Case 1:02-cv-00923-JR Document 1 Filed 05/10/02 Page 1 of 36

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l

FILED

IN THE UNITED STATES DISTRlCT COURT FOR THE DISTRlCT OF COLUMBIA

........... MAY 102002

MIGUEL A. CONTRERAS, 3767 West 18th Place Yuma, AZ 85364
RUBEN E. GONZALEZ 14703 Flagler Ct. Centreville, VA 20120
E. WILLIAM VELASCO 6201 Secret Hollow Ln. Centerville, VA 20120
JOHNYERA 38556 Millstone Drive Purcellville, VA 20132
RlCARDO SANDOVAL 2250 E. 27th Street Yuma, AZ 85365
STEPHAN MERCADO-CRUZ 1725 West 26th Street Yuma, AZ 85364
FRANK ALMONTE 623 Cleveland Avenue River Vale, NJ 07675
RAMON MARTINEZ 719 Linwood Avenue Bel Air, MD 21014

-cASE'NUMBER -l;02CV00923-
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JUDGE, Royce C. Lamberth

DECK TYPE: Employment Discrimination

DATE STAMP, 05/10/2002

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CLASS ACTION

JURY DEMANDED

Case No.:

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INDIVIDUALLY AND ON BEHALF OF ALL OTHERSIMILARLY·SITUATED PERSONS,
Plaintiffs, vs. PAUL H. O'NEILL, Secretary of the Treasury United States Department ofthe Treasury, 1500 Pennsylvania Avenue, N.W. Washington, D.C. 20220
Defendant.
CLASS ACTION COMPLAINT
1. NATURE OF ACTION 1. Plaintiffs, Hispanic Special Agents of the United States Customs Service
("Customs Service"), bring this action, on their own behalf, and on behalf of a class of all other Hispanic Special Agents in the GS-1811 series who have been employed as GS-1811's at any time from, at least January 1, 1974 to the present, or in the alternative from January 1, 1977 to the present, to address a pattern and practice of discrimination on the basis of national origin by the Department of Treasury's United States Customs Service in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e and the Civil Rights Act of 1991,42 U.S.C. § 1981a. Plaintiffs allege that the Customs Service's personnel policies, practices, and procedures discriminate against Hispanic Special Agents on the basis of their national origin in the following areas; selections for competitive positions and promotions, including, but not limited to GS-13, GS-14, GS-15 and SES positions; transfers, assignments and other career
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enhancing opportunities; assignment to undercover work; discipline; awards and bonuses; foreign language proficiency awards; training; harassment and hostile work environment based on national origin, systemic retaliation, and other terms and conditions of employment. On the basis ofthese violations, plaintiffs seek equitable relief, including, but not limited to, back pay, front pay, and other lost compensation, compensatory damages, a declaratory judgment, and an injunction requiring the Customs Service to cease and desist these illegal acts, and remedy the effects of its illegal conduct.
II. mRISDICTION, EXHAUSTION OF ADMINISTRATIVE REMEDIES AND TOllING OF LIMITATIONS
2. Jurisdiction in this case exists pursuant to 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981a. Venue is proper in this District pursuant to 28 U.S.C. § 139l(e) and 42 U.S.C. 2000e5(t).
3. Plaintiffs have exhausted administrative remedies. On or aboutJanuary 9, 1995, Special Agent Miguel Contreras initiated contact with the agency's office ofEqual Employment Opportunity ("EEO") and caused to be filed a class action complaint on March 23, 1995. The initial class complaint alleged discrimination in the recruitment of applicants, hiring, initialjob assignments, transfers, promotions, retention, training, awards and bonuses, and discipline. In 1995, the complaint was certified as a class by an administrative law judge of the Equal Employment Opportunity Commission ("EEOC). The decision was upheld by the EEOC on appeal. This complaint tolled the statute of limitations from its initial filing for all members of the class as to these claims, or any claims reasonably arising therefrom or the investigation thereof.

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4. From at least 1977 to the present, members ofthe class raised these issues with Customs Service management from time to time, but no meaningful effort was made to address the discriminatory policies, practices and procedures.
5. In fact, throughout this period, the Customs Service management systematically retaliated against members ofthe class who brought claims or otherwise sought to address the problems of discrimination within the Customs Service. This "system ofretaliation" is more fully described in Section IV. 1.
6. From at least 1974, Defendant Department of Treasury has been on notice that the personnel policies, practices, and procedures described herein were discriminatory and yet it failed to take action.
a. From at least 1974 forward, black Agents of the United States Secret Service ("Secret Service") have complained about similar personnel policies, practices and procedures resulting in discrimination against black Special Agents in promotions, assignments, awards and bonuses, training, discipline, harassment and retaliation. Secret Service management promised that it would address the discrimination but failed to do so in any meaningful way. In May of 2000, the Black Agents of the Secret Service filed their own class action suit, Moore v. O'Neill, Civ. Action No. 00-0953, seeking relief from these practices since January I, 1974.
b. From at least 1983, black Agents of the Bureau of Alcohol, Tobacco & Firearms ("BATF") have complained about similar personnel policies, practices and procedures resulting in discrimination against black Special Agents in promotions, assignments, awards and bonuses, training, discipline, harassment and retaliation. BATF management promised that it would address the discrimination but failed to do so in any meaningful way. In 1990, the Black Agents ofthe BATF filed their own class action suit, Stewart v. Rubin, Civ. Action No. 90-2841.

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After lengthy mediation and negotiations, the parties reached agreement on a Settlement Agreement on July 8, 1996, which the court approved remedies going back to December 25, 1981 based on equitable tolling. At the press conference announcing the Settlement Agreement, BATF (and former Secret Service) Director John Magaw acknowledged that the BATF had discriminated against the black Agents. In his testimony before Congress, he recognized that the same problems existed at Secret Service during his previous tenure as Director of that Agency in 1992 and that they were endemic to federal law enforcement.
c. The Secret Service, BATF and Customs Service are each Bureaus of the Department of Treasury. The Director of the Secret Service, the Director ofBATF, and the Commissioner of Customs, all report to the UndersecretarY of Law Enforcement at the Department of Treasury and are governed to a significant degree by Treasury Management Directives as to the practices described herein.
d. Despite knowledge ofthe above facts, Treasury officials did not act to eliminate the discriminatory policies, practices, and procedures at the Customs Service as described herein.
e. Accordingly, the statute oflimitations is tolled from January 1, 1974 to the present as to all claims of race discrimination by all former and current Hispanic Special Agents of the Customs Service who are members of the class as identified in this Complaint. Ill. PARTIES
7. The named plaintiffs are all current or former Special Agents of the United States Customs Service. All of the named plaintiffs hold or have held GS ratings between GS-5 and GS-15. The named plaintiffs, as a group, have performed a variety of the jobs assigned to 1811series criminal investigators in the Customs Service. Many have received commendations for

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their work and risked their lives performing dangerous undercover assignments in support of the Customs Service's mission to secure our borders.
The named plaintiffs are as follows: a. Plaintiff Miguel A. Contreras ("Special Agent Contreras") is a GS-13 Senior Special Agent in the Office of Investigations in Yuma, Arizona. He came to this country from Mexico as a migrant farm worker when he was 12 years old and later became a naturalized citizen. In 1988, Special Agent Contreras joined the Customs Service as a Special Agent in El Centro, California. He continued to advance and served from 1995 through May 1999, as the Resident Agent in Charge for the Office ofInternal Affairs in El Centro, California. b. Plaintiff Ruben E. Gonzalez ("Special Agent Gonzalez") is a GS-15 Associate Special Agent in Charge ("ASAlC") in the Houston, Texas, Office ofInvestigations of the United States Customs Service. He started with the Customs Border Patrol in 1979 and later became a Customs Patrol Officer. Special Agent Gonzalez served with the Bureau of Alcohol, Tobacco and Firearms from 1983-1987 before rejoining the Customs Service in 1987.
c. Plaintiff E. William Velasco ("Special Agent Velasco") retired as a GS-15 Special
Agent in 1999. Before his retirement, he served as the acting Assistant Commissioner of Internal Affairs and was the highest ranking Hispanic Special Agent in the Customs Service at the time.. After serving five years with the BATF, Agent Velasco joined the Customs Service in April, 1982.
d. Plaintiff John Yera ("Special Agent Yera") is a GS-14 Special Agent with the United States Customs Service Cybersmuggling Center in Fairfax, Virginia. He began his career with the Customs Service as a Special Agent in November 1988.

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e. Plaintiff Ricardo Sandavol ("Special Agent Sandavol") is a GS-14 Special Agent

and the Resident Agent in Charge in the El Centro, California, Office of Investigation.

f.

Plaintiff Stephan Mercado-C~ ("Special Agent Mercado") is a GS-14 Special

Agent and a Group Supervisor in the El Centro, California, Office ofInvestigation.

g. Plaintiff Frank Almonte ("Special Agent Almonte") is a GS-13 Special Agent of

the United States Customs Service. He has been employed with the Customs Service since 1983

and became a Special Agent in 1987. Special Agent Almonte is currently assigned to the John

F. Kennedy airport Associate Special Agent in Charge (SAC) office.

h. Plaintiff Ramon Martinez ("Special Agent Martinez") is a GS-13 Special Agent

assigned to the Baltimore-Washington Office of Investigations. He was initially hired as a

Customs Inspector in 1982 and later became 1811-series Special Agent in 1983.

8. Defendant PaullL O'Neill is sued in his official capacity as Secretary of the

Treasury. As part of his official duties, he is responsible for the United States Customs Service.

IV. CLASS ACTION ALLEGATIONS 9. Plaintiffs have filed this case as a class action pursuant to Fed. R. Civ. P. 23 (a),
23 (b)(2), and 23 (b)(3). 10. This action is properly maintainable as a class action under Rule 23 (a) because:
(a) the class includes more than 400 current and former Hispanic Special Agents of the Customs Service, which makes the class so numerous that a consolidated complaint ofthe members of the class is impracticable; (b) the claims alleged on behalf ofthe class raise questions oflaw or fact common to the class; (c) the claims of the class representatives are typical of the claims of the

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class; and (d) the class representatives and class counsel will adequately and fairly protect the interests ofthe class.
II. This action is properly maintainable as a class action under Rules 23 (b)(2) and 23 (b)(3) because: (1) the defendant has acted on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; (2) there are questions of law or fact common to members of the class that predominate over any questions affecting only individuals; (3) and a class action is superior to other methods for the fair and efficient adjudication of the controversy.
12. Plaintiffs request that the class be defined as the named plaintiffs and all current or former Hispanic Special Agents (Criminal Investigators GS-I8II) who served with the Customs Service from January 1, 1974 to the present or alternatively, January 1, 1977 to the present.
V. CLAIMS A. Disoriminatory Seleotion for Competitive Positions
13. From the dates of their employment, continuing up to and including the present time, plaintiffs and the plaintiff class have been disoriminated against on the basis oftheir national origin (Hispanic), by the employment policies, practices, and procedures of the Customs Service and by the manner in which these practices have been implemented. Each ofthe practices complained of herein is excessively subjective, is not job-related and has been implemented through a "good old boy network" to the exclusion of Hispanic Speoial Agents such that each practice has an adverse impact upon Hispanic Special Agents. In addition, Plaintiffs have been

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intentionally discriminated against on the basis of their national origin with regard to each of the

practices herein.

14. Unlike most federal law enforcement agencies, particularly all other Treasury

Agencies, Customs has no Career Development Plan ("CDP") to assist Special Agents in

developing their career. The Merit System Promotion Plan is the only vehicle though which the

Customs Service selects and promotes Special Agents to management and supervisory positions,

identified thorough the relevant period as ranging from GS-12 to SES positions. Without a CDP

a "Good 0' Boy System" is fostered as found by the Government Accounting Office ("GAO") in

a 1996 Report on the Implementation of Blue Ribbon Panel Recommendations. Despite these

fmdings, Customs made no meaningful efforts to change its practices. Indeed, Customs has

intentionally, failed to gather, maintain and analyze data required by the Uniform Guidelines and

I.

has denied their legal applicability. Selections for supervisory positions in the Customs Service

are determined pursuant to various procedures. These selection processes, and the current Merit

Promotion Plan, adopted July I, 1986, for management positions in the Customs Service are

excessively subjective, have a disparate impact on Hispanic Special Agents and, plaintiffs are

informed and believer and thereon allege, are neither job-related nor required for business

necessity. Rather, the Customs Service's selection systems promote Agents based upon who they

know instead of their ability, which has a disparate impact upon Hispanic Special Agents, in

violation of Title VII of the Civil Rights Act of 1964 as amended. Further, although the Customs

Service has known that its promotion practices have a disparate impact during the relevant

period, it has failed to implement procedures that are valid and have less adverse impact on

Hispanic Special Agents in violation ofthe Uniform Guidelines on Employee Selection

Procedures, 29 C.F.R. § 1607 et seq. All of the other illegal practices set forth herein also have a

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disparate impact on Hispanic Special Agents in the selection process. According, the Customs Service's personnel procedures, practices and policies in their totality, have a disparate impact upon each member of the class.
15. As a result of the Customs Service's use of the Merit Promotion Plan and failure to institute a valid CDP, plaintiffs are informed, believe and thereon allege, that qualified Hispanic Special Agents are promoted to, or selected for, competitive management positions significantly less frequently than similarly situated white Special Agents, and when selected, are assigned positions that provide less opportunity for further promotional opportunities then similarly situated white Special Agents.
16. The Customs Service has further discriminated against Hispanic Special Agents by administering an exam known as the Special Agent OS-14 (SA-14) test. Plaintiffs allege that the SA-14 test has an adverse impact on Hispanic Special Agents that cannot be justified by business necessity. Furthermore, other alternative tests exist that have less adverse impact and would serve Defendant's purposes. Customs has known of the adverse impact of said test and maintained it, despite such knowledge, in willful disregard of Plaintiffs' federally protected rights. Indeed, Customs maintains that it has no legal requirement to maintain data on the impact of its personnel practices.
17. In 2000 or perhaps earlier, the Customs Service formally established an expanded reference check process known as "vetting." Further, secret personnel security folders are maintained on every Special Agent for this purpose. Under vetting, a secret review is conducted or an applicant's entire past record. If the review raises relevant concerns about prior conduct and/or performance that has a nexus, or link, to the duties of the position for which an employee is being considered, the information is provided to the Assistant Commissioner for consideration.
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Some form of "vetting" occurred throughout the relevant period, but after 2000 it became more extensive and formalized. Plaintiffs allege that vetting has had an adverse impact on Hispanic Special Agents that cannot be justified by business necessity. Furthermore, as demonstrated below "vetting" has been manipulated and used as a vehicle for retaliation by Customs management to deny Hispanic Special Agents promotions and other competitive assignments. Plaintiffs allege that internal investigations that target Hispanic Special Agents are often left open, are incomplete, and erroneous, resulting in Hispanic Agents being disqualified for consideration for competitive selections more frequently than their non·Hispanic peers.
18. In addition, certain assignments appear to be barred from Hispanics. No Hispanic has ever held the following positions in the Customs Service: Headquarters Treasury Liaison, Headquarters State Department Liaison, Headquarters Office ofNational Drug Control Policy ("ONDCP") Liaison, Headquarters Interpol ,Liaison, Headquarters Central Intelligence Agency ("CIA") Liaison, Customs Director Operation Alliance, and Equal Employment Opportunity Special Assistant to the Commissioner. Similarly, no Hispanic Agent has ever held the following SAlC positions: SAlC-Atlanta, SAlC·Baltimore, SAlC-Boston, SAlC-Buffalo, SAIC-Chicago, SAIC-Denver, SAlC-Detroit, SAlC-Los Angeles, SAlC-New Orleans, SAlC-New York, SAlCNY-JFK, SAIC-San Antonio, SAIC-San Diego, SAlC-San Francisco, SAIC.Seattle, SAlCTampa, and SAlC-Houston. Each of these are significant career-enhancing positions.
Special Agent Contreras 19. In 1988, Special Agent Contreras transferred from BATF to the Customs Service as a GS-12 Agent. He applied for numerous GS-13 positions as both a senior Special Agent and a supervisor criminal investigator. In 1992, Special Agent Contreras was promoted to GS.13 Special Agent in the Office ofInvestigations for Detroit, Michigan. From 1993 to 1995, Special
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Agent Contreras applied for numerous OS.14 supervisory positions throughout the United States and for many foreign assignments. For each of the positions, Agent Contreras met the qualifications and yet was not selected. In most cases, white Special Agents with similar or less experience were selected.
20. In December 1995, Special Agent Contreras was selected as the Internal Affairs OS-14 Resident in Charge (RAC) in El Centro, California After he gained the requisite experience, Agent Contreras began applying for GS-15 supervisory positions. From 1996 until the present, he has applied for over 40 GS-15 positions. He frequently made the best qualified list and yet was never interviewed for any of the positions. In most cases, white Special Agents with similar or less experience or qualifications were selected.
Special Agent Gonzalez 21. From 1994 to 2001, Special Agent Oonzalez applied for over thirty-four (34) OS15 and Senior Executive Service ("SES") supervisory positions, including positions as SAlC, ASAIC, Director, Foreign Area Director, and Customs Liaison. Special Agent Gonzalez made the best qualified list for every GS-15 position he applied for and yet he was never interviewed for any of them. Special Agent Velasco 22. Special Agent Velasco became a GS-14 Special Agent in 1985. From 1986 until 1995, he applied for numerous OS-IS promotions, but was passed over and white Non-Hispanic Agents with less experience were selected. In 1996, he was promoted to GS-15 as the Director of Internal Investigations and Affairs in Customs Headquarters, Washington D.C. After serving as acting Assistant Commission for Internal Affairs, Agent Velasco applied for four or five Senior Executive Service positions, but he was passed over and white Non-Hispanic Agents were
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selected. Velasco applied for the Assistant Commission of Internal Affairs position, a job that he had already performed in an "acting" capacity. Customs Commissioner Raymond Kelly selected a white non-Hispanic male--Bill Keefer, the present Assistant Commissioner. Agent Velasco also applied for a position as the Treasury Liaison twice. In each instance, white non-Hispanic males were selected for the position. One of them was John Varrone, the present Assistant Commission oflnvestigations. The other one was a white male Special Agent who had absolutely no management experience.
23. Agent Velasco later attempted to obtain a GS-15lateral transfer out of Washington. He applied for a GS-15 Deputy SAlC position in Tampa, Florida. The position was given to a white non-Hispanic Agent from Atlanta who had already made an announcement that he planned to retire. The Assistant Commissioner said that the position was given to that Agent because he had asked for it. One year later, Velasco applied for Deputy SAlC positions in Tampa, Atlanta and another office away from the southwest border. Agent Velasco was informed that he had been selected for the Deputy SAlC position in Tucson, Arizona. He had not applied for that position and he later found out that this forced reassigmnent to Tucson was because of a clerical entry error. He called Assistant Commissioner Bonni Tischler about the mistake and her response was, "Tough shit, if you don't want to go, don't go." After dealing with health and marital problems caused by job-related stress, Agent Velasco opted to retire rather than transfer to Tucson, Ariz6na.
Special Agent Almonte 24. Special Agent Almonte became a GS-12 in July 1991. He applied for numerous GS-13 positions from 1993 to 2000, but was not promoted. In October 2000, Special Agent Almonte filed an EEO complaint regarding his non-selection to GS-13 position in the SAlClNew
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York office. After nearly ten years as a GS-12, he was promoted to GS-13 in January 2001. In each of the above cases of non-selection, the Special Agents selected were white non-Hispanic males.
Special Agent Martinez 25. Special Agent Martinez became a GS-12 in September 1986. He applied numerous times for a GS-13 promotion in 1988, but was passed over in favor of a white Special Agent. In January 1990, he was transferred to the Internal Affairs office in Miami, Florida. In 1991, he received his GS-13 as the result of a desk audit. In 1992, he began applying for numerous GS-14 positions throughout the country. None of his applications for GS-14 positions were referred to hiring authorities in Headquarters or any place east of the Mississippi River or north of the Mason-Dixon line. The only position he was offered was a GS-14 position in El Paso, Texas. Agent Martinez declined it because he had secured what he thought was a career enhancing lateral transfer to Headquarters. 26. Since 1997, Special Agent Martinez has applied for numerous GS-14 positions and made the best qualified on several lists, yet has not been selected. He believes that it has to with the vetting process, but he has been given no information. B. Discrimination in Transfers, Assignments and Denial of Other Career-Enhancing Opportunities 27. The Customs Service maintains procedures for making decisions regarding transfers, assignments and other career-enhancing opportunities that are excessively subjective and have an adverse impact on Hispanic Special Agents. This system cannot be justified as consistent with business necessity. As a result of these procedures, Hispanic Special Agents receive fewer and less desirable assignments. Hispanics are more likely to be assigned to offices
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along the Southwest border and Puerto Rico than similarly situated white Non-Hispanic Agents. Hispanic Agents also are more likely to be assigned to small offices and therefore are less likely to receive the diverse work experience necessary for promotion. Hispanic Agents have difficulty obtaining foreign attache positions, especially those in Europe which are considered the most career-enhancing. In addition, Hispanic Special Agents have difficulty obtaining "acting positions" in supervisory roles such as RArC, SAIC or ASAIC. When Hispanic Agents do obtain these positions of responsibility, they are frequently at lower grades then those held by comparable white Non-Hispanic Special Agents.
Special Agent Contreras 28. In 1993, Special Agent Contreras applied for a high profile GS-13 lateral foreign assignment to Hermosillo, Mexico as the Customs Representative. He was not selected. The Assistant Commissioner denied his lateral transfer because Contreras was needed for his Spanish-language ability and undercover skills. Special Agent Gonzalez 29. In 1991, Special Agent Gonzalez was assigned to Puerto Rico in the Office of Internal of Affairs. Later in March 1994, he was transferred to the Office ofInvestigations and became the GS-13 Resident Agent in Charge (RAIC). Puerto Rico is considered to be a hardship assignment in the Customs Service. Special Agent Gonzalez attempted to secure a lateral transfer to other offices in the United States, but was denied. He was even denied transfers to other locations considered to be hardship areas such as the Texas-Mexico border and other areas on the southwest border.
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Special Agent Velasco 30. While assigned to Customs Headquarters in Washington D.C., Special Agent
Velasco applied numerous times for GS-15 European attache positions in Paris, France and
Vienna, Austria. He was passed over for these career enhancing positions and white nonHispanic Agents were selected.
Special Agent Sandoval 31. In February 2002, Walter Collette, the acting SAIC ofthe El Centro, California Office of Investigations requested that Special Agent Sandoval be placed in an acting GS-15 Associate Special Agent in Charge ("ASAIC") position. Customs Headquarters denied Sandoval this opportunity. Previously, a white non-Hispanic supervisor was placed in this position for ninety (90) days. 32. In his present position as the Resident Agent in Charge ("RAIC") of the El Centro, California, Office of Investigations, RAIC Sandoval supervises five GS-14 Group Supervisors and full complement of Agents and support persounel. The EI Centro RArC office is bigger than many Customs SAlC offices, yet the RArC position is only a GS-14 position. RArC Sandoval has requested the Customs Service upgrade the RAre position to a GS-15 position, but they have refused. In contrast, the non-Hispanic office manager of the San Diego Office of Internal Affairs is a GS-15, even though he is responsible for only 2 GS-14 supervisors. The non-Hispanic Customs Port Director in Calexico, California is also a GS-15 and he supervises no GS-14s. Special Agent Yera 33. After being permanently paralyzed from the chest down in an undercover operation in 1991, Agent Veta returned to the Newark, New Jersey Office of Investigations-
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Smuggling Division in May 1993. Yera was made the evidence custodian. lbis was an undesirable job that was typically held by Special Agents for one year and then rotated. Agent Yera was the evidence custodian for nearly four years. In 1997, he applied for and completed forensic computet training at the Customs Academy in Glynco, Georgia When Agent Yera returned to the Newark office, he was continued to be assigned as the evidence custodian.
C. Discriminatorv Assignments to Undercover and other Undesirable Work 34. The Customs Service uses a discriminatory method of assigning cases to Special
Agents, including, but not limited to, disproportionately assigning Hispanic Special Agents to undercover, wiretap, debriefing informants, Spanish-language translation, and tape transcription duty. Undercover assignments are dangerous. Hispanic Special Agents are often assigned to undercover without proper training or adequate back up support. The Customs Service subsequently devalues undercover work and Spanish-language related investigative activities in terms of promotions, awards and other terms and conditions of employment. As a result, there is an adverse impact on Hispanic Special Agents, which cannot be justified by business necessity. As a result of the Custom Service's use of such methods of assigning cases, Hispanic Special Agents are assigned to fewer high profile cases, receive cases that are not career-enhancing, and are disproportionately tasked to undercover work and other Spanish-language related duties than are similarly situated white non-Hispanic Special Agents. In addition, Hispanics are typically assigned narcotics smuggling cases, which are considered less desirable than financial investigations, intellectual property rights investigations, strategic investigations and child pornography investigations.
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Special Agent Contreras 35. Throughout his career with Customs, Special Agent Contreras was assigned substantial undercover work while similarly situated white non-Hispanic Special Agents were assigned little or no undercover work. Special Agent Contreras was assigned to numerous undercover investigations in Calexico, California and throughout Michigan. On assignment in Detroit, Michigan, Special Agent Contreras successfully infiltrated a cell of a Columbian drug organization as the principal undercover operative. As a result, several co-conspirators were subsequently arrested and convicted of drug trafficking and money laundering charges. Throughout his career, Special Agent Contreras has been assigned wiretap, language translation, and tape transcription duties. The inordinate amount of undercover and Spanish language related duties he was assigned adversely affected his opportunity to obtain the diverse experiences, necessary for promotion. Special Agent Gonzalez 36. Throughout his career with BATF and Customs, Special Agent Gonzalez was assigned substantial undercover work, while similarly situated white non-Hispanic Special Agents were assigned little or no undercover work. Special Agent Gonzalez was assigned to numerous undercover investigations in New York City and South Florida because ofhis Spanish language ability and knowledge of Hispanic culture. In addition, he was frequently assigned wiretap, language translation, and tape transcription duties. For example, while assigned to the Internal Affairs Office in San Juan, Puerto Rico, Special Agent Gonzalez was required to routinely translate documents for other non-Spanish speaking Agents. The inordinate amount of undercover and Spanish language related duties he was assigned adversely affected his
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opportunity to obtain supervisory experience. As a result, his chances for promotion, awards and bonuses were adversely affected.
Special Agent Yera 37. From the beginning of his career until June 1991, Special Agent Vera was frequently assigned to undercover and Spanish-language duties such as wiretap monitoring, debriefmg informants and transcribing tapes. He performed such assignments at the direction of mostly white Non-Hispanic case agents and other white supervisory personnel. 38. In June 1991 while assigned to the Newark, New Jersey Office of Investigations Smuggling Division, Special Agent Yera was tasked with performing a controlled delivery as an undercover operative. Agent Yera was to meet two Columbian drug smuggling suspects in the parking lot of a Holiday Inn Hotel and give them 100 kilograms of cocaine which was part of larger narcotics seizure. Yera was instructed by the United States Attorney and his Group Supervisor to entice the suspects into handling the cocaine. Agent Yera was not briefed on the details of his back-up team or on the take down or arrest signals. He later found out that there were no Spanish-speakers assigned to monitor his undercover wire. 39. When one of the suspects closed the truck of the vehicle where the cocaine was stored, the signal for the take-down team was activated. When the team arrived, Group Supervisor Phillip Shields exited the vehicle and fired his weapon, hitting Special Agent Yera in the spine. As a result, Agent Yera was left paralyzed from the chest down. This sequence of events was entirely predictable given the egregious negligence of the supervisory Agents. Had sufficient care been taken to ensure that a Spanish-speaking Agent was monitoring the undercover wire, Agent Yera would not have been injured. Similarly situated non-Hispanic Agents who speak English during undercover assignments are not treated in a similar fashion.
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The lack of concern here is reflective of a discriminatory animus against Hispanic Special Agents. It .should be noted that the Customs Servic<;< did not discipline any of the supervisory Special Agents involved in the Yera shooting. In fact, Customs promoted Phillip Shields the supervisory Agent who shot John Yera.
Special Agent Mercado 40. Throughout out his career, Spec\al Agent Mercado was frequently assigned to undercover and Spanish-language duties such as wiretap monitoring, debriefing informants and transcribing tapes. Most of the time, h<;< performed such assignm(:nts for white non-Hispanic case agents who later received credit for the arrests or seizures that resulted from Mercado's work. Special Agent Almonte 41. Throughout his career, Special Agent Almonte was fr<;<quently assigned to undercover and Spanish-language duties such as wiretap monitoring, debriefing informants and transcribing tapes. Most of the time, he performed such assignments for white non-Hispanic cas.e agents who later received credit for the arrests or s(:izures that resulted from Almonte's work.. In early 1992, Almonte was transferred to the Financial Division of the New York/SAlC office. When he met Group Supervisor Edward Feltham, he was told "They have plans for you", meaning they already had plans to use Almonte as an undercover agent. During a meeting called by ASAIC John Twomey, all of the Agents in the group were asked to tell him about one case they were work on. When it was Almonte's tum, he explained that he was working as an undercover agent for all four groups in the division. Almonte was thrust into undercover work without any sort of formal undercover training. It was not until 1995 that he received undercover training.
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42. In 1992, after Almonte had transferred to the Financial Division of the New York/SAlC office, a Group Supervisor and Senior Special Agent (both white non-Hispanics) called him into an office to convince him to perform undercover money-pickups from Columbian drug smugglers. Senior Special Agent Robert McCrossen told Almonte, "This is so easy, I would have my teenage kids do it if! could." In 1997, a Hispanic undercover agent was shot and wounded and two suspects were killed during a money pickup involving New York/SAIC persounel and the Drug Enforcement Agency ("DEA'.'),
43. Because Almonte has constantly been asked by his Customs supervisors to work .. ' an undercover, monitor a wiretap, debrief a defendant, transcribe tapes and translate documents,
he has not been able to develop his own cases and career. Case agents, who are typically white non-Hispanic, have benefited from Agent Almonte's language and undercover skills, but Ahnonte has not in terms ofcareer progression. D. Discriminatory Discipline
44. The Customs Service uses disciplinary procedures that are excessively subjective and, as a result, have an adverse impact on Hispanic Special Agents. Moreover, the Customs Service uses its disciplinary system as a vehicle to retaliate against Hispanic Special Agents who complain about discrimination in the Customs Service. In addition, the Customs Service has engaged in a pattern and practice of failing to discipline white agents who are found guilty of discrimination. These disciplinary procedures cannot be justified by business necessity. As a result, Hispanic Special Agents are disciplined more frequently and more harshly than similarly situated white Special Agents.

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.. _.__ ----._-~~

.. ~._ .~ .

_ _. _

_-_ ..

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o Case 1:02-cv-00923-JR Document 1 Filed 05/10/02 Page 22 of 36

Special Agent Contreras 45. In 1992, when he was assigned to the Detroit Office of Investigations, Special Agent Contreras received a written reprimand for a security violation, when he walked away from a Treasury Enforcement Communications System ("TECS") computer without signing off. Just minutes later, a white Special Agent cOlnmitted the same violation in front of a Customs manager. When it was brought to the attention of the ASAIC, no punishment was imposed on the white Special Agent. 46. After Special Agent Contreras filed a class action complaint in March 1995, he became the subject of numerous Internal Affairs investigations, including, but not limited to the following: In July 1998, Agent Contreras was investigated for theft of government property and unauthorized use of government property when he and another Hispanic Special Agent posted a message in TECS regarding his class action complaint.
47. In October 1999, Special Agent Contreras was served with a letter of removal for
allegedly divulging confidential information to his secretary regarding her son's involvement in dmg activities. Agent Contreras had received information that the woman's son was going to be killed by members ofa dmg organization. Agent Contreras appealed this action to the Merit System Protection Board ("MSPB"). While these proceedings were being conducted, Agent Contreras was served with a proposed twenty (20) day suspension for misleading his supervisor about the posting a picture of a dead informant. In June 2000, Agent Contreras settled his MSPB appeal by agreeing to accept a reduction in grade to as-13 in exchange for all pending charges being expunged from his personnel file. During negotiations, Customs attorney Dyan Medina suggested that Contreras could obtain better terms if he would dismiss his class action suit. Contreras refused to compromise the interests of the class.

