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SHELTON v. BABBITT

April 26, 1994

RONALD SHELTON, Plaintiff,
v.
BRUCE BABBITT, SECRETARY, U.S. DEPARTMENT OF INTERIOR, Defendant.



The opinion of the court was delivered by: GREENE

 In this Title VII *fn1" case, the plaintiff contends that officials of the Bureau of Mines, an agency of the Department of the Interior, brought about an unwarranted 30-day suspension from his position and discouraged him in his employment relationships in various other ways, with the result that he finally resigned. This constructive discharge *fn2" , plaintiff argues, occurred as a consequence of racial discrimination and reprisal. *fn3"

 The evidence adduced at the trial demonstrated the following. Ronald Shelton was a long-time employee of the Department of the Interior, who, at the time of the incidents in question in this case, was manager of the Bureau's Equal Opportunity Investigations Office. His performance appraisals had always been excellent or superior, and there was no blemish on his record. However, beginning in 1987, he was disadvantaged in various ways, and this discriminatory treatment culminated in 1989 in his suspension and other acts by the then relatively new Director of the Bureau of Mines, T. S. Ary, *fn4" and another high-level supervisor by the name of Larry Miller. None of the other division heads in the Bureau of Mines, all of whom were white, were similarly treated.

 Among the relatively minor slights and disadvantages plaintiff endured during this period were the removal from his job description of his role as a liaison with the Annual Conference of Historically Black College and University Program (HBCU) which he had handled, at least in part, for a considerable period of time; his exclusion from management conferences attended by other division chiefs; and his exclusion from the presentation function at such conferences. Furthermore, Mr. Ary, the then new Director of the Bureau of Mines, gave plaintiff a lower appraisal rating than he had received on any evaluation until that date -- one that would have hampered his progress within the Agency. Indeed, despite many efforts, and his incumbency in the position for many years, he was not promoted from his GS-14 grade to a GS-15. However, his successor in that position, a Hispanic woman, received that very promotion within a year.

 The culmination of this discriminatory pattern occurred when plaintiff was suspended from his job in 1989. The circumstances of this suspension deserve more extended discussion. Ellie Gilbert, an employee in the EEO Office, was dispatched in March 1987 by plaintiff to conduct an investigation in the Bureau of Mines Research Center located in Tuscaloosa, Alabama. On four occasions, she travelled from Tuscaloosa to Pensacola, Florida, a city where she had relatives, in her government-leased car. These trips by Ms. Gilbert, and Mr. Shelton's approval, or at least his failure to disapprove, are at the heart of defendant's claims that these two EEO employees violated travel regulations. *fn5" However, as the testimony and the evidence adduced at trial made clear, the matters surrounding these trips are not nearly as clear-cut as the Bureau of Mines has attempted to make them appear.

 As concerns the first of the detours by Ms. Gilbert from Tuscaloosa to her ultimate official destination, Salt Lake City, it was specifically approved by the Bureau's Finance Office, and for that reason could not reasonably be charged against her, or her supervisor Shelton, with any degree of legitimacy.

 Ms. Gilbert's third and fourth trips involved similar detours and these detours were also approved by Mr. Shelton and/or the Finance Liaison Officer as being cost effective. Defendant's bureaucratic complaints seem designed to create a problem where before one did not exist.

 It is the second trip away from Tuscaloosa to Pensacola that was apparently regarded by Mr. Ary, the Bureau Director, as the most serious, including as it did two work days for which Ms. Gilbert did not request annual leave. However, upon closer examination, the charges regarding that trip illuminate most clearly the anti-EEO, and inferentially, possibly an anti-black, bias that animated from Mr. Ary and others under his command.

 When Ms. Gilbert arrived in Tuscaloosa for her EEO investigation, she was met with massive hostility by the Bureau's personnel at the Research Center. According to her testimony, Center personnel were eavesdropping at the door to the room where she was conducting her interviews; her telephone calls were being monitored; and she was awakened by loud nighttime noises against her motel room door. Her testimony regarding the extreme hostility and disdain was corroborated, albeit indirectly, first, by the fact that the manager of the Tuscaloosa facility, one Stanczyk, directly walked out of and never returned to a meeting at which Ms. Gilbert was seeking to collect EEO data, and second, by a letter signed by twenty-eight employees of the Center to a United States Senator, complaining that the EEO process was being abused to the detriment of the Center's employees and in effect asked him to get the Equal Employment representatives off their backs.

 Two conclusions can be drawn from this unusual sequence of events. First, that Ms. Gilbert was justified in leaving Tuscaloosa to escape the massive hostility there and the perceived threat to her physical safety, and second, that Mr. Ary's reaction to these incidents -- without any proof whatever, he cast doubt on Ms. Gilbert's recitation of events; he minimized their significance; and he suggested that she was wrong in what she did and that she should have taken alternative, absurd courses of action -- indicates that hostility to EEO and concurrently to Ms. Gilbert and Mr. Shelton existed at the highest levels at the Bureau of Mines. *fn6"

 To be sure, as the Bureau of Mines suggests, Ms. Gilbert could have escaped to a city closer to Tuscaloosa, such as Birmingham. However, it again shows singular lack of empathy with the Bureau's own EEO employees to regard her escape to her family from segregationist pressure by white opponents of EEO as a cause for discipline of both her and her supervisor.

 In any event, Ms. Gilbert repaid the government for the amounts that may have been *fn7" improperly expended by the detour as soon as the matter was drawn to her attention. As for the Bureau's rationale that under its disciplinary procedures it had no choice but to impose at least a thirty day suspension on Shelton, a black male, it is directly contradicted by the fact that the actual "perpetrator," Ms. Gilbert -- who is white -- was penalized by only a fifteen day suspension. Likewise, allegations of misuse of a government vehicle by Martin Stanczyk, the Research Director and a white male, were given only cursory treatment, and he was subjected to no discipline.

 The Court draws yet another conclusion from the Tuscaloosa events. The evidence, albeit circumstantial, suggests that the initial impetus for the investigation of plaintiff originated with the anti-EEO staff at Tuscaloosa. The anonymous complaint against Mr. Shelton and Ms. Gilbert was made while the latter was investigating EEO matters at Tuscaloosa. Further, someone within the Bureau of Mines organization itself appears to have submitted written material to support the complaint inasmuch as official documents, such as travel vouchers, were submitted with it.

 Beyond that, there was testimony, albeit indirect, that several high-level managers in the Bureau boasted that they had finally been successful in "getting" Shelton who had been a thorn in their sides. One of plaintiff's witnesses testified that Jerry Vroman, a branch chief in the Bureau of Mines, told him that Shelton was too much in favor of affirmative action and a nuisance to management; that he should be cut down, and that "at last we got Mr. Shelton." Vroman denied the claim, but the Court finds that his credibility, as well as those of Ary and William Miller, were low. Similarly, Robert Redmond, the then current head of the EEO office at the Bureau of Land Management, testified that he was informed by David Bruce, the Inspector General's investigator, that they were out to "get" Shelton, as well as other blacks of high rank. *fn8" Bruce, too, denied that charge. Surely, in this day and age, no one would openly admit either to discrimination or to being a party to the discipline or removal ...


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