a church in Wilmington. (Mitchell, A-139). Hamilton also testified that he asked Walker whether he had checked with his present employer about attending Fire School and the regular monthly meetings. According to Hamilton, Walker had responded affirmatively. (Hamilton, A-84, 85). Hamilton called the International Playtex Corporation and they denied having been consulted by Walker about the matter. (Hamilton, A-85). Walker recalled the question, but testified that he told the interviewers that he would have to contact his employer. (Walker, B-87). The Court, however, having observed the demeanor of the witnesses and finding the question significant to the defendant, is convinced that Hamilton’s version is correct. It is unclear what other topics were discussed at the initial interview which lasted only'about 15 minutes. (Hamilton, A-36). At the conclusion of this interview and on the limited record before them, both Hamilton and Mitchell were willing to accept Walker for probationary membership. (Hamilton, A — 81; Mitchell, A — 133). Mitchell wrote to the Belvedere Fire Company for confirmation of Walker’s membership in that Company. The only response ever received was an oral statement from the former Chief of the Belvedere Fire Company to the effect that he could not recall Walker ever being a member. (Mitchell, A-137). Walker’s own testimony indicates that any experience he may have received on the Belvedere Fire Company was of minimal importance: Q: Do you recall what Mr. Hamilton asked you about? A: He just asked me about some things; was I a fireman? I told him I had some little bit of training at the Belvedere Fire Company. It wasn’t a certified fire company because it was just a group of men that stood on the corner out there in Belvedere, and they had a little piece of truck. Whenever a fire occurred or something, whoever was around would hop on the truck and go down to the neighborhood, use the hose to try to do our best to get the fire out. (Walker, B-63). After the publicity concerning Walker’s application, both Hamilton and Mitchell received unsolicited information about Walker from third parties. Hamilton was told by a personal friend of his, William McCabe, that Walker had worked for the State Custodial Department, had been an unsatisfactory employee, and finally, had just walked off the job. (Hamilton, A-79, 80). Hamilton, who understood that McCabe had had some supervisory authority over Walker on that job, accepted McCabe’s story without further investigation. (Hamilton, A-80). Someone else told Hamilton that Walker had worked at the National Cup Company. Hamilton called there and was told by an unidentified employee that Walker had been involved in a “horrible incident.” (Hamilton, A-83, 84). The employee refused to elaborate and Hamilton did not pursue the matter. A City Police Officer, Robert Konshack, who was a member of the Investigating Committee from 1971 through 1973, informed Mitchell that he had heard that Walker had been dismissed from the security force at Dover Downs Race Track. (Mitchell, A-136, 137). Mitchell relied upon that information. Mitchell’s father had worked with Walker at ILC Industries, and he told his son that he recalled Walker’s being dismissed. Mitchell asked his father to have the personnel director at ILC send him a letter explaining what happened. (Mitchell, A— 107). A letter was subsequently received indicating that Walker had worked at ILC Industries, Inc., from May 19, 1969 until August 23, 1969, when he was dismissed for walking off his job without explanation and failing to report to work on the following day. (PX 14). In addition, Mitchell’s father told him that the personnel file on Walker described him as a “troublemaker.” (Mitchell, A-136). Walker also worked at the Stevenson House Detention Facility of the Delaware Division of Juvenile Corrections. (DX 22, Exhibit). An employee of Stevenson House, Mrs. Truitt, either directly or through her husband informed members of the Fire Company that Walker had been dismissed as an employee from Stevenson House. (Mitchell, A — 140; Kemp, B-34). Mitchell later called Mrs. Truitt, but she refused to give him any more information and suggested that he call Hillard Harrison, a personnel officer with the Division of Juvenile Corrections. (Mitchell, A-140). Mitchell then called Harrison and learned that Walker had indeed been discharged for cause. (Mitchell, A-141, 142). Harrison sent a confirming letter to Mitchell, dated February 14, 1974, which stated that Walker’s performance evaluation for the period January to July 1972 had been good overall but that Walker “was terminated from the Division’s employ on October 16, 1972 for the use of poor judgment in his conduct towards detainees.” (PX 14). A dispute exists over whether Harrison told Mitchell more during their telephone conversation than was reflected in the confirming letter. Mitchell testified that Harrison told him the following: Walker was accused of writing a soliciting letter to a young female detainee and the possibility of filing charges against him was considered; he steadfastly denied writing the letter but agreed to submit it to a handwriting analyst for examination; the examination showed that Walker had written the letter; and thereafter he was discharged. (Mitchell, A — 105, 106, 141, 142). According to Mitchell, Harrison also mentioned that Walker unsuccessfully had appealed his discharge on grounds of racial discrimination to the Human Relations Commission, the union, and the Governor’s Office and that he had yet another appeal pending