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October 23, 1992

WILLIAM P. BARR, Defendant.

The opinion of the court was delivered by: GERHARD A. GESELL

 Plaintiff, a Special Agent of the Federal Bureau of Investigation ("FBI"), brought this action alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. Having concluded that Special Agent ("SA") Van Meter was not entitled to a jury trial under the provisions of the Civil Rights Act of 1991, Van Meter v. Barr, 778 F. Supp. 83 (1991), a brief bench trial was completed on September 15 and 16, 1992. After consideration of oral argument and post-trial briefs, the Court makes the following findings of fact and enters its conclusions of law.

 I. Background

 Although this case has a long and somewhat acrimonious pretrial history involving, among other things, numerous motions and discovery disputes, when it finally came to trial the remaining factual and legal issues proved to be extremely narrow. Several claims were abandoned. It is necessary at the outset to place the remaining issues in their proper context by summarizing certain mostly undisputed background facts.

 When SA Van Meter entered his duties as an FBI Special Agent, he was already divorced. His children lived with his former wife in Dayton, Ohio. He had visited his children and kept in close contact with them. He was initially assigned to Seattle, Washington. After he successfully completed this assignment, he was ordered to report to Los Angeles. It was the practice of the Bureau at the start of a new agent's career to assign the agent to a major city like Los Angeles following completion of the initial duty assignments. The decision to send SA Van Meter to Los Angeles was made in the regular course by the personnel office and is not claimed to have been racially discriminatory in any way.

 At this career stage, an agent may express a preference for a particular major city. SA Van Meter had stated his preference for a mid-western city, which would have made him more readily available to his children, but his preference had not been favorably met and he protested on hardship grounds in an entirely appropriate and proper manner. This protest was denied.

 Thereafter, SA Van Meter completed his transfer from Seattle to Los Angeles and did not appeal the denial of his preference on hardship grounds, as he could have done pursuant to then-existing FBI regulations.

 SA Van Meter is still stationed in Los Angeles. He has served effectively in all respects. He complains of no action taken by his superiors in that office and does not allege discrimination by any of them.

 SA Van Meter is black. During his early training he developed a casual acquaintance with another new black Special Agent named Donald Rochon. SA Rochon had been initially assigned to Omaha about the same time that SA Van Meter was assigned to Seattle. After completing his Omaha assignment, SA Rochon was ordered to transfer from Omaha to Chicago. For family and other personal reasons, this transfer was contrary to SA Rochon's strong preference for Los Angeles. Thus at about the same time, in 1984, these two men with apparently identical qualifications had transfer orders from their initial assignments to major cities other than the city each preferred.

 Like SA Van Meter, SA Rochon filed a protest indicating his desire to be near his parents in Los Angeles. His hardship request was also denied by the personnel office. Unlike SA Van Meter, however, SA Rochon took an appeal in his case to the Hardship Transfer Review Board. SA Rochon's appeal was denied by the Board.

 Subsequent to these events, SA Rochon brought an administrative discrimination case. He alleged a litany of racially discriminatory acts and injuries perpetrated upon him by white Special Agents and superiors while he was at Omaha and included as an example of such discrimination, among many others, the fact that he had been assigned to Chicago after he had strongly indicated his personal reasons for not wanting to work in that city, some of which were racial. *fn1" Eventually, after a full EEOC hearing, findings of fact and judgment in SA Rochon's favor demonstrated that he had been a victim of gross, persistent racial discrimination affecting both his work in Omaha and his assignment to Chicago. The Department of Justice accepted the EEOC decision and is bound by the findings with respect to SA Rochon.

 SA Van Meter was not a party to SA Rochon's appeal before the Hardship Transfer Review Board or the EEOC hearing. Indeed, he declined to testify in the EEOC proceedings when requested by SA Rochon. However, SA Van Meter had informally suggested to SA Rochon a swap idea that could be presented to the Hardship Transfer Review Board under which SA Rochon would go to Los Angeles where SA Van Meter worked, and SA Van Meter would take SA Rochon's assignment to Chicago, thus placing SA Van Meter closer to his children in Dayton and awarding SA Rochon his preference. SA Rochon accepted this idea and included it in support of his appeal seeking transfer to Los Angeles. See Plaintiff's Exhibit 15. There is no official or unofficial FBI procedure that authorizes, tolerates or recognizes a swap of assignments initiated by special agents for their personal convenience. The crucial dates of the events described above, and which will be pertinent in later discussion of the issues, are set forth below in their chronological sequence. Spring of 1984 SA Van Meter was transferred from Seattle to Los Angeles. March 9, 1984 SA Van Meter requested reconsideration of that transfer order. April 3, 1984 SA Van Meter's request was denied. May 4, 1984 SA Rochon appealed to the Hardship Transfer Review Board the denial of a hardship protest he had made on March 12, 1984. As part of this appeal, SA Rochon mentioned the swap arranged between the agents, asking that his Chicago assignment and Van Meter's Los Angeles assignment be reversed. May 23, 1984 SA Rochon's appeal was denied. January 8, 1986 SA Rochon filed a formal complaint with the EEOC. December 16 to Formal proceedings were held in Rochon's EEOC December 19, 1986 case. June 26, 1987 EEOC decision in Rochon's favor was released. August 6, 1987 The Department of Justice issued its final decision in the matter, adopting the EEOC decision. August 1987 SA Van Meter learned of the EEOC findings in Rochon's case. September 3, 1987 SA Van Meter consulted with an EEOC counselor. October 1987 SA Van Meter filed an EEOC complaint. December 7, 1990 SA Van Meter's EEOC complaint was dismissed as untimely. January 7, 1991 SA Van Meter filed the initial complaint in this case.


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