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c Case 1:02-cv-00923-JR Document 1 Filed 05/10/02 Page 23 of 36
48. In 2000, Special Agent Contreras also was investigated by the Department of Treasury's Inspector General because his cousin was married to an alleged drug smuggler. His last contact with the cousin was at a family funeral in 1995.
49. In 2002, the acting SAlC served Special Agent Contreras with a "Letter of Caution" because Contreras granted an interview to the Hispanic newspaper "Bajo El Sol" for an article detailing his rise from migrant farm worker to Customs Service Special Agent criminal investigator. In the article, Contreras advised young people to "stay away from drugs and violence, and to try to fmd ways to succeed and be happy through formal education."
E. Discrimination in Awards & Bonuses 50. The Customs Service uses methods of selecting Special Agents for awards and
bonuses, including quality step increases (QSI), that are excessively subjective. This policy has an adverse impact on Hispanic Special Agents that cannot be justified as consistent with business necessity. Moreover, there is a lack of disclosure by the Customs Service regarding awards and bonuses. These procedures have resulted in Hispanic Special Agents receiving fewer awards and bonuses or awards and bonuses oflesser amounts than similarly situated white Special Agents
Special Agent Gonzalez 51. In 2000, Special Agent Gonzalez was the Program Manager for Undercover Operations at Customs Headquarters. He participated in "Operation Powerplay," an initiative designed to prevent funds from illegal narcotics profits from being removed from the United States. All ofthe participants received awards for this work on this project, except for Special Agent Gonzalez.
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Special Agent Velasco 52. Although Special Agent Velasco received numerous small awards, he did not receive the case awards or recognition normally given to Special Agents for carrying our high profile cases such as "Operation Greenback.," a money laundering joint task force operation in Miami, Florida. In fact, all the Special Agents who participated in "Operation Greenback" were recognized and promoted, except for Special Agent Velasco.
F. Foreign Language Proficiency Awards 53. In 1991, Congress authorized federal agencies to pay awards up to five percent of
basic pay to law enforcement officers who used one or more foreign languages in the performance of their official duties. 5 U.S.C.S. § 4523. Almost inunediately in 1992, the Department of Justice agencies instituted foreign language award programs and began to offer foreign language pay awards for their law enforcement officers who spoke foreign languages in the course of their official duties.
54. In August of 1992, the Customs Service required some Hispanic Agents to be tested for language proficiency by the Defense Language Institute in Monterrey, California. But the language pay awards were not implemented at that time. In January 1996, the Department of Treasury's Office of Personnel Policy issued a memorandum describing the parameters of its language pay award policy. Soon thereafter, the Commissioner of Customs drafted a memorandum regarding payment of Foreign Language Proficiency Awards and forwarded it to the Ronald K. Noble, the Undersecretary of Law Enforcement. The memorandum stated that a conservative estimate ofthe cost to pay LEOs (law enforcement officers) Foreign Language Proficiency Awards would be $2.0 million. The memorandum further stated that the money
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would have to come out of Treasury's Salary and Expenses Appropriation. The Commissioner advised that "it is my intention to take no further steps to authorize the payment ofForeign Language Proficiency Awards to LEOs within Customs" until specific policy guidance is provided. This decision to delay implementation had a disparate impact upon Hispanic Special Agents because they are more likely to qualify for foreign language proficiency awards than any other identifiable group.
55. In 1997, Customs contracted with the Department of State's Foreign Service Institute to test Special Agents again for foreign language proficiency. The tests were conducted via telephone interview. Spanish language proficiency was tested based on Castilian or proper Spanish as spoken in Madrid, Spain. This test did not assess knowledge of the Spanish vernacular as spoken in Puerto Rico, or on the southwest border which is the type of Spanish most often used by Customs Special Agents in the course oftheir normal job duties. As a result, Hispanic Special Agents received lower foreign language proficiency scores than they would have if they had been tested on ajob-related measure offoreign language ability. These actions were taken in conscious disregard ofthe Hispanic Special Agent's federal protected rights.
56. Under the Customs Service policy, Special Agents had to meticulously document their annual usage of a foreign language in the course of their official duties using case numbers and narrative reports. Participants had to document, at least, 208 hours of official duty usage to be eligible for any level of award. The policy specified that only hours during the basic workweek would be counted. No overtime hours and no credit for partial hours were allowed. The policy also noted that all Foreign Language Awards were subject to the availability of funds.
57. After complaints about the policy, the Customs Service issued a memorandum in 1998, claiming that "we cannot change the statute to allow overtime hours to be credited for
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reporting purposes." This statement was demonstrably false and misleading. Agents were then ordered to redo their reports to eliminate any overtime hours that had been included in their reports on foreign language usage.
58. Given the Customs Service's heavy utilization of Bispanic Special Agents for their Spanish language ability and knowledge of Hispanic culture on the southwest border and elsewhere, these policies were intentionally and purposively discriminatory. They also had an adverse impact upon Hispanic Special Agents because they are more likely to qualify for foreign language proficiency awards than any other identifiable group. There is no legitimate nondiscriminatory reason for these policies and they cannot be justified by business necessity.
Special Agent Velasco 59. While assigned to Headquarters in the Office ofIntemal Affairs, Special Agent Velasco applied for the Foreign Language Proficiency Award program, but was denied because he was a mllllager. He was told that he could not be tested or certified as being proficient in a foreign language. Agent Velasco continued to use his Spanish-language ability while teaching classes and briefing government officials on smuggling techniques in Central America. In addition, Customs management, including the Chief Counsel's office, constantly asked Velasco to translate Spanish newspaper articles and legal documents. Special Agent Yera 60. Special Agent Vera was aware of the Foreign Language Proficiency Award program. He took the language proficiency test and passed. However, he was discouraged from applying for the award because of the lack of information on how to comply with the burdensome documentation requirements for certification. Agent Yera used and continues to use his Spanish-language ability in support of his official duties at the Customs Service.
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Special Agent Mercado 61. Special Agent Mercado received a letter of commendation from the Federal Bure.au of Investigation ("FBI") Special Agent in Charge James Ahearn, thanking him for his contributions in a narcotics investigation in 1990. The letter stated that Agent Mercado's "extensive knowledge of the Spanish vernacular peculiar to the Southwest region, as well as [his] drug investigative experience proved extremely valuable, and were critical" to the success of the operation. Yet, when Agent Mercado was tested for Spanish language proficiency, he received a score of "2", the lowest passing score. Mercado applied for a Foreign Language Proficiency Award, but because of his test score he received a smaller award. Agent Mercado estimates that had he been allowed to count overtime hours spent responding to the border and doing undercover work, he would have documented over 1000 hours of Spanish language usage. Special Agent Almonte 62. Special Agent Almonte tested and passed a Spanish language proficiency test administered by the Defense Language Institute in August 1992. He thought that Customs was going to start paying him language pay at that time, but they did not. Almonte had been using his Spanish language capabilities since he first became a Special Agent in 1987. He had to retest in 1997 and received his first language pay award in 1998. Almonte's use of Spanish language during overtime hours was not counted in his language awards.
G. Discrimination in Training 63. The Customs Service uses a method of selecting Special Agents for training that
is excessively subjective and, as a result, has an adverse impact on Hispanic Special Agents which cannot be justified as consistent with business necessity. As a result of the use of such

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methods, Hispanic Special Agents receive fewer training opportunities, and receive training opportunities that are less career-enhancing, than similarly situated white Special Agents.
Special Agent Contreras 64. Every year from 1995 until the present time, Special Agent Contreras requested to attend the Customs National Hispanic Agents Association ("CNHAA") annual training meeting. The Customs Service denied Agent Contreras's request in 1995, 1997, 1998, 1999,2000 and 2001. He was given permission to attend in 1996, but at the last minute he was redirected to Customs Headquarters in Washington, D.C. In 2000, Agent Contreras was a candidate for the President of CNHAA, but he could not attend the CNHAA conference and was forced to give his election speech by phone and video tape. 65. Some SAlC offices would not pay for Hispanic Agents to attend the CNHAA conference, but they would pay for black agents to attend the National Organization for Black Law Enforcement Executives ("NOBLE") conference or for female agents to attend Women in Federal Law Enforcement (WIFLE) conference. 66. At the CNHAA meetings, the issues raised in this Complaint were brought to the attention of Customs management personnel, but no action was taken in response to the complaints except vague unfulfilled promises. Special Agent Velasco 67. From 1992 until his retirement in 1999, Special Agent Velasco applied approximately six times for a year-long Harvard School of Government Executive Law . Enforcement training course. The course is considered a stepping stone to reaching the Senior Executive Service ("SES") level. Special Agent was not selected and in each instance a white Non-Hispanic Special Agent was selected.

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H. Harassment and Hostile Environment Based on Hispanic National Origin 68. Hispanic Special Agents are exposed to a severe and pervasive atmosphere of
harassment and intimidation at the Customs Service. Special Agent Mercado 69. In 1989, Agent Mercado got a tip about a drug-smuggling tunnel that had been
excavated from Agua Prieta, Mexico to Douglas, Arizona. He reported the tip to his superiors and asked for digging equipment, but was ignored. Unwilling to give up, he put his personnel on surveillance duty at a local construction site, looking for any sign of a tunnel entrance. When the head ofthe Customs office in Phoenix became involved in 1990, Mercado was pushed aside and made the liaison to Mexican authorities in the investigation.. In May 1990, the tunnel was discovered and Mercado sat on the sidelines as other Customs raided the operation. The tunnel became a high profile case in the Customs Service, but Mercado was sent to Tucson, Arizona to perform Spanish language wiretap duties for the FBI. Mercado filed an EEO complaint and later settled it by accepting a reduction in grade and a transfer to Yuma, Arizona.
70. Mercado was assigned to the Port of San Luis. Before this time, the Customs Service had never assigned a Special Agent to this location. Mercado was issued a 1978 Jeep without air conditioning to travel in the 115 degree Arizona desert heat. He was not issued a bulletproof vest, binoculars or a Customs radio. Mercado was shunned and received little help from Customs management. He had to make drug arrests alone or ask the local police for assistance.
Special Agent Almonte 71. In February 1998, when Agent Almonte told Narcotics Smuggling ASAtC John Saladino that he had arrested several Dominican nationals on a controlled delivery involving 4

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kilograms of heroin, Salidino's response was "Those f-king people." On another occasion, Almonte was in the office gym listening to a Spanish music radio station, Saldino said to Agent Brian Aryai, "There he goes with that f-king music again. Does he think this is a foreign country?" Agent Aryai also heard Customs Supervisor Tom Lorreto say that "Ever since they let Hispanics in here, this job has gone downhill."
Special Agent Yera 72. After being permanently paralyzed during a undercover operation, Agent Yera spent nearly two years rehabiliting himself from his injuries. During this time, he was forced to stay in a hotel for a year until handicapped accessible housing could be obtained for him. The Customs Service denied him per diem allOwance for this entire period. The added financial burden piled insult upon injury. This demonstrated an animus against Hispanics in the Customs Service. 73. While assigned to the Cybersmuggling Center in 2002, Agent Yera and another Hispanic Agent were speaking Spanish. Customs Program Manager Claude Davenport told them both that they should stop speaking Spanish and speak "American." Earlier, Davenport had requested Agent Yera's help in translating Spanish documents. Special Agent Martinez 74. While assigned to Customs Headquarters in Washington D.C., Special Agent Martinez's supervisor referred to him as an "Excitable Mexican" after he filed an EEO complaint. Another supervisor called him an "inferior investigator."
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1. Retaliation for Reporting Discrimination 75. Throughout the relevant period, Hispanic Special Agents have suffered systematic
reprisals and retaliation for asserting protected rights under Title VII, filing EEO claims or raising issues relating to the discrimination or unfair treatment ofHispanic Special Agents. The Customs Service has engaged in concerted efforts to conceal its acts of discrimination and retaliation through the use of onerous and overbroad non-disclosure agreements to prevent public knowledge oftheir discriminatory behavior and has maintained a secret database ofEEO settlements in the Chief Counsel's Office. Furthermore, as detailed below, high level Treasury law enforcement officials encouraged and supported retaliation and reprisal against those who filed EEO complaints in the Treasury law enforcement Bureaus.
76. In a 1999 deposition, Assistant Commission Walter Biondi testified that Customs senior managers had strong feelings against the B,EO program and against "fIlers" or "complainers." Biondi explained that when Sam Banks became the Deputy Commissioner in 1997, Banks told senior Customs managers at a management conference in Crystal City, Virginia, that he was not going to be as easy as Commissioner George Weise was in resolving EEO complaints. Employees who ftled EEO cases were going to have to fight to the bitter end. There was applause from crowd.
77. Biondi testified that Commissioner George Weise told him about a meeting in December 1996 or January 1997 with then Treasury Undersecretary for Enforcement Raymond Kelly and Treasury Deputy Assistant Secretary Eli;;:abeth Bresee. At this meeting, Undersecretary Kelly said that "Anybody who filed an BEO complaint against their agency is a disloyal employee, should be shown no favor, and treated accordingly:' Biondi testified that he asked Commissioner Weise why no one spoke up at the meeting to tell Kelly that this was not
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proper. Commissioner Weise got very uncomfortable and said that "given that he was the Undersecretary ofthe Treasmy, nobody said anything." Undersecretary Kelly later became the Commissioner of Customs. Deputy Assistant .Secretary Bresee later became the Treasmy Assistant Secretary for Enforcement. Thus, officials at the highest levels of the Department of Treasmy, in effect, ordered retaliation throughout Treasmy's law enforcement Bureaus against those who filed EEO complaints.
Special Agent Contreras 78. After giving deposition testimony regarding class-wide discrimination in the Customs Service on April 16-17, 2002 in Washington, D.C., Special Agent ContrerasTeturned to Yuma, Arizona. On April 19, 2002, Contreras was summoned to his supervisor's office and told that he was the subject of an Internal Affairs investigation involving his misuse of a government vehicle and for lying to his supervisor. Special Agent Gonzalez 79. From April 23-24, 2002, Special Agent Gonzalez testified in an EEO administrative deposition in Washington, D.C. regarding class-wide discrimination in the Customs Service against Hispanic Special Agents. When he returned to the Houston, Texas, Office ofInvestigations where he serves as the GS-15 ASAlC, Gonzalez discovered that he had been replaced and that a GS-14 Special Agent had put in an acting position as the ASAIC. Special Agent Gonzalez called the Acting SAlC and was told that a GS-14 was put in charge because the SAlC did not know when Gonzalez would return from Washington. This action was retaliatory and the explanation offered was pre-textual. Agent Gonzalez's secretary knew his itinerary and he could easily have been reached by cell phone. All Special Agents in Houston are required to carry a cell phone so that they can immediately be contacted.
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80. Subsequently, Gonzalez was notified by the SAlC that he was going to be put in charge of the remote Resident Agent in Charge offices in Corpus Christi, Dallas, Oklahoma City, and Beaumont. This would mean diminished responsibility and increased travel. This constituted further retaliation against Gonzalez for actively prosecuting this class action case in the EEO administrative process.
Special Agent Sandoval 81. In 1992, while serving in the Office of Internal Affairs for Calexico, California, Special Agent Sandoval was asked to go to San Diego and investigate a claim involving the alleged assault of Ken Lakes, an African-American Customs Inspector, at the Ysidro Port of Entry. Sandoval investigated and determined that the allegations were true. Several white Customs managers had thrown rocks at Ken Lakes and it appeared to be racially motivated. One of the perpetrators wore a Nazi Swastika ring. Evidence was developed showing that these Customs managers collected Nazi memorabilia and that they had scrawled swastikas on lockers and elevators in Customs buildings. Sandoval came to believe that a neo-Nazi group was behind the incident. He reported it to his superiors and recommended that it be referred to the United States Attorney's Office for prosecution as a "hate crime" under the civil rights statutes. His request was denied and he was told that Customs would send out a memo saying inspectors should not throw rocks at black employees. Sandoval ignored his superiors and reported the results of his investigation to the United States Attorney's Office, where the case was referred to the Justice Department's hate crimes unit in Washington D.C. 82. Thereafter, Agent Sandoval's upgrade to GS-14 was denied and he was not selected for the Internal Affairs/Office of Enforcement rotation. He did not receive temporary acting supervisory assigmnents. Based on the foregoing, Agent Sandoval filed an EEO
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complaint alleging discrimination and retaliation. In 1998, a California federal jury awarded Sandoval $200,000 for discrimination and retaliation. Several jurors said they believed that corruption and discrimination may be systernic within the Customs internal affairs unit where Sandoval worked in 1992.
83. Special Agent Sandoval applied for six OS-15 foreign attache positions in London, Paris, Ottawa, Montreal, Panama and Venezuela. He was not selected because he had filed EEO complaints. None of the selected applicants had previously participated in EEO protected activity.
J. Emotional Distress 84. The Customs Service has intentionally discriminated against Hispanic Special
I,
Agents in their personnel policies, procedures and practices as set forth above. As a result, the plaintiffs and the class they seek to represent have suffered emotional distress, humiliation and embarrassment. Such emotional distress has been manifested in a variety of ways including, but not limited to, psychological trauma, physical injury and other symptoms to be proven at trial.
85. As additional evidence ofdiscrimination and information about potential victims of discrimination is discovered, this complaint is subject to amendment.
PRAYER FOR RELIEF 86. The foregoing claims against the Department of Treasury and the Customs Service establish a pattern and practice of discrimination on the basis ofnational origin in violation of Title VII ofthe Civil Rights Act of 1964,42 U.S.C. § 2000e, as amended, and the Civil Rights Act of 1991,42 U.S.C. § 1981a.
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87. Therefore, plaintiffs pray that the following relief be granted to them, and to those

whom they represent:

(a) Enter a declaratory judgment that defendant's conduct as alleged herein has

violated plaintiffs' civil rights and the civil rights of the Hispanic Special Agents of the Secret

Service under 42 U.S.C. § 2000e and 42 U.S.C. § 1981a;

(b) Enter a permanent injunction barring defendant from continuing to engage in the

illegal and discriminatory conduct alleged herein;

(c) Enter a permanent injunction directing defendant to take such affirmative steps as

necessary to remedy the effects, and prevent future occurrences, of the illegally discriminatory

conduct alleged herein;

(d) Award compensatory damages according to proof for each plaintiff and each class

member up to $300,000 and back pay and other such damages as would compensate fully each

plaintiff and class member for the emotional distress and other harm alleged herein;

(e) Award reasonable attorneys' fees, expert fees, and costs pursuant to 42 U.S.C. §

1988 and 42. U.S.C. § 2000e; and

(g) Order other such relief as just and proper.

Dated: May 10, 2002

Respectfully submitted,

SHAFFER, RAPAPORT & SCHMlDT LLP

Davi J. Shaffi (Bar # 4 3484) Ronald A. Sc idt (Bar #422720) Franklin Park Center 1225 Eye Street, N.W. Suite 500 Washington, DC 20005 (202) 789·8188
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Case 1:02-cv-00923-JR Document 1 Filed 05/10/02 Page 36 of 36
DEMAND FOR A JURy TRIAL Pursuant to Fed.R.Civ.P. 38(b), the plaintiffs demand a trial by jury of all issues so triable as of right.

Dated: May 10,2002

David J. Shaffer ar # 4b4 4)
Ronald A. Schmi t (Bar #422729) '1(,512.. 'I
Franklin Park Center 1225 Eye Street, N.W. Suite 500 Washington, DC 20005
(202) 789-8188

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 Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 1 of 110

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al., )

)

Plaintiffs

)

)

v.

)

)

TOM RIDGE, SECRETARY,

)

DEPARTMENT OF HOMELAND )

SECURITY,

)

Defendant.

)

)

Case No. 1:02CV00923(JR)

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS' PATTERN OR PRACTICE CLAIMS

Defendant Tom Ridge, Secretary for the Department of Homeland Security, hereby

moves the Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary

judgment on all of plaintiffs' pattern or practice claims. In support, the Court is respectfully

referred to Defendant's Statement of Material Facts as to Which There Is No Genuine issue,

Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion for

Summary Judgment, and the Exhibits attached hereto.

Respectfully submitted,
PETER D. KEISLER Assistant Attorney General
KENNETH L. WAINSTEIN United States Attorney
STUART A. LICHT Assistant Director

Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 2 of 110

OF COUNSEL: MARC WEINBERGER M. BENNETT COUREY U.S. CUSTOMS AND BORDER PROTECTION (CBP) MATTHEW RILEY U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE)
Date: August 30, 2004

__________/s/_________________ KAREN K. RICHARDSON SHAYNA S. COOK Trial Attorneys U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Room 6126 Washington, DC 20530 Telephone: (202) 514-3374 Facsimile: (202) 616-8460
Attorneys for Defendant

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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 3 of 110

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al., )

Plaintiffs

)

)

v.

)

)

TOM RIDGE, SECRETARY,

)

DEPARTMENT OF HOMELAND )

SECURITY,

)

Defendant.

)

)

Case No. 1:02CV00923(JR)

MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS' PATTERN OR PRACTICE CLAIMS

OF COUNSEL:
OF COUNSEL: MARC WEINBERGER M. BENNETT COUREY U.S. CUSTOMS AND BORDER PROTECTION (CBP) MATTHEW RILEY U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE) Date: August 30, 2004

PETER D. KEISLER Assistant Attorney General
KENNETH L. WAINSTEIN United States Attorney
STUART A. LICHT Assistant Director Civil Division
__________/s/_________________ KAREN K. RICHARDSON SHAYNA S. COOK Trial Attorneys U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Room 6126 Washington, DC 20530 Telephone: (202) 514-3374 Facsimile: (202) 616-8460 Attorneys for Defendant

Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 4 of 110
TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Customs Organizational Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. Office of Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. Office of Internal Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. Office of International Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C. Customs Databases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. PERHIS database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2. Race and National Origin Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3. TECS database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4. TRAEN database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5. VAACS database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 6. Vetting data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I. STANDARDS FOR SUMMARY JUDGMENT MOTIONS . . . . . . . . . . . . . 13 II. STANDARDS FOR PROVING DISPARATE IMPACT AND DISPARATE TREATMENT PATTERN OR PRACTICE CLAIMS . . . . . 14 A. Disparate Treatment and Disparate Impact Claims . . . . . . . . . . . . . . . . . 14 B. Pattern or Practice Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 C. Statistical Disparities Must Be Significant . . . . . . . . . . . . . . . . . . . . . . . 18
i

Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 5 of 110

III.

PLAINTIFFS CANNOT MAKE A PRIMA FACIE SHOWING OF

EITHER DISPARATE IMPACT OR DISPARATE TREATMENT

ON ANY OF THEIR PATTERN OR PRACTICE CLAIMS . . . . . . . . . . . . 20

A. Defendant Is Entitled To Summary Judgment On Plaintiffs' Pattern Or Practice Promotion Claim . . . . . . . . . . . . . . . . 20

1. Customs Promotion Policies, Procedures and Practices Are Governed by Predominately Objective Criteria . . . . . . . . . . 21

a. Competitive Promotions for GS-12 through GS-15 Criminal Investigators . . . . . . . . . . . . . . . . . . . . . 21

b. SES Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2. Hispanic Special Agents Were More, Not Less, Likely To Be Promoted At Customs Than White Special Agents . . . . . 26

B. Customs Did Not Discriminate Against Hispanic Special Agents in Transfers and Office Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

1. Lateral Transfers Are Not Actionable Employment Decisions Under Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

2. Customs Had Numerous Policies That Allowed Agents Opportunities For Lateral Transfers, And Those Policies Fairly Balanced The Needs Of The Agency With The Needs Of All Of Its Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

a. Border Rotation Opportunities . . . . . . . . . . . . . . . . . . . . . 33

b. Other Transfer Opportunities . . . . . . . . . . . . . . . . . . . . . . 35

3. Plaintiffs Cannot Demonstrate That A Statistically Significant Number of Hispanics Special Agents Were Denied Lateral Transfers That Were Career-Enhancing As Compared to Whites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

C. Customs Did Not Discriminate Against Hispanic Agents In Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

1. Customs Awards Policies Were Based on Exceptional Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

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2. In Implementing Awards Policies, Supervisors Attempted to Ensure Fairness Among All Employees . . . . . . . . . . . . . . . . . 41
3. OPM Concluded Customs Awards Program Was Based on Performance and Was Well-Liked by Employees . . . . . . . . . 42
4. Hispanic Agents Received More Awards Than White Agents from 1993 to 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5. Hispanic Agents Received More Lucrative Awards than White Agents from 1993 to 2003 . . . . . . . . . . . . . . . . . . . . . 43
D. Customs Did Not Deny Training Opportunities to Hispanic Agents . . . . 44
1. Customs Offered Training Opportunities That Corresponded to the Agency's Needs and Budget . . . . . . . . . . . . . . . . . . . . . . . . 45
2. Customs Supervisors Selected Agents to Attend Training Based on the Needs of the Field Offices . . . . . . . . . . . . . . . . . . . 48
3. Hispanic Agents Received Equal Training Opportunities to White Agents from 1993 to 2003 . . . . . . . . . . . . . . . . . . . . . . . . . 49
E. Customs Did Not Discriminate Against Hispanic Agents in Work Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
1. Customs Assignment Method Was Based on the Needs of the Field Office and Was Neutral to National Origin . . . . . . . . . 50
2. Customs Did Not Discriminate Against Hispanic Agents in Undercover Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
a. Hispanic Agents Were Not Unfairly Required To Perform Undercover Work, Because Undercover Work Was Strictly Voluntary . . . . . . . . . . . . . . . . . . . . . . 51
b. Customs Did Not Prevent Hispanic Agents From Being Promoted By Assigning Them Undercover Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
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3. Customs Did Not Discriminate Against Hispanic Agents In Wiretap Assignments . . . . . . . . . . . . . . . . . . . . . . . . . 53
4. As a Matter of Law, Hispanic Agents' Assignments Do Not Rise to the Level of an Adverse Action Actionable Under Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
F. Plaintiffs Cannot Demonstrate A Pattern Or Practice Of Discriminatory Discipline At Customs . . . . . . . . . . . . . . . . . . . . . . . . . . 58 1. Investigations Of Employee Misconduct That Do Not Result In Disciplinary Action Are Not Actionable Adverse Employment Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 2. Customs Policies and Procedures Were Designed To Ensure Consistency And Neutrality In The Disciplinary Process . . . . . . 60 a. Centralized Allegation Intake and Review Process . . . . . 60 b. Customs Management Inquiries . . . . . . . . . . . . . . . . . . . . 61 c. Discipline Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 d. Customs Disciplinary Review Boards . . . . . . . . . . . . . . . 63 3. Plaintiffs Cannot Show That The Disciplinary Measures Imposed On Hispanic Agents Were More Severe Than Those Enforced Against Whites For Like Or Similar Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
G. Retaliation Claims Are Too Individualized and Thus Inappropriate To Be Pattern or Practice or Class Claims . . . . . . . . . . . . . . . . . . . . . . . 68
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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TABLE OF AUTHORITIES