before the Equal Employment Opportunity Commission. (Mitchell, A-105, 106). Although Harrison did not remember the particulars of the telephone conversation, he doubted that he would have said anything more than what was in the letter. He specifically denied telling Mitchell that Walker had been discharged for sexual conduct toward detainees. (DX 22 (Harrison dep.), pp. 44— 45). Having considered all the evidence, the Court concludes that Mitchell’s recollection is probably correct. The information Mitchell referred to appears in the Investigating Committee’s report compiled shortly after the telephone conversation took place. (PX 14). The accuracy of the information Mitchell recalled is corroborated by the State of Delaware’s personnel file on Walker, which was admitted at trial for purposes of testing credibility only. (DX 22, Exhibit). The plaintiff seems to argue that the source of the information in the Investigating Committee’s report may have been the newspaper articles written about the Stevenson House incident in 1972 when it occurred. It is unlikely that the report was based on the newspaper articles, and even if it were, the Court fails to perceive how that would have prejudiced Walker. Finally, the newspaper article about Walker applying for membership prompted Iva Tazelaar of the Dover Housing Authority to speak to Charles Boyer, the Company’s Secretary, the next time she visited his store. (Boyer, A — 196). Mrs. Tazelaar told Boyer about her experiences with Walker in connection with housing and commented that he would not make a very good fireman. Boyer asked her to submit a letter to the Company and she did. (Boyer, A-196; PX 14). Mrs. Tazelaar stated that Walker had falsified several material items on his applications for public housing relating to his income and dependents, and that when these errors were discovered and rectified by increasing his rent, he became angry and moved out of the public housing unit. (PX 14). These matters caused Mitchell to schedule a second interview with Walker. The interview took place on February 28, 1974, and was attended by Mitchell, Pusey, Hamilton and perhaps Postles. (Mitchell, A-105, 131). When confronted with the names of the employers he had failed to mention at the first interview, Walker replied that he did not feel those employers were important and that they did not count. (Hamilton, A-44, 45; Mitchell, A-142). Walker admitted being fired from Stevenson House, but denied any wrongdoing. (PX 14). At the second interview, the Investigating Committee also reviewed Walker’s criminal record with him. (Walker, B-73). A report from the Delaware State Bureau of Identification indicated: that Walker had been arrested in 1944 for violation of 10 U.S.C. § 1393, unlawfully wearing a uniform of the U.S. Army, and that the charge was withdrawn; that he had been arrested in 1954 for assault and battery with no disposition; and that in 1962 he was held in contempt of court apparently for failing to pay child support. (PX 14). Pusey asked Walker if he knew Wilbert Cooper, who was the current president of the Central Delaware Branch of the NAACP. (Pusey, A-159). Hamilton asked Walker if he frequented any bars; Walker responded that he did not drink or smoke. (Hamilton, A— 74, 75). Mitchell prepared a report and read it at the general membership meeting on March 4,1974. The report contained the following information: Walker completed high school and two years of college; he had no military service; his present employer was International Playtex Corporation; he was a member of the Belvedere Fire Department in 1951 — 52 but attended no fire school; he had the criminal record described above; he had received a warning for speeding on June 14, 1972, been convicted of following too closely on August 27, 1972, and been convicted of disregarding a red light on December 17, 1972; and he was 48 years of age. (PX 14). The report also summarized the information gathered about Walker’s previous employment experience. The latter portion of the report, together with Mitchell’s summary of the two interviews, is set forth in the margin. After Mitchell read the Investigating Committee’s report to the membership, Vice President Hamilton spoke against Walker. (Mitchell, A-109). Hamilton described his participation as follows: I got up and filled in, I think, a few things that may have been omitted in the report that I had heard about Walker— . particularly where I felt that he had outright lied to me about his employment or was trying to conceal it because of the, well, poor work record, his lack. of dependability. When we look at a man, we want a dependable person, and this certainly was not exhibited on any of the reports on Walker. . (Hamilton, A-54). Thereafter, a motion was made to reject Walker’s application for probationary membership. Twenty-seven life members voted in favor of the motion and two abstained. (Boyer, A-198). Walker was notified of his rejection by a letter, dated March 5, 1974, from Secretary Boyer. (PX 5). On March 6, 1974, Walker wrote to Boyer requesting a written statement of the specific reasons for his rejection. (DX 10). A letter containing a statement of reasons was prepared by Hamilton with the assistance of Mitchell and a Mr. Hill. (Hamilton, A-62; Mitchell, A-119). The Company’s Secretary, Boyer, typed the letter and sent it to Walker. (Boyer, A-190). The letter was dated March 13, 1974, and bore the legend “PERSONAL AND CONFIDENTIAL ONLY FOR THE EYES OF WILLIAM W. WALKER.” (PX 6). The March 13 letter unquestionably represents the official