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February 26, 1982

Robert GIBSON, Jr., Plaintiff,

The opinion of the court was delivered by: MOTLEY

Plaintiff herein requests a preliminary injunction pursuant to Section 706(g) of the Civil Rights Act of 1964, as amended, (the Act), 42 U.S.C. § 2000e-5(g). This section provides for injunctive relief if a respondent has intentionally engaged in an unlawful employment practice charged in the complaint. In the instant case, plaintiff seeks to enjoin his employer, the Immigration and Naturalization Service (INS), from effecting a job reassignment which he claims was discriminatory and designed to harass him in violation of his Title VII rights.

On February 5, 1982, Judge Cannella granted plaintiff's application for a temporary restraining order pending a determination of plaintiff's motion for a preliminary injunction. Subsequently, the case was reassigned to this court. On February 9 and 11, 1982, hearings were held on plaintiff's preliminary injunction application. The temporary restraining order was extended for an additional ten days in order to give the parties an opportunity to submit proposed findings of fact and conclusions of law. Having now had an opportunity to consider the papers submitted on both sides, the court has determined to grant plaintiff's request for preliminary injunctive relief.

 Findings of Fact

 Plaintiff Robert Gibson, Jr., has been employed by the federal government since 1969 (Tr.10). In 1978, he was hired as a Criminal Investigative Trainee at the INS (Tr.8, 10-12). After he was hired, he attended training school in Georgia for five and one half months. There, he received instruction in Spanish, Immigration Law, Investigative Techniques, Report Preparation, Rules of Evidence and Handling of Firearms (Tr.12).

 In or about October, 1978, plaintiff filed the first of some fourteen complaints with the Equal Employment Opportunity Commission (EEOC). He alleged that the INS was discriminating against him on the basis of race in violation of Title VII of the Act.

 In June, 1979, plaintiff was served with a Notice of Proposed Removal by the INS which alleged various instances of misconduct. Plaintiff then appealed his discharge to the Merit Systems Protection Board (MSPB). On May 8, 1980, after two hearings, the MSPB reversed the INS' decision to discharge plaintiff. It found that the INS had discharged Mr. Gibson in retaliation for his having engaged in protected EEO activities (Tr.31). It also found that the INS had failed to support its charges by a preponderance of the evidence. Plaintiff was awarded eleven months back pay and all material relating to his discharge was deleted from his personnel file.

 Upon his return to work in July, 1980, plaintiff was assigned to the Alien Processing Unit of the General Investigations Section of the INS New York City office. He thereafter began a six months intensive training course in Spanish which consumed approximately twenty hours per week of his work time. While in the Processing Unit, plaintiff worked under a supervisor and acting supervisor, Mr. Joseph J. Walla and Mr. Charles M. Turso.

 In an evaluation memorandum dated November 17, 1980, Mr. Walla submitted an evaluation of Mr. Gibson's performance from July 31, 1980 through October 31, 1980. The evaluation stated, inter alia, that his overall performance was "above satisfactory." Mr. Walla testified to the same effect at the hearing on plaintiff's preliminary injunction application (Tr.82-83). Mr. Turso also testified at the preliminary injunction hearing that Mr. Gibson performed his duties "in a satisfactory manner" and that his overall performance "was good" (Tr.86). Neither Mr. Walla nor Mr. Turso has worked with plaintiff since December, 1980 (Tr.86-87).

 Plaintiff filed another EEO complaint in November, 1978. The complaint alleged harassment by fellow investigators at the Fort Hamilton Pistol Range to which plaintiff had been assigned (Pl's Exh. 1). Plaintiff also alleged that on several occasions a fellow Criminal Investigator (CI) made derogatory statements about plaintiff's performance as a trainee and, following a confrontation with this CI, that three of plaintiff's co-workers wrote memoranda indicating they no longer wished to work with plaintiff. It was plaintiff's contention that: 1) his supervisory personnel accepted the CI's version of the confrontation, making it a part of plaintiff's personnel file and; 2) that the memoranda were written at the behest of plaintiff's supervisor. In a decision rendered in September, 1980, (which was dated April 1, 1981), Squire Padgett, EEO Complaint Adjudication Officer for the Department of Justice, sustained plaintiff's complaint (Tr.23, 66). He found, inter alia, that "an examination of the evidence ... sustain(s) (plaintiff's) allegation that the Hamilton Range incident constituted an instance of impermissible governmental employment practice, e.g., retaliatory harassment, albeit subtle, in violation of Title VII of the Civil Rights Act of 1964, as amended in 1972" (Opinion of Squire Padgett, pp. 11-12).

 In January, 1981, plaintiff was placed under the supervision of Mr. William Slattery. In March, 1981, he took a written Spanish test which was required by the Criminal Investigative Training Program (CITP). On April 8 and 9, 1981, plaintiff was administered one written and one oral Spanish test, both of which he failed. After failing the ten-month Post-Academy Spanish Examination, he was given a 90 day training extension under the CITP. On July 22, 1981, he failed another written test. In April, 1981, Mr. Gibson filed a Union Grievance alleging that the Spanish tests administered to date had been unfair. He also claimed that he had actually passed the exams but was given a failing grade as a form of harassment by the INS in retaliation for his EEO activities (Tr.33-35; 70-74). As part of the Grievance, he claimed that because the April 9, 1981 oral examination was administered by the sister of his third-line supervisor, Mr. Slattery, it was inherently unfair (Id.).

 Plaintiff's Grievance was denied on December 9, 1981 and Mr. Gibson did not appeal (Tr.73-74). The Arbitrator cited the opinion of an independent Spanish instructor that plaintiff's performance was unsatisfactory upon a review of the exams.

 On May 11, 1981, while plaintiff's Grievance was pending, he filed another EEO Complaint (Complaint # 4) (Tr.69-70). The complaint alleged discrimination and reprisal in the form of harassment, the failure to re-assign him, and the manner in which the Spanish test was administered. Since May 11, 1981, plaintiff has filed approximately ten other EEO Complaints, alleging, inter alia, verbal harassment, racial slurs by his supervisor, being assigned to work in a high crime area without a partner, a proposed reprimand, being ordered to work with Investigators who have refused to work with him in the past, and other instances of reprisal. These complaints have been consolidated for investigation and adjudication. The present status of Complaint # 4 is that it is pending until completion of the consolidated investigation which has been commenced (Tr.97-98).

 On or about January 28, 1982, plaintiff received a letter from Roger Woods, Assistant Regional Commissioner for Personnel of the INS (the Woods letter), informing him that he was being transferred from his position as Criminal Investigator to that of Contact Representative in the same office. The transfer was to become effective February 7, 1982. The letter cited the following reasons for the transfer: plaintiff's failure to pass the Spanish language tests; his inadequate working knowledge of immigration law, investigative procedure and techniques; his inability to write acceptable investigative reports; and the findings and recommendations of the Regional Probationary Board which reviewed plaintiff's overall performance and concluded that it was not acceptable (Woods letter, p.2; Tr.109-112). Plaintiff claims, however, that the transfer is in reality another form of retaliatory harassment consistent with the agency's past treatment of him.

 Although the position to which plaintiff would be reassigned is a lateral move in terms of salary and benefits, (Woods letter, p.3; Tr.113), plaintiff contends that it is really a demotion. He claims that he will suffer a monetary loss of $ 183.00 bi-weekly, because he would no longer be eligible for administratively uncontrolled overtime presently available only to law enforcement officers (Tr.38). Plaintiff further contends that the Contact Representative position does not have the promotional opportunities available in the Criminal Investigator position (Tr.39). The court finds that notwithstanding the fact that the ...

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