CASES

PAGES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Batson v. Powell, 912 F. Supp. 565 (D.D.C. 1996), aff'd, 203 F.3d 51 (D.C. Cir. 1999) . . . . . . 65 Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 56 Castaneda v. Partida, 430 U.S. 482 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984) . . . . . . . . . . . . . . . . . . 17, 69 Dothard v. Rawlinson, 433 U.S. 321 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Elkins v. American Showa, Inc., 219 F.R.D. 414 (S.D. Ohio 2002) . . . . . . . . . . . . . . . . . . . . . . 70 Forkkio v. Powell, 306 F.3d 1127 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Francis v. America Telegraph & Telegraph Co., 55 F.R.D. 202
(D.D.C. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Freedman v. MCI Telecomm. Corp., 255 F.3d 840 (D.C. Cir. 2001) . . . . . . . . . . . . . . . . . . 56, 57 General Telegraph Co. v. Falcon, 457 U.S. 147 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 69 Gonzalez v. Brady, 136 F.R.D. 329 (D.D.C. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Hartman v. Wick, 600 F. Supp. 361 (D.D.C. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Jones v. Wash. Metropolitan Area Transit Authority, 205 F.3d 428
(D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Koger v. Reno, 98 F.3d 631 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Lopez v. Laborers International Union, 987 F.2d 1210 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . 20
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Mack v. Strauss, 134 F. Supp. 2d 103 (D.D.C. 2001), aff'd, 2001 WL 1286263 (D.C. Cir. Sept. 28, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Marquis v. Tecumseh Products Co., 206 F.R.D. 132 (E.D. Mich. 2002) . . . . . . . . . . . . . . . . . . 70 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Moore v. Charlotte, 754 F.2d 1100 (4th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Moore v. Summers, 113 F. Supp. 2d 5 (D.D.C. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 O'Donnell Constr. Co. v. District of Columbia, 963 F.2d 420
(D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 69 Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Perez v. FBI, 707 F. Supp. 891 (W.D. Tex. 1988), aff'd, 956 F.2d 265
(5th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Plummer v. Bolger, 559 F. Supp. 324 (D.D.C. 1983), aff'd, 721 F.2d 1424
(D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (N.D. Ga. 2001) . . . . . . . . . . . . 69, 70 Roney v. Ashcroft, Civ. Action No. 01-0544 (J.R.R.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Ross v. Nikko Sec. Co. Int'l, 133 F.R.D. 96, 97 (S.D.N.Y. 1990) . . . . . . . . . . . . . . . . . . . . . . . . 20 Segar v. Civiletti, 508 F. Supp. 690 (D.D.C. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim Stambaugh v. Kan. Dep't of Corrections, 151 F.R.D. (D. Kan. 1993) . . . . . . . . . . . . . . . . . . . . 20 Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267 (4th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . 20 St. Mary's Honor Society v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Stewart v. Ashcroft, 211 F. Supp. 2d 166 (D.D.C. 2002),
aff'd, 352 F.3d 422 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Stewart v. Evans, 275 F.3d 1126 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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Strong v. Ark. Blue Cross & Blue Shield, Inc., 87 F.R.D. 496 (E.D. Ark. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 70
Teamsters v. United States, 431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 69 Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . Passim Wilmington v. J.I. Case Co., 793 F.2d 909 (8th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
FEDERAL STATUTES Civil Rights Act of 1991, 42 U.S.C. § 1981a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14 Title VII, 42 U.S.C. § 2000e-16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14 Homeland Security Act of 2002, Pub. L. No. 107-296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
MISCELLANEOUS 29 C.F.R. § 1614.601 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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INTRODUCTION In this putative class action, plaintiffs are Hispanic special agents who were formerly employed by the United States Customs Service ("Customs").1 Plaintiffs allege that Customs
engaged in systemic discrimination against Hispanics agents in promotions, transfers, awards,
training, work assignments, discipline and retaliation in violation of Title VII, 42 U.S.C. §
2000e-16, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a. To make a prima
facie showing of a pattern or practice of discrimination, plaintiffs must demonstrate a statistically
significant disparity in the treatment of Hispanic agents at Customs as compared to whites.
However, Customs data demonstrate that Customs treated Hispanic agents at least as well as, if
not better than, white agents. Accordingly, summary judgment for defendant Tom Ridge,
Secretary of the Department of Homeland Security (“DHS”), should be entered.
Each of plaintiffs' pattern or practice claims is unsupported by statistical evidence.
Plaintiffs allege that, because of a "good old boy network" at Customs, Hispanic agents were not
promoted to supervisory positions at the same rate as white agents. See Complaint at ¶ 14. Yet
Customs promotion data show that Hispanic special agents were being promoted to supervisory
positions at a rate slightly higher, not lower, than whites.
1 The former United States Customs Service was a bureau within the Department of Treasury. See Franklin Jones Decl. ("Jones Decl.") (attached to Defendant's Opposition to Plaintiffs’ Motion for Rule 16 Conference (“Def’s Opp. To Plfs’ Mot. for Rule 16 Conf.”) [#65] as Ex. 1) at ¶ 3. In March 2003, pursuant to the Homeland Security Act of 2002, P.L. No. 107-296, and the President's Reorganization Plan Modification of January 2003, the employees within the United States Customs Service were transferred from the Department of the Treasury to either Immigration and Customs Enforcement ("ICE") or Customs and Border Protection (“CBP”), bureaus within the Department of Homeland Security. Id. ICE is comprised primarily of former Immigration and Naturalization Service ("INS") agents and former United States Customs Service criminal investigators, and contains the vast majority of the former Customs 1811 special agents relevant to this action. Id.
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In their transfer claim, plaintiffs assert that, unlike similarly situated white special agents, Hispanics were assigned to posts along the Southwest border or in Puerto Rico and not allowed to transfer to more "desirable" posts, and that this hindered their promotion opportunities. See Complaint at ¶ 27. Yet statistics reveal that special agents assigned to the Southwest border or Puerto Rico were more, not less, likely to get promoted than agents not assigned to those areas. Moreover, statistics show that Hispanic agents assigned to the Southwest border or Puerto Rico were more likely to be promoted than similarly situated white special agents assigned to those same areas.
In their transfer claim, plaintiffs further allege that Hispanics were not granted lateral transfers to desirable, career enhancing foreign attaché posts, especially those in Europe. Id. Yet statistics show that Hispanics were proportionately represented in foreign posts, including those in Europe.
Plaintiffs claim that Hispanic special agents at Customs received fewer awards than similarly situated white special agents. See Complaint at ¶ 50. Yet statistics show that Hispanic criminal investigators at Customs received a proportionately greater number of awards than whites, and those awards, on average, had a higher monetary value than the awards white agents received.
Plaintiffs also assert that, unlike white criminal investigators, Hispanic criminal investigators at Customs were denied training that was necessary for their career development. Id. at ¶ 63. Yet Customs training statistics show that Hispanic special agents received statistically significantly more training than white agents.
Plaintiffs assert that Hispanics received a disproportionate amount of allegedly
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"undesirable" and "devalued" work assignments such as undercover work and wiretap monitoring, and that this type of work hindered their opportunities for promotion. See Complaint at ¶ 34. Yet a statistical analysis of the data demonstrates that undercover work helped agents get promoted. Hispanic agents who performed some undercover work were promoted faster than agents who did not, and the same as whites who did a similar amount of undercover work. Additionally, Customs data show that there were only 48 wiretaps conducted at Customs from 1993 through 1999 in cases that Hispanic agents worked on, and in only two of those cases could Hispanic agents have been solely responsible for monitoring and transcribing intercepted conversations. Moreover, beginning in 2000, Customs paid outside contractors to monitor wiretaps and perform the necessary language translation as a matter of policy, and contractors were hired in some cases prior to 2000. Finally, these work assignments do not rise to the level of an adverse action and thus, are not actionable under Title VII.
The only claim where defendant's expert found any statistically significant disparity potentially adverse to Hispanic special agents was with regard to discipline – specifically, suspensions without pay. Statistics show that, while no Hispanic criminal investigator was demoted involuntarily at Customs and only two Hispanics were discharged for misconduct as opposed to twelve white special agents during a ten-year period of time, Hispanics were statistically more likely than whites to be suspended for disciplinary reasons. Yet, put into context, only 42 Hispanic criminal investigators were suspended at Customs during the entire ten-year period at issue in this case out of the 495 putative class members, falling far short of the necessary showing of a pattern or practice of discriminatory discipline. Moreover, each of those suspensions involved a unique set of facts, different types of misconduct, and different offices,
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factors that do not support a pattern or practice claim of discrimination. In addition, to establish a pattern or practice of discriminatory discipline, plaintiffs must demonstrate that Hispanics were receiving harsher suspensions than whites for like or similar offenses – a showing that plaintiffs cannot make.
Finally, plaintiffs' claim of retaliation is not appropriate for a class pattern or practice claim. Retaliation claims are so individualized that they cannot meet the pattern or practice standard or survive class certification analysis under Rule 23 of the Federal Rules of Civil Procedure.
For these reasons, and for the reasons set forth below, defendant is entitled to summary judgment on all of plaintiffs’ pattern or practice claims.
BACKGROUND A. Procedural Background On March 23, 1995, Miguel Contreras filed an administrative class complaint with the Equal Employment Opportunity Commission (EEOC) "on behalf of himself and all similarly situated past, present, and future Hispanic special agents at [the Customs Service]." Admin. Class Compl. at 2 (attached as Ex. 18 to the Declaration of Mariam Harvey, attached to Def. Mot. Summ. Judg. [#22]). In the administrative class complaint, Mr. Contreras defined the class as "Hispanic GS-1811 Special Agents (Criminal Investigator) Grade 12-15, who are currently employed by USCS's Office of Investigation [sic] and Internal Affairs." Id. On October 22, 1999, after a series of appeals through the EEOC, the case was remanded to the agency for class processing. On June 22, 2000, the EEOC issued an order defining the class as: "All Special Agents (Criminal Investigators), job series 1811, grades 12 through 15, of Hispanic national
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origin, employed in the Office of Investigations and Office of Internal Affairs of the United States Customs Service." See Mem. Op. at 5-6 [#70]. After administrative class certification, the parties conducted extensive discovery. See Declaration of John P. Helm ("Helm Decl.") (attached as Ex. 1 to Def. Mem. Opp. to Pl. Mot. Compel [#38]). Defendant produced to plaintiffs numerous witnesses and thousands of pages of documents relevant to plaintiffs' claims.
After completion of discovery, the administrative judge scheduled a merits hearing for June 10, 2002. On May 10, 2002, the day Mr. Contreras was required to file his statistical expert's report with the EEOC, Mr. Contreras withdrew from the administrative process by filing the instant action. See Helm Decl. ¶ 7. As this Court noted in its February 26, 2004 Memorandum Opinion, plaintiffs' district court complaint included additional claims of discrimination and significantly broadened the definition of the class from that alleged by plaintiffs at the administrative stage. See Mem. Op. at 6 n.2 [#70].2
In 2003, this Court allowed plaintiffs to take depositions under Rule 30(b)(6) of the Federal Rules of Civil Procedure to identify the agency's documents and databases relevant to plaintiffs' claims, and plaintiffs took eleven depositions. See Def. Mem. Opp. to Pl. Mot. to Compel [#38] (attaching deposition transcripts). On March 20, 2003, defendant moved for summary judgment on the ground that plaintiffs failed to exhaust their administrative remedies. See Def.’s Mot. Summ. Judg. [#22]. On February 26, 2004, the Court entered an order granting
2 Because the named plaintiff Miguel Contreras only exhausted claims on behalf of Hispanic special agents who were GS-12 through GS-15, the class in this case must be restricted to those defined class members. Accordingly, the arguments set forth in this memorandum and the analysis of defendant’s expert, Dr. Bernard Siskin, are limited to the putative class as defined in the administrative class complaint, "Hispanic GS-1811 Special Agents (Criminal Investigator) Grade 12-15, who are currently employed by USCS's Office of Investigation [sic] and Internal Affairs." Admin. Class Compl. at 2.
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in part and denying in part defendant's motion. See Mem. Op. at 19 [#70]. The Court granted summary judgment to the defendant on plaintiffs' claims relating to hostile work environment and foreign language awards after concluding that those claims were not properly exhausted. Id. The Court denied summary judgment to defendant on plaintiffs' remaining seven claims, including promotions, transfers, work assignments, training, discipline, awards and bonuses, and retaliation. Id. On May 21, 2004, the Court denied plaintiffs' Motion for Reconsideration of the Court's order granting summary judgment to defendant on the hostile work environment and foreign language award claims. See Mem. Op. [# 77].
B. Customs Organizational Structure On March 9, 2003, Customs GS-1811 Criminal Investigators were officially transferred to Immigration and Customs Enforcement ("ICE"), a bureau within the Department of Homeland Security ("DHS"). See supra, n.1. Before the transfer, Customs was part of the Department of the Treasury and the special agent GS-1811 workforce was located in three main offices: Office of Investigations, Office of Internal Affairs, and Office of International Affairs.
1. Office of Investigations The mission of the Office of Investigations (“OI”) at Customs was to investigate fraud, money laundering, child pornography, and the smuggling of arms, narcotics, and other prohibited or regulated items. See Declaration of John J. Seraphin (“Seraphin Decl.”) at ¶ 4 (attached as Ex. 10 to Def.'s Mot. Summ. Judg. [#22]) (reattached hereto as Exhibit 1). OI had approximately 3,244 special agent criminal investigators. Id. at ¶ 5. OI, headed by an Assistant Commissioner, was divided into different regional offices throughout the country. Id. at ¶ 9. As of March 9, 2003, OI had twenty (20) Special Agent in Charge (SAIC) offices responsible for the
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administration and management of all enforcement activities within the geographic boundaries of the office. Id. There were approximately 99 subordinate field offices called Resident Agent in Charge (RAIC) that reported directly to the SAIC. Id. at ¶ 9. In addition, fourteen (14) Resident Agent offices (RAs) reported directly to the RAIC. Id.
2. Office of Internal Affairs The Office of Internal Affairs (“IA”) investigated alleged criminal and serious misconduct of Customs employees. See Seraphin Decl. at ¶ 6. IA had approximately 180 special agents. Id. These agents conducted investigations and reported the results to Customs management to take appropriate action. In addition to conducting IA investigations, IA agents consulted with trained agency fact-finders who were assigned to conduct inquiries (referred to as "administrative inquiries" or “management inquiries”) where the alleged misconduct did not rise to the level of seriousness requiring a formal IA investigation. See Declaration of Chris W. Pignone (“Pignone Decl.”) at ¶¶ 33, 34 (attached hereto as Exhibit 2). In this capacity, IA agents reviewed reports of the fact-finders, provided guidance to fact-finders and administratively tracked inquiries being conducted by Customs management fact-finders. Id. IA, headed by an Assistant Commissioner, was divided into four (4) regional SAIC offices, and had an additional presence in twenty-one (21) RAIC offices. See Seraphin Decl. at ¶ 11. Throughout the years, Customs agents often rotated between OI and IA, and on April 19, 1999, the former Commissioner Raymond Kelly implemented a formal rotation policy requiring the rotation of agents between divisions. See Declaration of Charles E. Royer ("Royer Decl.") at ¶ 8 (attached hereto as Exhibit 3). As a general rule, the minimum tour of duty with IA was three years. Id.
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3. Office of International Affairs The Office of International Affairs (INA) had approximately 97 special agent criminal investigators who conducted collateral investigations to support the domestic offices, referred certain investigations to domestic offices, served as liaison to the local law enforcement officials or foreign counterparts to accomplish Customs mission and responsibilities, and assisted the international trade community and general public on Customs issues. See Seraphin Decl. at ¶ 8. Customs also had attachés at United States embassies. These attachés were responsible for the overall planning, organization, administration and coordination of all Customs activities throughout the foreign area of jurisdiction. See Royer Decl. at ¶ 35. C. Customs Databases Customs maintained several databases to record and track its various employment actions of its workforce. Set forth below is a description of the databases upon which defendant's statistical expert relied for his analysis.
1. PERHIS database The primary database Customs used to record and track personnel actions was PERHIS, a personnel history database maintained by the United States Department of Agriculture. See Declaration of Tanya E. Bennett (“Bennett Decl.”) at ¶ 15 (attached hereto as Exhibit 4). PERHIS was used to record every employee's employment history, including all promotions, cash and time-off awards, within-grade increases, duty station reassignments (transfers), suspensions, terminations, demotions, and pay increases. Id. PERHIS contained data reaching back to 1992. Id.
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2. Race and National Origin Data Customs obtained race and national origin ("RNO") data from every employee through a self-identification process. See Bennett Decl. at ¶ 4. The data were entered into the PERHIS database. Id. at ¶ 2. All Customs employees were requested to self-identify their RNO either on Standard Form 181 or OPM Form 1468. Id. at ¶ 4. In addition, Customs routinely informed its employees of how their RNO data was classified and gave them an opportunity to verify or change their RNO designation. Id. at ¶ 6. From 1998 to 2003, Customs formally reminded its employees five separate times to verify their RNO designation and to request that the RNO designation be corrected if necessary. Id. at ¶¶ 10-14. Customs collected RNO from its employees in compliance with the EEOC regulation issued on April 10, 1992, requiring every agency to collect RNO data through a voluntary selfidentification process. See 29 CFR § 1614.601 (1992); Bennett Decl. at ¶ 7. If an employee refused to indicate his or her RNO, both Customs policy and the EEOC regulation required Customs to identify the employee's RNO through visual perception. Id. at ¶ 8; 29 C.F.R. § 1614.601(b).
3. TECS database The Treasury Enforcement Communications System ("TECS") was a law enforcement computer system administered by Customs. See Depo. Transcript of Ellen Mulvenna, 6:3-6 (attached as Exh. 10 to Def's Opp. to Pl. Mot. Compel [#38]). TECS was a mainframe system consisting of many separate databases and has data from 1987. Id. at 11:17-12:3. TECS included, among other things, a case management system for both OI and IA to track all of Customs law enforcement investigations, a border-crossing database, an internal case
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management system, a disciplinary action tracking system, and an intelligence reporting database. Id. at 6:3-12.
Furthermore, TECS contained a management information reporting system which included statistical reports on case management, hours reported by Customs agents in both OI and IA, reports on seizures, and reports on how many persons Customs processed at airports or at land borders in any given day, month or year. Id at 13:9-13. Agents were required to enter the hours they worked on a particular case into TECS and to designate whether the hours were nonundercover or undercover. See Supplemental Declaration of Paul M. Kilcoyne (“Suppl. Kilcoyne Decl.”) at ¶ 17 (attached hereto as Exhibit 5). TECS further included an e-mail subsystem through which Customs agents could receive or send messages. See Depo. Transcript of Ellen Mulvenna, 6:15-16.
4. TRAEN database The Training Records and Enrollment Network ("TRAEN") database tracked every training course that each Customs employee attended. See Declaration of Lynne M. Smith (“Smith Decl.”) at ¶ 13 (attached hereto as Exhibit 6). Each field office had a TRAEN registrar to enter training data into the database, and the Customs Academy entered its own training data into the TRAEN database. Id. All training that took place at the Academy was input into TRAEN from the database's inception. Id. The TRAEN database contains training information dating back to 1990. Id. Entry of training courses into TRAEN became mandatory in 2000 and Customs encouraged TRAEN registrars to retroactively enter attendance data from training prior to 2000 into the database to ensure its completeness. Id. at ¶¶ 13, 14. Additionally, because Customs had given guidance to TRAEN registrars prior to 2000 concerning how to enter training
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into TRAEN, personnel in some field offices may have entered employees' non-Academy training into TRAEN prior to 2000. Id. TRAEN registrars received a manual describing how to enter data into TRAEN and were trained on TRAEN entry. Id.
5. VAACS database The Vacancy Announcement Application Control System ("VAACS") was used by Customs to create vacancy announcements for competitive promotions, to track applications, and to input applicants’ names and social security numbers. See Depo. Transcript of Barbara Zakrison at 13:14-19 (attached as Ex.11 to Def's Opp. to Pl. Mot. Compel [#38]). VAACS also contained the certifications and selections for some, but not all, of the vacancies announced. Id. at 16:17-20. The VAACS database goes back to 1985. See Depo. Transcript of Susan Zaner at 38:2 (attached as Ex. 8 to Def's Opp. to Pl. Mot. Compel [#38]).
6. Vetting data As discussed infra, in 1999, the delegation of selection authority for promotions and transfers was raised to a higher level of management at Customs. See Declaration of Diane S. Shepherd (“Shepherd Decl.”) at ¶ 3 (attached hereto as Exhibit 7). Thus, the decision to promote agents was made at headquarters where many of the selecting officials had little or no personal knowledge of a candidate other than what was in his or her written application. Id. at ¶ 4. Accordingly, in 1999, Customs needed a formalized type of reference check to ensure that the selections made were in the best interest of the agency. Id. This formalized reference check, known as "vetting," was a process whereby the employment history of all candidates for promotion, transfers, and awards would be reviewed for past disciplinary problems or past or pending IA investigations. Id at ¶ 5.
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Vetting involved a three-step process. See id. at ¶ 6. First, the vetting office would check with IA or the Office of Inspector General ("IG") to determine if the candidate for selection was the subject of any former or pending investigation. Id. Second, the vetting office would contact the Office of Labor and Employee Relations to determine if the individual had been subject to any past disciplinary action. Id. Finally, the vetting office would do a manual check of the individual's Official Personnel File ("OPF") to determine the awards and promotion history of that individual. Id.
If no derogatory information was found, the vetting office would "clear" the individual for selection. See id. at ¶ 7. If, on the other hand, the individual had a closed investigation or prior disciplinary problems, the vetting office would forward the relevant information to the Office of the Assistant Commissioner or Deputy Assistant Commissioner for a determination of whether the information was sufficiently serious to warrant not allowing the individual's selection to go forward. Id. If the individual was the subject of an open investigation, the Assistant Commissioner of IA would provide an oral executive briefing to the Assistant Commissioner of the division making the selection who would then determine whether the derogatory information was sufficiently serious to warrant not allowing the individual's selection to go forward. Id. at ¶ 8.
All candidates selected for promotions for positions at GS-12 and above, with the exception of persons applying for the Senior Executive Service ("SES") positions, were subject to vetting before the promotion was finalized. See Shepherd Decl. at ¶ 9. In addition, all persons selected for reassignment or transfer, persons selected to receive awards or bonuses, persons selected to be EEO counselors or persons selected to serve on the agency's disciplinary review
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board were subject to vetting. Id. at ¶ 10. ARGUMENT
I. STANDARDS FOR SUMMARY JUDGMENT MOTIONS Summary judgment is appropriate where "there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "Summary Judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The initial burden is on the moving party to point out the absence of any genuine issue of material fact. See id. at 323. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). The substantive law identifies which facts are "material": "[f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Furthermore, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323. In order for a dispute about a material fact to be "genuine," a party must show that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Once the initial burden of the moving party is satisfied, the burden shifts to the responding party to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id. at 250.
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II. STANDARDS FOR PROVING DISPARATE IMPACT AND DISPARATE TREATMENT PATTERN OR PRACTICE CLAIMS Plaintiffs here have brought both disparate treatment and disparate impact pattern and
practice claims under Title VII, 42 U.S.C. § 2000e-16, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Thus, to prevail in this putative class action, not only do plaintiffs have to satisfy the standards for disparate treatment and disparate impact claims, they must also establish that the alleged discrimination is a systemwide problem.
A. Disparate Treatment and Disparate Impact Claims There are two types of Title VII cases: disparate treatment cases and disparate impact cases. See Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). In a disparate treatment claim, a plaintiff must prove that an employer “treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical . . . .” Id.; see also Segar v. Smith, 738 F.2d 1249, 1265-66 (D.C. Cir. 1984). Disparate impact, on the other hand, involves "employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Teamsters, 431 U.S. at 335 n.15; Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986-87 (1988) (plurality opinion). In either type of Title VII case, the plaintiff must initially establish a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Dothard v. Rawlinson, 433 U.S. 321, 329 (1977). To establish a prima facie case of disparate treatment, a plaintiff must adduce evidence that "give[s] rise to an inference of unlawful discrimination." Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In other words, plaintiffs must offer sufficient evidence
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to create an inference that defendant's challenged decisions were racially motivated. See Teamsters, 431 U.S. at 358. If a plaintiff proves a prima facie case, the employer may rebut it "simply by producing some evidence that it had legitimate, nondiscriminatory reasons for the decision." Watson, 487 U.S. at 986. The plaintiff must then prove by a preponderance of the evidence that the reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. See Burdine, 450 U.S. at 252-53. "On the disparate treatment claim the 'ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Segar, 738 F.2d at 1267 (quoting Burdine, 450 U.S. at 253).
To prove a prima facie case of disparate impact, a plaintiff must show that the challenged practice or procedure, although facially neutral, has a discriminatory effect on a protected group. Dothard, 433 U.S. at 329. In other words, a plaintiff must identify particular employment practices, demonstrate that those employment practices cause an adverse impact on the protected group, and show that the disparities are "sufficiently substantial" to raise an inference of causation. Watson, 487 U.S. at 994-95. Proof of a discriminatory motive is not required under a disparate impact theory. See Teamsters, 431 U.S. at 335 n.15; Segar, 738 U.S. at 1266.
In a disparate impact case, the plaintiff bears the burden of persuasion as to the existence of a disparity caused by an employment practice. See Segar, 738 F.2d at 1267. However, if the plaintiff makes this showing, the employer can rebut the prima facie case by demonstrating that a disparity does not exist or by proffering an explanation for why that disparity is not evidence of discrimination. Id. at 1267-68. Statistics are usually the principal focus of a prima facie case of disparate impact. Watson, 487 U.S. at 987 ("evidence in these 'disparate impact' cases usually
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focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities"); Koger v. Reno, 98 F.3d 631, 639 (D.C. Cir. 1996) (in a disparate impact case, “the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants.”) (quotations omitted).
In sum, under both the disparate treatment and disparate impact theories, plaintiffs must first make a prima facie showing of discrimination. Courts "have no authority to impose liability upon an employer for alleged discriminatory employment practices unless an appropriate factfinder determines, according to proper procedures, that the employer has unlawfully discriminated." St. Mary's Honor Soc'y v. Hicks, 509 U.S. 502, 514 (1993) (emphasis in original).
B. Pattern or Practice Claims Plaintiffs have an added burden. Not only do plaintiffs have to satisfy the standards for both disparate impact and disparate treatment, they must also establish that the alleged discrimination is a systemwide problem. To establish a prima facie case for a pattern or practice claim, plaintiffs must show that there was systemic discrimination, and "prove more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts. [They must] establish by a preponderance of the evidence that racial discrimination was the [defendant's] standard operating procedure -- the regular rather than the unusual practice." Teamsters, 431 U.S. at 336. Plaintiffs thus must prove a pattern or practice of discriminatory action and cannot rely on particular employment decisions to establish a pattern or practice:
Proving isolated or sporadic discriminatory acts by the employer is insufficient to establish a prima facie case of a pattern or practice of discrimination; rather it must be established by a preponderance
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of the evidence that "racial discrimination was the company's standard operating procedure – the regular rather than the unusual practice." . . . The crucial difference between an individual's claim of discrimination and a class action alleging a general pattern or practice of discrimination is manifest. The inquiry regarding an individual's claim is the reason for a particular employment decision, while "at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking."
Cooper v. Fed. Reserve Bank, 467 U.S. 867, 875-76 (1984) (quoting Teamsters, 431 U.S. at 336,
360 n.46). Because a class action plaintiff must show a "systemwide pattern or practice" of
discriminatory actions, Teamsters, 431 U.S. at 336, "it is equally clear that a class plaintiff's
attempt to prove the existence of a companywide policy, or even a consistent practice within a
given department, may fail even though discrimination against one or two individuals has been
proved." Cooper, 467 U.S. at 877-78.
"Both pattern or practice disparate treatment claims and disparate impact claims are
attacks on the systematic results of employment practices." Segar, 738 F.2d at 1267. To make a
prima facie showing of disparate treatment in a pattern or practice case, the plaintiff class will
typically try to present "evidence – often in statistical form – of a disparity in the position of
members of the plaintiff class and comparably qualified whites." Id. (emphasis in original).
Similarly, in a disparate impact pattern or practice case, "the plaintiff class must present evidence that the practices have a disproportionately adverse effect on the plaintiffs." Id.3 "Consequently,
the proof of each claim will involve a showing of disparity between the minority and majority
3 "Disparate impact will apply in the pattern or practice case only after plaintiffs have made a sufficient initial showing of disparity between groups that appear to be comparably qualified, and after it has been decided that the employer's explanation rebuts the disparate treatment claim." Segar, 738 F.2d at 1272 n.19.
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groups in an employer's workforce." Id. C. Statistical Disparities Must Be Significant To support a prima facie pattern or practice case of discrimination, plaintiffs must make a
showing of a statistically significant disparity between Hispanic special agents and other special agents. See Watson, 487 U.S. at 995 ("statistical disparities must be sufficiently substantial that they raise an inference of causation"). Statistical disparities can have three causes: (1) the disparity can have a legitimate and nondiscriminatory cause; (2) the disparity can be a product of unlawful discrimination; or (3) the disparity may be the product of chance. See Palmer v. Shultz, 815 F.2d 84, 90-91 (D.C. Cir. 1987). To measure the likelihood that the statistical disparities are the result of discrimination rather than chance, plaintiffs must calculate standard deviation figures for the results of their statistical analysis. The Supreme Court has stated that "[a]s a general rule . . . [for large samples] . . . if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that [the disparity] was random would be suspect . . . ." Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977); see also Palmer, 815 F.2d at 92 ("A disparity measuring two standard deviations (to be more precise, 1.96 standard deviations) corresponds to a 5% probability of randomness under a two-tailed test.").
For a valid statistical analysis, the employees included in the sample must be those eligible for selection rather than a larger universe of employees who do not meet the minimum standards. Id. at 90. "A plaintiff's statistical evidence must therefore focus on eliminating this nondiscriminatory explanation by showing disparities in treatment between individuals with comparable qualifications for the positions at issue." Segar, 738 F.2d at 1274 (citations omitted).
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The Supreme Court has cautioned that "the inevitable focus on statistics in disparate impact cases could put undue pressure on employers to adopt inappropriate prophylactic measures [quotas or preferential treatment]. It is completely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance." Watson, 487 U.S. at 992. As a result, the Supreme Court has held that plaintiffs not only must show that there are statistical disparities to establish a prima facie case, but they must "begin by identifying the specific employment practice that is challenged." Id. at 994. "[T]he plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Id.
While anecdotal evidence can serve to bolster statistical evidence of discrimination, anecdotal evidence alone is insufficient to show a pattern or practice of discrimination, unless the anecdotal evidence includes a statistically significant number of aggrieved employees. See O'Donnell Constr. Co. v. District of Columbia, 963 F.2d 420, 427 (D.C. Cir. 1992) ("'[w]hile anecdotal evidence may suffice to prove individual claims of discrimination, rarely, if ever, can such evidence show a systemic pattern of discrimination' . . . . Anecdotal evidence is most useful as a supplement to strong statistical evidence. . . .") (quoting Coral Constr. Co. v. King County, 941 F.2d 910, 919 (9th Cir.1991)); Wagner v. Taylor, 836 F.2d 578, 592 (D.C. Cir. 1987); Gonzalez v. Brady, 136 F.R.D. 329, 332 (D.D.C. 1991) ("[T]he Court cannot assume that because these eleven plaintiffs allegedly have had [discriminatory] experiences, 1,452 fellow Hispanic employees have as well. Thus, the Court must examine the statistical evidence
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plaintiffs provide.").4
III. PLAINTIFFS CANNOT MAKE A PRIMA FACIE SHOWING OF EITHER DISPARATE IMPACT OR DISPARATE TREATMENT ON ANY OF THEIR PATTERN OR PRACTICE CLAIMS There is insufficient evidence to support a prima facie case of either disparate impact or
disparate treatment in this case. Accordingly, this Court should grant defendant's motion for
summary judgment on all of plaintiffs’ pattern or practice claims. See Lopez v. Laborers Int'l
Union, 987 F.2d 1210 (5th Cir. 1993) (upholding the dismissal by summary judgment of
plaintiffs' disparate treatment and disparate impact claims because plaintiffs' statistical evidence
was insufficient to prove a prima facie case).
A. Defendant Is Entitled To Summary Judgment On Plaintiffs' Pattern Or Practice Promotion Claim
In their Complaint, plaintiffs assert that Customs “selection systems promote Agents
based upon who they know instead of their ability, which has an adverse impact upon Hispanic
Special Agents.” Complaint at ¶ 14. Specifically, plaintiffs allege that Customs “selection
processes” for supervisory positions “and the current Merit Promotion Plan, adopted July 1,
1986, for management positions in the Customs Service are excessively subjective, have a
disparate impact on Hispanic Special Agents and, plaintiffs are informed and believer [sic] and
4 See also Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 280 n.21 (4th Cir. 1980) ("The individual treatment experienced by these plaintiffs was not sufficient, standing alone and independent of relevant statistical data, to justify an inference of a facility-based pattern or practice."); Stambaugh v. Kan. Dep't of Corrections, 151 F.R.D. 664, 675-76 (D. Kan. 1993) ("The anecdotal evidence here does not come from a statistically significant number of aggrieved persons in the putative class."); Ross v. Nikko Sec. Co. Int'l, 133 F.R.D. 96, 97 (S.D.N.Y. 1990) (anecdotal evidence was insufficient because "[t]he testimonial proof must identify a statistically significant number of aggrieved persons in the putative class in relation to the size of the relevant work force").
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thereon allege, are neither job-related nor required for business necessity.” Id. Plaintiffs’ pattern or practice promotion claim suffers several fatal flaws. First, plaintiffs
cannot show any promotion policy or practice at Customs that was either excessively subjective or discriminatory on its face. Second and most importantly, plaintiffs cannot show that a statistically significant disparity exists favoring white agents over Hispanic agents in terms of promotions that would support a disparate impact pattern or practice claim. In fact, statistical evidence shows the converse is true, i.e., Hispanic agents were not adversely affected by Customs promotion practices.
1. Customs Promotion Policies, Procedures and Practices Are Governed by Predominately Objective Criteria a. Competitive Promotions for GS-12 through GS-15 Criminal Investigators
Until July 2001, the career ladder for a Customs special agent, GS-1811, was GS-5 through GS-12. See Supplemental Declaration of Susan B. Zaner ("Suppl. Zaner Decl.") at ¶ 4 (attached hereto as Exhibit 8). Individuals hired to be GS-1811 special agents below grade 12 could advance to grade 12 through a series of automatic promotions within a designated time frame. Id. Once an agent reached the "journeyman level" of grade 12, any further promotions were made through a competitive merit-based selection process. Id.5
Competitive promotions were governed by merit promotion principles set forth in Customs Merit Promotion Plan ("MPP"). See Suppl. Zaner Decl. at ¶ 6. The purpose of the
5 In July 2001, the journeyman level for a Customs GS-1811 special agent was raised to the GS-13 level. See Suppl. Zaner Decl. at ¶ 5. Raising the journeyman level allowed individuals hired as special agents below the GS-13 level to progress to GS-13 without competition. Id.
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MPP was to ensure that employees received fair consideration for advancement opportunities for which they were eligible and that vacant positions were filled by the best qualified candidates. Id. The MPP covered all Customs positions that were part of the competitive service, except for positions in the Senior Executive Service. Id.
Customs MPP became effective on July 1, 1986. See Suppl. Zaner Decl. at ¶ 6. Under the plan, candidates for competitive promotions would submit a written application. Id. at ¶ 7. An evaluation panel, using a crediting plan, rated each applicant on the significant job-related knowledge, skills, and abilities critical for successful performance in the position to be filled. Id. at ¶ 8. The knowledge, skills and abilities that were critical for successful performance were called primary criteria. Id. Those that were important for a successful candidate to possess were called secondary criteria. Id. The crediting plan for any position contained different rating levels for each criterion listed on the vacancy announcement. Id. The panel would assign numerical ratings based on these criteria to distinguish between candidates. Id. The ten highest scoring candidates were then referred as best-qualified to the selecting official in order of ranking. Id.
Until approximately December 1998, the selecting official for positions within OI and IA was the SAIC whose office had the vacancy. See Suppl. Zaner Decl. at ¶ 9, Att. A. After 1998, the authority for making selections was raised to the level of the Assistant Commissioner. Id., Att. A.
In 1991, Customs implemented an automated system to replace the written application process for competitive promotions for GS-1811-13 and 14 positions. Id. at ¶ 11. The automated system was called the Customs Automated Merit Promotion System ("CAMPS"). Id. Applicants applying through CAMPS submitted an application package consisting of a specially
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designed application booklet that was optically read. Id. at ¶ 12. Applicants did not submit written work experience narratives; rather they provided answers to questions contained in the optically scanned application booklet. Id. at ¶ 13. The CAMPS application questions pertained to work activities, supervisory appraisal, annual performance appraisal, and awards. Id. at ¶ 14. In addition, applicants could request consideration for job openings at multiple geographic locations. Id.
Under CAMPS, the panel process was eliminated. See Suppl. Zaner Decl. at ¶ 15. All application packages were rated and ranked through the automated system; separate selection registers were prepared for each geographic area; and the system automatically generated letters to applicants at various stages of the application process. Id.
The use of CAMPS was discontinued in 1993. Id. at ¶ 16. From 1993 to 1996, Customs reverted to its previous written application process. Id. Subsequently, in April 1996, Customs began using the Office of Personnel Management's ("OPM") Microcomputer Assisted Rating System ("MARS") to fill GS-1811-13 and 14 positions in OI. See Suppl. Zaner Decl. at ¶ 17. This system was also referred to as the "Telephone Application Processing System" ("TAPS"). Id. The MARS process required applicants to fax a one-page application to OPM and respond telephonically to a series of questions. Id. at ¶ 18. The applicant’s responses to the questions were processed electronically by OPM. Id. No additional information was factored into the applicant’s score. Id. In addition, the panel process was eliminated. Id. Instead, applications were rated and ranked by the MARS system, and separate selection registers were prepared for geographic areas when requested by OI management. See Suppl. Zaner Decl. at ¶ 18. Only two vacancy announcements were issued under TAPS. Id. at ¶ 17.