position of the Fire Company. (Pusey, A — 166). The letter, which is set forth in the margin, informed Walker that he had been rejected for failing to meet the “respectability” requirement of the by-laws. Specifically, the letter charged Walker with: (1) falsifying his application for membership by failing to mention several of his previous employers; (2) showing a lack of dependability by walking off the job in two instances; (3) falsifying his application and disobeying orders at the Stevenson Home and writing a solicitous letter to a juvenile female detained there; and (4) falsifying an application for housing filed with the Dover Housing Authority. The letter also stated that Walker’s criminal record “providefd] doubt as to [his] reputation and character” and that his unverified service with the Belvedere Fire Company would not be credited as prior fire service. (PX 6). The Company’s reasoning was summarized as follows: Your record of not being dependable, not being truthful, of disobeying orders, and of questionable morals, is unaccepable [sic] behavior for Dover firemen. (PX 6). At the trial a few members of the Fire Company testified about their reasons for voting to reject Walker. Hamilton based his decision on Walker’s lack of dependability, the “morals” questions at the Stevenson Home, Walker’s arrest record and the rumors about his causing trouble. (Hamilton, A-96). Mitchell placed little reliance on the criminal record, but was in general agreement with the letter dated March 13, 1974. (Mitchell, A-121). Boyer based his decision on the Investigating Committee report as a whole. (Boyer, A-199). Chief Kemp did the same. (Kemp, B-35). Walker instituted this action against the defendants on August 21, 1974. He claims (1) that he was denied probationary membership because of his race and (2) that the recruiting, membership and application procedures of the Fire Company are racially discriminatory. The first claim, which the Court has denominated the plaintiff’s disparate treatment claim, is individual in nature and is based principally on Walker’s allegations that the Company’s membership procedures and criteria were applied discriminatorily in his case. By way of relief, Walker seeks an order directing the Fire Company to expunge the records of his rejection and to instate him as a probationary member. The second claim is much broader and is based on Walker’s contention that the Company’s membership practices have had a disparate impact on blacks. The relief sought on the second claim would benefit members of Walker’s race generally. The two claims and the facts developed in connection with each of them will be discussed in turn. II. THE DISPARATE TREATMENT CLAIM Walker alleges that the defendant Fire Company violated his Fourteenth Amendment right to equal protection by rejecting his application for probationary membership on the basis of race. To establish a violation of the Equal Protection Clause, a plaintiff must prove that the challenged action was taken with a racially discriminatory intent or purpose. Washington v. Davis, 426 U.S. 229, 239-45, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). In Arlington Heights, supra, the Court held that a plaintiff need not “prove that the challenged action rested solely on racially discriminatory purposes.” Id. at 265, 97 S.Ct. at 563. It is sufficient to show that a discriminatory purpose was “a motivating factor in the decision.” Id. at 265-66, 97 S.Ct. at 563. Furthermore, because direct or express evidence of racially discriminatory intent is seldom available, “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts.” Washington v. Davis, supra, 426 U.S. at 242, 96 S.Ct. at 2048. The challenged action in Walker’s disparate treatment claim is the March 4, 1974, decision of the Company to reject his application for probationary membership. Hence, the Court must decide whether it is reasonable to infer from all the evidence that the rejection of Walker’s application was based in whole or in part upon race. The gravamen of Walker’s complaint is that he was treated differently from other applicants because he was black. In the employment context, a plaintiff alleging disparate treatment may satisfy his initial burden of establishing a prima facie case of racial discrimination by showing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (emphasis supplied). If the plaintiff establishes a prima facie case, the burden shifts to the employer “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. The fact that an apparently legitimate reason for the rejection has been supplied does not necessarily end the inquiry. The plaintiff must be afforded a fair opportunity to show the stated reason was in fact a pretext or that the criterion was applied in a discriminatory fashion. Id. at 804-07, 93 S.Ct. at 1825-1826; see McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Although several factors distinguish a volunteer fire company from the typical employer, the rules relating to the burden of proof stated above provide a useful starting point for the analysis of Walker’s disparate treatment claim. (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking job applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. In.this case, a dispute exists over whether Walker was qualified to be a member of the Company — specifically, whether he met the respectable citizen criterion. From a purely objective standpoint, the Court finds that the Company legitimately could have concluded from the information contained in the Investigating Committee report