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May 5, 1981

Henry W. SEGAR, et al., Plaintiffs,
Benjamin R. CIVILETTI, et al., Defendants

The opinion of the court was delivered by: ROBINSON, JR.


Before the Court is Plaintiff Carl L. Jackson's Motion for a Preliminary Injunction in this Title VII, 42 U.S.C. § 2000e et seq., litigation. Jackson is the highest ranking Black agent in the Drug Enforcement Administration (DEA). *fn1" On February 24, 1981, Jackson was demoted from his GS-16 position as Deputy Regional Director (DRD) of DEA's Northeast Regional Office, (NERO) and transferred to the Dallas, Texas Regional Office to become a GS-15 Special Projects Officer. Jackson alleges that this transfer and demotion is an act of reprisal in violation of Title VII, 42 U.S.C. § 2000e-3(a). A hearing on this Motion was held on April 9, 1981. This Court's findings of Fact, for the purposes of this Motion, may be summarized as follows:

 In early 1977, Black Special Agents filed this litigation as a class action, alleging numerous Title VII violations. *fn2" In October of 1978 DEA was reorganized, *fn3" and Plaintiff became Special Agent In Charge (SAIC) in New York. *fn4" Trial of this case commenced on April 9, 1979, and concluded on April 24, 1979. *fn5" Jackson, a member of the class, testified on April 10, 1979, and April 24, 1979.

 Jackson's testimony on April 10, 1979, supported numerous claims of discrimination. Two salient portions of his testimony are relevant to this proceeding however, to wit: (1) his assertion that DEA Administrator Bensinger was not concerned about equal opportunity in employment, and (2) his fear of reprisal for the testimony he gave. Some of this testimony is summarized below. *fn6" Jackson's testimony on April 24, 1979, primarily concerned an unannounced inspection of the New York Office that had occurred in January of 1979. Jackson testified, inter alia, that the inspection was accurate, but that it did not reflect upon his abilities as NYO's SAIC. *fn7"

 One day later, on April 25, 1979, Jackson received a reprimand from NERO DRD Nicholas Panella, which was concurred in by the NERO RD John Fallon. Jackson was reprimanded as a result of the unannounced inspection the first (and only) time an SAIC has been so reprimanded. *fn8" On April 30, 1979, Jackson received a "marginal" performance rating, the only time in his twenty-one (21) year career at DEA he has been adjudged less than "fully satisfactory." *fn9" As a result of these two actions, Jackson filed an informal EEO complaint charging, inter alia, that they were the product of retaliation for his testimony in Segar. Since neither Fallon nor Panella evidenced any interest in negotiating a resolution of the complaint, Jackson filed a formal EEO complaint on August 27, 1979.

 In the spring of 1979 Jackson met with Marion V. Hambrick, Assistant Administrator for Enforcement of DEA. Hambrick told Jackson that Bensinger was (1) concerned that Jackson was too involved in EEO, and (2) displeased with his testimony at the Segar trial. He then told Jackson that he'd better "watch it." Jackson told Hambrick that he would try to do that, but that he was having problems with NERO RD John Fallon. Jackson said he didn't understand why Headquarters didn't "do something" about Fallon. Hambrick responded that Headquarters was "supportive" of Jackson's position vis-a-vis Fallon, and the NYO's statistics were improving, and that Jackson should be careful, just do his job, and watch himself.

 In July of 1979 Jackson met with Bensinger to discuss the problems Jackson was having with Fallon. Jackson felt that Fallon was trying to downgrade the efforts of the New York Office, and that he was neither trustworthy nor honest. Bensinger asked Jackson what he wanted done about the problem, and Jackson suggested that Bensinger have an independent study of the problem.

 As a result of this meeting in August of 1979 Bensinger ordered an unannounced evaluation of NERO. This evaluation revealed, inter alia, (1) factionalism in the management core of the New York Office, and (2) the shortcomings of NERO RD John 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 *fn10" positions, and had been promised Jackson prior to commencement of the Segar trial. *fn11" 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, *fn12" or his relationship with Jackson.

 In Late 1979 the "Tarallo incident" occurred. The facts of that incident, which are before the Court, *fn13" are unimportant. Ultimately, Fallon, overriding the recommendation of Jackson, decided to severly punish the three agents *fn14" 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, *fn15" 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 ...

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