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From September 1997 through October 2000, Customs used the Customs Automated Application Processing System (CAAPS). Id. at ¶ 19. Under CAAPS, applicants responded to standard questions on a standard form and faxed a four-page application to OPM. Id. at ¶ 20. The candidate's application was processed electronically, and responses to questions were scored by OPM. Id. There were six vacancy announcements issued under CAAPS. Id. at ¶ 19.
On November 20, 2000, and then again on March 25, 2002, Customs processed competitive promotions for GS-14 Criminal Investigator positions through the SA-14, an examination process specially designed and pre-tested within Customs to objectively and fairly measure a GS-13 special agent’s potential to perform as a supervisor or in non-supervisory positions at the GS-14 level. Id. at ¶ 22. The SA-14 test only applied to promotions to a GS-14 position within OI, IA, the Office of Training and Development and the Office of International Affairs. Id. at ¶ 24. In addition, applicants completed a very short, scanned application designed to determine basic eligibility. Id. at ¶ 24. They took a three-part Leadership Skills Written Test Battery and a Structured Interview Examination. Id. The SA-14 test was only administered twice at Customs. Id.
b. SES Appointments A different set of procedures existed for filling positions with the Senior Executive Service ("SES"). Candidates for vacant SES positions at Customs had to submit an application form that addressed, in written narrative, the mandatory Executive Core Qualifications ("ECQ") and technical qualifications required for the SES position being filled. See Declaration of Michele L. Burton ("Burton Decl.") at ¶ 3 (attached hereto as Exhibit 9). The five ECQs included leading change, leading people, results driven, business acumen, and building
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coalitions/communication. Id. A screening panel, composed of SES members at Customs, evaluated the candidates and recommended whether applicants be rated as “Qualified” or “Highly Qualified” for each core and technical qualifications. Id. at ¶ 4. All candidates were referred to the Executive Resources Board ("ERB") at Customs for final evaluation. Id.
The ERB, composed of the Deputy Commissioner of Customs and all Assistant Commissioners, made the final determination as to whether the candidates were “Qualified,” “Highly Qualified” or “Best Qualified” and provided written recommendations to the Commissioner concerning the “Best Qualified” group. See Burton Decl. at ¶ 5. The Commissioner was the selecting official for all SES positions, except for the positions of Deputy Commissioner and Assistant Commissioner, IA. Id. at ¶ 7.
Once a competing candidate was selected for promotion to the SES, his or her ECQs had to be approved by OPM's Qualifications Review Board ("QRB"). Id. at ¶ 9. The QRB provided an independent peer review of applications for initial career appointments to the SES. Id. The candidate’s application and supplemental qualifications statement for the core qualifications were forwarded to a QRB panel of SES members from the Federal Government who had to certify the candidate’s qualifications. Id.
The QRB reviewed each application and decided if the candidate’s experience met the ECQ requirements. See Burton Decl. at ¶ 10. The QRB did not rate, rank, or compare the candidate’s qualifications against those of other candidates. Id. Rather, the QRB judged the overall scope, quality, and depth of a candidate’s executive qualifications within the context of the five ECQs. Id. If the QRB did not certify the selection, the application was remanded to the agency and the applicant had one opportunity to amend deficiencies in the application package.
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Id. Once the QRB certified the selection, the candidate’s appointment to the SES position was
processed. Id.
As shown above, the processes that Customs used for selecting individuals for
competitive promotions were not excessively subjective, but rather, were based on specific
qualification standards that were applied equally to all applicants. Plaintiffs have not identified
any aspect of the promotion practices described above that was either discriminatory on its face
or had an adverse impact on the promotion of Hispanic agents.
2. Hispanic Special Agents Were More, Not Less, Likely To Be Promoted At Customs Than White Special Agents
Customs data demonstrate that the procedures Customs used for competitive promotions
were not discriminatory. Defendant’s statistical expert, Dr. Bernard Siskin, analyzed Customs
data to determine whether Hispanic special agents were more or less likely than white special
agents to receive promotions at Customs.6 See Declaration of Dr. Bernard R. Siskin ("Siskin
6 Dr. Siskin's analysis was restricted to the years from 1993, two years before the plaintiffs' filed their administrative class complaint, to March 2003, the month in which Customs was disbanded and its special agents transferred to ICE, a bureau within the newly-formed Department of Homeland Security. See supra, n.1. As defendant noted in his Memorandum in Support of Defendant's Motion for Entry of A Discovery Scheduling Order, the GS-1811 special agents currently employed by ICE include former employees from several different agencies, including, but not limited to, the former U.S. Customs Service, the Immigration and Naturalization Service ("INS"), and the Federal Air Marshals Service. See Def's Mem. in Support of Entry of Disc. Scheduling Ord. at 14 [# 74]. The named plaintiffs in this case could not, therefore, demonstrate commonality and typicality with non-Customs special agents who had never been employed by Customs. Moreover, because the former Customs special agents are now part of a new agency that has new management, new policies, new missions, and new types of assignments, no additional claims of discrimination relating to actions taken by Customs could have accrued against the defendant Department of Homeland Security after the date of the transfer. To hold otherwise would mean that neither the Department of Homeland Security nor ICE would have the opportunity to independently resolve through the administrative process challenges to their – as opposed to Customs – policies and practices.
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Decl.") at ¶ 21 (attached hereto as Exhibit 10). Using multiple pools, logistic regression and survival analyses, Dr. Siskin concluded that Hispanics were more, not less, likely to be promoted than white agents under any of those analyses. Id. at pgs. 2-3, Section II.
Using a multiple pools analysis, Dr. Siskin compared the promotion rates of Hispanics and whites who were similarly situated, i.e., in the same grade, division (IA or OI), and region of the country. Id. at ¶ 18. Using that method, Dr. Siskin was able to arrive at a statistical estimate of the impact that being Hispanic at Customs had on promotions, what Dr. Siskin refers to as the "Hispanic effect." Id. Comparing the number of Hispanic agents who would have been expected to have been promoted under a national-origin-neutral selection process with the number of Hispanic employees who actually were selected, Dr. Siskin concluded that "Hispanic agents are more likely than white agents in the same grade to be promoted." See Siskin Decl. at pg. 2, Section II, ¶¶ 21- 24, 29, Table 2 (showing an overall statistical significance of 4.04 units of standard deviation in favor of Hispanics). Table 2 of Dr. Siskin's declaration reflects that for all the grades from grades 12 to 15, Hispanics were more likely than white agents to be promoted and that, for promotions from grade 12 to grade 13, that likelihood was statistically significant (3.81 units of standard deviation). Id., Table 2.
Similarly, when Dr. Siskin controlled for both grade and year, he found that Hispanics were more likely than whites to be promoted in almost every year from 1993 to 2003, and that in years 1994, 1997, and 1998, Hispanics were favored over whites in promotions to a statistically significant degree. Id. at ¶ 30, Table 3. Even when Dr. Siskin controlled for the division (IA or OI) in which special agents worked, Hispanics remained more likely than whites to be promoted in both divisions, and to a statistically significant degree in OI. Id. at ¶ 34, Tables 8 and 8a.
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Dr. Siskin, using a logistic regression analysis, also found that an agent's assignment to a duty station in Puerto Rico or the Southwest border increased the agent's chance of being promoted, whether white or Hispanic. See Siskin Decl. at ¶ 47, Table 14. Conversely, assignment to a duty station in the United States but not on the Southwest border had the most negative impact on an agent's chance of being promoted. Id. Dr. Siskin also found that Hispanic agents made up forty-five point eight percent (45.8%) of Customs agents stationed on the Southwest border and one hundred percent (100%) of the agents in Puerto Rico. Id. at ¶ 56, Table 25. Thus, Hispanic agents were disproportionately represented in locations where an agent was more likely to be promoted, accounting for some, but not all of the advantage that Hispanic agents had over whites in promotions.
Using a multiple pools analysis in which the region to which an agent was stationed was added to the definition of the pool, Dr. Siskin found that the Hispanic surplus in promotions dropped from 53.4 to 24.9. Id. at ¶ 36, Table 2 and Table 9. Thus, Dr. Siskin concluded that "the surplus in promotions Hispanics enjoy is partially due to Hispanics being more likely to be working in regions from which promotions are more likely to occur and partially because Hispanics working in the same region at the same grade as whites are significantly more likely than whites to be promoted." Siskin Decl. at ¶ 36. In sum, while the advantage that Hispanics had over whites in promotions was, in part, due to their being disproportionately located along the Southwest border and Puerto Rico, statistics demonstrate that Hispanic agents were still favored over whites.
Dr. Siskin also used a survival analysis to determine whether the time that an agent spent in his current grade level (i.e., time-in-grade) increased his likelihood of promotion and whether
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Hispanics had to spend more or less time-in-grade than whites to be promoted. Id. at ¶ 40, Table 11. Dr. Siskin calculated the median time that it took for both white and Hispanic agents to be promoted based on the totality of the information available. Id. He found that "one-half of the Hispanics who enter Grade 12 will be promoted to Grade 13 within 2.26 years," whereas "onehalf of the white agents who enter Grade 12 will be promoted to Grade 13 within 3.31 years." Id. In short, Hispanics who entered Grade 12 since 1993 tended to reach Grade 13 more quickly than whites.
Finally, Dr. Siskin used the bidding information contained in the VAACS database to compare the rate of promotions for Hispanics and whites. See Siskin Decl. at ¶¶ 48-50, Tables 15-21. As Dr. Siskin noted, Customs generally filled vacant positions through a competitive bidding process and maintained computerized information about the applicants for the vacancy, including who was minimally and best-qualified for the position and who was selected. Id. at ¶ 48. Using that data, Dr. Siskin found that Hispanic agents who bid for an opening for a promotion were consistently more likely than white bidders to be selected. Id. at ¶ 53, Tables 19, 20 and 21.
Dr. Siskin's report provides overwhelming evidence that, contrary to plaintiffs' allegations, Customs did not discriminate against Hispanic agents in promotions. To the contrary, Hispanics were more likely to be promoted than similarly situated white agents. Thus, entry of summary judgment for defendant on plaintiffs' pattern or practice promotion claim is warranted.
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B. Customs Did Not Discriminate Against Hispanic Special Agents in Transfers and Office Assignments
In their Complaint, plaintiffs allege that the "Customs Service maintains procedures for making decisions regarding transfers, assignments and other career-enhancing opportunities that are excessively subjective." See Complaint at ¶ 27. Plaintiffs allege that, as a result of those procedures, "Hispanic Special Agents receive fewer and less desirable assignments" and "are more likely to be assigned to offices along the Southwest border and Puerto Rico than similarly situated white Non-Hispanic Agents." Id. Plaintiffs also assert that "Hispanic Agents have difficulty obtaining foreign attaché positions, especially those in Europe which are considered the most career-enhancing." Id. Finally, plaintiffs allege that Hispanic agents "are more likely to be assigned to small offices and therefore are less likely to receive the diverse work experience necessary for promotion." Id.
As explained below, plaintiffs' pattern or practice transfer claim cannot survive summary judgment. First, lateral transfers are not adverse employments actions that are actionable under Title VII. Second, plaintiffs have failed to identify a particular Customs policy or procedure that they allege is discriminatory or has an adverse impact on Hispanics in terms of "career enhancing" transfers. Finally, and most importantly, plaintiffs cannot meet their burden of showing that a statistically significant number of Hispanic special agents were either denied "desirable" transfer posts or assigned to "undesirable" offices than white special agents. Rather, statistics show that Hispanics were treated as, if not more, favorably than whites in receiving transfers that would help them obtain promotions.
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1. Lateral Transfers Are Not Actionable Employment Decisions Under Title VII
A federal employee must allege some adverse or negative employment action in order to bring a claim under Title VII. The Supreme Court has said that, to be subject to Title VII, a personnel action must be a "tangible employment action," that is, "a significant change in the employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
Many of the allegedly discriminatory acts challenged in this case (i.e., transfers, training, work assignments, internal affairs investigations) are simply not actionable under Title VII because they do not rise to the level of "adverse employment actions," as that term has been described by the Court of Appeals in Brown v. Brody, 199 F.3d 446, 455 (D.C. Cir. 1999) ("Under 42 U.S.C. § 2000e-16(c), a federal employee must be 'aggrieved' in order to bring an action . . . ."). In this Circuit, lateral transfers generally do not constitute adverse employment actions under Title VII. Id. at 457 ("[A] plaintiff who is made to undertake or who is denied a lateral transfer – that is, one in which she suffers no diminution in pay or benefits – does not suffer an actionable injury unless there are some other materially adverse consequences . . . . "). The rule in this Circuit is that "[m]inor changes in opportunities or work-related duties do not constitute actionable injuries unless a decrease in salary or work-hour changes accompanies them." Stewart v. Ashcroft, 211 F. Supp. 2d 166, 173 (D.D.C. 2002) (citing Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 2002)), aff'd 352 F.3d 422 (D.C. Cir. 2003).
Plaintiffs here have alleged no diminution in pay or benefits which would demonstrate
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that their alleged inability to obtain lateral transfers to “desirable” posts has caused them material harm. Instead, plaintiffs specifically tie the alleged denial of lateral reassignments to their alleged failure to obtain promotions. However, Hispanic special agents at Customs were more, not less, likely to be promoted. See Siskin Decl. at pgs. 2-3, Section II. Moreover, agents assigned to the Southwest border or Puerto Rico were more likely to be promoted. In short, plaintiffs' pattern or practice transfer claim cannot be sustained as a matter of law under Title VII.
2. Customs Had Numerous Policies That Allowed Agents Opportunities For Lateral Transfers, And Those Policies Fairly Balanced The Needs Of The Agency With The Needs Of All Of Its Agents
The Supreme Court has cautioned that, to establish a prima facie case of disparate impact, not only must plaintiffs show that there are statistically significant disparities, they must "begin by identifying the specific employment practice that is challenged." Watson, 487 U.S. at 994. "[T]he plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Id.
Putting aside for the moment the fact that plaintiffs here cannot show any statistical disparity adversely impacting Hispanics in transfers, plaintiffs also have not identified the particular employment practices that they believe are responsible for the purported adverse impact. See Complaint at ¶ 27. The crux of plaintiffs' transfer claim as expressed by plaintiffs' counsel at the January 12, 2004, hearing on defendant's Motion for Summary Judgment is that, because of their Spanish language skills, Hispanic agents "have a hard time getting off the border and a hard time getting lateral transfers and competing for promotion." Excerpt from Transcript of Motions Hearing, January 12, 2004, pg. 25 (attached hereto as Exhibit 11). Yet, nine years
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after filing their administrative complaint and two years after filing their Complaint in this Court, plaintiffs have yet to identify any particular transfer policy or practice that allegedly has a disparate impact on Hispanics.
a. Border Rotation Opportunities The transfer policy that is most pertinent to plaintiffs' allegation that Hispanics agents at Customs had "a hard time getting off the border" is a policy that plaintiffs fail to mention in their Complaint: Customs border rotation initiative ("Rotation Policy"). In 2000, Customs implemented a policy that allowed agents who had been assigned for a certain number of years to designated locations along the Southwest border, Puerto Rico, Guam or the Virgin Islands to volunteer for, and receive, a lateral transfer to another office. See Royer Decl. at ¶ 10. In addition to offering transfers from those offices in Puerto Rico, Guam and the Virgin Islands, the Rotation Policy allowed transfers from designated Southwest border locations in Arizona (Ajo, Douglas, Nogales and Yuma); in California (Calexico); in New Mexico (Deming and Las Cruces); and in Texas (Brownsville, Del Rio, Eagle Pass, El Paso, Falcon Dam, Laredo, McAllen and Presidio). Id. In 2002 and 2003, Customs added Sells, Arizona, Alpine, Texas and San Ysidro, California to the list of Southwest border locations included in the Rotation Policy. Id. at ¶ 11. Under the Rotation Policy, agents who applied for a rotation from the designated locations were asked to identify in order of priority three (3) SAIC office locations to which they wished to transfer. Id. Once management had determined the new assignments for all applicants, each interested employee was notified of the new transfer location and asked to accept or decline the transfer offer. See Royer Decl. at ¶ 14.
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The Rotation Policy was designed to allow agents with the longest continuous tenure at the designated locations to transfer to another office. See Royer Decl. at ¶ 11. The policy defined agents with “continuous tenure” as those agents who had completed a minimum of three (3) continuous years in OI, without a break, at one or a combination of more than one of the designated locations. Id. However, because the number of agents that Customs could transfer under the Rotation Policy was dictated by funding availability, id. at ¶ 22, not all of those agents who had completed three continuous years at one of the designated locations were able to transfer. Id. at ¶ 21. Thus, Customs transferred all of the eligible agents that it could with its available funding, giving priority to those agents with the longest continuous tenure at the designated locations. Id.
Because Customs could not offer funded transfers from the designated border locations to all applicants due to funding constraints, Customs also offered all eligible 1811’s an opportunity to submit self-funded lateral reassignment requests from the Southwest border. See Royer Decl. at ¶ 22. An agent was eligible for a self-funded transfer if he had three (3) or more years of continuous service in one or more Southwest border locations. Id. Self-funded transfers were based on the availability of vacancies in the office to which an agent wanted to transfer and the needs of the Service to maintain an effective Southwest border workforce. Id. Clearly, Customs Rotation Policy allowed agents, Hispanic and otherwise, to transfer off the border if they so chose. Hence, Customs had a national-origin-neutral transfer policy and plaintiffs’ allegation that Hispanics had "a hard time getting off the border" is contravened by the actual facts of record.
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b. Other Transfer Opportunities In addition to the transfers offered through the Rotation Policy, an agent at Customs could have received a lateral transfer through six other means: (1) an agent could have requested a selffunded transfer from his supervisors; (2) an agent could have bid for a lateral transfer based upon a vacancy announcement issued for a competitive promotion; (3) an agent could have responded to an agency-wide TECS message announcing a particular lateral transfer opportunity; (4) an agent could have received a directed reassignment paid for by the agency; (5) an agent could have requested a hardship transfer; or (6) an agent could have applied for a foreign attaché position. See Royer Decl. at ¶ 25. Plaintiffs have not alleged any of these methods of requesting and receiving a transfer adversely impacted Hispanic agents at Customs.
3. Plaintiffs Cannot Demonstrate That A Statistically Significant Number of Hispanics Special Agents Were Denied Lateral Transfers That Were Career-Enhancing As Compared to Whites
The crux of plaintiffs’ transfer claim is that Hispanic agents at Customs were not allowed to transfer from positions on the Southwest border and in Puerto Rico because of their Spanish speaking ability and, as a result, Hispanics were not given promotion opportunities. See Complaint at ¶ 27; see also Excerpt from Transcript of Motions Hearing, January 12, 2004, pg. 25 (Plfs' Counsel's statements). However, defendant’s statistical expert, Dr. Bernard Siskin, concluded that Hispanic agents were more, not less, likely to be promoted than white agents. See Siskin Decl. at pg. 2-3, Section II.
Moreover, as noted earlier, Dr. Siskin analyzed whether a Customs agent’s assignment to the Southwest border had an adverse impact on the agent’s likelihood of being promoted. By comparing all similarly situated agents (white and Hispanic) who differed only as to the locations
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to which they were assigned, Dr. Siskin measured whether being assigned to designated Southwest border locations or to offices in Puerto Rico had an adverse impact on an agent’s likelihood of being promoted. Id. at ¶ 20 n.6 and ¶ 47, Table 14. Dr. Siskin concluded that those agents who were assigned to locations along the Southwest border or in Puerto Rico were statistically more likely to be promoted than agents who were assigned to other positions within the United States. Id. at ¶ 47, Table 14. The difference between the promotion rates of agents assigned to locations along the Southwest border and Puerto Rico and the promotion rates of agents assigned to other locations within the United States was measured at 2.98 units of standard deviation for the Southwest border and 3.03 units of standard deviation for Puerto Rico, both of which are considered statistically significant. Id., Table 14. Even taking into consideration the effect that being assigned to the Southwest border or Puerto Rico had on an agent’s likelihood of promotion, Dr. Siskin concluded that Hispanic agents assigned to those Southwest border/Puerto Rico locations were still more likely to be promoted than white agents in those same locations. Id. at ¶ 36, Table 9.
In other words, because Hispanics were statistically more likely to work in the Southwest border and Puerto Rico offices, they had an advantage over white agents in terms of promotions, because agents assigned to the Southwest border or Puerto Rico were more, not less, likely to be promoted than an agent in a non-Southwest border location in the United States. See Siskin Decl. at ¶ 56, Table 25 (as of 2003, 45.8% of the Hispanic agents at Customs had worked in offices in Puerto Rico or along the Southwest border). Moreover, even when comparing the promotion rates of white and Hispanic agents who were assigned to border offices, Hispanics were found to have a slight advantage over whites in promotions. Id. On this statistical evidence
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alone, defendant is entitled to summary judgment on plaintiffs' claim that Hispanics are disadvantaged by being assigned to duty stations along the border.
Moreover, plaintiffs have not accounted for the fact that the representation of Hispanic agents along the Southwest border and Puerto Rico may be the result of individual preference. Customs OI implemented a Rotation Policy in 2000 that allowed agents stationed along the Southwest border and Puerto Rico to transfer to other locations. See Royer Decl. at ¶ 9. Thus, if Hispanic agents remained on the Southwest border and Puerto Rico after 2000, it was largely at their choice. In addition, the high percentage of Customs Hispanic agents who were assigned to Southwest border locations is easily explained by the disproportionate number of Hispanics who live in those areas. According to the Statistical Abstract of the United States: 2003, as of 2000, the Hispanic population in the United States totaled 35,306,000. See Statistical Abstract of the United States: 2003, Table 22 (123d ed., U.S. Census Bureau) (2003) (attached hereto as Exhibit 12). Of the total Hispanic population, well over half (18,933,000) lived in only three states, California, Texas and Arizona, all states along the Southwest border. Id. Thus, the percentage of Customs Hispanic agents on the Southwest border (45.8%) was proportionate to, if not lower than, the percentage of the Hispanic population as a whole in that area (over 50%). Id.; see also Siskin Decl. at ¶ 56, Table 25.
Customs data are equally fatal to plaintiffs' allegation that Hispanic agents had difficulty obtaining foreign attaché positions, "especially those in Europe which are considered the most career enhancing." Complaint at ¶ 27. Using a logistic regression analysis, Dr. Siskin found that, for the period between 1993 and 2003, Hispanic agents at Customs were more likely than whites to be assigned to European duty stations, although not to a statistically significant degree. See
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Siskin Decl. at ¶ 46, Table 13. In sum, plaintiffs' pattern or practice transfer claim is unsupported by the facts. Contrary
to plaintiffs' allegations, Hispanic agents did not have a "hard time getting off the border," nor were they denied promotions. Rather, they stayed on the border by preference and were benefitted in promotions as a result. Moreover, Hispanics working on the Southwest border or Puerto Rico even had an advantage over white agents who worked in those same areas; the data show that, whether assigned to those locations or not, Hispanic agents were more likely than whites to be promoted. Finally, Hispanic agents were proportionately represented in foreign attaché positions in Europe. Accordingly, defendant is entitled to summary judgment on plaintiffs' pattern or practice transfer claim.
C. Customs Did Not Discriminate Against Hispanic Agents In Awards Plaintiffs' claim that Customs engaged in a pattern or practice of discriminating against them in awards cannot survive summary judgment. Plaintiffs contend that Customs awards policies had an adverse impact on Hispanic agents and, as a result, Hispanic agents received fewer awards than white agents and the awards Hispanic agents did receive were of lesser amounts than those similarly situated white agents received. See Complaint at ¶ 50. However, as a statistical analysis of cash and time-off awards received by white and Hispanic agent reveals, Hispanics received slightly more awards than whites. Additionally, the awards Hispanic agents received carried a higher monetary value than awards given to whites. Therefore, the facts show that there was no pattern or practice of discriminating against Hispanic agents in awards.
1. Customs Awards Policies Were Based on Exceptional Performance Throughout the time period relevant to this lawsuit, Customs policies on awards were
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designed to reward truly exceptional performance that was "clearly above and beyond what is normally expected." Shepherd Decl. at ¶ 12; Att. A. Prior to 1996, most awards were tied directly to employees' summary performance rating in their performance appraisal. Id. at ¶ 13, Att. B. For instance, employees who received a summary rating of Level 5 – for ''Outstanding" performance, two levels above "Fully Successful" performance – would automatically be rewarded a general pay increase and a performance award of at least two percent of their base pay. Id. Aside from awards based on performance ratings, Customs also gave cash awards for "suggestions, inventions, superior accomplishments and unique or special acts or services" that went above and beyond normal job responsibilities and performance requirements, to employees who were "highly exceptional and unusually outstanding." Id. at ¶ 18. Supervisors were required to prepare written justifications of these cash awards. Id. at ¶ 19. Decisions about awards were to be made objectively and without regard to national origin and other factors not having to do with merit. Id. at ¶ 12. Beginning in 1994, supervisors could give time-off awards instead of cash awards. See Shepherd Decl., Att. C. Like cash awards, time-off awards were reserved for truly special accomplishments. Id.
In 1996, Customs changed its performance evaluation process and the policies and procedures respecting distribution of awards. See Shepherd Decl. at ¶ 15. Under the new system, awards were no longer tied to performance ratings. Id.; Att. D, E & F. This change was designed to give supervisors more control over the management of awards and to increase employee morale. Id. at ¶ 16.
Headquarters determined how much money each SAIC could spend on awards, generally ranging between one-half and one percent of salary and expenses for that office. See, e.g.,
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Shepherd Dec., Att. E at 3; Declaration of Loraine E. Brown ("Brown Decl.") at ¶ 5 (attached hereto as Exhibit 13). Supervisors could give three types of awards: cash awards, time off awards, and honorary recognition awards. See Shepherd Decl. at ¶ 17; Att. A & F. Supervisors were instructed to attempt to ascertain which type of awards employees preferred. Id. at ¶ 17. Cash awards included Special Act Awards, which generally corresponded with an agent's work on a specific case, and Performance Awards, which were rewards for sustained superior performance. See Shepherd Decl.; Att. F; Declaration of Joseph Webber ("Webber Decl.") at ¶ 5 (attached hereto as Exhibit 14). Honorary awards included traditional items, such as certificates and paperweights, and non-traditional items, such as movie tickets. See Shepherd Decl. at ¶ 17; Att. G. Honorary awards were also given on a national level by the Commissioner of Customs. Id., Att. J.
In 1998, Customs began giving foreign language awards to agents who were proficient in and made substantial use of a foreign language in the performance of their duties. See Suppl. Kilcoyne Decl., Att. B, C & D. Agents were tested in the language in which they claimed proficiency and, depending on their test score and the amount of time spent using the foreign language, received a cash award up to five percent of their basic pay. Id. Foreign language awards were distributed at the headquarters level and did not come out of the awards budget for each SAIC. Id., Att. B, C, D at § 6.4.9
Quality Step Increases ("QSIs") (also referred to as Quality Salary Increases) were eliminated under the new system after fiscal year 1996, although they were reinstated in 1999. See Shepherd Decl., Att. H. A QSI is an increase in an employee's rate of basic pay from one step of a grade to the next. Id. QSIs were rarely given and were reserved for achievements that
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were "exceptional and clearly above and beyond what is normally expected of employees." Id. (emphasis in original); see also Brown Decl. at ¶ 9. Because a QSI is a change in salary, it had to be approved by an Assistant Commissioner. See Shepherd Decl., Att. I. To receive a QSI, an agent had to (1) receive a "successful" rating on his performance appraisal; and (2) demonstrate performance significantly above expected, as determined by five criteria: (a) displaying outstanding performance to meet organizational goals or improve the efficiency, effectiveness, and economy of the Government; (b) excelling in all critical performance areas as documented by specific examples; (c) sustaining a high level of performance over the previous year; (d) exhibiting timeliness of performance; and (e) being in the position and grade for at least a year. Id. Supervisors were instructed not to recommend a QSI to reward an agent for simply doing his or her job or for short-term accomplishments. Id.
2. In Implementing Awards Policies, Supervisors Attempted to Ensure Fairness Among All Employees
Customs award policies were designed to promote "fairness and consistency." Shepherd Decl., Att. H. Supervisors in the field offices made efforts to ensure that this goal was met. One common method of ensuring consistency was for SAICs to review group supervisors' nominations of the agents they supervised for awards and to require group supervisors to justify, in writing, why each nominee should receive an award. See Brown Decl. at ¶ 6; Webber Decl. at ¶ 6; Declaration of Miguel Unzueta ("Unzueta Decl.") at ¶ 6 (attached hereto as Exhibit 15). This extra level of review allowed the SAIC to ensure that similar extraordinary acts and high levels of performance were awarded similarly by different group supervisors.
Some SAICs also sought to maintain consistency by using awards committees made up of
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supervisors and agents, some of whom represented the RAIC offices within the SAIC, and some of whom were Hispanic. See Brown Decl. at ¶ 7; Webber Decl. at ¶ 7; Unzueta Decl. at ¶ 7. Awards committees reviewed supervisors' nominations of agents and justifications as to why those agents should receive awards in a certain amount and forwarded recommendations for awards to the SAIC. See Brown Decl. at ¶ 7; Webber Decl. at ¶ 8. Such committees ensured that agents with similar accomplishments were equally rewarded. Id. The use of such committees promoted consistency and fairness in awards. See Brown Decl. at ¶ 7; Webber Decl. at ¶ 9.
Because supervisors attempted to distribute money equitably among all high-performing agents, whether an agent received an award depended upon when he received his most recent award. See Brown Decl. at ¶ 8. However, while SAICs and awards committees attempted to reward agents fairly and evenhandedly, whether a particular agent received an award in a given year often depended on circumstances beyond the agent's and the SAIC's control, such as whether an important case came into the office when the agent was on call as the "duty agent." See Brown Decl. at ¶ 8.
3. OPM Concluded Customs Awards Program Was Based on Performance and Was Well-Liked by Employees
In an independent oversight review of Customs in November 2000, OPM's Office of Merit Systems Oversight and Effectiveness found that employees were positive about Customs award program and felt that it recognized performance. See OPM Oversight Review (attached hereto as Exhibit 16). The report of the oversight review described the various awards available to employees and the procedures by which supervisors determined who received awards, including the committee process and the requirement that awards be justified in writing described
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above. Id. at 20. OPM found that both supervisors and nonsupervisory employees were positive about the awards program, and "most believed that the awards program recognized outstanding performance." Id. Additionally, OPM found the award actions it reviewed to be both "welljustified and processed in accordance with agency procedures." Id.
4. Hispanic Agents Received More Awards Than White Agents from 1993 to 2003
The statistical data confirm that Customs neutral award policies have not had a disparate impact on Hispanic agents. Cash and time-off awards are personnel actions recorded in the PERHIS database. See Bennett Decl. at ¶ 15; Siskin Decl. at ¶ 59. A statistical analysis of awards received by white and Hispanic GS-1811 special agents between 1993 and 2003, controlling for the year and agents' grade, reveals that Hispanic agents received statistically significantly more overall awards than white agents during that time. See Siskin Decl. at ¶¶ 6162; Tables 28-29. Hispanic agents received considerably more foreign language awards than white agents. Id. When foreign language awards are not considered, Hispanic agents were equally likely to receive awards as whites. Id. Hispanic agents received slightly more QSIs than white agents, but the difference is not statistically significant. Id. at Table 29. As Dr. Siskin concluded, "the data clearly indicate that national origin is not a factor affecting the likelihood of receiving an award (excluding foreign language awards). Id. at ¶ 63 (emphasis in original).
5. Hispanic Agents Received More Lucrative Awards than White Agents from 1993 to 2003
In addition to receiving more total awards than white agents and an equal number of awards other than foreign language awards, Hispanic agents received statistically significantly more dollars in award money than white agents. Id. at ¶ 63; Table 30. This disparity holds true
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in both foreign language awards and other cash awards. Id. Hispanic and white agents receiving time-off awards received, on average, the same amount of time off. Id. at ¶ 63; Table 31. Accordingly, Customs awards policies did not disadvantage Hispanic agents at all but, to the contrary, benefitted them substantially.
D. Customs Did Not Deny Training Opportunities to Hispanic Agents The facts show that Customs did not engage in a pattern or practice of denying training opportunities to Hispanic agents. Plaintiffs contend Customs training policies had an adverse impact on Hispanic agents and, as a result, Hispanic agents received fewer training opportunities than white agents, and the training opportunities Hispanic agents did receive were less careerenhancing than those similarly situated white agents received.7 See Complaint at ¶ 63. However, under Customs training policies, agents attended training in accordance with the agency's needs and budgetary restrictions. Customs training data demonstrate that Hispanic agents actually received more training opportunities than similarly situated white agents. Accordingly, plaintiffs' training claim cannot survive summary judgment.8
7 Plaintiffs also contend they were denied opportunities to attend annual conferences sponsored by the Customs National Hispanic Agents Association (“CNHAA”). However, according to Customs policy, advocacy group conferences such as the CNHAA were not considered official training and were not funded by the National Training Fund. See Declaration of James E. Riggs ("Riggs Decl.") at ¶ 12, Att. B, C & D (attached hereto as Exhibit 17). While any agent could attend these conferences, whether a particular SAIC office provided funding for agents’ attendance depended upon whether the SAIC office had adequate funds and staff resources to send them and whether the agent had already attended a professional association conference that year. Id. at ¶ 12. When they could, SAICs attempted to send at least some agents to conferences such as the CNHAA. See Webber Decl. at ¶ 15; Brown Decl. at ¶ 15.
8 Additionally, plaintiffs' training claim does not rise to the level of an adverse action actionable under Title VII. See, supra, Part III.B.1.
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1. Customs Offered Training Opportunities That Corresponded to the Agency's Needs and Budget
Customs provided training to agents based on a determination of the agency's needs as a whole and individual field offices' needs in particular. See Smith Decl. at ¶ 4. Training at Customs was not designed to get agents promoted, but to help them perform their jobs better. See Declaration of Francis Gary White ("White Decl.") at ¶ 5 (attached hereto as Exhibit 18). The skills that agents learned during training might lead to better job performance and, thus, promotion. Attendance at training, however, could not ensure promotion, because training instructors could not guarantee that agents would be able to put the skills into practice. Id. In this way, while certain courses were more popular than others, no particular training course was considered prestigious or career-enhancing. See Brown Decl. at ¶ 13; Riggs Decl. at ¶ 11.
The majority of off-site training agents attended was at the Customs Academy in Glynco, Georgia ("Academy"). See White Decl. at ¶ 8. Agents working within OI and IA received different training opportunities, consistent with the different skills agents within those two offices needed. In general, the Academy offered fewer training classes for IA agents than for OI agents. See Declaration of Richard D. Ogden ("Ogden Decl.") at ¶ 4 (attached hereto as Exhibit 19). The IA Training Division at the Academy was responsible for scheduling basic, advanced and specialized IA training classes and coordinating with IA field offices throughout the country to determine which agents would attend. See Decl. of Bonnie W. Browning ("Browning Decl.") at ¶¶ 1-2 (attached hereto as Exhibit 20). From the mid-1990s to early 2000, IA training funds were limited, and the IA Training Division’s funding was dominated by the Basic Agent Training Program for agents entering IA for the first time. Id. at ¶ 3. During this time, the amount of
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advanced and specialized training courses for IA agents was limited, and the courses that the Academy did offer focused on needs unique to conducting internal investigations. Id. IA agents were selected to attend these courses by their field offices. Id. at ¶ 4. No selection was required for Basic Agent Training, because this course was mandatory. Id.
The Academy offered more training courses for OI agents than IA agents, in accordance with the particular skills that OI agents working on specific types of cases needed. The only mandatory Academy training course all OI agents were required to complete successfully was Basic Agent Training. See White Decl. at ¶ 6; Att. A. The Academy sent notice of advanced training courses to SAICs and Field Training Program Managers ("FTPMs") at the SAIC offices, which were responsible for nominating agents to attend. See Ogden Decl. at ¶ 6; White Decl. at ¶ 4. When the Academy received nominations from the SAIC offices, it chose among them, attempting to evenly distribute spots among SAIC offices. See Ogden Decl. at ¶ 9. The Academy also gave priority to nominees based on the needs of the agency; in other words, whether the advanced training would teach skills relevant to the kind of work a particular agent was currently doing (e.g., narcotics smuggling or asset forfeiture). Id. at ¶ 7; White Decl. at ¶ 7. For Undercover Operatives School, the Covert Operations Division at Customs Headquarters selected attendees from nominations provided by SAIC offices. See Ogden Decl. at ¶ 10; Suppl. Kilcoyne Decl. at ¶ 13.
The amount of training agents could receive was limited by the amount of money in Customs National Training Fund, which funded Academy training for agents. See Smith Decl. at ¶ 6. Between approximately 1993 and 1996, there was a shortage of funding in the National Training Fund, and the Academy had to deliver training in the field at SAIC offices. See Ogden
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Decl. at ¶¶ 12-13. Because training funds were limited, these field training courses focused on the major investigative priorities of Customs. Id. In 1997 or 1998, training in the field ended, and courses at the Academy continued as before. Id. at ¶ 14.
Customs created the Office of Training and Development ("OTD") at headquarters in 1999, which coordinated the training of Customs special agents. See Smith Decl. at ¶¶ 3, 7. The creation of OTD allowed Customs to centralize the determination of training needs at the headquarters level in order to improve the quality and consistency of training. Id. at ¶ 7; Att. B. When OTD was first established, it assembled task forces to develop standard curriculum frameworks that described what types of training Customs employees needed to be able to perform their jobs. Id. at ¶ 8. Each fiscal year beginning in 2000, OTD assembled a National Training Plan ("NTP") "to ensure that Customs employees receive the training essential to performing their jobs with the competence, professionalism, and honor that are the hallmarks of" Customs. Id. at ¶ 9; Att. D. The NTP identified Customs training priorities and requirements and included all classes offered by the Customs Academy and private vendors within a given year. Id. at ¶ 10. Each year, to develop the NTP, OTD contacted each headquarters office (e.g., the Office of Investigations), which in turn contacted its field offices, to solicit requests for training. Id. at ¶ 11. Upon receiving the requests, OTD worked with training providers in an attempt to meet the training needs of each office. Id.
