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August 2, 2001


The opinion of the court was delivered by: Elaine E. Bucklo, U.S. District Judge.


From 1993 to 1997, Ralph Grayson, an African American man, was Special Agent in Charge ("SAIC") of the Chicago Field Office of the United States Secret Service. In July 1997, he was removed from that position after an investigation into complaints made by Special Agents who worked or had worked under him. Grayson was reassigned to Washington, D.C., and retired from the Secret Service in the Spring of 1998. After timely filing charges with the EEOC, he received his right to sue letter, and sued under Title VII, 42 U.S.C. § 2000e-5, alleging retaliation (count I) and intentional racial discrimination (count II), and constructive discharge (count III). I dismissed the retaliation claim as time barred in a minute order of August 6, 1999. The Secret Service moves for summary judgment on all remaining counts, and I grant the motion. I also decide several other motions.


Grayson joined the Secret Service in 1974, and served in many responsible positions, including SAIC Columbus, Ohio (1986-88), SAIC Birmingham, Alabama (1998-90), and SAIC Forgery Division, Washington, D.C. (1991-1993). He took over as SAIC in Chicago in 1993, supervising over 100 personnel in one of the Secret Services' largest offices. Under his administration the Chicago field office was recognized for its arrest record in fighting counterfeiting and fraud in the telecommunications industry. Through 1996, he received outstanding individual performance evaluations, as well as bonuses and various awards from federal and municipal authorities.

Despite this, Grayson claims, he lost his position and was ultimately forced to retire because of race. The Secret Service demurs, attributing the end of Grayson's Secret Service career to his own unsatisfactory performance. Grayson offers evidence of racist misconduct in the Secret Service, including evidence of the "Good Ol' Boy Roundups," annual events occasionally featuring grossly racist signs, t-shirts, skits, and so forth in which, he says, Secret Service and other federal agents participated from 1980 to 1995. Grayson says that he challenged the "good old boy" network, offering support and encouragement to minority Secret Service employees. In March 1997, Grayson recommended that another African American agent, Isaiah Mapp, be promoted to be Assistant SAIC ("ASAIC"), the number two position in the office. Mapp was passed over in favor of a white agent. According to Grayson, it was this recommendation that triggered the events leading to this lawsuit.

The Secret Service has a different account. In February 1997, a woman Special Agent complained that Grayson had criticized her in front of others. After an initial investigation, which determined that she was not entitled to relief, she amended the grievance in March 1997, claiming that Grayson had retaliated against her for complaining by assigning her to another task force at an inconvenient office. The amended complaint was investigated by fact finders, and then by special investigators from the Secret Service's Office of Internal Investigations, who conducted an extensive inquiry. This uncovered a flood of complaints about Grayson's performance from his subordinates.

In April 1997, the investigators submitted a Management Review Report that found that: (1) Employee morale in the Chicago Field Office was low in part because Grayson focused on arrest statistics while ignoring his subordinates' exhaustion. (2) There were reports of mismanagement, including complaints that Grayson intimidated and threatened retaliation against his employees, e.g., threatening to lower an agent's performance review for asking to discuss it. (3) There were reports of a pattern of "sexual harassment," including alleged obnoxious sexual references, but no reported instances of attempted sexual coercion; and allegations that he disliked women agents. (4) There were reports from interviewees of racial bias towards minorities, e.g., that Grayson replaced a white with an African American agent during a visit by a foreign dignitary, and gave African Americans more training and other opportunities than whites. (5) Finally, the report contained statements from Secret Service Agents and outside providers that Grayson required his agents to solicit free services and other perks for his personal use, such as health club passes, hotel rooms, a meeting with Oprah Winfrey for his wife and friends, special parking places at Chicago Bulls games, and so was "known as a joke" in local law enforcement because he was always looking for something free.

In July 1997, Grayson received an "unsatisfactory" rating in his annual performance review, which referred to the findings in the Management Review Report. In August 1997, he was transferred to Washington, D.C., on a temporary basis. Ultimately, the Secret Service prepared to discipline Grayson, but offered him the opportunity to retire before charges were filed. He retired early in March 1994.



Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 329 (1986); Fed. R. Civ. P. 56(c). The party opposing the motion must come forward with evidence such that "a reasonable jury could return a verdict for [him]." Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). I construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 818 (7th Cir. 1999).

A plaintiff may meet his burden of proof under Title VII by offering either direct proof of discriminatory intent or by proving disparate treatment through the indirect, burden-shifting method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). For a prima facie "indirect" McDonnell Douglas case, Grayson must demonstrate that (1) he belongs to a protected class; (2) he performed his job satisfactorily; (3) he suffered an adverse employment action; and (4) his employer treated similarly-situated employees outside of his protected class more favorably. Stockett v. Muncie, Ind., Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000). If the employee does not have an exemplary employment record, he must show that "although he was not a good employee, equally bad employees were treated more leniently by [the employer] if they happened not to be black." Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (7th Cir. 1993). The Secret Service may produce evidence of "a legitimate and nondiscriminatory reason for the employment decision," Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000), which the plaintiff must rebut with evidence that the Secret Service's stated reason is merely a pretext. Jackson v. E.J. Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999). A factfinder's rejection of the Secret Service's nondiscriminatory reason may itself be enough to find for the plaintiff on the issue of liability. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). However, when an employer articulates a lawful reason for discharging the plaintiff, "it is not [my] province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination." Giannopoulos v. Brach & Brock Confections Inc., 109 F.3d 406, 410 (7th Cir. 1997)


The basic issue here is whether Grayson was treated worse than other employees who were equally bad and who were not African American, which is also his case for pretext. As an African American, Mr. Grayson is in a protected class. The Secret Service does not dispute that Grayson was subject to adverse action, and being demoted from a responsible position and transferred to what I must here assume is a makework job 800 miles away is clearly adverse action. I deal with Grayson's job performance under the ...

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