that Walker did not satisfy the criterion. It is also true, however, that the respectable citizen criterion is highly subjective, and Walker has presented evidence that arguably supports his contention that the standard was applied more strictly to him than to white applicants. In addition, Walker contends that his application was handled differently by the Investigating Committee because of his race. Given the way the issues are framed, the Court does not find it useful to attempt to decide whether Walker met his burden of establishing a prima facie case. In either event, he would still bear the burden of persuasion. To prevail on his disparate treatment claim, Walker must show either that the reasons given in the March 13,1974, letter were in fact a pretext for racial discrimination, or that the “respectable citizen” criterion was applied in a discriminatory fashion against him. That is, he must prove discriminatory intent. Determining whether a racially discriminatory purpose was a motivating factor or but for cause of Walker’s rejection “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, supra, 429 U.S. at 266, 97 S.Ct. at 564. The plaintiff presented evidence concerning several factors which he argues give rise to an inference of discriminatory purpose. Those factors and the weight they deserve are discussed below. A. The Absence of Blacks in the Fire Company No black has ever been a life member of the Robbins Hose Fire Company. In February 1974 there were a total of 166 life members of the Fire Company. According to the 1970 census, blacks make up 19.2 percent of the population of males over 21 years of age in the City of Dover. (Siskin, B-141). The plaintiff’s expert, Dr. Siskin, stated that the probability of drawing an all white work force of 166 people from the Dover population is infinitesimally small. (Siskin, B-141). Part of the disparity, however, can be attributed to the fact that the Company excluded blacks from membership up until 1960. Between the years 1962 and 1972 inclusive, 35 new members joined the Fire Company. (Siskin, B-144). None of the new members were black. Dr. Siskin testified that the probability of having no blacks in a group of 35 persons drawn from the Dover population by a process of random selection without regard to race is .0006 — a small probability. (Siskin, B-144). The Court accepts this testimony as true. When confronted with the additional fact that no black had applied between 1960 and 1974, Dr. Siskin testified that obviously the process which is related to race is in the recruitment process, the process of blacks applying to the [Fire Company]. (Siskin, B-143). This conclusion finds support in the fact that no similar disparity exists between the percentage of blacks who actually applied for membership and were rejected and the percentage of whites who applied for membership and were rejected. The evidence shows that five blacks have applied for probationary membership since 1974 and that four of those five were accepted. The record also indicates that the Company has denied probationary membership to whites who did not satisfy the membership criteria. Dudley Dixon, a white person, was investigated by Mitchell in 1974 and was denied probationary membership because he received an unfavorable recommendation from the Marydel Fire Company. (Mitchell, A — 144, 145, 146). The Marydel Chief told Mitchell that Dixon drove recklessly to fires and became excited easily. (Mitchell, A— 146; DX 6). Thus, while the record arguably supports an inference of discrimination in the recruitment process, it contains no statistical evidence of discrimination in the application review process. Walker argues that the substantial underrepresentation of blacks on the Fire Company provides a rational basis for concluding that racial factors tainted the decision to reject him. This Court recognizes that “ ‘[statistical analyses . . . serve an important role’ in cases in which the existence of discrimination is a disputed issue.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977). Nevertheless, statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all the surrounding facts and circumstances. Id. at 340, 97 S.Ct. at 1856-1857. The ultimate question whether Walker’s rejection was based on his race must be answered in light of all the evidence, both statistical and nonstatistical. Scott v. University of Delaware, supra, 455 F.Supp. at 1127; EEOC v. DuPont, 445 F.Supp. 223 (D.Del.1978). The fact that the Fire Company is all white warrants close scrutiny of its contention that Walker was not qualified for probationary membership. See Kinsey v. First Regional Securities, Inc., 181 U.S.App.D.C. 207, 216, 557 F.2d 830, 839 (1977). The statistical evidence alone, however, provides little support for an inference that Walker’s rejection was in fact based on his race. “Statistics concerning the defendant’s treatment of the plaintiff’s class in general are relevant, but do not alone prove discrimination against an individual plaintiff even when such statistics show substantial disparities.” The statistics here suggest the possibility of discrimination only in the recruitment process. The Court is reluctant to infer from such evidence that a racially discriminatory animus pervaded the entire membership process and thus affected Walker. The Fire Company has always taken a passive role with respect to recruiting: it has never recruited. The Company’s adherence to that policy after it changed the by-laws in 1960 to permit blacks to apply, however, may have contributed to the absence