In sum, selection of Customs employees to attend training was based on fulfilling the needs of the agency and helping agents develop the skills needed to perform their jobs effectively. See Smith Decl. at ¶ 12; Att. E. Attending training was not considered an award, and it could not ensure promotion. See White Decl. at ¶¶ 5, 7. Factors not related to the
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documented need for training, including national origin, were not relevant to selection. See Smith Decl. at ¶ 12; Att. E.
2. Customs Supervisors Selected Agents to Attend Training Based on the Needs of the Field Offices
Personnel within the SAIC offices nominated agents to attend training based on the office’s needs and, for private vendor training, the office’s budget. The National Training Fund only paid for expenses related to Academy training, and individual SAIC offices had to pay to send their agents to training offered by private vendors. See White Decl. at ¶ 9, 10.
Each SAIC office had an FTPM, a GS-1811 special agent who was responsible for informing agents about upcoming training opportunities and coordinating the SAIC’s nominations. See Ogden Decl. at ¶ 6. When the Academy announced a course, the FTPM in each SAIC notified agents throughout the region overseen by the SAIC about it and received requests to attend. See Riggs Decl. at ¶ 6. Agents who wanted to take advantage of a training opportunity sought approval to attend from their Group Supervisor and, upon receiving approval, contacted the FTPM to express their interest in attending. Id. at ¶ 7. The FTPM compiled a list of interested agents and helped the Assistant SAIC rank the agents in accordance with the SAIC's needs, then forwarded the list to the Academy. Id. at ¶ 8; Webber Decl. at ¶ 13.
Whether an agent's request for training was granted depended on a number of factors related to the needs of the SAIC: when the agent had last attended training; whether the training was relevant to the agent’s area of work and current group assignment (e.g., narcotics smuggling or money laundering); and, for vendor-provided courses, the SAIC’s budget. See Riggs Decl. at ¶ 8. SAICs attempted to ensure fairness in allocating training resources, as many agents wanted
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to attend as much training as possible. See Brown Decl. at ¶ 11. 3. Hispanic Agents Received Equal Training Opportunities to White Agents from 1993 to 2003
According to a statistical analysis of the TRAEN database, the database that tracked training at Customs, Hispanic agents benefitted substantially from Customs training policies. Hispanic agents at grades GS-12 and GS-13 received disproportionately more training than white agents in those grades. See Siskin Decl. at ¶ 66; Table 33. The difference was statistically significant. Id. At grades GS-14 and GS-15, Hispanic agents received training opportunities equal to white agents. Id. These conclusions hold true for both training offered at the Customs Academy and non-Academy training. Id.
E. Customs Did Not Discriminate Against Hispanic Agents in Work Assignments As discussed below, Customs work assignment policies did not discriminate against
Hispanic agents, nor did Customs carry out a pattern or practice of discriminating against Hispanic agents in assignments. In their complaint, plaintiffs allege Customs method of assigning cases discriminated against Hispanic agents. Specifically, plaintiffs contend they were assigned "fewer high profile cases" and "cases that are not career-enhancing." Complaint at ¶ 34. Additionally, they contend they were disproportionately assigned "undercover work and other Spanish-language related duties," including wiretap monitoring. Id.
Summary judgment should be entered against plaintiffs for the following reasons. First, Customs method of assigning agents to cases did not take national origin into account. Second, to the extent Hispanic agents worked undercover, they did so voluntarily, not because of a pattern or practice of discrimination. Third, under Customs policy, all wiretaps have been monitored and
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transcribed by outside contractors, not Hispanic agents, since 2000. Before 2000, Hispanic agents could have been solely responsible for monitoring or transcribing wiretaps in only two cases, which does not rise to the level of a pattern or practice. Finally, as a matter of law, plaintiffs' challenge to their work assignments is not an actionable claim under Title VII, and the Court should therefore grant judgment to defendant on the pattern or practice assignments claim.
1. Customs Assignment Method Was Based on the Needs of the Field Office and Was Neutral to National Origin
Customs assigned cases to agents in a manner that was based not on national origin but the needs of the agency. The process by which agents received assignments varied among field offices. In most field offices, agents rotated as the "duty agent," which meant they were on call for a certain amount of time and handled whatever cases came into the office. See Declaration of James Geddes ("Geddes Decl.") at ¶¶ 7-8 (attached hereto as Exhibit 21). Duty agents were responsible for following-up on the leads and referrals they received during their duty agent shift. Id. at ¶¶ 10-11. Especially in small- to medium-sized field offices, most of an agent's work was derived from cases developed while serving as duty agent or alternative duty agent. Id. at ¶ 9.
In large SAIC offices such as Houston and Los Angeles, agents were assigned to a subject matter group such as fraud or narcotics smuggling when they entered the SAIC, based on the needs of the office and any skills and prior experience of the agent. See Webber Decl. at ¶ 17; Brown Decl. at ¶ 16. In smaller offices, including some offices on the southwest border, agents were encouraged to develop their own cases and conduct their own investigations based on information they collected from confidential informants, their own observations and information from their supervisors. See Geddes Decl. at ¶ 12. In general, regardless of what type of cases
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agents handled, agents who acted independently and actively pursued leads and developed relationships with informants and agents from other law enforcement agencies would get important cases through these connections. See Webber Decl. at ¶ 18.
2. Customs Did Not Discriminate Against Hispanic Agents in Undercover Assignments a. Hispanic Agents Were Not Unfairly Required to Perform Undercover Work, Because Undercover Work Was Strictly Voluntary
The facts show that Customs did not engage in a pattern or practice of requiring Hispanic agents to perform undercover assignments. Under Customs policy, all undercover work was voluntary. See Suppl. Kilcoyne Decl. at ¶ 7; Unzueta Decl. at ¶ 5. Agents were told repeatedly that undercover work was voluntary, both by instructors at the Academy during Undercover Operatives Training and by supervisors in field offices. See Suppl. Kilcoyne Decl. at ¶ 7; Declaration of D.G. ("D.G. Decl.") at ¶ 11 (attached hereto as Exhibit 22) (filed under seal) ("I have always understood that working undercover is voluntary. I have never felt coerced to work undercover."). When agents completed undercover training, they signed a form saying they understood that undercover work was voluntary and noted whether they wanted to do undercover work. See Suppl. Kilcoyne Decl. at ¶ 8; Att. A (form signed by plaintiff Miguel Contreras acknowledging undercover work was voluntary). Academy instructors informed agents that even though they were certified to do undercover work after attending the training, they did not ever have to do it. See D.G. Decl. at ¶ 11. Additionally, an agent could choose to stop working undercover if he no longer wanted to work undercover or wanted to take time off from undercover work. See Brown Decl. at ¶¶ 17-18; D.G. Decl. at ¶ 12.
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Supervisors did not want any agent to work undercover who did not want to, because the agent could compromise the safety of himself or his colleagues. See Suppl. Kilcoyne Decl. at ¶ 9; Webber Decl. at ¶ 19; Unzueta Decl. at ¶ 5. Each field office had an agent who was an undercover liaison coordinator and, in this role, was available for undercover agents to talk to about their assignments or any pressures they felt in their personal lives. See Suppl. Kilcoyne Decl. at ¶ 10. In conclusion, even if plaintiffs' allegation that Hispanic agents did more undercover work were true, this disparity was not a result of discrimination by Customs but of personal choices by individual agents.
b. Customs Did Not Prevent Hispanic Agents From Being Promoted By Assigning Them Undercover Work
Plaintiffs contend Customs "devalues" undercover work in terms of awards and promotions. Complaint at ¶ 34. The statistical data show that doing some undercover work did not adversely affect an agent's likelihood of promotion. In fact, many agents received awards for their undercover work and were promoted precisely because, not despite, the fact that they were successful at undercover work. See Unzueta Decl. at ¶ 4. While agents who logged more than ten percent of their total working hours as undercover hours appeared not to reach the GS-14 level, those agents generally did not seek promotions to a GS-14 position. See Siskin Decl. at ¶ 73. Given that undercover work was voluntary and agents who worked a lot of undercover hours did not apply for supervisory positions, Hispanic agents were not disadvantaged by Customs undercover policies.
Undercover work was an important investigative tool that was vital to the performance of Customs mission. See Suppl. Kilcoyne Decl. at ¶ 15. Given the importance of undercover work
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to the agency, Customs chose only the most skilled agents to be certified as undercover operatives. Id. at ¶ 11. Being certified as an undercover operative and working undercover increased agents' chances of being promoted through Customs promotion system. See Zaner Decl. at ¶ 20; Suppl. Kilcoyne Decl. at ¶ 12.
Moreover, the statistical evidence demonstrates that agents who logged undercover hours for less than ten percent of their total time working were more likely to be promoted than agents who did not work undercover. See Siskin Decl. at ¶ 71, Table 37. While logging over ten percent of total hours as undercover work had a negative impact on agents' likelihood of reaching higher grade levels, only 41 agents out of more than 3,000 total GS-1811 agents at Customs logged more than ten percent of his total hours to undercover work, and the seemingly negative impact may be due to the small number of agents. Id. at ¶¶ 9, 71, Tables 1, 35. Further, as the TECS and VAACS data show, no Hispanic agent who logged more than ten percent of their total hours to undercover work and was not promoted to grade GS-14 ever even applied for a GS-14 promotion. Id. at ¶ 73. In other words, agents who worked undercover frequently chose to do so rather than to apply for a promotion to a supervisory position. Plaintiffs simply cannot support their claim that Customs policies or practices relating to undercover work kept Hispanic agents from being promoted.
3. Customs Did Not Discriminate Against Hispanic Agents In Wiretap Assignments
Since approximately the year 2000, Customs had a policy whereby field offices were encouraged to hire contractors to monitor wires and transcribe (and, if necessary, translate) intercepted conversations into English. See Suppl. Kilcoyne Decl. at ¶ 23. Even before this
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policy became official, many field offices used contractors to monitor the wires; in addition, Customs had very few wiretap cases prior to 2000. See, e.g., Webber Decl. at ¶ 20; Suppl. Kilcoyne Decl. at ¶ 23.
With the use of contractors came an increased amount of wiretaps and encouragement from Headquarters to do more wiretaps. See Suppl. Kilcoyne Decl. at ¶ 27. Customs used substantially more wiretaps after 2001. Id. at ¶ 27; Brown Decl. at ¶ 21. Between 1993 and the end of 1999, Hispanic agents logged hours to only 48 cases where field offices sought approval from headquarters to use a wiretap. See Suppl. Kilcoyne Decl. at ¶ 28. Of those 48 cases, in 18 cases, the wiretap was monitored and transcribed by contractors, not agents. Id. In three of those cases the wiretap was monitored and transcribed by officers from other federal, state or local law enforcement agencies. Id. In ten cases, no wiretap was ever employed. Id. In four cases, the intercepted conversations were not in Spanish.9 Id. In eleven cases, Customs agents monitored the wire along with contractors or other officers, but contractors were responsible for a majority of the translation. Id. Thus, in only two cases could Hispanic agents have possibly been solely responsible for monitoring and transcribing the wire. Id. And in one of those cases, the wire was only operational for 24 hours. Id. This small number of cases belies plaintiffs' allegation that Customs had a standard operating procedure of assigning Hispanics to wiretap cases.
Additionally, the facts do not support plaintiffs' allegation that working on wiretap cases hindered their opportunities to receive promotions and awards. Generally, wiretap cases were considered good assignments because they were larger and more significant cases. See Brown
9 Only Spanish-speaking wires are relevant to plaintiffs' wiretap claim, because wiretap monitoring was one of the "Spanish-language related duties" they allege they were disproportionately assigned. Complaint at ¶ 34.
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Decl. at ¶ 19. Thus, agents assigned to cases involving wiretaps were likely to be recognized in awards or promotions. Id. at ¶ 19; Suppl. Kilcoyne Decl. at ¶ 25. Wiretaps were complicated and involved expensive technology and the participation of many agents. See Suppl. Kilcoyne Decl. at ¶ 26. In general, given the amount of agent resources used to run a wiretap, agents were only used to monitor and transcribe a wire when contracting companies that were court-certified to do that work did not yet exist. Id. at ¶ 24; Webber Decl. at ¶ 20. Given the minute number of cases in which Hispanic agents might have been involved in monitoring and transcribing wiretaps and the lack of factual support for plaintiffs' contention that wiretap monitoring prevented promotions and awards, the facts do not support plaintiffs' claim that Customs engaged in a pattern or practice of discriminating against Hispanic agents in wiretap assignments.
4. As a Matter of Law, Hispanic Agents' Assignments Do Not Rise to the Level of an Adverse Action Actionable Under Title VII
To state a claim under Title VII, plaintiffs must identify an adverse action that Hispanic agents suffered. Plaintiffs allege in their Complaint that they were assigned "less desirable" cases and "cases that are not career-enhancing." Complaint at ¶ 34. However, the statistical data demonstrate that Hispanic agents, in general, were promoted faster than white agents, and agents who worked some undercover were promoted faster than agents who did no undercover work. Because Hispanic agents' work assignment claim does not rise to the level of a "legally cognizable adverse action" and their assignments did not affect their promotions, plaintiffs' assignments claim fails as a matter of law. Brown, 199 F.3d at 453.
Without an ultimate effect on an agent's ability to be promoted, an assignment a particular agent receives is not in and of itself an adverse action. Plaintiffs' subjective perception of
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whether or not a particular assignment is "less desirable" does not render the assignment an adverse employment action. Complaint at ¶ 34; Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002) ("[p]urely subjective injuries . . . are not adverse employment actions"); Brown, 199 F.3d at 457 ("Mere idiosyncracies of personal preference are not sufficient to state an injury.").
First, the discrete assignments that particular agents received did not significantly alter their job responsibilities. A plaintiff can maintain a Title VII claim by showing that a "tangible employment action" such as failure to promote or "reassignment with significantly different responsibilities" was taken for a forbidden reason. Ellerth, 524 U.S. at 753; see also Brown, 199 F.3d at 456 (quoting Ellerth). Plaintiffs' assignment claim does not meet this standard. The undercover work and other "undesirable" assignments plaintiffs complain of were an inherent part of the criminal investigator position, in which role all agents performed surveillance and did not always identify themselves as Customs agents. See Kilcoyne Decl. at ¶¶ 15, 24. Wiretap monitoring was no more tedious than other types of surveillance or other case work required of agents. Id. at ¶ 24. "Mere inconveniences and alteration of job responsibilities will not rise to the level of adverse action." Stewart v. Evans, 275 F.3d at 1135 (quoting Childers v. Slater, 44 F. Supp. 2d 8, 19 (D.D.C. 1999)); see also Freedman v. MCI Telecomm. Corp., 255 F.3d 840, 848 (D.C. Cir. 2001).
Second, the assignments did not "tangibly change" the working conditions of plaintiffs' employment to the level of constituting "a material employment disadvantage." Stewart v. Evans, 275 F.3d at 1134 (an "'employment decision does not rise to the level of an actionable adverse action . . . unless there is a tangible change in the duties or working conditions
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constituting a material employment disadvantage'") (quoting Walker v. WMATA, 102 F. Supp.
2d 24, 29 (D.D.C. 2000), and citing Ellerth). Outside of their allegation that undercover work is
"dangerous," see Complaint at ¶ 34, the plaintiffs have not alleged that the actual working
conditions of their assignments constituted a material employment disadvantage.10 And to the
extent that undercover work did involve some degree of personal danger, the agents volunteered
to take that risk. As discussed above, agents were repeatedly reminded that undercover
assignments were voluntary, and thus the Customs Service cannot be said to have imposed the
risk on agents.11 Additionally, agents received appropriate credit towards promotion for doing
undercover work.12
Finally, the assignments plaintiffs challenge did not hamper their ability to succeed at
Customs. See Freedman, 255 F.3d at 848 (suggesting that a temporary assignment could create
10 In Perez v. FBI, 707 F. Supp. 891 (W.D. Tex. 1988), aff'd, 956 F.2d 265 (5th Cir. 1992), the district court found that Hispanic FBI agents' wiretap duties constituted "disparate treatment in the conditions of their employment" only because of the specific working conditions of the wiretaps: (1) the shifts often lasted 12 hours; (2) the assignments lasted 30-90 days; (3) the assignment were involuntary; (4) agents were taken off their active cases and not reassigned upon return; and (5) the agents were absent from home office and family. Id. at 909. Plaintiffs have not made any similar allegations as to the working conditions of the very few wiretaps they performed. See Complaint at ¶¶ 34-43.
11 This case thus differs from Segar v. Civiletti, 508 F. Supp. 690, 713 (D.D.C. 1981), aff'd sub nom Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984), where the court found the DEA had assigned undercover work to black agents more frequently than to white agents.
12 Again, in this respect, Segar and Perez are distinguishable from the instant case. See Segar, 508 F. Supp. at 713 ("Disproportionate assignment to undercover work adversely affects Black agents in that it exposes them to greater dangers and hardship [and] precludes obtaining the 'breadth of experience' that is a critical consideration for promotion to supervisory positions."); Perez, 707 F. Supp. at 912 ("Though Title VII may not prohibit the [FBI] from assigning Hispanic Special Agents to undercover work in disproportionate numbers, Title VII does prohibit the [FBI] from failing to credit adequately the contribution of the undercover agent to the mission of the [FBI] in terms of promotions and benefits.").
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liability if it has an objectively harmful effect on "future employment opportunities"); see also Brown, 199 F.3d at 457. Wiretap cases were high-profile and, thus, likely to lead to recognition. See Brown Decl. at ¶ 19; Suppl. Kilcoyne Decl. at ¶ 25. Additionally, doing some undercover work actually increased an agent's chance of being promoted. See Siskin Decl. at ¶ 71, Table 37. While logging more than ten percent of total hours to undercover corresponded with staying in a non-supervisory position, Hispanic agents with high undercover hours did not apply for any supervisory positions. Id. at ¶¶ 71, 73. Accordingly, because plaintiffs' assignment claim does not involve an adverse action actionable under Title VII, it fails as a matter of law.
F. Plaintiffs Cannot Demonstrate A Pattern Or Practice Of Discriminatory Discipline At Customs
In their Complaint, plaintiffs assert that Customs used disciplinary procedures that were “excessively subjective and, as a result, [had] an adverse impact on Hispanic Special Agents.” Complaint at ¶ 44. In particular, plaintiffs assert that Hispanics were disciplined “more frequently and more harshly than similarly situated white Special Agents.” Id. As an example of this alleged discriminatory discipline, plaintiff Miguel Contreras asserted that he was “subject to numerous Internal Affairs investigations.” Id. at ¶ 46.
As set forth fully below, plaintiffs’ pattern or practice discipline claim fails as a matter of law. First, investigations of misconduct that do not result in any disciplinary action being taken are not adverse employment actions that are cognizable under Title VII. Second, Customs policies and practices were centralized starting in 1996 to allow for an objective and consistent disciplinary process. Plaintiffs cannot identify any aspect of these policies that was inherently discriminatory toward Hispanics. Third, although Hispanics were more likely than whites to be
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suspended for the period between 1993 and 2003, no statistically significant disparity existed between the suspensions of white agents and those of Hispanic agents prior to 1999, when Customs implemented a centralized, objective process for both investigating employee misconduct and proposing disciplinary actions. Moreover, the fact that Dr. Siskin found only 42 Hispanics out of 495 total were suspended during a ten-year period does not demonstrate a pattern or practice of discriminatory discipline. Finally, plaintiffs cannot show that Hispanics were disciplined more harshly than white agents for like or similar offenses, a requirement for a claim of discriminatory discipline. For all these reasons, defendant is entitled to summary judgment on plaintiffs’ discipline claim.
1. Investigations Of Employee Misconduct That Do Not Result In Disciplinary Action Are Not Actionable Adverse Employment Practices
In the Complaint, plaintiff Miguel Contreras cites "investigations" of employee misconduct as evidence that Customs engaged in a pattern or practice of discriminatory discipline. Complaint at ¶¶ 46, 48. However, as a matter of law, an investigation that does not lead to disciplinary action is not an actionable adverse employment action. See, e.g., Brown, 199 F.3d at 456-57; Mack v. Strauss, 134 F. Supp. 2d 103, 114 (D.D.C. 2001), aff'd, 2001 WL 1286263 (D.C. Cir. Sept. 28, 2001); Roney v. Ashcroft, Civ. Action No. 01-0544, at 5 n.1 (Mem. Op. Aug. 6, 2002) (Robertson, J.). This Court has held that when no adverse action is taken based upon an investigation of employee misconduct, there is "no objectively tangible harm." Moore v. Summers, 113 F. Supp. 2d 5, 23 (D.D.C. 2000) ("It is undisputed that no disciplinary action has been taken against Special Agent Moore [a plaintiff] as a result of the investigation. Consequently, there was no adverse action."). Thus, investigations that did not result in
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disciplinary action do not rise to the level of an actionable adverse employment practice and cannot form the basis of plaintiffs’ pattern or practice discipline claim.
2. Customs Policies and Procedures Were Designed To Ensure Consistency And Neutrality In The Disciplinary Process a. Centralized Allegation Intake and Review Process
Customs received allegations of misconduct from internal and external sources. See Pignone Decl. at ¶ 29. Allegations could be received through an IA hotline number, the Customs Customer Satisfaction Unit, mail, e-mail, referrals from the IG or referrals from IA field offices. Id. Until 1999, all allegations of employee misconduct, whether they came from the public, other federal agencies, or within the agency, were investigated by the IA field office in the particular region in which alleged misconduct arose. Id. at ¶¶ 11, 28. In 1999, Customs made a major change by centralizing the intake system for investigations of misconduct. Id. at ¶ 27. Thus, after 1999, all allegations, regardless of the source, were forwarded to the Intake Group, a centralized intake office located at headquarters, for processing and assignment. Id. at ¶ 29.
An allegation was classified into one of four classes. See Pignone Decl. at ¶ 31. Class 1 involved allegations of criminal misconduct. Id. Examples of Class 1 allegations included allegations such as bribery, smuggling or perjury. Id. Class 2 involved serious non-criminal misconduct such as misuse of a government vehicle, inappropriate release of TECS investigative information, or sexual harassment. Id. Class 1 allegations, as well as a majority of Class 2 allegations, were referred to IA for investigation. Id.
Class 3 allegations involved management issues such as insubordination, unprofessional behavior to the public, failure to follow policies or mismanagement. See Pignone Decl. at ¶ 31.
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Class 3 allegations were referred to Customs management for inquiry or action. Id. Class 4 allegations were considered minor or frivolous allegations and were generally closed without action or investigation. Id. A permanent record was created, however, for future reference. Id. Class 4 allegations might concern, for example, lost or missing credentials. Id.
Employees within the Intake Group conducted an initial analysis of an allegation to determine its appropriate classification. See Pignone Decl. at ¶ 32. The Intake Group then determined whether the allegation should be referred to management for action or to IA for investigation, or closed with no action taken. Id. Allegations of misconduct on the part of OI employees at grade of GS-15 or higher or IA employees were investigated by the IG. Id. at ¶ 30.
b. Customs Management Inquiries Less serious allegations of employee misconduct were referred by IA to Customs management for examination and appropriate action. See Pignone Decl. at ¶ 33. Management had the option of taking immediate action or assigning a fact finder to conduct an inquiry into the allegation. Id. These inquiries by Customs management were known as management inquiries. Id. at ¶ 34. On February 25, 1999, Customs established a formalized program for management inquiries. Id. This program provided training and written guidelines for a group of fact finders responsible for addressing allegations of misconduct not subject to an investigation by IA. Id. In addition, the IA provided guidance and oversight to a fact finder. See Pignone Decl. at ¶ 34. When a fact finding inquiry was concluded, the inquiry report was reviewed and approved by IA to ensure the inquiry was complete and thorough. Id.
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c. Discipline Process Following one of the inquiry procedures described above, agents faced two major categories of discipline. Id. at ¶ 4. The first category was discipline for less serious misconduct. Id. For such misconduct, employees received discipline that ranged from an oral admonishment to a letter of reprimand to a suspension from duty and pay of fourteen-days or less. Id. Less serious misconduct included, for example, attendance problems, discourteous behavior, failure to follow instructions or the policies and procedures of the agency, and negligence while on duty. See Pignone Decl. at ¶ 4. The second category of discipline was an adverse action for serious misconduct. Id. at ¶ 5. An adverse action could include suspensions from duty and pay for more than 14 days, reductions in pay and/or grade, and removal. Id. Examples of serious misconduct would include association with drug traffickers, inappropriate association with confidential informants, unauthorized use of a government vehicle, sexual harassment or misuse of TECS. Id. For both types of discipline, Customs followed a formal process to discipline an employee. See Pignone Decl. at ¶ 6. First, a proposing official issued a proposal letter to the employee informing him or her of the proposed discipline and outlining the specific facts and charges against the employee. Id. Second, the employee had the right to respond both orally and in writing to the charges and proposed discipline, setting out any mitigating circumstances. Id. Finally, the deciding official, i.e., someone other than the proposing official, determined whether or not the charges against the employee could be sustained, and if so, selected the specific penalty to impose. Id. The deciding official took into account certain factors, known as the "Douglas Factors,"
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when selecting an appropriate penalty. Id. at ¶ 7. The Douglas Factors include, among other things: the nature and seriousness of the offense; the employee's job level and type of employment; the existence of any past disciplinary record; whether or not the offense would have an effect on the employee's ability to perform at a satisfactory level; the consistency of the penalty with those imposed upon other employees for the same or similar offenses; the consistency of the penalty with the applicable agency table of penalties; the impact of the offense on the reputation of the agency; and the potential for the employee's rehabilitation. See Pignone Decl. at ¶ 7. The deciding official could either sustain the original proposed action, reduce the penalty or impose no penalty. Id. at ¶ 8. The deciding official could not increase the penalty from the original proposed action. Id.
d. Customs Disciplinary Review Boards From 1982 until January 1996, supervisors in the individual local field offices had the responsibility for proposing and deciding disciplinary actions. Id. at ¶ 10. In January 1996, the disciplinary process changed significantly for both IA and OI. See Pignone Decl. at ¶ 13. Both divisions established independent Disciplinary Review Boards ("DRBs") to issue proposals for adverse actions.13 Id. The primary function of the DRBs was to promote fairness and consistency in addressing cases of alleged employee misconduct. Id. at ¶ 19. The DRBs for both OI and IA consisted of a panel of three members from that organization as well as an employee
13 In May 1999, the Commissioner of Customs, Raymond Kelly, established a servicewide Disciplinary Review Board for all employees, including Customs Inspectors and non-law enforcement personnel. See Pignone Decl. at ¶ 21. That service-wide DRB had similar procedures as the preceding DRBs within IA and OI. Id. However, as compared to the IA/OI DRBs, the panel members of the service-wide DRB were composed of a mix of managers and supervisors from the various divisions within Customs (i.e., IA, OI and Field Operations with authority over Customs Inspectors). Id. at ¶ 22.
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relations specialist from the Office of Labor and Employee Relations. Id. at ¶¶ 14, 15. The panel members were selected from approximately 50 senior managers and supervisors from the field and from headquarters. See Pignone Decl. at ¶ 14.
The DRBs reviewed the investigative reports produced by IA or the IG. Id. at ¶ 15. After reviewing a case, the panel would determine whether or not to propose an adverse action. Id. If the DRB determined that the offense charged merited less discipline, the DRB would normally remand the case to local management for consideration of a lesser penalty. See Pignone Decl. at ¶ 16. If the DRB determined that the offense charged merited an adverse action (something greater than a 14-day suspension), a member of the DRB panel would serve as the proposing official and would issue a letter to the employee outlining the proposed discipline. Id.
The SAIC from the particular region to which the employee was assigned was delegated the authority to be the deciding official on the proposed discipline for OI employees. Id. at ¶ 18. Decisions on proposed actions issued by the IA DRB were made by the Assistant Commissioner. Id.
In sum, through a series of policy changes, by 1999, Customs implemented procedures that constituted a centralized system for investigating allegations of employee misconduct as well as a centralized system for proposing discipline that promoted consistency in the imposition of discipline. This system was neither excessively subjective or nor inherently discriminatory.
3. Plaintiffs Cannot Show That The Disciplinary Measures Imposed On Hispanic Agents Were More Severe Than Those Enforced Against Whites For Like Or Similar Offenses
For a protected class of individuals to make out a prima facie case of discriminatory discipline under Title VII, “they must prove that employees outside of their protected group were
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not punished in a similar fashion.” See Batson v. Powell, 912 F. Supp. 565, 573 (D.D.C. 1996), aff'd, 203 F.3d 51 (D.C. Cir. 1999); see also Plummer v. Bolger, 559 F. Supp. 324, 329 (D.D.C. 1983), aff’d, 721 F.2d 1424 (D.C. Cir. 1983). Moreover, the protected group must show that its members received harsher discipline than others outside the protected group for like or similar offenses. In other words, the comparison must be between individuals similarly situated. See Wilmington v. J.I. Case Co., 793 F.2d 909, 915 (8th Cir. 1986) (plaintiffs must show that the discipline enforced against the protected group was more severe than that imposed on those comparably situated but outside the protected group); see also Moore v. Charlotte, 754 F.2d 1100, 1105-06 (4th Cir. 1985) (same). Plaintiffs here cannot meet this standard.
Although defendant’s expert, Dr. Siskin, found that Hispanics were more likely than whites to be suspended at Customs from 1993 to 2003, he determined that only 42 Hispanic agents were suspended during the entire period out of 495 Hispanic agents, a number that is hardly indicative of a pattern or practice of discriminatory discipline. See Siskin Decl. at ¶ 9 and ¶ 76, Table 39. Put into context with Dr. Siskin’s other findings that Hispanics were treated more, not less, favorably to whites in terms of promotions, awards, and training, it is highly unlikely that the explanation for Hispanics' disproportionate suspensions is discrimination. Moreover, the fact that Dr. Siskin did not find that Hispanics were more likely than whites to be terminated or demoted for disciplinary reasons supports the conclusion that discrimination is not the reason for the statistical disparity in suspensions. Id. at ¶ 75, Table 38.
Two other factors show that there was no pattern or practice of discriminatory discipline at Customs. First, when Dr. Siskin compared the rate of suspensions of white and Hispanic agents broken out by year, he found that, from 1993 to 1999, no statistically significant disparity
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existed between Hispanics and whites. Id. at ¶ 79, Table 42A. Thus, the number of Hispanic suspensions was only statistically significant after the year 1999, when, as described above, Customs implemented major changes to its system of investigating employee misconduct and imposing discipline to make it more consistent and objective. Id. at ¶ 79, Table 42B.
As noted earlier, those changes included a centralized allegation intake system that precluded subjective determinations by supervisors in the field as to which allegations of misconduct were to be investigated. See Pignone Decl. at ¶¶ 28, 29. The system for proposing discipline also changed significantly in that a centralized disciplinary review board made proposals for disciplinary actions for all Customs employees. Id. at ¶ 21. Furthermore, the deciding officials were guided by objective criteria in making their proposals. Id. at ¶ 7. Plaintiffs cannot validly argue that this new centralized discipline system was responsible for the increased numbers of Hispanic suspensions. Indeed, for a number of suspensions imposed after 1999, other putative class members served as either the proposing or deciding officials. See Declaration of Mari Yonkers (“Yonkers Decl.”) at ¶ 8 (indicating that Hispanic agent served as deciding official) (attached as Exhibit 23) (filed under seal); Unzueta Decl. at ¶¶ 2, 8-14.
Second, as Dr. Siskin noted in his report, the Customs data do not reflect the behavior that led to the suspensions of the 42 putative class members. Nor does the data show that Hispanics received harsher suspensions than whites for same or similar offenses, something that plaintiffs have the burden to show to make out a prima facie case of discriminatory discipline.
As Mari Yonkers, the Director of Labor and Employee Relations at Customs, explains in her declaration, no two cases of discipline are alike. See Yonkers Decl. at ¶ 23; see also Unzueta Decl. at ¶ 11. The suspensions of Hispanic agents from 1993 to 2003 were imposed for offenses
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that ranged from criminal conduct to unauthorized use of government resources to negligent performance of duties. See Yonkers Decl. at ¶ 5. For example, out of the 42 Hispanic agents suspended during this period, one was suspended after he was arrested on criminal charges in 2000. Id. at ¶ 6. That employee later entered a guilty plea on two counts of bribery and conspiracy to traffic in counterfeit goods. Id.
Another Hispanic agent was suspended in 2001 after an investigation revealed that the employee had conducted an unauthorized investigation of her brother-in-law using Customs resources, staff and information. See Yonkers Decl. at ¶ 7. The DRB’s proposal to suspend the agent for sixty days for abuse of authority and unauthorized use of law enforcement resources was sustained by the deciding official, Roberto Fernandez (the SAIC in Puerto Rico and a putative class member), after the employee admitted to the conduct charged. Id.
Ms. Yonkers also describes the suspension of an Hispanic agent who was charged in 2001 with failure to follow established policies and procedures in the detention of a suspect. Id. at ¶ 8. The suspect escaped after the Hispanic agent left the suspect alone in a room without restraints. Id. The agent received a proposed fourteen-day suspension. See Yonkers Decl. at ¶ 8. However, the deciding official, the SAIC in Seattle, mitigated the proposed suspension to a twoday suspension due to the agent’s clean disciplinary record and because the agent took responsibility for his actions. Id. As Ms. Yonkers noted, these individual cases reflect that the suspensions at issue here each involved a unique set of facts, different charges, different offices, differing levels of egregiousness, and different mitigating or aggravating factors. Id. at ¶ 5. In other words, the cases do not reflect a standard operating procedure.
For all of these reasons, defendant is entitled to summary judgment on plaintiffs’ pattern
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or practice discipline claim. G. Retaliation Claims Are Too Individualized and Thus Inappropriate To Be Pattern or Practice or Class Claims Plaintiffs cannot demonstrate that Customs had a pattern or practice of retaliating against
Hispanic agents. Lacking statistical support for their pattern or practice retaliation claim, plaintiffs apparently hope to utilize anecdotal evidence to establish a pattern or practice of retaliation, an endeavor that must fail due to the highly individualized nature of retaliation claims and the unsuitability of such claims for pattern or practice and class treatment. Relying solely on a patchwork of unconnected, isolated occurrences, plaintiffs cannot sustain a claim that a uniform "standard operating procedure" of retaliation on the part of Customs existed.
Plaintiffs bringing pattern or practice claims and class claims face a similar burden: in both, plaintiffs must show that discrimination or retaliation was the employer's "regular rather than usual practice" and was "more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts." Teamsters, 431 U.S. at 336. In a pattern or practice case, plaintiffs must show the defendant engaged in "a pattern of discriminatory decisionmaking" and that discrimination was the defendant's "standard operating procedure." Id. at 360 n.46, 336. Similarly, in order to meet the commonality and typicality requirements of Federal Rule 23(a) for class certification, a plaintiff must make a "specific presentation identifying the questions of law and fact that were common to the claims of [the plaintiff] and the members of the class he sought to represent." Gen. Tel. Co. v. Falcon, 457 U.S. 147, 158 (1982). In pattern or practice cases as in class action cases, "there is a wide gap" between an individual's claim of discrimination and retaliation and "the existence of a class of persons who have suffered the same injury as that
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individual." Falcon, 457 U.S. at 157; see also Cooper, 467 U.S. at 876. Due to the nature of the claims, both pattern or practice and class claims cannot succeed without statistical evidence. See O'Donnell Constr. Co., 963 F.2d at 427; Wagner, 836 F.2d at 592.
Absent statistical support, retaliation claims are inappropriate for class or pattern or practice treatment. A claim of retaliatory treatment based upon anecdotal evidence, due to the inherently unique factual circumstances surrounding it, "is clearly not a class issue." See Strong v. Arkansas Blue Cross & Blue Shield, Inc., 87 F.R.D. 496, 511 (E.D. Ark. 1980); see also Francis v. Am. Tel. & Tel. Co., 55 F.R.D. 202, 208 (D.D.C. 1972) ("Discrimination in retaliation for filing a complaint with the EEOC unlike racial discrimination is not by its very nature class discrimination."). The unique experiences of an individual – absent proof that the experience is part of a larger orchestrated pattern or practice of the defendant – simply cannot be applied to the class as a whole. "Because retaliation manifests itself in many ways and often turns on facts particular to each case . . . to establish a prima facie case, the retaliation must have been pursuant to a general practice of the defendant." Hartman v. Wick, 600 F. Supp. 361, 368 (D.D.C. 1984) (rejecting class claim of retaliation where the evidence introduced indicated the reprisals "took various forms and came from various officials").
A prima facie case of retaliation under Title VII requires that a plaintiff demonstrate that: (1) he engaged in protected activity, (2) he was subjected to adverse action by the employer, and (3) there existed a causal link between the adverse action and the protected activity. See Jones v. Wash. Metro. Area Transit Auth., 205 F.3d 428, 433 (D.C. Cir. 2000). However, when anecdotal evidence "focus[es] on individual actions rather than show[ing] an overarching policy" of discriminatory conduct, a common pattern of discrimination cannot be established. Reid v.
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Lockheed Martin Aeronautics Co., 205 F.R.D. 655, 675-76 (N.D. Ga. 2001) (denying class certification on retaliation claims).
Because discrete claims of retaliation are fact-sensitive and require individualized proof, even when idiosyncratic experiences are uncovered, the absence of commonality and typicality preclude the conduct from being assumed to exist on a class-wide basis. Id. at 676. Mere conclusory assertions that isolated instances of retaliation are systematic or routine and consequently can apply class-wide will not survive commonality scrutiny at certification. Elkins v. American Showa, Inc., 219 F.R.D. 414, 418 (S.D. Ohio 2002).14 Similarly, assertions that individual retaliatory experiences are typical as to the class so long as the class claims "rest on the 'same legal theory'" as the individual claim "would vitiate the requirement of typicality." Marquis v. Tecumseh Prods. Co., 206 F.R.D. 132, 161 (E.D. Mich. 2002). Any anecdotal retaliation claim uncovered by the plaintiffs, no matter its merits as a stand-alone individual action, will not overcome the hurdles of commonality and typicality and will fail as applied to the class. If anything, "preoccupation with particular retaliatory wrongs allegedly done to one may well make such person an inadequate representative of the class." Strong, 87 F.R.D. at 511 (quoting Williams v. Boorstin, 451 F. Supp. 1117, 1124 (D.D.C. 1978), rev'd on other grounds, 663 F.2d 109 (D.C. Cir. 1980)). For the same reasons that courts have found retaliation inappropriate for class treatment, plaintiffs' retaliation claim cannot proceed as a pattern or
14The Elkins court explained why class retaliation claims are not conducive to class-wide adjudication: "Each plaintiff must individually prove the four elements of a retaliation claim. The Defendant is entitled to establish as to each plaintiff a legitimate reason for any adverse action taken against that plaintiff, and each plaintiff must then have the opportunity to establish that the reason offered is pretextual." Id. at 425.
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practice claim. Accordingly, defendant is entitled to summary judgment on plaintiffs’ pattern or practice retaliation claim.
CONCLUSION For the reasons set forth above, defendant respectfully requests that the Court grant summary judgment to defendant on all of plaintiffs' pattern and practice claims.
Respectfully submitted,

