The opinion of the court was delivered by: PRATT
John H. Pratt, United States District Judge.
Trial of the above captioned matter took place from April 15 through April 24, 1986. In addition to the oral testimony, there has been extensive discovery on both sides in the form of depositions and documents. The matter has been fully briefed. On the basis of the foregoing submissions, the court enters the following Findings of Fact and Conclusion of Law.
1. Plaintiff James P. Jones is an employee of the Agricultural Stabilization and Conservation Service (ASCS), an agency of the United States Department of Agriculture (USDA), which has branches in each of the fifty states. Defendant Richard Lyng is the Secretary of Agriculture.
2. Plaintiff has brought this action under § 704 of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3, et seq. He contends that the removal of most of his duties in August, 1984 and his transfer from Texas to Washington, D.C. in November, 1984 -- after serving more than twelve years in the Texas ASCS office -- were in reprisal for his opposition to and disclosure of alleged sexual harassment of female employees by top ASCS officials in Texas. He also contends that reimbursement for temporary housing expenses which he incurred in Washington, D.C. in March, 1985 was denied to him in reprisal for his protected conduct.
3. On August 10 and 17, 1984, he filed an administrative complaint under Title VII contesting the removal of his job responsibilities. On December 6 and 11, 1984, he filed an administrative complaint under Title VII challenging his transfer to Washington, D.C. On April 9, 1985, he filed an administrative complaint under Title VII contesting the denial of reimbursement for temporary housing expenses.
4. On December 2, 1985, ASCS issued a "Proposed Disposition" denying these claims. Plaintiff did not accept such disposition and appealed to the Secretary of Agriculture; the Secretary has not rendered a final decision. Plaintiff filed his lawsuit more than 180 days after each of his administrative complaints was filed. Plaintiff has exhausted his administrative remedies.
5. The record of this litigation is filled with personal charges and countercharges that are largely irrelevant to the factual and legal issues which confront the court. Many of the facts are not disputed; it is the inferences therefrom which are challenged.
7. Each state ASCS office is headed by a State Executive Director (SED) and supervised by a State Committee, which meets monthly for two to three days. Approximately 75 % of the Texas State Committee meetings are held in College Station; the remainder are held at various cities throughout Texas. The SED and State Committee members are political appointees. Wayne Mayfield has served as SED of the ASCS Texas State office in College Station, Texas since July, 1981. At all times relevant hereto, the members of the Texas State Committee (STC) were Roy Jacoby, Chairman; Zack Fisher, Harold Thomas and Worth Matteson.
8. The second-ranking position in the Texas State Office (STO) is Assistant to the SED and STC, which is a civil service position. Texas is the only state which has such a position. It was created in the 1960's to reward a long-time and highly capable ASCS employee, Jack Bradshaw. Plaintiff replaced Mr. Bradshaw in May, 1972 and remained in that position until his transfer to Washington in November, 1984.
9. The STO has five divisions, each with a Division Chief and one or more program specialists. In addition, ASCS has offices in virtually all of Texas' 250 counties; each office is headed by a County Executive Director (CED) and supervised by a County Committee (COC). The counties are grouped into twenty-one districts, each supervised by a District Director (DD), which director supervises ASCS operations within his district and is responsible for providing program information to the counties as well as reporting county problems to the STO. The DDs attend monthly conferences at the STO where they are briefed on the latest program material from Washington.
B. Plaintiff's Employment History and Performance 1969-1981
10. Plaintiff James P. Jones began his employment with ASCS in March, 1969 when he was appointed Southwest Area Director by the Nixon Administration. Jones had long been active in the Republican party and served as Chairman of Farmers and Ranchers for Richard Nixon and Farmers and Ranchers for Congressman Bob Price during the 1968 campaign. When he received his appointment Jones moved to Washington and his family, including a son afflicted with cerebral palsy, remained in Texas. He remained in Washington until 1972.
11. During his tenure as Southwest Area Director Jones assisted in the removal of two Texas DDs, one of whom was subsequently replaced by Jones' longtime friend Terry Harmon. Mr. Harmon ultimately succeeded Jones as Southwest Area Director. In 1972 Jones ran into trouble with ASCS Administrator Kenneth Frick when spot checkers noted irregularities with respect to set-aside acreage on Frick's California farm. Jones refused to fire the spot checkers and Frick was ultimately required to repay a portion of the funds disbursed to his farm. Jones contacted Senator Tower's office and informed Tower aides that the Frick situation could cause embarrassment to the administration. Frick by way of retaliation relieved Jones of his position and designated him "Confidential Assistant to the Administrator."
13. Plaintiff served as Assistant to the SED from 1972 to 1981. During this period he worked for five different SEDs, all of whom had problems with his performance. Indeed, Jones did not even receive performance ratings in 1974 and 1976-79, and the rating he received in 1975 was denoted "advisory."
