Fallon. The factionalism, which apparently was not the product of racial animus, caused the NYO to be divided into "two armed camps," one loyal to Jackson, the other loyal to Fallon. A third camp of neutrals was also described, although many of the neutrals had "sympathy" for Jackson.
Fallon's shortcomings were, according to the report, that his "approach to management is autocratic and sometimes almost dictatorial." Fallon's DRD was not given management responsibility, and that position "was not clearly defined." Moreover, since Fallon "was involved in all matters of consequence in New York City," the DRD's involvement with the NYO was limited. Finally, the report noted that Fallon often made decisions involving the NYO without consulting the relevant managers. Jackson testified at the hearing that he agreed with the evaluation, but that it did not go far enough. He stated that Fallon is also "a racist," a contention not disputed at the hearing.
On August 12, 1979, Jackson was promoted from GS-15 to GS-16. This promotion resulted from the October 1978 reorganization and delays associated with allocation of additional super grade
positions, and had been promised Jackson prior to commencement of the Segar trial.
It is therefore not probative of DEA's response to his testimony at the trial.
In December of 1979 Jackson was "promoted," effective January 27, 1980, from NYO SAIC to NERO DRD. Bensinger promoted Jackson ostensibly because (1) he was doing a good job as SAIC, (2) the DRD position should be filled with someone who has knowledge and experience within the region, and (3) the perception of factionalism might decrease if Jackson was promoted. Jackson attempted to decline the promotion, stating that he found the SAIC position challenging and that there were problems with the NERO DRD position. Jackson indicated to Bensinger that he felt there was no "longevity" in the NERO DRD position, that everyone who worked there under John Fallon had been "kicked out," that the DRD was "put in a closet" in NY and given no responsibility, and that his fate would be no different. Bensinger was insistent, however, and Jackson became DRD.
Jackson's predictions regarding the DRD position became reality. Fallon consistently bypassed Jackson when policy issues materialized; he supervised Tom Byrne, NYO's new SAIC, even though this was Jackson's responsibility, and he ordered Jackson to spend the vast majority of his time supervising the Philadelphia Regional Office. After his promotion, Jackson was removed from decision-making responsibility in the New York Office. Bensinger knew or should have known that this would occur; he was familiar with Fallon's management style, he knew that the NERO's DRD never had the responsibility given other DRDs, he was aware that Fallon often interceded in the operation of the New York Office, he knew about Jackson's pending EEO complaint, and he was cognizant of the animus that had developed between Jackson and Fallon. Nevertheless, the only response to the August management evaluation was this "promotion" of Jackson. There is no evidence of record indicating that Bensinger took any action concerning Fallon's management style, his racist attitude,
or his relationship with Jackson.
In Late 1979 the "Tarallo incident" occurred. The facts of that incident, which are before the Court,
are unimportant. Ultimately, Fallon, overriding the recommendation of Jackson, decided to severly punish the three agents
involved. In December of 1980, the Merit Systems Protection Board held a hearing to determine the fairness of the punishment. Jackson was asked by the agents to testify on their behalf, and, contrary to the wishes of John Fallon and other top DEA officials, did so. The Administrative Law Judge condemned DEA for its action,
and the agents were vindicated.
On January 5, 1981, Jackson met with Marion Hambrick to negotiate a settlement of his EEO complaint. DEA issued a statement calling the letter of reprimand "unwarranted," and stating that it "should not have been issued." Hambrick ordered that the letter be expunged from Jackson's record, and ordered Panella to issue a new performance rating for the period April 1, 1978 to March 31, 1979. In return, Jackson dropped the EEO charge. DEA did not admit that either the letter or the evaluation resulted from discrimination. On January 19, 1981, Fallon objected to the expungement of the letter of reprimand, claiming that the reprimand was warranted.
On February 6, 1981, this Court issued its Findings of Fact and Conclusions of Law in Segar. In six areas, including supervisory evaluations and imposition of discipline, the Court found that discrimination existed and exists at DEA.