PETER D. KEISLER Assistant Attorney General

KENNETH L. WAINSTEIN United States Attorney

STUART A. LICHT Assistant Director Civil Division

OF COUNSEL:

MARC WEINBERGER M. BENNETT COUREY U.S. CUSTOMS AND BORDER PROTECTION (CBP)
MATTHEW RILEY U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE)
Date: August 30, 2004

__________/s/_________________ KAREN K. RICHARDSON SHAYNA S. COOK Trial Attorneys U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Room 6126 Washington, DC 20530 Telephone: (202) 514-3374 Facsimile: (202) 616-8460

Attorneys for Defendant

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al., )

)

Plaintiffs

)

)

v.

)

)

TOM RIDGE, SECRETARY,

)

DEPARTMENT OF HOMELAND )

SECURITY,

)

Defendant.

)

)

Case No. 1:02CV00923(JR)

DEFENDANT'S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE ARE NO GENUINE ISSUES

Pursuant to Local Civil Rule 7.1(h), Defendant Tom Ridge, Secretary of the Department

of Homeland Security, hereby submits this statement of material facts as to which there are no

genuine issues:

BACKGROUND

1. On March 23, 1995, Miguel Contreras filed an administrative class complaint

with the Equal Employment Opportunity Commission (EEOC) "on behalf of

himself and all similarly situated past, present, and future Hispanic special agents

at [the Customs Service]." Admin. Class Compl. at 2 (attached as Ex. 18 to the

Declaration of Mariam Harvey, attached to Def. Mot. Summ. Judg. [#22]).

2. In the administrative class complaint, Mr. Contreras defined the class as "Hispanic

GS-1811 Special Agents (Criminal Investigator) Grade 12-15, who are currently

employed by USCS's Office of Investigation [sic] and Internal Affairs." Id.

3. The former United States Customs Service was a bureau within the Department of

Treasury. See Franklin Jones Decl. ("Jones Decl.") at ¶ 3 (attached to Defendant's

Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 83 of 110
Opposition to Plaintiffs’ Motion for Rule 16 Conference (“Def’s Opp. To Plfs’ Mot. for Rule 16 Conf.”) [#65] as Ex. 1). 4. In March 2003, pursuant to the Homeland Security Act of 2002, P.L. No. 107-296, and the President's Reorganization Plan Modification of January 2003, the employees within the United States Customs Service were transferred from the Department of the Treasury to either Immigration and Customs Enforcement ("ICE") or Customs and Border Protection (“CBP”), bureaus within the Department of Homeland Security. Id. 5. ICE is comprised primarily of former Immigration and Naturalization Service ("INS") agents and former United States Customs Service criminal investigators, and contains the vast majority of the former Customs 1811 special agents relevant to this action. Id. DATABASES 6. The primary database Customs used to record and track personnel actions was PERHIS, a database with data reaching back to 1992 that recorded every employee's employment history, including all promotions, monetary and time-off awards, within-grade increases, duty station reassignments (transfers), suspensions, terminations, demotions, and pay increases. See Declaration of Tanya E. Bennett (“Bennett Decl.”) at ¶ 15 (attached hereto as Exhibit 4). 7. Customs obtained race and national origin ("RNO") data from every employee through a self-identification process. Id. at ¶ 4. 8. The RNO data were entered into the PERHIS database. Id. at ¶ 2.
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9. All Customs' employees were requested to self-identify their RNO either on Standard Form 181 or OPM Form 1468. Id. at ¶ 4.
10. Customs routinely informed its employees of how their RNO data was classified and gave them an opportunity to verify or change their RNO designation. Id. at ¶ 6.
11. From 1998 to 2003, Customs formally reminded its employees five separate times to verify their RNO designation and to request that the RNO designation be corrected if necessary. Id. at ¶¶ 10-14.
12. If an employee refused to indicate his or her RNO, Customs policy required Customs to identify the employee's RNO through visual perception. See Bennett Decl. at ¶ 8.
13. The Treasury Enforcement Communications System ("TECS") was a law enforcement computer system administered by Customs. See Depo. Transcript of Ellen Mulvenna, 6:3-6 (attached as Exh. 10 to Def's Opp. to Pl. Mot. Compel [#38]).
14. TECS was a mainframe system consisting of many separate databases and has data from 1987. Id. at 11:17-12:3.
15. TECS contained a management information reporting system, which included hours reported by Customs agents in both the Office of Investigations ("OI") and the Office of Internal Affairs ("IA"). Id. at 13:9-13.
16. Agents were required to enter the hours they worked on a particular case into TECS and to designate whether the hours were undercover or non-undercover.
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See Supplemental Declaration of Paul M. Kilcoyne (“Suppl. Kilcoyne Decl.”) at ¶ 17 (attached hereto as Exhibit 5). 17. The Training Records and Enrollment Network ("TRAEN") database tracked every training course that each employee attended at Customs. See Declaration of Lynne M. Smith (“Smith Decl.”) at ¶ 13 (attached hereto as Exhibit 6). 18. The TRAEN database contains training information dating back to 1990. Id. 19. The Vacancy Announcement Application Control System ("VAACS") was used by Customs to create vacancy announcements for competitive promotions, to track applications, and to input applicants’ names and social security numbers. See Depo. Transcript of Barbara Zakrison at 13:14-19 (attached as Ex.11 to Def's Opp. to Pl. Mot. Compel [#38]). 20. The VAACS database goes back to 1985. See Depo. Transcript of Susan Zaner at 38:2 (attached as Ex. 8 to Def's Opp. to Pl. Mot. Compel [#38]). PROMOTIONS 21. Until July 2001, the career ladder for a Customs' special agent, GS-1811, was GS5 through GS-12. See Supplemental Declaration of Susan B. Zaner ("Suppl. Zaner Decl.") at ¶ 4 (attached hereto as Exhibit 8). 22. Individuals hired to be GS-1811 criminal investigators below grade 12 could advance to grade 12 through a series of automatic promotions within a designated time frame. Id. 23. Once an agent reached the "journeyman level" of grade 12, any further promotions were made through a competitive merit-based selection process. Id.
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24. In July 2001, the journeyman level for a Customs GS-1811 special agent was raised to the GS-13 level. Id. at ¶ 5.
25. All competitive promotions except for promotions to the Senior Executive Service were governed by merit promotion principles set forth in Customs' Merit Promotion Plan ("MPP"), which became effective on July 1, 1986. Id. at ¶ 6.
26. Under the plan, candidates for competitive promotions submitted written applications. Id. at ¶ 7.
27. An evaluation panel, using a crediting plan, rated each applicant on the significant job-related knowledge, skills, and abilities critical for successful performance in the position to be filled. Id. at ¶ 8.
28. The panel would assign candidates numerical ratings based on the criteria in the crediting plan. Id.
29. The ten highest scoring candidates were then referred as best-qualified to the selecting official in order of ranking. Id. at ¶ 8.
30. Until approximately December 1998, the selecting official within OI was the Special Agent in Charge ("SAIC") whose office had the vacancy. Id. at ¶ 9.
31. After 1998, the authority for making selections was raised to the level of the Assistant Commissioner for all Customs offices including OI and IA. Id.; Att. A.
32. In 1991, Customs implemented an automated system called the Customs Automated Merit Promotion System ("CAMPS") to replace the written application process for competitive promotions for GS-1811-13 and 14 positions. Id. at ¶ 11.
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33. Applicants applying through CAMPS responded to questions contained in a specially designed application booklet that was optically read. Id. at ¶¶ 12, 13.
34. The CAMPS application questions pertained to work activities, supervisory appraisal, annual performance appraisal, and awards. Id. at ¶ 14.
35. Applicants could request consideration for job openings at multiple geographic locations. Id.
36. Under CAMPS, all application packages were rated and ranked through the automated system instead of through a panel process; separate selection registers were prepared for each geographic area; and the system automatically generated letters to applicants at various stages of the application process. Id. at ¶ 15.
37. The use of CAMPS was discontinued in 1993. Id. at ¶ 16. 38. From 1993 to 1996, Customs reverted to its previous written application process.
Id. 39. In April 1996, Customs began using the Office of Personnel Management's
("OPM") Microcomputer Assisted Rating System ("MARS"), also referred to as the "Telephone Application Processing System" ("TAPS"), to fill GS-1811-13 and 14 positions in OI. Id. at ¶ 17. 40. The MARS process required applicants to fax a one-page application to OPM and respond telephonically to a series of questions. Id. at ¶ 18. 41. The applicant’s responses to the questions were processed electronically by OPM, and no additional information was factored into the applicant’s score. Id. 42. Under MARS, the panel process was eliminated, and applications were rated and
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ranked by the MARS system with separate selection registers prepared for geographic areas when requested by OI management. Id. 43. Only two vacancy announcements were issued under TAPS. Id. at ¶ 17. 44. From September 1997 through October 2000, Customs used the Customs Automated Application Processing System (CAAPS). Id. at ¶ 19. 45. Under CAAPS, applicants responded to standard questions on a standard form and faxed a four-page application to OPM. Id. at ¶ 20. 46. The candidate's application was processed electronically, and responses to questions were scored by OPM. Id. 47. There were six vacancy announcements issued under CAAPS. Id. at ¶ 19. 48. On November 20, 2000, and then again on March 25, 2002, Customs processed competitive promotions for GS-14 Criminal Investigator positions through the SA-14 test, an examination process specially designed and pre-tested within Customs to measure a GS-13 special agent’s potential to perform as a supervisor or in non-supervisory positions at the GS-14 level. Id. at ¶¶ 22. 49. The SA-14 test, which was only administered twice at Customs, applied to promotions to a GS-14 position within OI, IA, the Office of Training and Development and the Office of International Affairs. Id. at ¶ 24. 50. Under the SA-14 test, applicants completed a very short, scanned application designed to determine basic eligibility and took a three-part Leadership Skills Written Test Battery and a Structured Interview Examination. Id. at ¶ 24. 51. Candidates for vacant SES positions at Customs had to submit an application
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form that addressed, in written narrative, the mandatory Executive Core Qualifications ("ECQ") and technical qualifications required for the SES position being filled. See Declaration of Michele L. Burton ("Burton Decl.") at ¶ 3 (attached hereto as Exhibit 9). 52. The five ECQs included leading change, leading people, results driven, business acumen, and building coalitions/communication. Id. 53. A screening panel, composed of SES members at Customs, evaluated the candidates and recommended whether applicants be rated as “Qualified” or “Highly Qualified” for each of the core and technical qualifications. Id. at ¶ 4. 54. All candidates were referred to the Executive Resources Board ("ERB") at Customs for final evaluation. Id. 55. The ERB, composed of the Deputy Commissioner of Customs and all Assistant Commissioners, made the final determination as to whether the candidates were “Qualified,” “Highly Qualified” or “Best Qualified” and provided written recommendations to the Commissioner concerning the “Best Qualified” group. Id. at ¶ 5. 56. The Commissioner was the selecting official for all SES positions, except for the positions of Deputy Commissioner and Assistant Commissioner, Internal Affairs. Id. at ¶ 7. 57. Once a competing candidate was selected for promotion to the SES, the candidate’s application and supplemental qualifications statement for the core qualifications were forwarded to OPM's Qualifications Review Board ("QRB"), a
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panel of SES members from the Federal Government who had to certify the candidate’s qualifications. Id. at ¶ 9. 58. The QRB did not rate, rank, or compare the candidate’s qualifications against those of other candidates but instead reviewed each application and decided if the candidate’s experience met the ECQ requirements. Id. at ¶ 10. 59. If the QRB did not certify the selection, the application was remanded to the agency and the applicant had one opportunity to amend deficiencies in the application package. Id. 60. Once the QRB certified the selection, the candidate’s appointment to the SES position was processed. Id. 61. Overall, Hispanic agents were more likely than white agents in the same grade to be promoted via competitive selection or via career ladder progression. See Declaration of Bernard R. Siskin ("Siskin Decl.") at ¶¶ 29-13, Tables 2-6 (attached hereto as Exhibit 10). 62. Hispanic agents in the same division, region and with the same time-in-grade were more likely than white agents to be promoted. Id. at ¶¶ 32-29, 44-47, Tables 7-10, 12-14. 63. Hispanic agents bidding for a promotion were more likely than white agents bidding for a promotion to be selected. Id. at ¶¶ 51-53, Tables 15-21. 64. Hispanic agents bidding for a transfer were more likely than white agents bidding for a transfer to be selected. Id. at ¶ 54, Tables 22-24. 65. Hispanic agents were more likely to have a duty location on the Southwest
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Border, in Puerto Rico or in other non-European locations than in other United States location. Id. at ¶ 56, Table 25. 66. The worst region to be assigned to in terms of an agent's chances of being promoted was in the U.S. at a location other than the Southwest Border or Puerto Rico. Id. at ¶ 47, Table 14. TRANSFERS 67. In 2000, Customs OI implemented a Rotation Policy that allowed agents who had been assigned for a certain number of years to designated locations along the Southwest border, Puerto Rico, Guam or the Virgin Islands to volunteer for, and receive, a lateral transfer to another office. See Declaration of Charles E. Royer ("Royer Decl.") at ¶ 10 (attached hereto as Exhibit 3). 68. In addition to offering transfers from those offices in Puerto Rico, Guam and the Virgin Islands, the Rotation Policy allowed transfers from the following designated Southwest border locations: in Arizona (Ajo, Douglas, Nogales and Yuma); in California (Calexico); in New Mexico (Deming and Las Cruces); and in Texas (Brownsville, Del Rio, Eagle Pass, El Paso, Falcon Dam, Laredo, McAllen and Presidio). Id. 69. In 2003, Customs added Sells, Arizona, Alpine, Texas and San Ysidro, California to the list of Southwest border locations included in the Rotation Policy. Id. at ¶ 11. 70. Under the Rotation Policy, agents who applied for a rotation from the designated locations were asked to identify in order of priority three (3) SAIC office locations
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to which they wished to transfer. Id. 71. Once management had determined the new assignments for all applicants, each
interested employee was notified of the new transfer location and asked to accept or decline the transfer offer. Id. at ¶ 14. 72. Under the Rotation Policy, agents with the longest continuous tenure at the designated locations could transfer to another office. Id. at ¶ 11. 73. The policy defined agents with “continuous tenure” as those agents who had completed a minimum of three (3) continuous years in OI, without a break, at one or a combination of more than one of the designated locations. Id. 74. Customs transferred all of the eligible agents that it could with its available funding, giving priority to those agents with the longest continuous tenure at the designated locations. Id. at ¶ 21. 75. Because Customs could not offer funded transfers from the designated border locations to all applicants due to funding constraints, Customs also offered all eligible 1811’s an opportunity to submit requests for a self-funded lateral reassignment from the Southwest border. Id. at ¶ 22. 76. An agent was eligible for a self-funded transfer if he had three (3) or more years of continuous service in one or more Southwest border locations. Id. 77. Self-funded transfers were based on the availability of vacancies in the office to which an agent wanted to transfer and the needs of the Service to maintain an effective Southwest border workforce. Id. 78. In addition to the transfers offered through the Rotation Policy, an agent at
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Customs could have received a lateral transfer through six other means: (1) an agent could have requested a self-funded transfer from his supervisors; (2) an agent could have bid for a lateral transfer based upon a vacancy announcement issued for a competitive promotion; (3) an agent could have responded to an agency-wide TECS message announcing a particular lateral transfer opportunity; (4) an agent could have received a directed reassignment paid for by the agency; (5) an agent could have requested a hardship transfer; or (6) an agent could have applied for a foreign attaché position. Id. at ¶ 25. 79. As of 2000, the Hispanic population in the United States totaled 35,306,000. See Statistical Abstract of the United States: 2003, Table No. 22 (123d ed., U.S. Census Bureau) (2003) (attached hereto as Exhibit 12). 80. Of the total Hispanic population, well over half (18,933,000) lived in only three states, California, Texas and Arizona, all states along the Southwest border. Id. 81. The percentage of Customs Hispanic agents on the Southwest border (45.8%) was proportionate to, if not lower than, the percentage of the Hispanic population as a whole in that area (over 50%). Id.; Siskin Decl. at Table 25. 82. Hispanic agents were more likely than similarly situated white agents to be promoted to a European location. Id. at ¶ 58, Table 13, 15 & 26-27. 83. Hispanic representation at European duty stations was proportionate to Hispanic representation overall at Customs. Id. at ¶ 58, Tables 26-27. 84. Hispanic agents who bid for a European vacancy were more likely than white agents who bid to be designated best-qualified and more likely to be selected. Id.
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at ¶ 58, Table 15. AWARDS
85. Customs' policies on awards were designed to reward truly exceptional performance that was "clearly above and beyond what is normally expected." Declaration of Diane S. Shepherd ("Shepherd Decl.") at ¶ 12; Att. A (attached hereto as Exhibit 7).
86. Prior to 1996, most awards were tied directly to employees' summary performance rating in their performance appraisal. See Shepherd Decl., Att. B.
87. Aside from awards based on performance ratings, Customs also gave cash awards for "suggestions, inventions, superior accomplishments and unique or special acts or services" that went above and beyond normal job responsibilities and performance requirements, to employees who were "highly exceptional and unusually outstanding." See Shepherd Decl., Att. B at 18.
88. Supervisors were required to prepare written justifications of these cash awards. Id. at 19.
89. Beginning in 1994, supervisors could give time-off awards instead of cash awards, which, like cash awards, were reserved for truly special accomplishments. See Shepherd Decl., Att. C.
90. In 1996, Customs changed its performance evaluation process and the policies and procedures respecting distribution of awards so that awards were no longer tied to performance ratings. See Shepherd Decl. at ¶ 15; Att. D, E & F.
91. Headquarters determined how much money each SAIC could spend on awards,
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generally ranging between one-half and one percent of salary and expenses for that office. See, e.g., Shepherd Dec., Att. E at 3; Declaration of Loraine E. Brown ("Brown Decl.") at ¶ 5 (attached hereto as Exhibit 13). 92. Supervisors could give three types of awards: cash awards, time off awards, and honorary recognition awards. See Shepherd Decl. at ¶ 17; Att. A & F. 93. Cash awards included Special Act Awards, which generally corresponded with an agent's work on a specific case, and Performance Awards, which were rewards for sustained superior performance. See Shepherd Decl.; Att. F; Declaration of Joseph Webber ("Webber Decl.") at ¶ 5 (attached hereto as Exhibit 14). 94. In 1998, Customs began giving foreign language awards to agents who were proficient in and made substantial use of a foreign language in the performance of their duties. See Suppl. Kilcoyne Decl., Att. B, C & D. 95. Foreign language awards were distributed at the headquarters level and did not come out of the awards budget for each SAIC. Id. 96. Quality Step Increases ("QSIs") (also referred to as Quality Salary Increases) were eliminated under the new system after fiscal year 1996, although they were reinstated in 1999. See Shepherd Decl., Att. H. 97. QSIs were reserved for achievements that were "exceptional and clearly above and beyond what is normally expected of employees." Id. (emphasis in original); see also Brown Decl. at ¶ 9. 98. Because a QSI is a change in salary, it had to be approved by an Assistant Commissioner. See Shepherd Decl., Att. I.
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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 96 of 110
99. To receive a QSI, an agent had to (1) receive a "successful" rating on his performance appraisal; and (2) demonstrate performance significantly above expected, as determined by five criteria: (a) displaying outstanding performance to meet organizational goals or improve the efficiency, effectiveness, and economy of the Government; (b) excelling in all critical performance areas as documented by specific examples; (c) sustaining a high level of performance over the previous year; (d) exhibiting timeliness of performance; and (e) being in the position and grade for at least a year. Id.
100. According to Customs' award policies, the policies were designed to promote "fairness and consistency." Shepherd Decl., Att. H.
101. Many SAICs reviewed group supervisors' nominations of the agents they supervised for awards and required group supervisors to justify, in writing, why each nominee should receive an award. See Brown Decl. at ¶ 6; Webber Decl. at ¶ 6; Declaration of Miguel Unzueta ("Unzueta Decl.") at ¶ 6 (attached hereto as Exhibit 15).
102. Some SAICs used awards committees, which reviewed supervisors' nominations of agents and justifications as to why those agents should receive awards in a certain amount and forwarded recommendations for awards to the SAIC. See Brown Decl. at ¶ 7; Webber Decl. at ¶¶ 7-8; Unzueta Decl. at ¶ 7.
103. In an independent oversight review of Customs in November 2000, the OPM Office of Merit Systems Oversight and Effectiveness, found that employees were positive about Customs' awards program and felt that it recognized performance.
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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 97 of 110
See OPM Oversight Review at 20 (attached hereto as Exhibit 16). 104. OPM found that both supervisors and nonsupervisory employees were positive
about the awards program, and "most believed that the awards program recognized outstanding performance." Id. 105. OPM found the award actions it reviewed to be both "well-justified and processed in accordance with agency procedures." Id. 106. Cash and time-off awards are personnel actions recorded in the PERHIS database. See Bennett Decl. at ¶ 14; Siskin Decl. at ¶ 59. 107. Customs data indicate that national origin is not a factor affecting the likelihood of receiving an award (excluding foreign language awards). Siskin Decl. at ¶ 63. 108. Hispanic agents were not disadvantaged with regard to being given awards as compared to white agents. See Siskin Decl. at ¶¶ 61-62; Tables 28-29. 109. A statistical analysis of awards received by white and Hispanic GS-1811 special agents between 1993 and 2003, controlling for the year and agents' grade, reveals that Hispanic agents received statistically significantly more overall awards than white agents during that time. See Siskin Decl. at ¶¶ 61-62; Tables 28-29. 110. Hispanic agents were more likely than white agents to receive an award, a cash award, a time-off award and/or a quality step increase. Id. at ¶ 62; Tables 28-29. 111. Excluding foreign language awards, Hispanic agents and white agents in the same grade were statistically equally likely to receive an cash or time-off award or quality step increase. Id. at ¶ 62; Tables 28-29. 112. Hispanic agents received slightly more QSIs than white agents, but the difference
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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 98 of 110
is not statistically significant. Id. at Table 29. 113. Hispanic agents received statistically significantly more dollars in award money
than white agents. Id. at ¶ 63; Table 30. 114. Hispanic and white agents receiving time-off awards received, on average, the
same amount of time off. Id. at ¶ 63; Table 31. TRAINING
115. The IA Training Division at the Customs Academy scheduled basic, advanced and specialized IA training classes and coordinated with IA field offices throughout the country to determine which agents would attend. See Decl. of Bonnie W. Browning ("Browning Decl.") at ¶¶ 1-2 (attached hereto as Exhibit 20).
116. From the mid-1990s to early 2000, IA training funds were limited, and the IA Training Division’s funding was primarily devoted to the mandatory Basic Agent Training Program for agents entering IA for the first time. Id. at ¶¶ 3-4.
117. IA agents were selected to attend advanced and specialized training courses by their field offices. Id. at ¶ 4.
118. The only mandatory Academy training course all OI agents were required to complete successfully was Basic Agent Training. See Declaration of Francis Gary White ("White Decl.") at ¶ 6; Att. A (attached hereto as Exhibit 18).
119. The Academy sent notice of advanced OI training courses to SAICs and Field Training Program Managers ("FTPMs") at the SAIC offices, which were responsible for nominating agents to attend. See Declaration of Richard D. Ogden
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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 99 of 110
("Ogden Decl.") at ¶ 6 (attached hereto as Exhibit 19); White Decl. at ¶ 4. 120. The Academy gave priority to nominees based on the needs of the agency; in other
words, whether the advanced training would teach skills relevant to the kind of work a particular agent was currently doing. See Ogden Decl. at ¶ 7; White Decl. at ¶ 7. 121. For Undercover Operatives School, the Covert Operations Division at Customs Headquarters selected attendees from nominations provided by SAIC offices. See Ogden Decl. at ¶ 10; Suppl. Kilcoyne Decl. at ¶ 13. 122. The amount of training agents could receive was limited by the amount of money in Customs’ National Training Fund, which funded Academy training for agents. See Smith Decl. at ¶ 6. 123. Advocacy group conferences such as the Customs National Hispanic Agents Association ("CNHAA") were not considered official training and were not funded by the National Training Fund. See Riggs Decl. at ¶ 12; Att. B, C & D. 124. Customs created the Office of Training and Development ("OTD") at headquarters in 1999, which coordinated the training of Customs employees, including special agents. See Smith Decl. at ¶ 3. 125. Each fiscal year beginning in 2000, OTD assembled a National Training Plan ("NTP") "to ensure that Customs employees receive the training essential to performing their jobs with the competence, professionalism, and honor that are the hallmarks of" Customs. Id. at ¶ 9; Att. D. 126. The NTP identified Customs’ training priorities and requirements and included all
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classes offered by the Customs Academy and private vendors within a given year. Id. at ¶ 10. 127. Each year, to develop the NTP, OTD contacted each headquarters office (e.g., the Office of Investigations), which in turn contacted its field offices, to solicit requests for training. Id. at ¶ 11. 128. Selection of Customs employees to attend training was based on fulfilling the needs of the agency and helping agents develop the skills needed to perform their jobs effectively. See Smith Decl. at ¶ 12; Att. E. 129. According to Customs policy, factors not related to the documented need for training, including national origin, were not relevant to selection. See Smith Decl. at ¶ 12; Att. E. 130. The National Training Fund only paid for expenses related to Academy training, and individual SAIC offices had to pay to send their agents to training offered by private vendors. See White Decl. at ¶¶ 9-10. 131. Each SAIC office had an FTPM, a GS-1811 special agent who was responsible for informing agents about upcoming training opportunities and coordinating the SAIC’s nominations. See Ogden Decl. at ¶ 6. 132. When the Academy announced a course, the FTPM in each SAIC notified agents throughout the region overseen by the SAIC about it and received requests to attend. See Declaration of James E. Riggs, Jr. ("Riggs Decl.") at ¶ 6 (attached hereto as Exhibit 17). 133. Agents who wanted to take advantage of a training opportunity sought approval to
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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 101 of 110
attend from their Group Supervisor and, upon receiving approval, contacted the FTPM to express their interest in attending. Id. at ¶ 7. 134. The FTPM compiled a list of interested agents and helped the Assistant SAIC rank the agents in accordance with the SAIC's needs, then forwarded the list to the Academy. Id. at ¶ 8; Webber Decl. at ¶ 13. 135. Hispanic agents at grades GS-12 and GS-13 received statistically significantly more training than white agents in those grades. See Siskin Decl. at ¶ 66; Table 33. 136. At grades GS-14 and GS-15, Hispanic agents received training equal to white agents. Id. WORK ASSIGNMENTS 137. Under Customs policy, all undercover work was voluntary. See Suppl. Kilcoyne Decl. at ¶ 7; Unzueta Decl. at ¶ 5. 138. Agents were told that undercover work was voluntary by instructors at the Academy during Undercover Operatives Training and/or by supervisors in field offices. See Suppl. Kilcoyne Decl. at ¶ 7; Declaration of D.G. ("D.G. Decl."). at ¶ 11 (attached hereto as Exhibit 22) (filed under seal). 139. Upon completing undercover training, plaintiff Miguel Contreras signed a form saying he understood that undercover work was voluntary and noted that he wanted to do undercover work. See Suppl. Kilcoyne Decl. at ¶ 8; Att. A. 140. Being certified as an undercover operative and working undercover increased agents' chances of being promoted through Customs' promotion system. See
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Zaner Decl. at ¶ 20; Suppl. Kilcoyne Decl. at ¶ 12. 141. Agents who logged undercover hours for less than ten percent of their total time
working were more likely to be promoted than agents who did not work undercover. See Siskin Decl. at ¶ 71, Table 37. 142. While logging over ten percent of total hours as undercover work had a negative impact on agents' likelihood of reaching higher grade levels, only 41 agents out of more than 3,000 total GS-1811 agents at Customs from 1993 to 2003 logged more than ten percent of their total hours to undercover work, and the seemingly negative impact may be due to the small number of agents. Id. at ¶¶ 9, 71, Tables 1, 35. 143. Agents reporting working more than ten percent of their hours undercover generally did not seek promotions. Id. at ¶ 73. 144. Based on the TECS and VAACS data, no Hispanic agent who logged more than ten percent of his total hours to undercover work and was not promoted to grade GS-14 ever even applied for a GS-14 promotion. Id. at ¶ 73. 145. Since approximately the year 2000, Customs had a policy whereby field offices were encouraged to hire contractors to monitor wires and transcribe (and, if necessary, translate) intercepted conversations into English. See Suppl. Kilcoyne Decl. at ¶ 23. 146. Even before this policy became official, many field offices used contractors to monitor the wires. See, e.g., Webber Decl. at ¶ 20; Suppl. Kilcoyne Decl. at ¶ 23.
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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 103 of 110
147. Customs had very few wiretap cases before 2001 and used substantially more wiretaps after 2001. See Suppl. Kilcoyne Decl. at ¶ 27; Brown Decl. at ¶ 21.
148. Between 1993 and the end of 1999, Hispanic agents logged hours to only 48 cases where approval was sought from Headquarters to use a wiretap. See Suppl. Kilcoyne Decl. at ¶ 28.
149. Of those 48 cases, in 18 cases, the wiretap was monitored and transcribed by contractors; in three cases, the wiretap was monitored and transcribed by officers from other federal, state or local law enforcement agencies; in ten cases, no wiretap was ever employed; in four cases, the intercepted conversations were not in Spanish; in eleven cases, Customs agents monitored the wire along with contractors or other officers, but contractors were responsible for a majority of the translation; and in only two cases could Hispanic agents have possibly been solely responsible for monitoring and transcribing the wire, and in one of those two cases, the wire was only operational for 24 hours. Id.
DISCIPLINE 150. Allegations of employee misconduct could be received through an IA hotline number, the Customs' Customer Satisfaction Unit, mail, e-mail, referrals from the IG or referrals from IA field offices. Id. 151. Until 1999, all allegations of employee misconduct, whether they came from the public, other federal agencies, or within the agency, were investigated by the IA field office in the particular region in which alleged misconduct arose. Id. at ¶¶ 11, 28.
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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 104 of 110
152. In 1999, Customs centralized the intake system for investigations of misconduct so that all allegations, regardless of the source, were forwarded to the Intake Group, a centralized intake office located at headquarters, for processing and assignment. Id. at ¶¶ 27, 29.
153. An allegation was classified into one of four classes: Class 1 involved allegations of criminal misconduct; Class 2 involved serious non-criminal misconduct; Class 3 allegations involved management issues; and Class 4 allegations were considered minor or frivolous allegations and were generally closed without action or investigation. See Declaration of Chris W. Pignone (“Pignone Decl.”) at ¶ 31 (attached hereto as Exhibit 2).
154. Employees within the Intake Group conducted an initial analysis of an allegation to determine its appropriate classification. See Pignone Decl. at ¶ 32.
155. The Intake Group determined whether the allegation should be referred to management for action or to IA for investigation, or closed with no action taken. Id.
156. Allegations of misconduct on the part of OI employees at grade of GS-15 or higher or IA employees were investigated by the Department of the Treasury Office of Inspector General ("IG"). Id. at ¶ 30.
157. Less serious allegations of employee misconduct were referred by IA to Customs' management for examination and appropriate action. See Pignone Decl. at ¶ 33.
158. Management had the option of taking immediate action or assigning a fact finder to conduct an inquiry into the allegation. Id. at ¶¶ 33, 34.
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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 105 of 110
159. On February 25, 1999, Customs established a formalized program for management inquiries, which provided training and written guidelines for a group of fact finders responsible for addressing allegations of misconduct not subject to an investigation by IA. Id.
160. IA provided guidance and oversight to fact finders. See Pignone Decl. at ¶ 34. 161. When a fact finding inquiry was concluded, the inquiry report was reviewed and
approved by IA to ensure the inquiry was complete and thorough. See Pignone Decl. at ¶ 34. 162. Following one of the inquiry procedures described above, agents faced two major categories of discipline, if they were subject to discipline: the first category was discipline for less serious misconduct, for which employees received discipline that would range from an oral admonishment to a letter of reprimand to a suspension from duty and pay of fourteen-days or less; and the second category of discipline was an adverse action for serious misconduct, which included suspensions from duty and pay for more than 14 days, reductions in pay and/or grade, and removal. Id. at ¶¶ 4, 5. 163. Under Customs' formal discipline process, a proposing official issued a proposal letter to the employee informing him or her of the proposed discipline and outlining the specific facts and charges against the employee. See Pignone Decl. at ¶ 6. 164. The employee had the right to respond both orally and in writing to the charges and proposed discipline, setting out any mitigating circumstances. Id.
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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 106 of 110
165. The deciding official determined whether or not the charges against the employee could be sustained, and if so, selected the specific penalty to impose. Id.
166. The deciding official took into account certain factors, known as the "Douglas Factors" when selecting an appropriate penalty, which include, among other things: the nature and seriousness of the offense; the employee's job level and type of employment; the existence of any past disciplinary record; whether or not the offense would have an effect on the employee's ability to perform at a satisfactory level; the consistency of the penalty with those imposed upon other employees for the same or similar offenses; the consistency of the penalty with the applicable agency table of penalties; the impact of the offense on the reputation of the agency; and the potential for the employee's rehabilitation. Id. at ¶ 7.
167. The deciding official could either sustain the original proposed action, reduce the penalty or impose no penalty but could not increase the penalty from the original proposed action. Id. at ¶ 8.
168. From 1982 until January 1996, supervisors in the individual local field offices had the responsibility for proposing and deciding disciplinary actions. Id. at ¶ 10.
169. In January 1996, both IA and OI established independent Disciplinary Review Boards ("DRBs") to issue proposals for adverse actions. Id. See Pignone Decl. at ¶ 13.
170. The DRBs for both OI and IA consisted of a panel of three members from that organization as well as an employee relations specialist from the Office of Labor and Employee Relations, in the Office of Human Resources. Id. at ¶¶ 14, 15.
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171. The panel members were selected from approximately 50 senior managers and supervisors from the field and from headquarters. See Pignone Decl. at ¶ 14.
172. After reviewing the investigative reports produced by IA or the IG, the DRB panel would determine whether or not to propose an adverse action. Id. at ¶ 15.
173. If the DRB determined that the offense charged merited less discipline, the DRB would normally remand the case to local management for consideration of a lesser penalty. See Pignone Decl. at ¶ 16.
174. If the DRB determined that the offense charged merited an adverse action (something greater than a 14-day suspension), a member of the DRB panel would serve as the proposing official and would issue a letter to the employee outlining the proposed discipline. Id.
175. The SAIC from the particular region to which the employee was assigned was delegated the authority to be the deciding official on the proposed discipline for OI employees. Id. at ¶ 18.
176. Decisions on proposed actions issued by the IA DRB were made by the Assistant Commissioner. Id.
177. In May 1999, the Commissioner of Customs, Raymond Kelly, established a service-wide DRB for all employees, including Customs Inspectors and non-law enforcement personnel, which had similar procedures as the preceding DRBs within IA and OI. See Pignone Decl. at ¶ 21.
178. As compared to the IA/OI DRBs, the panel members of the service-wide DRB were composed of a mix of managers and supervisors from the various divisions
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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 108 of 110
within Customs (i.e., IA, OI and Field Operations with authority over Customs’ Inspectors). Id. at ¶ 22. 179. Hispanic agents were no more likely than white agents to be removed or demoted for disciplinary reasons. See Siskin Decl. at ¶ 75. 180. Demotions for disciplinary reasons were very rare (five cases total) and only white agents were demoted. Id. 181. Removals were a rare event (only 12 cases). Id. 182. Only two Hispanic agents were removed, which is statistically equivalent to what would be expected given the Hispanic representation among 1811 agents at Customs. Id. at ¶ 75, Table 38. 183. The number of Hispanic agents ever suspended, 42 agents, was only 13 more than would be expected to be suspended (28.9) based on their representation in the workforce. Id. at ¶ 77, Table 40. 184. The Hispanic surplus in suspensions primarily occurred after the disciplinary process at Customs was revised to implement a service-wide procedure under Commissioner Raymond Kelly in 1999. Id. at ¶ 79; Tables 42A, 42B. VETTING 185. In 1999, Customs instituted a formalized type of reference check, known as "vetting," whereby the employment history of all candidates for promotion, transfers, and awards and bonuses would be reviewed for past disciplinary problems or past or pending IA investigations. See Shepherd Decl. at ¶ 5. 186. Vetting involved a three-step process: first, the vetting office would check with IA
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Case 1:02-cv-00923-JR Document 97 Filed 08/30/04 Page 109 of 110
or the IG to determine if the candidate for selection was the subject of any former or pending investigation; second, the vetting office would contact the Office of Labor and Employee Relations to determine if the individual had been subject to any past disciplinary action; finally, the vetting office would do a manual check of the individual's Official Personnel File ("OPF") to determine the awards and promotion history of that individual. Id. at ¶ 6. 187. If no derogatory information was found, the vetting office would "clear" the individual for selection. Id. at ¶ 7. 188. If, on the other hand, the individual had a closed investigation or prior disciplinary problems, the vetting office would forward the relevant information to the Office of the Assistant Commissioner or Deputy Assistant Commissioner for a determination of whether the information was sufficiently serious to warrant not allowing the individual's selection to go forward. Id. 189. If the individual was the subject of an open investigation, the Assistant Commissioner of IA would provide an oral briefing to the Assistant Commissioner of the selecting office, who would decide if the information was sufficiently serious to warrant not allowing the selection to go forward. Id. at ¶ 8. 190. All candidates selected for promotions for positions at GS-12 and above, with the exception of persons applying for the Senior Executive Service ("SES") positions, were subject to vetting before the promotion was finalized. Id. at ¶ 9. 191. All persons selected for reassignment or transfer, persons selected to receive awards or bonuses, persons selected to be EEO counselors or persons selected to
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serve on the agency's disciplinary review board were subject to vetting. Id. at ¶ 10. 192. There was no statistically significant difference between white and Hispanic agents in the same grade in their likelihood of being cleared by the vetting process.