of black applicants. The Company’s failure to publicize the fact that persons of ail races were welcome to join the Fire Company arguably reflects an insensitivity on the part of its members to the situation of blacks in Dover, but it hardly suggests that they would actively try to exclude someone on the basis of race. Furthermore, Walker’s statistical evidence is based upon the assumption that both blacks and whites would want to join the Fire Company with an equal desire. (Siskin, B — 147). Such an assumption would be reasonable in a job advancement or employment case, but its validity here is at least questionable. In employment cases the economic attraction is obvious. In the volunteer fire company context, however, the two principal inducements to agreeing to fulfill the rather onerous and sometimes dangerous obligations appear to be: (1) the personal pride that derives from performing an important public service and (2) the intangible benefits of belonging to what, in effect, amounts to a social club. The Court, of course, would be willing to assume that there is no distinction between blacks and whites with respect to their sense of civic duty and pride. On the other hand, a person may serve his community in many ways, and a black person might not consider the Fire Company to be an attractive environment for fulfilling his civic obligations. This distinction between volunteer fire companies and typical employers further undermines the importance of the plaintiff’s statistical evidence. B. History of Discrimination The Courts have identified several kinds of evidence which can be used to establish discriminatory purpose, including “the historical background of the decision . . , particularly if it [shows] a series of invidiously motivated official actions.” Arlington Heights, supra, 429 U.S. at 267, 97 S.Ct. at 564; Resident Advisory Board v. Rizzo, 564 F.2d 126, 141 (C.A.3, 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 499 (1978). Walker cites two historical facts which he contends support a finding that a racially discriminatory animus motivated the Company’s rejection of his application. The Court concludes that neither fact appreciably strengthens Walker’s disparate treatment claim. First, the plaintiff refers to the Company’s overt exclusion of blacks prior to 1960. Although this fact could contribute to establishing a prima facie case, it is not very helpful in overcoming the evidence of legitimate grounds for rejection introduced by the Fire Company. The Company’s past history of discrimination, like the statistical evidence, prompts the Court to scrutinize closely the reasons given for the rejection. On the issue of discriminatory intent, however, the evidence is no more probative than the statistical evidence. Second, Walker refers to the fact that during 1973 Wilbert Cooper, President of the local chapter of the NAACP, complained to the Office of Revenue Sharing that the Company, which was to receive $600,000 in federal funds for use in its building program, discriminated on the basis of race. An investigation ensued and the Company was asked to amend certain portions of its constitution and by-laws. (Pusey, A-178). The Company agreed to make the suggested amendments and started preparing the same; the amendments were adopted on April 1, 1974. (Pusey, A-178; DX 8). By the time Walker applied, federal funding for the building project had been restored. (Pusey, A-179). Walker argues that this incident somehow strengthens the inference that the Company purposely sought to exclude blacks. The Court disagrees. The Fire Company needed the federal money to complete its building program and the members knew that federal funding would be withheld if they were found to have discriminated on the basis of race. (Pusey, A — 178, 179). If anything, the pendency of the federal revenue sharing funds would tend to weaken the inference that Walker’s rejection was based on his race. C. Departures From Normal Procedures Some of the other subjects of relevant inquiry in determining whether racially discriminatory intent existed are the “specific sequence of events leading to the challenged decision,” including any procedural or substantive departures from the normal practice, and the administrative history of the decision “especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Arlington Heights, supra, 429 U.S. at 267-68, 97 S.Ct. at 565. Walker alleges that the manner in which his application was handled differed in several respects from the manner in which most other applications were handled. For example, Walker contends that the unusual makeup of the Committee that investigated his application evidences a discriminatory purpose. The record shows that Company Vice President Hamilton attended both of the Walker interviews and President Pusey attended the second interview. Neither gentleman participated in any other applicant interviews during his tenure as an officer of the Company. (Mitchell, A-153). While this departure from normal procedures may appear suspicious standing alone, the Court finds that the explanation offered by the defendant is sufficient to dispel any inference of discriminatory purpose that could be drawn from it. Only one of the three members of the Investigating Committee, namely, Mitchell, was active at the time Walker applied. Pusey, an ex officio member of the Committee, testified that he asked Hamilton to attend the first interview because of the widespread publicity attendant to Walker’s application and the recent investigation of the Fire Company by the Office