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PROBST v. RENO

December 22, 1995

PETER PROBST, Plaintiff,
v.
JANET RENO, Attorney General of the United States, and THOMAS A. CONSTANTINE, Administrator of the Drug Enforcement Administration, Defendants.



The opinion of the court was delivered by: HOLDERMAN

 JAMES F. HOLDERMAN, District Judge:

 Plaintiff Peter Probst is a veteran U.S. Drug Enforcement Administration (DEA) special agent. His race is white. He filed this action against his superiors for employment discrimination and retaliation. The jurisdiction of the court is invoked under 42 U.S.C. § 2000e-16 and 42 U.S.C. § 2000e-5(f)(3). Defendants dispute the court's subject matter jurisdiction only as to plaintiff's claim for damages arising from loss of promotions.

 Counsel for the parties resolved a substantial number of issues before trial and waived the demand for a trial by jury. On December 14 and 15, 1995 the remaining issues in the case were tried in a bench trial to the court.

 BACKGROUND

 In preparation for the trial, counsel for the parties submitted a proposed final pretrial order pursuant to Local General Rule 5.00. That final pretrial order was entered as proposed the day the trial began. Among the sections of that December 14, 1995 final pretrial order was a section stating the agreement of the parties as to the undisputed material facts *fn1" as follows:

 UNDISPUTED MATERIAL FACTS

 
1. Plaintiff Peter Probst is employed by the Drug Enforcement Administration as a criminal investigator (DEA), and has been so employed since September of 1983. In June, 1984, plaintiff was transferred to the Chicago Field Division of the DEA, and a year or two later began to work with what is now Group 12 of the Chicago Field Division. As of July 1, 1991, Mr. Probst was transferred from Group 12 to become the Divisional Cannabis Eradication Coordinator for the Chicago Division.
 
3. From September, 1990 through August, 1995, James A. Woolley was the Group Supervisor [G/S] of Group 12 in the Chicago Field Office of the DEA.
 
4. From October 1990 through May 17, 1995, Joseph A. Vanacora was the Associate Special Agent in Charge (ASAC) of the Chicago Field Division of the DEA.
 
5. During 1991, 1992, and 1993, Armando Marin, Alejandro Duran, and Edward McKulsky were employed as Inspectors in the Office of Professional Responsibility (OPR) of the DEA.
 
6. During 1990 and 1991, a crack cocaine investigation, commonly known as the Claiborne investigation, was ongoing. [Special Agent] S/A Probst was the case agent and team leader, and Special Agents Michael Kress and John Wooten were the other team members with S/A Probst. S/A Kress was later replaced by S/A Thomas Evans. Only S/A Wooten is African-American.
 
7. AUSA Bilaisis was also working on the Claiborne investigation, as was Sgt. James Brady of the Chicago Police Department and S/A Kevin Moss of the Internal Revenue Service. A wiretap pursuant to Title III was planned in the spring of 1991 as a part of the Claiborne investigation.
 
8. Both prior to and during the course of the wiretap S/A Peter Probst complained to Group Supervisor Woolley about the performance of other agents. G/S Woolley discussed S/A Probst's complaints with these individual agents.
 
9. During the course of the wiretap, S/A Peter Probst informed Group Supervisor Woolley that he was receiving late night telephone calls at his house, in which the caller hung up.
 
10. In late June, 1991, S/A Probst reported alleged incidents of racial discrimination against S/A Wooten to EEO Counsellor Valerie Turner.
 
11. As of July 1, 1991, S/A Probst was no longer working with S/A Wooten, no longer in Group 12, and G/S James Woolley was no longer his supervisor. S/A Probst's first line supervisor was now ASAC Saul Weinstein.
 
12. On August 4, 1991, S/A Probst contacted EEO Counsellor Alex Rodriguez. Within the next 21-day period, in accordance with applicable rules, Rodriguez contacted DEA management of the Chicago Field Division in an effort to resolve Probst's complaint.
 
13. On August 29, 1991, S/A Probst met with SAC Cloud regarding his EEO complaint. On August 30, 1991, S/A Probst gave SAC Cloud a memorandum listing a chronology of the alleged events that had occurred.
 
14. G/S Woolley gave S/A Probst a projected overall rating of outstanding in the January, 1991 mid-year review.
 
[No paragraph number 15 was submitted.]
 
16. Some time after June 17, 1991, G/S Woolley hand wrote a draft justification for giving Probst an outstanding rating for the year ending June 30, 1991. In this document Woolley refers to the Claiborne indictment that was returned on June 13, 1991, arrests and seizures made on June 14, 1991, and seized money counted on June 17, 1991.
 
17. When S/A Probst received his evaluation for the period July 1, 1990 through June 30, 1991 from G/S Woolley on August 27, 1991, G/S Woolley rated Probst as excellent. Vanacora had approved this rating. On September 16, 1991, Probst appealed to the Performance Rating Grievance Committee on the basis that the individual items within Critical Element #2 that had been rated low were internally inconsistent with the rest of the ratings in this evaluation. On November 29, 1991, the Performance Rating Grievance Committee raised the evaluation to outstanding.
 
18. G/S Woolley had rated Probst as "seldom" asking for help regarding the Claiborne case and never seeking the input of other senior agents to better understand the case situation. This resulted in an overall rating of "excellent" rather than "outstanding". G/S Woolley did not and could not consider inter-personal skills. Vanacora agreed with the evaluation.
 
19. Neither the evaluation that Woolley tendered to Probst nor Woolley's response memorandum dated September 6, 1991, to Probst's appeal of Woolley's evaluation mentioned any acts of insubordination or disrespectful conduct.
 
20. SAC Cloud requested that OPR conduct an independent investigation into the various allegations because some of the allegations involved DEA ...

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