inside," and there
was a racist skit involving a "slave" in blackface performing oral sex on
a "Klansman." In 1992, a subsequent Roundup President posed with a
Confederate flag making obscene and inappropriate gestures. There were
signs posted at the campsite saying "no niggers" and "nigger checkpoint."
That year a policeman participant performed a skit involving smashing
open a watermelon and pulling out a black painted doll, saying that one
had to "kill the seed while it was young." Racist t-shirts were offered
for sale in 1991, 1992, and 1995. Secret Service agents was elected
"President" of the 1985 and 1989 and 1990 Roundups.
So far this reflects an appalling atmosphere of racism in certain
subterranean (and, one hopes, sparsely inhabited) reaches of the law
enforcement community, but not racism connected with the decisionmaker or
the decision here. However, Grayson argues the worst incidents of racism
occurred at the Roundups while Eljay Bowron was SAIC Atlanta, Georgia, in
1989-92, and that Buster Williams, a supervisory agent the Atlanta Field
Office under Bowron, was an organizer of the Roundups during that
period, and was not punished. If true, that might show a decisionmaker's
propensity to act from forbidden motives, as well as more lenient
treatment of similarly situated whites. Grayson offers the affidavit of
Jenell Walker-Clark, then a Secret Service Special Agent in Atlanta. She
states that Williams was ASAIC there from 1994 to 1996, and that he "took
part in organizing and promoting" the Roundup during 1994-96, and was not
disciplined for it.
The problem is that, according to the OIG Report, the really appalling
conduct at the Roundups occurred in 1991-92, not after 1994. The only
evidence for the period when evidence places Williams in Atlanta is that
in 1995 someone unknown, perhaps not even a law enforcement official,
offered racist t-shirts for sale at a Roundup. I can't attribute that to
Bowron or Williams. Grayson then argues that "it can reasonably be
inferred" that Williams was in the Atlanta Field Office from 1989 to
1996. He refers again to Walker-Clark's testimony, but she herself
arrived in Atlanta only in 1994, and she says nothing about where
Williams was or what he had done before then. Grayson also refers me to
the affidavit of Cheryl Tyler, a Secret Service Investigator who states
that unnamed Secret Service agents participated in racist activities at
various Roundups. Tyler does not say where she was located, but her
supervisor was ASAIC Lee Wagner, not Buster Williams. I draw every
reasonable inference in Grayson's favor, but no rational jury could
conclude from these two pieces of evidence that Williams was even in
Atlanta in 1991-92, much less that he participated in organizing racist
excesses in 1990-92 with the condonation or toleration of Eljay Bowron.
I conclude, therefore, that Grayson has not carried his summary
judgment burden by showing that he was treated worse than similarly
situated white employees, or that there is any direct or circumstantial
evidence that his removal and transfer were because of his race rather
than because of the Secret Service's honest belief in the credible
portions of the Management Report about his deficient performance. There
is no evidence of pretext. Grayson was legitimately removed from the
position of SAIC Chicago.
Grayson argues that he was constructively discharged by being
threatened with disciplinary proceedings if he did not resign or retire.
Constructive discharge "is a judicially-created response to the fact that
Title VII, as originally enacted, afforded no damages remedy to a
victim for emotional trauma or even for medical expenses [he]
may have incurred." Chambers v. American Trans Air, Inc., 17 F.3d 998,
1005 (7th Cir. 1994). "Thus, courts have said that where conditions are
so intolerable that a reasonable person would feel compelled to resign, a
plaintiff may do that, and then sue." Id. For constructive discharge,
Grayson must show that (1) the Secret Service made his workplace
intolerable, Drake v. Minnesota Mining & Mfg., 134 F.3d 878, 886 (7th
Cir. 1998), and (2) "the underlying working conditions were themselves
unlawful (i.e., discriminatory in some fashion)." Sweeney v. West,
149 F.3d 550, 557-58 (7th Cir. 1998). More than ordinary discrimination
is necessary to establish a constructive discharge claim; in the ordinary
case, an employee is expected to remain employed while seeking redress.
Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997).
Grayson's situation was certainly uncomfortable. But the intolerability
must be because of the illegal discrimination. Drake, 134 F.3d at 887.
Grayson's constructive discharge case thus depends on his theory that the
investigation and disciplinary process were a racist frameup. He has not
met his burden of producing evidence that would persuade a rational trier
of fact of this claim, so his constructive discharge claim fails.
I GRANT the Secret Service's motion (1) for summary judgment on counts
II and III. I DENY Grayson's motions (1) to strike the Secret Service's
statement of facts, and (2) to deem certain facts admitted.