attitude toward female employees, as confirmed in the OIG report of April 3, 1985. These created a "hostile atmosphere" of sex harassment.
CONCLUSIONS OF LAW
1. This court has jurisdiction over this Title VII matter pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4).
2. Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), prohibits an employer from retaliating against any employee because he has opposed an unlawful employment practice by an employer or because he has filed a complaint or participated in any way in a Title VII proceeding. Section 704(a) is applicable to federal employees through Section 717, 42 U.S.C. § 2000e-16. Chandler v. Roudebush, 425 U.S. 840, 841, 48 L. Ed. 2d 416, 96 S. Ct. 1949 (1976).
3. Sexual harassment of the type opposed by plaintiff includes "hostile environment" sexual harassment and is sexual discrimination prohibited by Title VII. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934 (D.C. Cir. 1981).
4. Plaintiff's acts and statements opposing sexual discrimination of female employees by ASCS officials including "hostile environment" sexual harassment are protected by the "opposition clause" of Section 704(a). The "opposition clause" protects opposition expressed in a wide variety of forms and is not limited to the filing of charges. Armstrong v. Index Journal Co., 647 F.2d 441 (4th Cir. 1981); Novotny v. Great Amer Federal Savings & Loan Assoc., 584 F.2d 1235 (3d Cir. 1978), vacated on other grounds, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979); Gresham v. Waffle House, Inc., 586 F. Supp. 1442, 1446 (N.D. Ga. 1984).
5. The "opposition clause" protects statements by a person, such as plaintiff here, who is not himself the direct victim of the discriminatory practice but who opposes such discrimination against others. Spence v. Local 1250, UAW, 595 F. Supp. 6, 10 (N.D. Ohio 1984); Garcia v. Rush-Presbyterian-St. Luke's Medical Center, 80 F.R.D. 254, 262 (N.D. Ill. 1978); Eichman v. Indiana State Univ. Board of Trustees, 597 F.2d 1104 (7th Cir. 1979).
6. The familiar burdens of proof, persuasion and production which apply in Title VII cases generally, see Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), also apply to retaliation litigation. Williams v. Boorstin, 663 F.2d 109 (D.C. Cir. 1980); Segar v. Civiletti, 516 F. Supp. 314 (D.D.C. 1981), aff'd, 238 U.S. App. D.C. 103, 738 F.2d 1249, 1295 (D.C. Cir. 1984).
7. In order to establish a prima facie violation of Section 704(a), 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." Segar v. Civiletti, 516 F. Supp. at 319; Rogers v. McCall, 488 F. Supp. at 697-98.
8. Plaintiff has established a prima facie case. With respect to the first two elements, plaintiff, however belatedly, protested practices which were in violation of Title VII, i.e., "hostile environment" sexual harassment. Moreover, the removal of most of his job responsibilities, his unsatisfactory performance rating, and his transfer to Washington were, in the circumstances of this case, adverse personnel actions. See, e.g., Johnson v. Bergland, 586 F.2d 993 (4th Cir. 1978); Gibson v. INS, 541 F. Supp. 131, 134-35 (S.D.N.Y. 1982); Minor v. Califano, 452 F. Supp. 36 (D.D.C. 1978); Jackson v. Bergland, 448 F. Supp. 1146 (D.D.C. 1978).
9. With respect to the third element, a prima facie case of retaliatory motive is proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter. Gonzalez v. Bolger, 486 F. Supp. 595 (D.D.C. 1980), aff'd, 211 U.S. App. D.C. 310, 656 F.2d 899 (D.C. Cir. 1981); Brown v. Biglin, 454 F. Supp. 394, 399 (E.D. Pa. 1978); Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.) aff'd, 545 F.2d 222 (1st Cir. 1976).
10. The plaintiff having established a prima facie case of discrimination, the burden shifted to defendant "to articulate some legitimate non-discriminatory reason" for the actions taken. Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 252; McDonnell Douglas Corp. v. Green, 411 U.S. at 802-05. The defendant has this burden of articulating legitimate reasons for the removal of Jones' duties, his unsatisfactory performance rating, and his transfer. The record clearly shows that Jones had a history of performance inadequacies over a long period and documented since the fall of 1983; that he frequently challenged major decisions of his superiors and was insubordinate, which prompted the three committeemen to write letters requesting Jones' removal; that he was disruptive and disloyal and preoccupied with seeking Mayfield's removal and that there was an irreconcilable personality clash between the two men. This split the STO into two hostile camps, which undermined the efficiency of STO operations. As a consequence, Randy Mayes made an independent recommendation that Jones be removed, which recommendation the ASCS officials had before them when the decision to transfer was made. All of these are legitimate reasons for the removal of Jones' duties, his unsatisfactory performance rating and transfer. Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, 58 L. Ed. 2d 216, 99 S. Ct. 295 (1978).
11. With respect to the ultimate issue, plaintiff has failed to prove by a preponderance of the evidence that the removal of his duties, his unsatisfactory rating, or his transfer to Washington were pretextual or in reprisal for exercising protected activity. The facts do not support Jones' claim of retaliation. Jones was relieved of his duties because he did not or could not perform them and he received an unsatisfactory performance rating because his performance was demonstrably unsatisfactory. The decision to transfer Jones was made by Washington officials confronted with an impossible situation in the STO which was adversely affecting the office's efficiency. Hertz did not order Jones' transfer because of Jones' activities in protesting sexual harassment by Mayfield and the latter's permissive sexual attitude. Rather, Hertz acted without regard to Jones' activities, even though he and the others were well aware that Jones might file charges of reprisal. Hertz simply could not allow the open warfare in the STO to continue. Jones' contributions to the work of the STO were minimal whereas Mayfield was an outstanding SED and ran a successful operation. Hertz' choice was clear.
12. Plaintiff likewise failed to establish that defendant retaliated against him in the denial of a portion of his claim for temporary quarters reimbursement. Plaintiff presented virtually no evidence on this count of his complaint other than his testimony that he did not consider the home he was renting to be permanent. As of April, 1985 when plaintiff sought reimbursement, however, plaintiff had been living in Washington, D.C. for nearly five months and had been permanently reassigned to Washington since February, when the OSC declined any further stays of his transfer. Moreover, plaintiff introduced no evidence that his Dumfries, Virginia address has changed since that time, and as of January, 1986, he still had not decided whether to move his family from Texas. Plaintiff is not entitled to presume his quarters are temporary until his lawsuit is resolved.
13. Judgment shall be entered for defendant and this case shall be dismissed.
An order consistent with the foregoing Findings of Fact and Conclusions of Law is entered this day.
Consistent with the Findings of Fact and Conclusions of Law entered this day, it is by the court this day of November, 1986
ORDERED that judgment be entered for defendant and this case shall stand dismissed with prejudice, and it is
FURTHER ORDERED that costs shall be borne by the respective parties.
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