On February 9, 1981, Jackson was accused by Fallon and Hambrick, with Bensinger's acquiescence, of perjuring himself at the Tarallo hearing. This accusation involved Jackson's testimony that he had seen a transcript of the District Court proceedings, when he had not, in fact, seen that transcript. Rather, he had seen a transcript of a summary of the Court's comments at that proceeding. Jackson's misstatement was innocent it was not intentional and it did not impact on the litigation. DEA's response was not so innocent, however. Fallon and Hambrick implied that Jackson had intentionally misled the Administrative Law Judge, and Hambrick requested a memo from Jackson indicating whether his testimony was correct or incorrect.
On February 24, 1981, Jackson was notified that as of March 2, 1981, he was to be transferred and demoted, along with NYO SAIC Tom Byrne. Fallon was put on 6 months probation, but neither transferred nor demoted. The reasons given by Bensinger for this action are (1) the arrest record of the NYO had dropped substantially, (2) that NYO's record had never been cost-effective, (3) that management (i. e. NERO's RD and DRD and NYO's SAIC) were responsible for the poor record, (4) Fallon had excellent connections with foreign and local law enforcement officials, and (5) Fallon was currently under investigation by the FBI for alleged misuse of authority.
Bensinger's rationale for the transfer and demotion is a pretext designed to cloak retaliation against Jackson. DEA indicated during the Segar trial that its focus had "changed substantially," and that "(t)he agency is now aiming its efforts at network elimination rather than individual elimination."
In light of this assertion, it is not plausible that individual arrests would provide the basis for evaluating a management team.
Moreover, the undisputed evidence belies an assertion that Jackson could be held accountable for NYO's poor performance. It is uncontested that (1) Jackson was doing a good job as NYO's SAIC; (2) NYO's SAIC Byrne, who had primary responsibility over the management of NYO, by-passed Jackson and reported directly to Fallon; (3) Fallon directly interceded into the operations of NYO; (4) Fallon insisted that Jackson devote himself primarily to the Philadelphia Office, thus in effect precluding Jackson from exercising responsibility in NYO; and (5) Fallon's management style precluded the effective exercise of authority by DRD Jackson. Indeed, the record indicates that NYO's record deteriorated after Jackson was removed as NYO's SAIC.
It is apparent to the Court that this harassment and reprisal action epitomizes the main action. Supervisory evaluations and the imposition of discipline were unjustly employed to Jackson's detriment. This is consistent with this Court Findings.
Moreover, the Administrator is still unwilling to face the realities of race discrimination in the Drug Enforcement Administration.
Fallon's racial animus is at the root of the Jackson/Fallon adversary relationship. Yet the Administrator refused to address Fallon's racism. Indeed, he has delayed taking any action against the man primarily responsible for NYO's poor performance, and has instead demoted the highest ranking Black DEA official. This demotion, at a time when Black agents will in all likelihood have to come forward and produce evidence concerning damages,
can only be understood as a product of retaliation.
Mr. Jackson asks this Court to enjoin his transfer and demotion pending final adjudication of his claim of unlawful retaliation. In considering the award of preliminary injunctive relief, this Court must scrutinize four factors, namely: (1) plaintiff's likelihood of prevailing on the merits, (2) irreparable injury, (3) the effect of relief on third parties, and (4) the public interest. WMATC v. Holiday Tours 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C.Cir.1977).
I. Likelihood of Success on the Merits
Jackson alleges that DEA's actions violate Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). This provision states, in pertinent part:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice may be an unlawful employment practice under this subchapter.
In order to establish a prima facie violation of this section, Plaintiff must show (1) that he protested practices contrary to Title VII, (2) that he was subject to an adverse action by his employer, and (3) that the adverse action is linked to the protected conduct. Gunther v. County of Washington, 602 F.2d 882, 892 (9th Cir. 1979); Rogers v. McCall, 488 F. Supp. 689, 697-698 (D.D.C.1980). The respective burdens of proof, persuasion, and production present in Title VII discrimination cases, see e.g. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), also apply to retaliation litigation. Gunther v. County of Washington, 602 F.2d at 892; Rogers v. McCall, 488 F. Supp. at 697.