OF COUNSEL: MARC WEINBERGER M. BENNETT COUREY U.S. Customs and Border Protection (CBP) MATTHEW RILEY U.S. Immigration and Customs Enforcement (ICE)
Date: August 30, 2004

Respectfully submitted,
PETER D. KEISLER Assistant Attorney General
KENNETH L. WAINSTEIN United States Attorney
STUART A. LICHT Assistant Director
_________/s/__________________ KAREN K. RICHARDSON SHAYNA S. COOK Trial Attorneys U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Room 6126 Washington, DC 20530 Telephone: (202) 514-9836 Facsimile: (202) 616-8470
Attorneys for Defendant

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 Case 1:02-cv-00923-JR Document 22 Filed 03/20/2003 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al., )

Plaintiffs

)

)

v.

)

)

TOM RIDGE, SECRETARY,

)

DEPARTMENT OF HOMELAND )

SECURITY,

)

Defendant.1

)

)

Case No. 1:02CV00923(JR)

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant Tom Ridge, Secretary for the Department of Homeland Security, hereby

moves the Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary

judgment and seeks dismissal of the Complaint. In support, the Court is respectfully referred to

the accompanying Defendant's Statement of Material Facts as to Which There Is No Genuine

Issue, Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion for

Summary Judgment, the Declarations, and the Exhibits.

Respectfully submitted,
ROBERT D. McCALLUM, JR.
1 Pursuant to Fed. R. Civ. P. 25(d)(1), Tom Ridge, Secretary of the Department of Homeland Security, is hereby substituted for the Secretary of Treasury. On March 9, 2003, the majority of the Customs special agent workforce became a part of the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security.

Case 1:02-cv-00923-JR Document 22 Filed 03/20/2003 Page 2 of 2

OF COUNSEL:
MARC WEINBERGER BENNETT COUREY MATTHEW B. RILEY Office of Chief Counsel Bureau of Customs and Border Protection

Assistant Attorney General
ROSCOE C. HOWARD, D.C. Bar #246470 United States Attorney
STUART A. LICHT Assistant Director

Date: March 20, 2003

/s/ KAIJA M. CLARK, D.C. Bar # 467376 ANDREW H. TANNENBAUM Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, D.C. 20530 Telephone: (202) 514-3489 Facsimile: (202) 616-8470

2

Case 1:02-cv-00923-JR Document 22-2 Filed 03/20/2003 Page 1 of 60

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al., )

Plaintiffs

)

)

v.

)

)

TOM RIDGE, SECRETARY,

)

DEPARTMENT OF HOMELAND )

SECURITY,

)

Defendant.1

)

)

Case No. 1:02CV00923(JR)

DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Respectfully submitted,

OF COUNSEL:

ROBERT D. McCALLUM, JR. Assistant Attorney General

MARC WEINBERGER BENNETT COUREY MATTHEW B. RILEY Office of Chief Counsel Bureau of Customs and Border Protection

ROSCOE C. HOWARD, D.C. Bar #246470 United States Attorney
STUART A. LICHT Assistant Director KAIJA M. CLARK, D.C. Bar # 467376 ANDREW H. TANNENBAUM Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, D.C. 20530 Telephone: (202) 514-3489 Facsimile: (202) 616-8470

1 Pursuant to Fed. R. Civ. P. 25(d)(1), Tom Ridge, Secretary of the Department of Homeland Security, is hereby substituted for the Secretary of Treasury. On March 9, 2003, the majority of the Customs special agent workforce became a part of the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security.

Case 1:02-cv-00923-JR Document 22-2 Filed 03/20/2003 Page 2 of 60
TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. MIGUEL CONTRERAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Mr. Contreras' Administrative Class Activity . . . . . . . . . . . . . . . . . . . . . . 5 1. Class Complaint Allegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2. EEO Counseling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Mr. Contreras' Administrative Activity on His Own Individual Behalf . 8 1. TD 94-3272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2. TD 95-3067 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3. TD 98-4017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4. TD 98-4137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 5. TD 99-4107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 6. TD 00-4106M . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 7. TD 00-4107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 8. TD 00-4194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 9. TD 00-4269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10. TD 01-4096 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 11. TD 02-4162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
II. THE OTHER SEVEN PLAINTIFFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A. John Yera . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 B. William Velasco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Case 1:02-cv-00923-JR Document 22-2 Filed 03/20/2003 Page 3 of 60
C. Frank Almonte . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
D. Stephen Mercado-Cruz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
E. Ramon Martinez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
F. Ricardo Sandoval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
G. Ruben Gonzalez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
I. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
II. THE CLASS CLAIMS SHOULD BE DISMISSED IN THEIR ENTIRETY BASED ON FAILURE TO TIMELY EXHAUST ADMINISTRATIVE CLASS REMEDIES, FAILURE TO ASSERT ADVERSE EMPLOYMENT ACTIONS, AND/OR FAILURE TO ESTABLISH A PRIMA FACIE CASE OF DISCRIMINATION FOR THE UNDERLYING CLAIM . . . . . . . . . . . 22
A. The Class Claim Alleging Discrimination in Promotions Should Be Dismissed For Failure to Exhaust Administrative Remedies and Because the Underlying Individual Claim Does Not State A Prima Facie Case of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
B. The Class Claims Based on Transfers and Assignments Should be Dismissed for Failure to Exhaust Administrative Remedies and Because Transfers and Assignments are Not Actionable Employment Decisions Under Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
C. The Class Claim Based on Assignments to Undercover and Other Undesirable Assignments Should Be Dismissed Because It Was Not Exhausted at the EEO Level and Also Does Not Amount to An Actionable Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
D. The Class Discipline Claim Can Not Survive Summary Judgment Because It Was Not Administratively Exhausted, and Because the Underlying Allegations Do Not Amount to Actionable Claims under Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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E. The Class Claim Based on Awards and Bonuses Should Be Dismissed for Failure to Exhaust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
F. The Class Claim Based on Foreign Language Awards Should Be Dismissed for Failure to Exhaust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
G. The Class Training Claim Cannot Survive Summary Judgment Because it Was Not Exhausted at the Administrative Level and Because It Does Not Constitute An Actionable Title VII Claim . . . . . . . . . . . . . . . . . . . . . 36
H. The Hostile Work Environment Class Claim Should Be Dismissed For Failure to Exhaust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
I. The Retaliation Class Claim Should Be Dismissed for Failure to Exhaust38 III. THE INDIVIDUAL CLAIMS OF DISCRIMINATION SHOULD BE
DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND/OR TO ALLEGE ACTIONABLE ADVERSE EMPLOYMENT ACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 A. Miguel Contreras . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
1. Promotions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 2. Transfers, Assignments and Career-Enhancing Opportunities . . . . . . 41 3. Assignments to Undercover and Undercover work . . . . . . . . . . . . . . 41 4. Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 5. Awards, Bonuses, Foreign Language Awards and Hostile
Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 6. Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 7. Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 B. John Yera . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 C. William Velasco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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Case 1:02-cv-00923-JR Document 22-2 Filed 03/20/2003 Page 5 of 60 D. Frank Almonte . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 E. Stephen Mercado-Cruz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 F. Ramon Martinez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 G. Ricardo Sandoval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 H. Rubin Gonzalez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al., )

Plaintiffs

)

)

v.

)

)

TOM RIDGE, SECRETARY,

)

DEPARTMENT OF HOMELAND )

SECURITY,

)

Defendant.

)

)

Case No. 1:02CV00923(JR)

DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

None of the plaintiffs in this case have stated class or individual claims that can survive summary

judgment. Accordingly, summary judgment should be entered dismissing this action.

INTRODUCTION

Plaintiffs have filed a class action complaint ("Complaint") alleging employment discrimination on

the basis of their Hispanic national origin in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000(e) et seq. Before an individual plaintiff may pursue a claim of discrimination against a

federal agency, the plaintiff must exhaust his administrative remedies. Likewise, before a Title VII class

action may be brought against the United States, at least one plaintiff is required to have exhausted the

class action claims at the administrative level.

Only one of the eight named plaintiffs, Miguel Contreras, pursued a class action complaint at

the administrative level. No other plaintiff filed an administrative class action complaint. Accordingly,

Mr. Contreras' class administrative complaint is the only administrative complaint that is relevant for

purposes of determining whether or not the class claims were properly exhausted.

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In addition, even if certain class claims are properly exhausted, in order for them to be actionable, they must constitute claims for which Title VII permits recovery, i.e., they must constitute adverse employment actions. Finally, even if a claim is exhausted and constitutes an otherwise actionable claim, the claim must establish a prima facie case of discrimination before it can serve as a basis for a class claim of discrimination.
The Complaint alleges eight separate class claims of discrimination, but each one of the class claims is deficient under Title VII for a variety of reasons. Mr. Contreras failed to raise some of the claims in the administrative class complaint, he failed to raise some of the claims with an EEO counselor, and some of the claims do not constitute adverse employment actions covered by Title VII. Finally, Mr. Contreras cannot establish a prima facie case of discrimination with respect to the one failure to promote claim that he apparently exhausted in his class administrative complaint. His nonselection was attributed not to his national origin but to the fact that his rating score by an independent panel was so low that he failed to qualify for the Best Qualified List of candidates. Accordingly, without there being a single class claim that was exhausted, that was based on an adverse employment action, and that established a prima facie case of discrimination, the class claims of discrimination must be dismissed.2
2 Consistent with the Court's instruction at the scheduling conference of December 19, 2002, the bases of this summary judgment motion are limited. This motion primarily addresses whether plaintiffs followed the requisite administrative procedures before bringing their Title VII claims to federal court and whether plaintiffs' claims are based on actionable adverse employment actions under Title VII. Defendant does not waive any arguments that have not been raised in this motion. Defendant also does not waive future arguments of dismissal on grounds that the plaintiffs' claims do not amount to adverse employment actions if facts discovered later support such arguments.
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Moreover, not one of the plaintiffs alleges an actionable individual claim of discrimination. Plaintiff John Yera, for example, never filed any EEO administrative complaint, and Plaintiff William Velasco settled his only administrative discrimination complaint. Others have alleged claims that fall short of adverse employment actions, and many of the plaintiffs failed to consult with an EEO counselor either at all or in a timely manner. Because of the deficiencies, defendant respectfully requests that this Court dismiss, on this motion for summary judgment, all of the individual claims of discrimination as well as the class claims of discrimination.
STATEMENT OF THE CASE Up until March 9, 2003, the United States Customs Service ("Customs" or "Customs Service") was a bureau within the United States Department of Treasury ("Treasury"). See Susan B. Zaner Declaration ("Zaner Declaration") ¶ 3. On March 9, 2003, the majority of the Customs Special Agent workforce became a part of the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security ( also "Customs" or "Customs Service"). See id. ¶ 3. Customs Special Agents generally work in three offices. First, the Office of Investigations employs approximately 3,244 agents. See John J. Seraphin Declaration ("Seraphin Declaration") ¶ 5. The mission of the Office of Investigations includes the investigation of terrorism, fraud, money laundering, child pornography, and other prohibited activities. See id. ¶ 4. Second, approximately 180 Special Agents work in the Office of Internal Affairs. Their job is to investigate criminal and serious misconduct by Customs employees. See id. ¶¶ 5-6. Third, approximately 97 Special Agents work in the Office of International Affairs. They conduct collateral investigations to support the domestic offices. See id. ¶¶ 5, 8.
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Although Customs is headquartered in Washington, D.C., it maintains a presence nationwide. See id. ¶ 9. Within the Office of Investigations, there are 20 Special Agent in Charge ("SAIC") offices spread throughout the country. See id. Each SAIC office has subordinate Resident Agent in Charge Offices ("RAIC"), for a total of approximately 99 RAIC offices. See id. Finally, there are approximately an additional 14 Resident Agent Offices, which report to the RAICs. See id. The Office of Internal Affairs has 4 SAIC offices and 21 RAIC offices throughout the United States. See id. ¶ 11. There are also Customs Attache offices located in many United States embassies abroad. See id. ¶ 10. All series 1811 Special Agents3 (all plaintiffs are in the 1811 series, see Complaint ¶ 7) are required to agree to mobility as a condition of employment. See Seraphin Declaration ¶ 12. I. MIGUEL CONTRERAS
Plaintiff Miguel Contreras began his employment with Customs as a GS-1811-12 Special Agent (meaning a criminal investigator at the GS-12 level) in the Office of Enforcement (which later became the Office of Investigations) in May 1988, in Calexico, California. See Zaner Declaration ¶ 23. During a period of that time, he served as an EEO counselor for the Pacific Region of the U.S. Customs Service. See Mariam Harvey Declaration ("Harvey Declaration") Exh. 17. In July, 1991, he was reassigned to a GS-1811-12 position in Riverside, California, and he served in that position until August 1992, when he was promoted to a GS-13 Senior Special Agent in the Office of Enforcement in
3 Series 1811 is an occupational code for the criminal investigator position. Duties of these investigators include the investigation and enforcement of violations of Customs and related laws, rules and regulations. These investigations may be civil or criminal in nature and may conduction of interviews as well as the examination of physical, documentary, and other types of evidence. See Zaner Declaration ¶ 7.
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Detroit, Michigan. See Zaner Declaration ¶ 34. In June 1995, Mr. Contreras was laterally reassigned as a Senior Special Agent to the Office of
Investigations in Yuma, Arizona, and on December 10, 1995, he was promoted to a GS-14 Supervisory Criminal Investigator (otherwise known as a Resident in Charge) in the Office of Internal Affairs in Calexico, California. See id. ¶¶ 25-26. As part of a settlement agreement in connection with disciplinary actions, Mr. Contreras voluntarily changed to a lower grade of GS-13, effective May 7, 2000, and he took a Criminal Investigator position in the Office of Investigations in Yuma, Arizona. See id. ¶ 28; Harvey Declaration ¶ 50.
Well accustomed to EEO procedures after serving as an EEO counselor, Mr. Contreras began his series of filing EEO discrimination complaints on September 26, 1994, and to date, he has filed twelve separate EEO complaints. One of these eleven complaints was bifurcated, making a total of twelve separate EEO administrative complaints. Only one of those complaints, however, was a class complaint. An administrative judge of the EEOC was assigned to handle the class administrative complaint, and the case proceeded at the administrative level until May 10, 2002, when – without waiting for an adjudication (a hearing was scheduled to commence in June) – Mr. Contreras withdrew his EEO class complaint and filed the instant Complaint. See Harvey Declaration ¶¶ 36, 40.
A. Mr. Contreras' Administrative Class Activity 1. Class Complaint Allegations On March 23, 1995, Mr. Contreras filed his sole class EEO administrative complaint, titled "Complaint of Class Discrimination of Miguel Angel Contreras," which was later designated as TD 950014C. See Harvey Declaration ¶¶ 35, 36, Exh. 18, at 2. Mr. Contreras filed the class complaint "on
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behalf of himself and all similarly situated past, present and future Hispanic Special Agents" at Customs.
See id. at ¶ 35, Exh. 19. The administrative complaint stated that the class "includes a group of
approximately twenty-seven (27) Hispanic GS-1811 Special Agents (Criminal Investigator) Grade 12-
15, who are currently employed by [Customs'] Office of Investigations and Internal Affairs." See
Harvey Declaration ¶ 35, Exh. 19 .
Administrative class complaint TD 95-0014C first set forth several individual allegations of
discrimination. See Harvey Declaration Exh. 18, at 2-3 ("DESCRIPTION OF INDIVIDUAL
ALLEGATION[S] OF DISCRIMINATION OF THE AGENT"). It alleged specifically that:
(1) Customs continued to seek "applications for a lateral transfer to the position of Resident Agent in Charge at Sells, Arizona" after Mr. Contreras submitted his name for consideration on January 25, 1995.
(2) Despite Mr. Contreras' February 1, 1995 request to be sent to a two-week advanced financial/forfeiture training, his group supervisors did not submit his name as a nominee for consideration.
(3) Customs failed to take action on Mr. Contreras' January 10, 1995 application for a lateral transfer to Merida, Mexico for the position of Customs Representative.
(4) Customs selected a non-minority applicant for the position of Supervisory Criminal Investigator with the Office of Internal Affairs in the El Paso, Texas Office instead of Mr. Contreras. This vacancy position was announced September 26, 1994, and Mr. Contreras allegedly learned of the non-minority selection on January 6, 1995.4
(5) On April 7, 1994, Customs selected others and not Mr. Contreras for reassignment after he volunteered to be reassigned to Arizona, Texas, or California.
(6) Customs rejected over 38 of Mr. Contreras' applications for promotions to GS1811-13 and 14 supervisory criminal investigator positions and/or lateral transfers
4 Mr. Contreras also alleged that he applied for the same position in Laredo, Texas, but he did not state whether the position had been filled or when. See Harvey Declaration Exh. 18, at 3.
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during the course of his employment. (7) In January 1995, Mr. Contreras learned that someone else had been selected for a lateral transfer to serve as a senior Special Agent GS-1811-13 in Merida and Montgomery, Mexico.5 (8) Despite a tentative selection in October 1993 for a lateral transfer to a customs representative position in Sonora, Mexico, management later disapproved Mr. Contreras' transfer, citing a policy that prohibited transfers prior to completion of a three-year stay in an agent's most recent location. See Harvey Declaration ¶ 35, Exh. 18. After listing these individual allegations of discrimination, Mr. Contreras alleged in the class EEO complaint that "[t]he aforementioned is provided in this formal class complaint of discrimination only to re-enforce Mr. Contreras [sic] allegation of discriminatory practices by [Customs]." Id., Exh. 18, at 4 He then made the conclusory allegation that he and his class were discriminated against in the areas of promotions, hiring, work assignments, transfers, retention, training, pay, compensation for foreign language skills, awards, and discipline. See id. ¶ 35, Exh. 18, at 4-5. None of the class allegations, however, contained details such as when the allegedly discriminatory acts occurred. After proceeding toward an administrative trial on the merits – i.e., after taking depositions and collecting other kinds of discovery – Mr. Contreras filed the instant Complaint in this Court. 2. EEO Counseling Prior to filing the class administrative complaint, on January 9, 1995, Mr. Contreras requested EEO counseling regarding his class claims. See Harvey Declaration ¶ 33. Mr. Contreras' request for counseling was "triggered" by his alleged discovery on January 6, 1995, that he was not selected for a
5 This seems to be the same complaint as (3) above. -7-