of Revenue Sharing. The Court accepts this testimony as true. It is understandable that Pusey would not want to burden Mitchell with the sole responsibility for carrying out such a sensitive investigation. Furthermore, the Court perceives no prejudice to Walker-as a result of the participation of Hamilton and Pusey on the Investigating Committee. Hamilton spoke out against Walker at the general membership meeting, but he had been contacted by members of the general public with reference to Walker’s application. There is no indication that Hamilton would have remained quiet, if he had not attended the Investigating Committee meetings. Walker also points out that his is the only case in which the Investigating Committee examined an applicant’s prior housing record. (Mitchell, A-99, 100). Similarly, he complains that his case appears to be the only one in which the Committee checked prior employers. In light of all the evidence, however, the Court finds nothing improper about the broad scope of the Walker investigation. Mrs. Tazelaar of the Housing Authority learned of his application to the Fire Company through the newspaper and took it upon herself to apprise the Company of her dealings with him. The Investigating Committee properly took note of her complaint. Each of the Investigating Committee’s contacts with Walker’s prior employers can be traced directly to information brought to the Committee’s attention by persons not on the Committee. The Court finds that the publicity surrounding Walker’s application accounted for the unprecedented amount of public comment and that the Investigating Committee merely fulfilled its duty to make a diligent inquiry into the applicant’s character and standing in society when it followed up on the information provided. No inference of discriminatory intent is warranted. Walker also contends that the report of the Investigating Committee contains several errors and exaggerations which operated to his prejudice. The report states that Walker was discharged from Stevenson House in part because he falsified an application. Mitchell admitted that that statement is completely erroneous. (Mitchell, A — 138). Aside from that the Court finds the Investigating Committee’s report to be substantially accurate. Walker complains that the statements indicating that: (1) he was terminated from the Dover Downs security force; (2) he was discharged from the State Custodial Service for walking off the job; and (3) he was a “troublemaker” at ILC Industries are inaccurate and based totally on hearsay information. It is true that Mitchell relied on hearsay in preparing the Investigating Committee’s report, but based on the evidence presented at trial, the Court finds all three of the challenged statements to be accurate. Lastly, Walker questioned the Committee’s failure to contact the National Cup Company and to mention that an appeal was pending to the EEOC regarding the Stevenson House matter. The two omissions are too minor to provide any support for an inference of discriminatory intent. In the same vein, Walker contends that the Investigating Committee report made his criminal record seem worse than it actually was. The Court disagrees. The Investigating Committee routinely checked the police record of each applicant. (Mitchell, A-98). Walker’s criminal record was incorporated without comment in the Investigating Committee’s report. (PX 14). Mitchell testified that he included the criminal record as a matter of course, just as he had with respect to the other twenty-three applicants he investigated. (Mitchell, A— 120, 121, 134, 135). Furthermore, the Court perceives no harm to Walker from the Committee’s failure to mention that he was pardoned for the 1954 assault and battery conviction. The criminal record already indicated that there was no disposition of the charge. (PX 14). Finally, Walker complains that no one on the Investigating Committee or in the Company looked for reasons to support his application. For example, he was never asked about his activities in his church. He is a churchgoer and sings regularly in the choir. (Walker, B-87, 88). He also states that he should have had an opportunity to have his friends speak in his favor at the membership meeting, because white applicants often know members and thus have someone to speak in their behalf. None of these alleged shortcomings warrant an inference that a racially discriminatory purpose motivated Walker’s rejection. Nothing prevented Walker from bringing favorable references to the attention of the Committee or telling them about his church and choir activities. The Committee took the unusual step of interviewing Walker a second time to give him a chance to explain the questionable aspects of his record. (Mitchell, A-153, 155). Walker again was less than forthright with the Committee. (PX 14). Moreover, the Company supplied Walker with a detailed list of the reasons for his rejection. He could have gone to the Investigating Committee and challenged or contraverted those reasons and requested reconsideration or he could have reapplied after a waiting period of six months. D. Unequal Application of the “Respectable Citizen” Criterion The last category of evidence Walker relies upon to support his disparate treatment claim pertains to white applicants who were accepted as probationary members despite past indiscretions reported by the Investigating Committee. Walker named six white members whom he argues had records comparable to his. Citing McDonald v. Sante Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), he