Plaintiff is very likely to prevail on the merits. It is undisputed that he engaged in protected activity and was subject to adverse action. Moreover, the causal connection between them is manifestly clear. Bensinger and Hambrick knew about Jackson's testimony at the Segar trial and knew the substance of that testimony. Jackson was told to "watch himself" by Hambrick. Bensinger knew that Jackson and Fallon were unfriendly, and knew that Panella, with Fallon's approval, had unjustly reprimanded Jackson. Bensinger knew that individuals he had appointed had conducted an evaluation of NERO and issued a report highly critical of Fallon. Bensinger knew that Fallon could not work with Jackson, and understood that Jackson did not want to become NERO's RD. Nevertheless, he appointed Jackson to become Fallon's second in command, and then relied on the ensuing decline in productivity to demote and transfer Plaintiff. Plaintiff has made a prima facie showing of retaliation and has proven that Defendants' justification was a pretext for that retaliation. He has met his ultimate burdens of persuasion and proof. Texas Dept. of Community Affairs v. Burdine, -- - U.S. at -- , 101 S. Ct. at 1093.
II. Irreparable Harm
Plaintiff alleges that he and members of his class will suffer irreparable harm if the transfer and demotion are not enjoined. Only in a "genuinely extraordinary situation" in which "the circumstances surrounding the employee's discharge, together with the resultant effect on the employee ... (radically) depart(s) from the normal situation" may irreparable injury be found. Sampson v. Murray, 415 U.S. 61, 92 n. 68, 94 S. Ct. 937, 953 n. 68, 39 L. Ed. 2d 166 (1974). In the instant case Plaintiff would suffer no injury that could not subsequently be remedied. Neither the inconvenience caused by the transfer nor the injury to his reputation caused by the demotion would be irreversible. As the Supreme Court stated in Sampson v. Murray, 415 U.S. at 90, 94 S. Ct. at 952, quoting from Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C.Cir.1958):
The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility of adequate compensatory or other corrective relief at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.
Financial injury resulting from the transfer and injury to reputation resulting from the demotion can both be mitigated in the course of litigation. See Smith v. Secretary of the Navy, 659 f2d 1113 (1981).
Irreparable harm would however, attach to members of the Plaintiff class should this Court refrain from issuing the requested injunction. They must come forward with proof of specific injuries.
Jackson, as the highest ranking Black DEA agent, is highly visible to members of the class. His unwarranted transfer and demotion would serve as an example to the class members know your place, don't challenge management, don't assert your right to equal employment opportunity. The message transmitted to the class members by this act of retaliation is clear; unless Plaintiff is protected now from the adverse action, members of the class will refrain from coming forward with their claims. The injury to them will be irreparable.
III. The Effect of Relief on Third Parties
The only third parties affected the issuance of a preliminary injunction are other members of the Plaintiff class. They will benefit from its issuance; no harm will befall others.
IV. The Public Interest
Defendants allege that the public interest would not be served by the issuance of an injunction because the New York Office has shown signs of improvement since Jackson's removal. No documentary evidence of improvements have been presented to the Court, and the credibility of DEA's witnesses is questionable. Assuming arguendo that some public interest would be deserved by the issuance of a preliminary injunction, it would be more than offset by the public's interest in full vindication of the rights codified in Title VII. This interest in full vindication is accentuated by the status of Defendant as a Federal agency.
V. Balancing the Considerations
This Court does not issue preliminary relief lightly, even when it perceives a high likelihood of success on the merits. See North Slope Borough v. Andrus, 486 F. Supp. 326, 330-331 (D.D.C.1979). In the instant case, however, all four factors support the issuance of a preliminary injunction. Moreover, this Court has already presided over trial in the main action. A primary reason for judicial restraint in the issuance of preliminary relief is the need for the Court to be fully informed before it injects itself into a dispute. Trial of and deliberation over the issues presented in the main action gives the Court a much fuller view over this litigation than it would otherwise have obtained.
Plaintiff's request for preliminary relief must be granted.
Upon consideration of Plaintiff's Motion for a Preliminary Injunction, the Opposition thereto, the hearing held on April 9, 1981, the Memorandum Opinion issued this date, and the entire record herein, it is by the Court this 5th day of May, 1981
ORDERED, that Defendants be and hereby are restrained from demoting Carl L. Jackson and transferring him from his position as Deputy Regional Director of the Northeast Region of the Drug Enforcement Administration, or taking any other adverse employment action with respect to Mr. Jackson, pending a final determination by this Court on his claim of retaliation.