14. Former SED David McElwrath, for whom Jones worked from February through July, 1972, testified that, although he gave Jones program manuals to study, Jones made no effort to learn the ASCS programs, that plaintiff never performed GS-14 work and that successor SEDs had the same problems with plaintiff. He testified that plaintiff's strength was that everybody liked plaintiff personally.
15. Bland Harrison, SED from July, 1972 to July, 1973, stated that Jones' performance was "not effective" and that Harrison, the Division Chiefs and Jones together performed the job of Assistant to the SED/STC.
16. SED Robert Spreen (July, 1973 to July, 1977) was likewise unimpressed with Jones' performance. Donnie Bowman, Chief of the Administrative Division at the STO since 1972, stated that he and Spreen discussed duties they could assign to Jones that he would be capable of performing. They ultimately gave Jones responsibility for District Director travel itineraries -- which Bowman described as GS-5 secretarial work. Spreen did not give Jones formal performance evaluations, because he did not wish to lie and recognized that Jones would appeal if given the rating he deserved.
17. Leonard Williams served as SED under the Carter Administration from September, 1977 through July, 1979. Although Williams testified that Jones' performance was satisfactory he admitted that during his tenure he sought to abolish the position of Assistant to the SED/STC. Moreover, during the second year of Williams' tenure, Jones was relieved of all of his major duties, including supervision of the District Directors, chairing District Director conferences, and serving as the Acting SED in Williams' absence. Jones did not regain any of these duties until 1981 when, as acting SED, he reassigned them to himself. Indeed, in August, 1978 the STC gave Donnie Bowman the title of Assistant to the SED. Jones was given the Emergency Livestock Feed Program because he had no other duties to perform. Finally, Williams himself received a performance rating of "2" (less than satisfactory) from the STC.
18. Williams left under a cloud in July 1979 and Stephen Pringle replaced him in September. During the brief interim the STC appointed Donnie Bowman as Acting SED. Pringle in his deposition was outspoken when it came to describing Jones:
The best way to describe Mr. J. P. Jones' performance in his job as Assistant to the State Committee was incompetence, in a single word. J. P. Jones . . . never learned the details of a single program. He had no knowledge of the programs that he was supposed to be responsible for. He could not be given the responsibility to attempt to manage a program, much like would be expected of any other employee up there in the state office.
In addition to Jones' inept performance, Pringle indicated he was a troublemaker. When Pringle directed Jones to attend a training meeting in Dallas, Jones not only complained to Pringle, but lobbied other STO employees to voice objections. Pringle ultimately had to threaten Jones with disciplinary action in the event he refused to attend the meeting.
Despite his dissatisfaction with Jones' performance, Pringle gave him a satisfactory performance rating in August, 1980, which Pringle termed "generous." Pringle explained that with the November, 1980 election only a few months away "I didn't think it served any purpose for me to award him a whole lot lower rating when I had only two months left in my term of office." (Pringle Depo. at 48).
19. ASCS officials explored means of seeking Jones' removal from the STO during the 1978-81 time period. From mid-1978 through 1980 Southwest Area Director Robert Melbourne expressed to Elmer Dovel, Director of ASCS Personnel, on several occasions his desire to remove Jones for poor performance, but Dovel advised that until someone was willing to document Jones' performance deficiencies nothing could be done.
20. Jones acknowledged that ASCS Washington officials wanted to remove him from the STO between 1977-80 but asserted that they were motivated solely by political considerations. Jones even initiated a conversation with Pringle regarding the removal of Jones' duties with hope of obtaining evidence of "political discrimination." For this purpose he carried a tape recorder concealed beneath his suitcoat. Jones bungled his "undercover operation" when the tape recorder began clicking audibly; claiming that something was wrong with his heart, Jones raced out of the room and jumped into his car, only to return a half hour later in apparently healthy condition. Jones admitted that Pringle said nothing indicative of political discrimination.
While there is no question that ASCS is a highly political agency, Jones' assertion that his problems under SEDs Williams and Pringle were attributable solely to politics is not believable. Jones' duties were assumed by professed Republicans such as Wayne Mayfield, Buddy Hedges, and David McElwrath, as well as by Donnie Bowman. Jones' twisted thinking was evident in his explanation that Pringle deliberately sent Republicans Mayfield and Hedges to an important Denver meeting on the Emergency Livestock Feed Program in order to confound Jones' charges of "political discrimination." Pringle testified in his deposition that Jones, refusing to acknowledge his shortcomings, responded to any kind of criticism in a negative manner and could not accept direction. Later Wayne Mayfield was to encounter similar problems as SED.
21. In December 1980 the Personnel Division of the ASCS Kansas City Management Field Office conducted a Personnel Management Evaluation of the STO. The report stated that Jones was not performing most of the duties in his position description and concluded that either the position had to be downgraded to a GS level commensurate with the ...