contends that this evidence shows that the Fire Company applied the respectable citizen criterion more strictly in his case because of his race. To facilitate the comparison the plaintiff invites, the Court will set forth the pertinent facts concerning each of the white applicants named. The application of William R. Keith was read at the general membership meeting on April 1, 1974, and turned over to the Investigating Committee. Three years earlier, Keith had been expelled from the Minquas Fire Company for following too closely and passing an ambulance. (PX 4, pp. 7,11-14). Keith had been a member of the Minquas Fire Company for almost five years before he was expelled. (PX 4, p. 14). Mitchell investigated Keith’s application and testified that the people he contacted on the Minquas Fire Company told him that Keith was a good fireman. (Mitchell, A-127). Mitchell also stated that during his interview Keith forthrightly discussed the incident for which'he was expelled. (Mitchell, A-127). Keith had no criminal record and only one minor traffic violation. (PX 4, p. 13). The Investigating Committee issued a favorable report on Keith and he was accepted as a probationary member on May 6, 1974. (PX 4, p. 10). James Melvin, Jr., applied for probationary membership in 1968. The Investigating Committee gave Melvin a favorable recommendation with one member dissenting. (PX 4, p. 2). The letter submitted by the dissent indicates that Melvin had been involved in two questionable incidents in the past. In October 1965 Melvin admitted to the police that he had broken into a local business establishment, but stated that he only intended to use the telephone because his car had broken down late that evening. The owner of the business did not wish to prosecute Melvin because he was a former employee. (PX 4, p. 5). Melvin also was under a one-year suspension from the Little Creek Fire Company at the time he applied for probationary membership. He was suspended because he had been present when another member of the Little Creek Fire Company reported a false fire alarm and had responded with the Company even though he knew the alarm to be false. (PX 4, p. 5). The first time Melvin’s application came up for consideration Kline Kemp moved successfully to have it tabled. (PX 4, p. 1). At trial, Kemp testified that he had personal knowledge of the alleged burglary and knew that it had been a mistake and that no charges had been filed against Melvin. (Kemp, B-24, 25). Kemp characterized Melvin’s involvement in the false fire alarm as being passive only and the act of a juvenile. (Kemp, B-25). When Melvin’s application was considered again at the next meeting, three members questioned his qualifications, but he gained probationary membership by the narrow margin of 14 to 10. (PX 4, p. 2). The Investigating Committee reported unfavorably on the application of Daniel Lee at the Company’s January 7, 1974 meeting. (PX 4, p. 17). Lee had been arrested in Indiana for vagrancy in 1963 and in Delaware for failure to stop at the command of a police officer, disregarding a red light, stopping past a stop line limit at a red light and disregarding a stop sign, all on May 6, 1965, and for disregarding a red light on June 9, 1971. (PX 4, p. 25). A motion was made to reject Lee’s application, but after much discussion the application was tabled for further investigation. (PX 4, pp. 17-18). At the following meeting Lee was accepted as a probationary member after his employer, who was also a member of the Fire Company, spoke on his behalf. (Hamilton, A — 70; PX 4, p. 21). Hamilton testified that the membership had been told that Lee came from a very poor family background and that he was arrested for vagrancy after he had run away from home to avoid beatings by his father. (Hamilton, A-71). Larry Moore applied for probationary membership in December 1973, when he reached his 21st birthday. (PX 4, p. 30). He had been an auxiliary member of the Company since 1968 but his record in that capacity was unimpressive. In 1968 Moore had been suspended for 30 days for skipping school. Two years later he was ejected from the Company for unknown reasons and then, after being readmitted, was ejected again, this time for being AWOL from his National Guard drill. (PX 4, p. 33). Moore had been AWOL because he had been involved in an automobile accident while returning to camp; the AWOL charges eventually were dropped. (Hamilton, A-71). The accident referred to occurred because Moore fell asleep at the wheel and he was charged with reckless driving as a result of it. (Hamilton, A-71; PX 4, p. 31). Moore also had his driver’s license suspended for two months for accumulated points in August of 1972 and received warnings for speeding on November 13, 1972, and February 5, 1973. (PX 4, p. 31). He had no other criminal record. On the positive side, the Investigating Committee report indicated that during the months immediately preceding his application, Moore had a perfect attendance record at Company drills. The report also stated that Moore had attended numerous fire schools and in-service schools. (PX 4, p. 33). In addition, Mitchell testified that each of the past chiefs who had supervised Moore as an auxiliary member recommended that he be accepted. (Mitchell, A-130). Norris Garrison was accepted as a probationary member on July 5,1971, by a unanimous vote. (PX 4, p. 38). Garrison had been a member of the Little Creek Fire Company since 1966. He had been suspended for one year during that time for being involved in the reporting of a false fire alarm. No legal action had’ been taken against him. (PX 4, p. 41). The Investigating Committee reported that Garrison had successfully completed several Delaware State Fire School sessions and had served on the board of directors of the Little Creek Fire Department. Garrison had no criminal record and no motor vehicle violations are listed in the Investigating Committee’s report on him. (PX 4, p. 41). Finally, the parties filed a stipulation of evidence (Docket Item 96) after the trial in this action, setting forth newly discovered evidence that Hughlett A. Golt, a long-time member of the Company, had pled guilty to embezzling $95,000 from the Farmers Bank of the State of Delaware in 1947 and served three years in jail at Lewisburg Prison as a result. Golt joined the Company in 1925. At the time he was convicted, Golt had been treasurer for the Company for at least 20 years. The Company immediately had its books audited to determine whether Golt had embezzled any money from it and found that he had not. (Docket Item 96, ¶ 4). No disciplinary action was ever taken against Golt, who remained a life member of the Company until he died in December 1978. Golt was President of the Company in 1978 and President-elect for 1979 when he died. (Docket Item 96, ¶ 7). The parties further stipulated that the members of the Company responsible for answering the interrogatories submitted by the plaintiff in this case knew nothing about Golfs conviction. (Docket Item 96, ¶ 8). Walker argues that his record is no worse than the records of each of the white applicants mentioned above and that the fact that those applicants were accepted as probationary members gives rise to an inference that the grounds for his rejection were merely a pretext for racial discrimination. The Court first must determine whether the records of the white applicants are comparable to Walker’s record. The Court finds that Keith and Garrison clearly had better records than Walker. Keith had committed only one offense, he had substantial fire experience, he had received an otherwise good report from his former fire company, and he had been cooperative and forthright with the Investigating Committee of the Robbins Hose Fire Company. Likewise, Garrison had only one strike against him — the fact that he had been involved in the reporting of a false fire alarm. Because it appears from the record that Garrison was at most 23 years of age when he committed that indiscretion, the Court finds the characterization of it as “a juvenile act” to be reasonable. (Hamilton, A-73; • PX 4, p. 40). Walker, on the other hand, had committed several questionable acts, had little or no fire experience, and had been uncooperative and evasive in his dealings with the Investigating Committee. The Court considers the evidence regarding Golfs conviction for embezzlement immaterial. At the time he pled guilty to the offense, Golt was a life member of the Fire Company. Therefore, the failure of the Company to discipline Golt sheds very little light on the meaning of the respectable citizen criterion for acceptance of probationary members. More importantly, it appears that few, if any, of the members who voted on Walker’s application knew about Golfs conviction. Consequently, the Court finds no basis for inferring from the handling of Golfs ease that the rejection of Walker’s application was motivated by considerations of race. The improper conduct of the three other white applicants mentioned cannot be distinguished so easily. Initially, the Court notes that, while the records of the three whites were somewhat less than desirable, they were no worse than Walker’s record. Melvin’s involvement in the breaking and entering incident is certainly no more questionable than Walker’s conduct in writing a personal letter to a female detainee at Stevenson House. The other misconduct charged to Melvin, viz., going along with what he knew was a false fire alarm, is more than offset by Walker’s poor performance on several jobs, his falsification of applications to the Dover Housing Authority, and his less than perfect driving record. Similarly, Lee’s arrests in 1963 for vagrancy and in 1965 for disregarding a police officer’s order to stop compare favorably with Walker’s criminal record and his improper conduct at Stevenson House. The only other complaint about Lee concerned his poor motor vehicle record. He had been charged with numerous offenses stemming from an incident that occurred eight years before he applied, when he was 20 years old, and with disregarding a red light in 1971. Lee’s driving record was not much worse than Walker’s, however, and the difference between them cannot be said to outweigh the doubts raised by Walker’s poor employment record and his lack of candor in his dealings with Mrs. Tazelaar and the Investigating Committee. Lastly, with respect to Larry Moore the Court finds that several of the negative items in his report relate to an accident caused by his falling asleep at the wheel while enroute to a National Guard drill. It is also noteworthy that Moore was only 21 years of age when he applied and was known to many members of the Company because he had served for some time as an auxiliary member. On the other hand, the acceptance of these three white applicants arguably does provide' some support for inferring that a discriminatory purpose motivated Walker’s rejection. In light of the other evidence in this case, however, the Court finds the degree of that support to be minimal. In the case of each of the three white applicants, one or more members of the Company knew