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GS-14 position in El Paso, Texas. See id. ¶ 34, Exh.17. The counseling report explained that: "The Complainant feels that he was discriminated against when he was not selected for a GS-14 supervisory criminal investigator position. The complainant believes that his experience represents a microcosm of the experience of Hispanic Special Agents in the Customs Service nationwide." Id. Exh. 16. B. Mr. Contreras' Administrative Activity on His Own Individual Behalf
In addition to Mr. Contreras' class administrative complaint, he filed eleven individual complaints of discrimination at the administrative level. The following provides a summary of the complaints to put them in context with the present action.
1. TD 94-3272 On September 26, 1994, Mr. Contreras filed a formal individual administrative EEO complaint of discrimination, designated TD 94-3272. See id. ¶ 28. The complaint alleged discrimination based on Hispanic national origin concerning a performance rating, denial of training, and also based on retaliation. See id. ¶ 28, Exh. 13. Mr. Contreras sought EEO counseling in connection with these claims on August 25, 1994. See id. ¶ 27, Exh. 11. 2. TD 95-3067 On January 6, 1995, Mr. Contreras filed a formal individual administrative EEO complaint of discrimination based on an October 5, 1994 suspension. See id. ¶ 30, Exh. 14. He sought counseling regarding this suspension on October 31, 1994, claiming that the suspension was imposed because of his national origin. See id. ¶ 29. Administrative complaints TD 94-3272 and TD 95-3067 were accepted for processing, but were subsequently closed, on April 3, 1996, to await a decision on the class administrative complaint.
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See id. ¶ 32; 29 C.F.R. § 1614.107(a)(1) (providing for dismissal of administrative complaints that state the same claim that is pending before the agency ).6 Treasury consolidated these complaints with the class administrative complaint in 1998. See id. ¶ 38.
3. TD 98-4017 On October 23, 1997, Mr. Contreras filed a formal individual administrative EEO complaint alleging national origin discrimination and retaliation based on a non-selection to Senior Customs Representative in Hermosillo, Mexico, GS-1811-14, on or about April 15, 1997 or to Assistant Customs Attache in Bangkok, GS-1811-14, on or about August 27, 1997. See Harvey Declaration ¶ 42, Exh. 21. Mr. Contreras sought EEO counseling regarding these positions on July 7, 1997. See id. ¶ 41, Exh. 21. On August 16, 2002, Customs learned that this case was administratively closed because it contained the same allegations as the class action filed in federal district court. See id. ¶ 42; see also 29 C.F.R. § 1614.107(a)(3) (providing for dismissal of administrative complaints that are the basis of a pending civil action in a United States District Court in which the complainant is a party). 4. TD 98-4137 On March 17, 1998, Mr. Contreras filed a formal individual administrative EEO complaint, asserting discrimination based on his Hispanic national origin and on retaliation for prior EEO activity. See Harvey Declaration ¶ 44, Exh. 24. Specifically, Mr. Contreras complained that he was not selected for four GS-1811-15 positions. See id. ¶ 44, Exh. 24. This case was administratively closed
6 See also http://www.eeoc.gov/federal/md110/chapter8.html Section III, C (describing administrative procedures regarding individual complaints that are filed on the same bases and issues as class complaints, e.g., "If the class complaint is dismissed at the certification stage, the individual complaint may still proceed, unless the same or another basis for dismissal applies.").
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on January 5, 2000, because of the class administrative complaint. See Harvey Declaration ¶ 45; 29 C.F.R. § 1614.107(a)(1).
5. TD 99-4107 Mr. Contreras filed his next individual administrative EEO complaint on February 9, 1999, alleging discrimination and retaliation for not having been selected to GS-1811-15 Associate Special Agent in Charge positions in New Orleans and in San Juan on unspecified dates. See Harvey Declaration ¶ 46. On April 5, 1999, the complaint was dismissed as untimely, and no appeal was taken. See id.; Exh. 26. 6. TD 00-4106M On January 18, 2000, Mr. Contreras filed his sixth individual administrative complaint, alleging discrimination on the bases of national origin, age, and retaliation for a proposed termination on September 28, 1999, and for a November 9, 1999, non-selection to Regional Special Agent in Charge positions in Long Beach, California and El Paso, Texas. See id. ¶¶ 47-48, Exh. 29. This case was bifurcated with the termination claim addressed in TD 00-4106M and the non-selection addressed in TD 00-4107. See id. ¶ 48. In October 2000, in connection with a Merit Systems Protection Board appeal on related disciplinary issues, Mr. Contreras reached a settlement agreement that resolved all issues pertaining to TD 00-4106M. See id. ¶ 50. 7. TD 00-4107 On February 10, 2000, the bifurcated case alleging discrimination based on national origin, age, and retaliation in connection with Mr. Contreras' November 9, 1999 non-selection to the Long Beach, California and El Paso, Texas Regional Special Agent in Charge positions was accepted for processing.
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See id. ¶ 51. On February 26, 2000, Mr. Contreras contacted the Oakland Treasury Complaint Center ("OTCC") about several other allegedly discriminatory non-selections, including: (1) a Special Agent in Charge, (Senior Executive Service ("SES")) position in New York City; (2) a Customs Attache position, GS-1811-15, in Singapore, Montevideo, Berlin, or Vienna; and (3) the position of Executive Director of Foreign Operations, GS-1811-15, in Washington, D.C. See id. ¶ 51, Exh. 31. These additional claims also were accepted for processing. See id., Exh. 32.
On August 24, 2000, OTCC dismissed the portions of the complaint based on national origin because of the administrative class complaint. See id. ¶ 52; 29 C.F.R. § 1614.107(a)(1). Mr. Contreras withdrew his non-selection claim for a Special Agent in Charge position in New York City on November 8, 2000. See Harvey Declaration ¶ 52, Exh. 33.
8. TD 00-4194 On April 21, 2000, Mr. Contreras filed his eighth individual administrative complaint, TD 004194, alleging discrimination on the basis of national origin and retaliation. See id. ¶ 54, Exh. 34. Specifically, Mr. Contreras alleged discrimination and retaliation concerning the reopening, by the Department of Treasury's Office of Inspector General, of a previously closed investigation. See id. ¶ 53, Exh. 34. In early 2002, an EEOC administrative judge dismissed this complaint for failing to state a claim because merely being the subject of an investigation did not make Mr. Contreras an aggrieved individual under Title VII. See id. ¶ 55, Exh. 36. No appeal has been taken on this dismissal. See id. ¶ 55. 9. TD 00-4269 Mr. Contreras filed his ninth individual administrative complaint of discrimination, TD 00-4269,
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on July 11, 2000. See id. ¶ 57, Exh. 39. This complaint alleged national origin discrimination and retaliation for EEO activity when Mr. Contreras was not selected to the following positions in May 2000:7 (1) Regional Special Agent in Charge (SES level), in Long Beach, California; (2) Customs Representative, INTERPOL, (GS-15) in Lyon, France; (3) Associate Special Agent in Charge (GS15) in Tucson, Arizona; and (4) Special Agent in Charge (SES level) in New Orleans, Louisiana. See id., Exh. 40. The administrative complaint also raised additional retaliatory harassment issues based on the following: (1) the Department of Treasury's initiation of an investigation on August 5, 1998 into Mr. Contreras' improper use or theft of government funds and/or property; (2) the Office of Investigations' request for GS-1811-15 lateral transfers to foreign offices, thereby precluding Mr. Contreras' applications to such positions; (3) Customs' utilization of a vetting process to discriminate against minorities; (4) the denial of Mr. Contreras' request to meet with the Commissioner of Customs in early 2000; (5) the denial of Mr. Contreras' request to attend the June 6, 2000 annual Customs National Hispanic Agents Association Conference; (6)the receipt of a memo on March 1, 2000 with an annotation next to his name, "If not fired ye"; (7) the discovery that the Special Agent in Charge in the Tucson office referred to employees who file EEO complaints as "cockroaches"; and (8) the denial of an undercover assignment with the Resident Agent in Charge in Nogales in June 2000. See id. ¶ 57, Exh. 39-40.
Although Mr. Contreras sought EEO counseling and/or wrote a letter to an EEO manager about most of these issues, he did not mention anything about the annual Customs National Hispanic
7 As of May 7, 2000, Mr. Contreras had been "changed to a lower grade of [GS-13] at his request." Zaner Declaration ¶ 28.
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Agents Association Conference to the counselor. See id. ¶ 56, Exh. 37-39. On August 25, 2000, the allegations based on national origin discrimination were dismissed because of the class EEO complaint. See id. ¶ 58; 29 C.F.R. § 1614.107(a)(1). On September 27, 2000, OTCC consolidated the retaliation portion of the TD 00-4269 complaint with the class complaint, and on November 8, 2000, Mr. Contreras withdrew his allegation concerning his non-selection to the Special Agent in Charge position (SES) in New Orleans. See Harvey Declaration ¶ 58, Exh. 33.
10. TD 01-4096 On December 28, 2000, Mr. Contreras filed a formal individual administrative EEO complaint alleging retaliation for his EEO activities. See id. ¶ 60, Exh. 43. He alleged that he was denied leave on December 16, 2000; that he learned on October 2, 2000 that group supervisors were assigned new trucks, but that he was denied a new truck when he had been a supervisor; that he was denied the opportunity to work on a drug smuggling investigation on October 2, 2000; and that he received counseling from his supervisors regarding the management of his cases on October 4, 2000. See id., Exh. 43, at 3-4. On December 5, 2000, Mr. Contreras contacted an EEO counselor about his working conditions. See id. ¶ 59, Exh. 41-42. This case was dismissed on November 15, 2002 because of the filing of the class Complaint in federal court. See id. ¶ 61; 29 C.F.R. § 1614.107(a)(3). 11. TD 02-4162 Mr. Contreras filed his last individual administrative complaint on April 5, 2002. See Harvey Declaration ¶ 63, Exh. 46. Mr. Contreras complained that he suffered discrimination based on national origin and retaliation for past EEO activity when he was issued a fitness for duty letter on March 6,
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2002, and a letter of caution on March 7, 2002, and when he was reassigned to the San Luis, Arizona port of entry on March 18, 2002. See id. The complaint was dismissed after the filing of the instant Complaint. See id. ¶ 63; 29 C.F.R. § 1614.107(a)(3). II. THE OTHER SEVEN PLAINTIFFS
Six of the seven remaining plaintiffs engaged in some administrative activity before filing the Complaint that is now before the Court. The following provides a summary of employment history and their administrative activity for comparison to the Complaint in evaluating whether they exhausted administrative remedies and are able to pursue individual claims of discrimination. A. John Yera
Plaintiff John Yera began working for Customs as a Criminal Investigator, GS-1811-07, step 1, on November 21, 1988, in Newark, New Jersey. See Zaner Declaration ¶ 43. He was promoted at various times during the next twelve years, see id. ¶¶ 44-52, and effective July 29, 2001, he was promoted to a GS-1811-14, step 1, Criminal Investigator position in the Office of Investigations in Fairfax, Virginia. See id. ¶ 52. Mr. Yera has never filed an administrative EEO complaint against the Secretary of Treasury, either individually or as a class agent on behalf of a purported class of Customs employees. See Harvey Declaration ¶ 19. B. William Velasco
Mr. Velasco began working in the U.S. Customs Service as a GS-1811-12, step 2, Criminal Investigator in 1982 after transferring from the U.S. Department of Treasury's Bureau of Alcohol, Tobacco and Firearms. See Zaner Declaration ¶ 68. He worked his way up to a Supervisory Criminal Investigator, GS-1811-15, step 5 position, in the Office of Internal Affairs in Washington, D.C.,
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effective January 21, 1996. See id. ¶¶ 69-78. Mr. Velasco voluntarily retired from Customs on May 1, 1999. See id. ¶ 86.
Mr. Velasco filed a formal individual administrative complaint, designated TD 95-1245, on May 24, 1995, alleging discrimination on the basis of national origin after learning that he was not selected for three positions in January and February 1995. See Harvey Declaration ¶¶ 15-16, Exh. 56. On April 11, 1997, the complaint was settled and dismissed with prejudice. See id. ¶ 17. Mr. Velasco has filed no other administrative EEO complaint against the Secretary of Treasury, either individually or as a class agent on behalf of a purported class of Customs employees. See Harvey Declaration ¶ 18. C. Frank Almonte
Plaintiff Frank Almonte entered on duty with Customs as a Customs Aid, GS-05, in the New York City Office of Enforcement on July 25, 1983. See Zaner Declaration ¶ 80. He began his work in the 1811 series in 1987 when he received a career appointment as a Criminal Investigator at the GS05, step 10, level. See id. ¶ 82. Mr. Almonte received numerous promotions throughout his career, and he currently is at the GS-13 level. See id. ¶¶ 82-91.
On October 1, 2000, Mr. Almonte filed his only formal individual administrative EEO complaint, designated TD 01-3019, which alleged discrimination on the basis of Hispanic national origin in connection with his non-selection for a position of Senior Special Agent, GS-1811-13. See Harvey Declaration ¶ 12, Exh. 1-2. After receiving a promotion to a GS-13 Criminal Investigator in January 2001, see Zaner Declaration ¶ 91, he withdrew his administrative complaint stating that he did "not wish to purse this complaint any further." See Harvey Declaration ¶ 13, Exh. 3-4. Mr. Almonte has filed no
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other administrative EEO complaint against the Secretary of Treasury, either individually or as a class agent on behalf of a purported class of Customs employees. See id. ¶ 14. D. Stephen Mercado-Cruz
Plaintiff Stephen Mercado-Cruz became a Criminal Investigator for Customs in the GS-1811 series in 1985, when he was assigned to a position in the Office of Enforcement in San Luis, Arizona at a GS-09 level. See Zaner Declaration ¶ 95. On February 11, 2001, after a variety of promotions, he was promoted to a GS-1811-14, Supervisory Criminal Investigator position in the Office of Investigations in Calexico, California. See id. ¶ 105.
Mr. Mercado-Cruz filed his first two individual administrative EEO complaints, TD 91-2239 and TD 92-2018 in 1991, alleging discrimination on the basis of his Hispanic national origin and retaliation. See Harvey Declaration ¶ 20-21. Final agency decisions were issued for both of these complaints, on December 10, 1991 and February 3, 1993, respectively, finding no discrimination or retaliation. See id. ¶¶ 20-21, Exh. 7-8.
On January 18, 2000, Mr. Mercado-Cruz filed his third individual administrative EEO complaint, TD 00-4110, alleging discrimination on the basis of his Hispanic national origin because he was not selected for a promotion to Group Supervisor, GS-1811-14, in San Diego, California on or about November 9, 1999. See id. ¶ 23, Exh. 9. He also alleged retaliation for prior EEO activity. See id. ¶ 23, Exh. 9-10. These claims were dismissed on November 8, 2002, because they were the basis of the instant Complaint. See id. ¶¶ 24-25; 29 C.F.R. § 1614.107(a)(3). Mr. Mercado-Cruz has filed no other administrative EEO complaint against the Secretary of Treasury, either individually or as a class agent on behalf of a purported class of Customs employees. See Harvey Declaration ¶ 26.
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E. Ramon Martinez Mr. Martinez first began his career in the criminal investigator GS-1811 series on September 4,
1983, when he was assigned to a GS-07 position in Detroit, Michigan. See Zaner Declaration ¶ 31. Mr. Martinez received numerous promotions, and as of April 23, 2000, he has been employed as a Criminal Investigator, GS-13, step 7, in the Office of Investigations in Baltimore, Maryland. See id. ¶ 42.
Mr. Martinez filed two individual administrative EEO complaints in 1994 and 1995, TD 941120 and TD 96-1078, in which he alleged discrimination based on his Mexican-American national origin. See Harvey Declaration ¶¶ 66-67, Exh. 47-48. He complained, inter alia, about being interrogated, locked out of his office, denied firearms, suspended, and reassigned to a physical security specialist position. See id. On February 24, 1998, Mr. Martinez and the Treasury Department entered into a settlement agreement in which he agreed to withdraw and dismiss his complaints with prejudice. See id. ¶ 67.
Mr. Martinez filed one other individual administrative complaint, in January 1995, designated as TD 95-1127, on the basis of national origin discrimination and regarding a suspension. This case was dismissed as moot on February 15, 1995, and no appeal was taken. See id. ¶ 68, Exh. 49. Mr. Martinez has filed no other administrative EEO complaint against the Secretary of Treasury, either individually or as a class agent on behalf of a purported class of Customs employees. See id. ¶ 69. F. Ricardo Sandoval
Plaintiff Ricardo Sandoval entered duty with the Customs Service as a Criminal Investigator, GS-1811-12, in the Office of Internal Affairs on September 10, 1990 in San Diego, California. See
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Zaner Declaration ¶ 106. He was promoted numerous times, and as of November 2, 2002, Mr. Sandoval has been serving as a Supervisory Criminal Investigator, GS-1811-14, in the Office of Investigations in El Centro, California. See id. ¶ 111.
On November 8, 1993, Mr. Sandoval filed his first individual administrative complaint, TD 944099, alleging discrimination based on national origin. That complaint was withdrawn on April 4, 1994. See Harvey Declaration ¶ 80, Exh. 65. In 1994, he filed his second and third individual administrative complaints, designated TD 94-4070 and TD 94-4158, alleging discrimination based on national origin and retaliation concerning a non-selection and directed reassignments. See id. ¶¶ 82-83, Exh. 66-67. In March and April of 1995, the Department of Treasury issued a final agency decision, closing these administrative complaints, after finding no discrimination. See id. Mr. Sandoval did not appeal these dismissals with the agency. See id. ¶ 82-83.8
On August 30, 1996, Mr. Sandoval filed a fourth individual administrative complaint, TD 964247, alleging retaliation and age discrimination, based on an Internal Affairs Investigation of him.9 See id. ¶¶ 85-86, Exh. 68-69. On March 26, 1998, a final decision was issued finding that the evidence did not support the claims, and Mr. Sandoval did not appeal this decision. See id. ¶ 87, Exh. 70.
8 Although Mr. Sandoval did not appeal these complaints within the agency, based on Mr. Sandoval's own statements, he appears to have brought these claims to federal court and to have received an award for them. See Harvey Declaration ¶ 85 (in administrative complaint 96-4247, he alleged that "he had previously filed EEO complaints, TD 94-4158 and TD 94-4070, which were, at the time, the subject of a lawsuit in federal court in San Diego"); Complaint ¶¶ 81-82 (Mr. Sandoval received a recovery from a California federal jury in 1998 based on a retaliation claim).
9 Although on its face, the administrative complaint did not allege age discrimination, see Harvey Declaration Exh. 68 (complainant did not check box that would have indicated age was a basis of his discrimination claim, but did provide his date of birth), the complaint was processed as both an age discrimination and a retaliation claim. See id. Exh. 69.
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On August 7, 1997, Mr. Sandoval filed his last administrative EEO complaint, TD 97-4289, alleging national origin discrimination and retaliation. See id. ¶ 81. This complaint was dismissed for failure to state a claim on September 18, 1997. See id. Mr. Sandoval did not appeal that dismissal, and he has filed no other administrative EEO complaint against the Secretary of Treasury, either individually or as a class agent on behalf of a purported class of Customs employees. See id. ¶¶ 81, 88. G. Ruben Gonzalez
On March 15, 1987, Plaintiff Ruben Gonzalez took a Customs Criminal Investigator position, GS-1811-12, in Miami, Florida. See Zaner Declaration ¶ 55. Mr. Gonzalez received several promotions, rising to a temporary GS-15 in May, 1997. See id. ¶¶ 56-61. On March 10, 2002, he was promoted (permanently) to a Supervisory Criminal Investigator position, GS-1811-15, in the Office of Investigations in Houston, Texas. See id. ¶ 67.
On February 13, 1995, Mr. Gonzalez filed an individual administrative EEO complaint, designated TD 95-2142, alleging discrimination based on his Puerto Rican national origin based primarily on GS-14 promotions and assignment issues. See Harvey Declaration ¶ 71, Exh. 50. On June 23, 2002, the Treasury Complaint Center dismissed Mr. Gonzalez’s complaint because it came within the scope of the instant Complaint. See id. ¶ 71; 29 C.F.R. § 1614.107(a)(3).
On February 2, 2000, Mr. Gonzalez filed a second individual administrative EEO complaint, designated TD 00-1091, in which he alleged race and national origin discrimination, and retaliation, because he was not selected for three GS-15 promotions on October 8, 1999. See Harvey Declaration ¶ 73, Exh. 52-57. Mr. Gonzalez initially sought counseling for the alleged non-promotion
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discrimination on December 6, 1999. See Linda Lynn Batts Declaration ("Batts Declaration"), ¶¶ 616. Mr. Gonzalez later requested that his records be changed to reflect that he sought counseling on November 5, 1999, the day he met with Linda Batts, Special Assistant to the Commissioner of Customs and EEO Director. Id.; Harvey Declaration ¶ 73, Exh. 53. However, his contact on November 5, 1999 with Ms. Batts did not constitute counseling with an EEO counselor. Ms. Batts is not, and was not an EEO counselor. See Batts Declaration ¶¶ 11-16. Indeed, during their November 5, 1999 meeting, Ms. Batts told Mr. Gonzalez that she was not a counselor and that their conversation would not toll the time frame for filing an EEO complaint. See id. ¶ 11. She also informed him that he would have to contact an EEO counselor within 45 days of any alleged discriminatory conduct. See id.
On May 4, 2000, the national origin and race allegations were dismissed pending the resolution of the class administrative complaint, and the retaliation claims were to be processed as an individual complaint under the separate designation TD 00-1209. See Harvey Declaration ¶ 73, 75. On July 19, 2002, TD 00-1209 and TD 00-1091 were dismissed because of the Complaint filed in this action. See id. ¶ 78; 29 C.F.R. § 1614.107(a)(3).
On January 3, 2001, Mr. Gonzalez filed a fourth individual administrative complaint, TD 011068, alleging age discrimination and retaliation when he was denied a cash award, not assigned to act as an Assistant Director or Director of the Financial Investigation Division, and not given career enhancing collateral duty assignments. See Harvey Declaration ¶ 76, Exh. 60. These same allegations on the basis of race and national origin discrimination were to be processed under designation TD 011086. See id. ¶ 76. On July 19, 2002, TD 01-1068 and TD 01-1086 were dismissed because of the instant Complaint. See id. ¶ 78; 29 C.F.R. § 1614.107(a)(3).
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Mr. Gonzalez has filed no other administrative EEO complaint against the Secretary of Treasury, either individually or as a class agent on behalf of a purported class of Customs employees. See Harvey Declaration ¶ 79.
ARGUMENT All of the class claims should be dismissed on the basis of failure to exhaust administrative remedies, failure to state an actionable adverse employment action, or failure to establish a prima facie case of discrimination in the underlying individual claim that forms the basis of the class claim. To the extent the Complaint also alleges individual claims of discrimination for the eight named plaintiffs, each individual claim should be dismissed for failure to exhaust administrative remedies and/or for failure to state an actionable adverse action within the meaning of Title VII. I. STANDARD OF REVIEW Summary judgment is appropriate where "there is no genuine issue of material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is properly regarded "not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. See id. at 323. Once the initial burden of the moving party is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In order to meet this burden, the non-moving party must go beyond the pleadings and show "by her own affidavits,
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or by the 'depositions, answers to interrogatories, or admissions on file'" that a genuine issue of material fact exists. Celotex Corp., 477 U.S. at 324 (quoting Fed. R. Civ P. 56(e)). The non-moving party must make a sufficient showing on all essential elements of the case with respect to which the non-moving party has the burden of proof. See id. at 323. In other words, a party must do more than create "some metaphysical doubt as to the material facts." Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). II. THE CLASS CLAIMS SHOULD BE DISMISSED IN THEIR ENTIRETY BASED
ON FAILURE TO TIMELY EXHAUST ADMINISTRATIVE CLASS REMEDIES, FAILURE TO ASSERT ADVERSE EMPLOYMENT ACTIONS, AND/OR FAILURE TO ESTABLISH A PRIMA FACIE CASE OF DISCRIMINATION FOR THE UNDERLYING CLAIM Title VII permits federal employees to bring causes of action against the federal government and its agencies for employment discrimination "based on race, color, religion, sex, or national origin." See 42 U.S.C. § 2000e-16(a). This waiver of sovereign immunity, however, is limited, and attached to the right to bring suit "are certain preconditions," including "rigorous administrative exhaustion requirements and time limitations." Brown v. General Servs. Admin., 425 U.S. 820, 832-33 (1976). "In order to bring a cause of action in federal court under Title VII, a plaintiff must first exhaust his administrative remedies." Kidane v. Northwest Airlines, Inc., 41 F. Supp. 2d 12, 15 (D.D.C. 1999). "The principal exhaustion requirement is that the complainant must initially seek relief in the agency which has allegedly discriminated against him . . . and absent special circumstances, failure to exhaust calls for a dismissal of the action." Siegel v. Kreps, 654 F.2d 773, 776-77 (D.C. Cir. 1981); see also Albritton v. Kantor, 944 F. Supp. 966, 970 (D.D.C. 1996) ("Relief under Title VII depends upon the filing of a timely administrative charge."). In other words, "[a] timely administrative charge is a
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prerequisite to initiation of a Title VII action in the District Court," and "a complainant who is tardy [ ] in filing his discrimination charge with the EEO Commission . . . ordinarily will be denied a judicial audience.'" Kilpatrick v. Riley, 98 F. Supp. 2d 9, 13 (D.D.C. 2000) (quoting Shehadeh v. C & P Telephone Co., 595 F.2d 711, 717-18 (D.C. Cir. 1978)).
This exhaustion requirement applies to class actions as well, and "exhaustion of an individual Title VII claim is not sufficient to exhaust a class action." Belhomme v. Widnall, 127 F.3d 1215 (10th Cir. 1997), cert. denied, 523 U.S. 1100 (1998). Similarly, a class member who does not meet the administrative exhaustion requirements for pursuing a class action may not step into the shoes of someone who initiates a class action but who is not legitimately able to continue the class action. See Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1246 (7th Cir. 1994) ("[A] class member who does not meet the procedural prerequisites for waging a Title VII suit may not . . . take over as the sole class representative for someone who initiates but is not legitimately able to continue a class action"). In short, at least one class member must exhaust administrative remedies on behalf of the class, and if no class member has legitimately exhausted the remedies on behalf of the class, the class action in federal court must be dismissed. See Thomas v. Reno, 943 F. Supp. 41, 43 (D.D.C. 1996), aff'd, 159 F.3d 637 (D.C. Cir. 1997).
The administrative requirements (for purposes of this action) are twofold. First, the class representative must have filed an administrative complaint that contains the claims that are brought in federal court. See Mack v. Strauss, 134 F. Supp. 2d 103, 108-09 (D.D.C. 2001) ("[P]laintiff cannot bring claims in a lawsuit that were not included in his EEO charge."). Second, the class representative must have contacted an EEO counselor withing 45 days after the occurrence of the alleged
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discriminatory employment action. See 29 C.F.R. § 1614.204(b) ("An employee or applicant who wishes to file a class complaint must seek counseling in accordance with § 1614.105"); 29 C.F.R. § 1614.105 (a)(1) ("An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.").
In addition to exhausting administrative remedies, not all employment decisions are actionable under Title VII, but only actions that constitute "adverse action by the employer" are "legally cognizable." Brown v. Brody, 199 F.3d 446, 453 (D.C. Cir. 1999). As explained by the Supreme Court in Burlington Industries, Inc. v. Ellerth, "[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits," and "in most cases inflicts direct economic harm." 524 U.S. 742, 761-62 (1998).
Finally, for a plaintiff to bring a class claim of discrimination, the plaintiff must be able to prove that the defendant intentionally discriminated against the plaintiff himself by taking a challenged employment action. A plaintiff may prove intentional discrimination through direct evidence of discriminatory animus or, where only circumstantial evidence is available, through a three-part burdenshifting analysis established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas approach, an employee must first establish a prima facie case of discrimination by demonstrating: (1) that he is a member of a protected class; (2) that he was similarly situated to an employee who was not a member of the protected class; and (3) that he and the similarly
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situated person were treated disparately. See McDonnell Douglas, 411 U.S. at 802. If an employee successfully demonstrates a prima facie case, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. See id. Should the employer carry this burden, “the presumption raised by the prima facie case is rebutted and drops from the case.” Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1297 (5th Cir. 1994) (internal quotation marks omitted). The focus then shifts to the ultimate question of whether the defendant intentionally discriminated against the plaintiff, and the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the employer were not its true reasons, but were a mere pretext for discrimination. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 804.
“Although intermediate evidentiary burdens shift back and forth in this framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002) (citations and internal quotation marks omitted). Moreover, a “moving party is entitled to judgment as a matter of law against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. (citations and internal quotation marks omitted).
*** The Complaint in this action presents eight class action claims based on alleged national origin discrimination. Discrimination is alleged in connection with (1) competitive positions and promotions; (2) transfer and assignments; (3) undercover and undesirable work; (4) discipline; (5) awards and
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bonuses; (6) foreign language awards; (7) training; (8) hostile environment; and (9) retaliation.10 In evaluating whether the class allegations were exhausted at the administrative level, the only
relevant administrative complaint is Mr. Contreras' EEO class complaint. It is conceded that he is the only one of the eight plaintiffs who filed an administrative class complaint. See Complaint ¶ 3. Because the exhaustion requirement applies to class actions, at least one plaintiff is required to have exhausted the class claims at the administrative level. Exhaustion of an individual Title VII claim does not satisfy exhaustion for class action purposes. See Belhomme v. Widnall, 127 F.3d 1215 (10th Cir. 1997), cert. denied, 523 U.S. 1100 (1998) ("exhaustion of an individual Title VII claim is not sufficient to exhaust a class action").
Accordingly, a comparison of Mr. Contreras' class administrative complaint with the Complaint in this action, shows that the class claims of discrimination cannot survive this motion for summary judgment.
A. The Class Claim Alleging Discrimination in Promotions Should Be Dismissed For Failure to Exhaust Administrative Remedies and Because the Underlying Individual Claim Does Not State A Prima Facie Case of Discrimination
The Complaint alleges that Customs discriminated against Hispanic Special Agents on the basis of their national origin by not selecting them for competitive positions. See Complaint ¶¶ 13-18. Mr. Contreras alleges that he was not selected for a variety of promotions, but fails to identify any one particular position. See, e.g., id. ¶¶ 19-20 (“From 1993-1995, Special Agent Contreras applied for numerous GS-14 supervisory positions throughout the United States and for many foreign assignments.
10 The Complaint also alleges an emotional distress claim, but this is a request for damages instead of a separate claim. See Complaint ¶¶ 84-85.
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For each of these positions, Agent Contreras met the qualifications and yet was not selected.”).
At best, the only non-promotion claim that could form the basis for the class complaint would
be an allegation based on Mr. Contreras' January 1995 non-selection for GS-14 Supervisory Criminal
Investigator position in El Paso, Texas. This non-selection was raised in Mr. Contreras' administrative
class complaint.11
No other non-promotion claim could form the basis for the class Complaint. Although the
administrative class complaint did summarily allege that Mr. Contreras had been rejected 38 times over
the course of his employment for promotions or lateral transfers, it (like the instant Complaint) failed to
even identify any promotions that Mr. Contreras did not receive or state which non-promotions he
claimed were discriminatory. See Harvey Declaration ¶ 35, Exh.18.12 In any event, the other non-
selections to which Mr. Contreras vaguely refers could only form the basis of a class claim if he learned
of them within 45 days of January 9, 1995, the day he sought counseling on his class complaint. Mr.
11 Mr. Contreras also alleged in his administrative class complaint that he applied for a GS-14 position in Laredo, Texas, under the same vacancy announcement that listed the El Paso position. See Harvey Declaration Exh. 18, at 3. Mr. Contreras, however, did not allege discrimination in connection with his non-selection for the Laredo position in the administrative complaint. Rather, he only alleged that “[o]n or about January 6, 1995, [he] learned that a similarly situated non-minority special agent had been selected for the El Paso, Texas position.” Id. In the absence of any allegation of discrimination regarding the Laredo non-selection in the administrative class complaint, Mr. Contreras did not properly exhaust a class promotion claim based on the Laredo position. Nevertheless, even if Mr. Contreras had properly exhausted a Laredo claim, that claim could not survive summary judgment for the same reasons that the El Paso claim cannot survive. See n.13, infra.
12Mr. Contreras' administrative class complaint provides, "Mr. Contreras has been employed by USCS since May 18, 1988. . . . During his employment with USCS, Mr. Contreras has submitted over thirty-eight (38) applications for promotions to GS-1811-13 and 14 Supervisory Criminal Investigator positions and/or lateral transfers at USCS and was rejected each time." Harvey Declaration, Exh. 18, at 3.
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Contreras does not allege anything of the sort, nor could he. When Mr. Contreras received EEO counseling prior to his filing of the administrative class complaint (in February 1995), he did not identify any recent non-promotion other than the Supervisory Criminal Investigator positions in Texas. See id. ¶ 34, Exh. 17, at 1 ("The complainant stated that when he was a GS/12 he applied for a GS/13 position thirty-five (35) times between 1988 and 1992 before he was selected to a GS/13 position."). In other words, he failed to seek or obtain counseling within the requisite 45 days after learning about the nonpromotions except with respect to the El Paso position. Accordingly, in the absence of having identified in the administrative class complaint which of the 38 positions he believed he suffered discrimination in connection with, and in the absence of timely raising these non-promotions with the EEO counselor, see 29 C.F.R. § 1614.204(b), Mr. Contreras failed to exhaust them for purposes of the instant Complaint.
Turning to the El Paso non-selection claim, it cannot form the basis of the class failure to promote claim because Mr. Contreras cannot establish a prima facie case of intentional discrimination regarding his non-selection for that position. Therefore, that claim, which is the only claim that appears to have been exhausted in the class complaint, cannot survive summary judgment.
Mr. Contreras cannot establish a prima facie case of discrimination because he cannot demonstrate, under McDonnell Douglas, that he and a similarly situated person, who was not a member of his protected class, were treated disparately. See 411 U.S. at 802. He cannot so demonstrate because based on the low score his application received from an independent rating panel, the selecting official could not even consider his application along with the best qualified applicants.
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criteria: (1) the ability to direct the operational activities of an office or program; (2) the ability to supervise others; (3) the ability to identify problems and develop innovative programs/systems to meet changing needs; (4) knowledge of federal law and procedure; (5) the ability to communicate and interact effectively with other elements and agencies; and (6) the ability to implement Equal Employment Opportunity Program initiatives. See Jacqueline Small Declaration ("Small Declaration") ¶ 8.
Fifty-two applicants applied under the El Paso announcement. See id. ¶ 6. Because more than 10 applicants applied, an independent panel of subject matter experts was established to review the applications. See id. ¶ 9. Each applicant was rated by the panel on each of the six qualification categories in order to establish a selection register of the best qualified applicants. See id. ¶¶ 10-12. The panel operated independently from the selecting official. See id. ¶ 9. The highest total score that an applicant could receive, after all six category scores were added up, was a 30.0. See id. at ¶ 14. Applicants for the El Paso position who scored under 22.5 did not make the selection register, or “best qualified list” ("BQL"). See id. ¶¶ 15-16. The selecting official was not authorized to select an applicant that applied competitively but did not make the BQL See id. ¶ 17.
Mr. Contreras received a total score of 3.0 out of 30.0, and as a result did not make the BQL See id. ¶ 18. The eight applicants who did make the El Paso BQL received scores of 22.5 or above (with the highest score at 28.5). See id. ¶ 16. Thus, Mr. Contreras was not even in the same class of applicants as the person who was selected for the position. His score of 3.0 was significantly lower, and because of his failure to make the BQL, the selecting official did not have the option to select Mr. Contreras for the El Paso position. See id. ¶¶ 17-18. Based on these undisputed facts, Mr. Contreras was not “similarly situated in all respects” to the employee who was selected Mitchell v. Toledo
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Hospital, 964 F.2d 577, 583 (6th Cir. 1992). Therefore, under McDonnell Douglas, he cannot state a prima facie claim of intentional discrimination based on circumstantial evidence. Furthermore, he does not allege any direct evidence of intentional discrimination and does not purport to establish a claim on that basis.
Even if Mr. Contreras were somehow able to state a prima facie case of discrimination, his low score of 3.0, and resulting failure to qualify for the BQL, establishes a legitimate, nondiscriminatory reason for the non-selection, and his claim cannot survive summary judgment solely on that basis as well. Accordingly, his non-promotion claim regarding the El Paso position should be dismissed.13
B. The Class Claims Based on Transfers and Assignments Should be Dismissed for Failure to Exhaust Administrative Remedies and Because Transfers and Assignments are Not Actionable Employment Decisions Under Title VII
Next, the Complaint alleges discrimination against Hispanics in connection with transfers, assignments and the denial of other career-enhancing opportunities. See Complaint ¶ 27. Again, analyzing only Mr. Contreras' allegations for purposes of the class claims because he was the only plaintiff to have filed an administrative class complaint, this claim should be dismissed on the basis of failure to exhaust administrative remedies and for failure to state an actionable claim.
13 As stated in footnote 11, supra, Mr. Contreras also applied, under the same vacancy announcement that listed the El Paso position, for a similar position in Laredo, Texas. He did not, however, properly exhaust this claim. See n.11, supra. Nevertheless, even if he had exhausted the Laredo claim, it could not survive summary judgment for the same reasons stated for the El Paso position. Mr. Contreras’score for the Laredo position was also a 3.0, whereas the three candidates who made the BQL for that position scored from 22.5 to 28.5. See Small Declaration ¶ 16. Mr. Contreras thus did not make the BQL See id. ¶ 18. Therefore, as with the El Paso position, Mr. Contreras cannot establish a prima facie case of intentional discrimination on those facts. Furthermore, his failure to qualify for the BQL establishes a legitimate, nondiscriminatory reason for the non-selection.
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The only lateral transfer mentioned in the Complaint is a 1993 application for a lateral foreign assignment to Hermosillo, Mexico as a Customs Representative. See Complaint ¶ 28. Mr. Contreras may have intended to include this transfer in his administrative 1995 EEO class complaint by mentioning an October 1993 Customs Representative position, see Harvey Declaration ¶ 35, but he failed to seek counseling on this transfer (or any other transfer) anytime in 1993 or in 1994 as required under the 45day rule prescribed by 29 C.F.R. § 1614.204(b) and 29 C.F.R. § 1614.105(a)(1). See id. ¶¶ 33-34 (counseling sought January 9, 1995); see also id. ¶ 27 (August 25, 1994 counseling sought re performance rating and training); id. ¶ 29 (counseling sought October 31, 1994 re suspension). Absent exhaustion of the class claim concerning lateral transfers before raising it in this Court, it should be dismissed.
Furthermore, lateral transfers generally do not constitute adverse employment actions under Title VII. See Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999) ("[A] plaintiff who is made to undertake or who is denied a lateral transfer – that is, one in which she suffers no diminution in pay or benefits – does not suffer an actionable injury unless there are some other materially adverse consequences . . . . Mere idiosyncracies of personal preference are not sufficient to state an injury."); Mungin v. Katten, Muchin & Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997) ( "[C]ircuits have held that changes in assignments or work-related duties do not ordinarily constitute adverse employment decisions if unaccompanied by decrease in salary or work hour changes"). Lateral moves for special agents in the 1811 series "are not promotion opportunities and do not change the employee's grade, base salary or benefits." Seraphin Declaration ¶ 21. Accordingly, without any showing – or even any allegation – of change in pay or benefits, the class claim based on transfers and reassignments is not
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actionable under Title VII and should be dismissed. C. The Class Claim Based on Assignments to Undercover and Other Undesirable Assignments Should Be Dismissed Because It Was Not Exhausted at the EEO Level and Also Does Not Amount to An Actionable Claim The Complaint next contains allegations that the Customs Service uses a discriminatory method
of assigning Hispanic agents to undercover assignments and other "undesirable" assignments. See Complaint ¶ 34. Mr. Contreras specifically alleges that he was assigned to a substantial amount of undercover work throughout his career. See id. ¶ 35. This class claim should fail for three reasons. First, the administrative class complaint does not mention discrimination in connection with undercover work. See Harvey Declaration ¶ 35, Exh. 18. Second, Mr. Contreras never sought EEO counseling regarding such "undesirable" undercover work. See Harvey Declaration ¶ 35, Exh. 17.
Third, assignments to perform undercover work do not constitute adverse employment actions within the meaning of Title VII. There is nothing coercive or adverse about receiving an undercover assignment at Customs. Participation in undercover operations "is always on a volunteer basis," and participation in the undercover training program is "one of the few strictly volunteer assignments at Customs." Kilcoyne Declaration ¶¶ 7-8. "Undercover operatives may opt out of an ongoing undercover investigation . . . at any time, to ensure the safety of the undercover agents." Id. ¶ 13. Accordingly, the allegations about discriminatory animus with respect to undercover work are unfounded.
Furthermore, instead of undercover operations being "devalued" as described in the Complaint, see Complaint ¶ 34, agents perceive undercover assignments as "enhanc[ing] their promotion potential," and participation in the undercover program “has been career enhancing for many special agents.”
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Kilcoyne Declaration ¶ 16. "[I]t is an honor to be recommended for participation." Id. ¶ 8. In fact, Mr. Contreras himself has taken the position that undercover assignments are desirable. In his July 11, 2000 individual administrative Complaint, he alleged retaliatory harassment for having been denied participation in a June 2000 undercover assignment. See Harvey Declaration ¶ 57, Exh. 40. Accordingly, because undercover assignments are voluntary and desirable, instead of adverse, the class claim based on undesirable undercover assignments is not legally cognizable and should be dismissed. See Brown v. Brody, 199 F.3d 446, 453 (D.C. Cir. 1999) (not all employment decisions are actionable under Title VII, but only actions that constitute "adverse action by the employer" are "legally cognizable").
D. The Class Discipline Claim Can Not Survive Summary Judgment Because It Was Not Administratively Exhausted, and Because the Underlying Allegations Do Not Amount to Actionable Claims under Title VII
The Complaint next alleges that "Hispanic Special Agents are disciplined more frequently and more harshly than similarly situated white Special Agents." Complaint ¶ 44. Mr. Contreras alleges several instances in which he claims he was unfairly disciplined: in 1992, he received a written reprimand for a security violation; in July 1998, he was investigated for theft; in October 1999, he received a letter of removal for divulging confidential information; in 2000, he was investigated about his contacts with his cousin’s spouse, an alleged drug smuggler; and in 2002, he received a letter of caution. See Complaint ¶¶ 45-49. These allegations cannot survive summary judgment for a variety of reasons.
First, there was no mention of any incidents of discriminatory discipline in the administrative class complaint or in the counseling report that preceded the complaint. See Harvey Declaration ¶¶
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34-35, Exh. 17-18. This failure to exhaust is enough in itself to require dismissal of all class disciplinary allegations.
But even if Mr. Contreras had exhausted the disciplinary claims in the administrative process, the claims would still not be actionable. Mr. Contreras resolved the October 1999 removal issue through a settlement agreement in October 2000. See Harvey Declaration ¶ 50. Claims that have been settled cannot form the basis of a federal action complaint. See Thomas v. Reno, 943 F. Supp. 41, 42-43 (D.D.C. 1996), aff'd, 159 F.3d 637 (D.C. Cir. 1997) ("Therefore, according to the terms and conditions of the Settlement Agreement, Ms. George was obligated to withdraw and dismiss her putative class action in December 1995 . . . [To uphold the argument that] Ms. George's individual settlement did not and could not settle the class EEO discrimination complaint would turn the class action process into a tag team form of litigation.").
Moreover, the remainder of the so-called disciplinary actions (i.e., reprimands and investigations) did not lead to any "material change in his title, duty, salary, benefits, or working hours, nor does he so allege." Walker v. Washington Metropolitan Area Transit Authority, 102 F. Supp. 2d 24, 29 (D.D.C. 2000). Investigations that do not lead to any form of discipline are not actionable. See Moore v. Summers, 113 F. Supp. 2d 5, 23 (D.D.C. 2000) ("[N]o disciplinary action has been taken against Special Agent Moore as a result of the investigation. Consequently, there was no adverse action."), citing Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir. 1996) (holding that charges of wrongdoing in workplace alone cannot serve as adverse actions because "if the charges were ultimately dismissed, [the plaintiff] would not have suffered any adverse effect from them"). Nor are reprimands, particularly those not affecting grade or salary, actionable. See Brown v. Brody, 199 F.3d at 458
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(affirming that a formal criticism and a performance evaluation were not adverse); Walker,102 F. Supp. 2d at 29 (issuance of a Notice of Caution and Reinstruction did not constitute an adverse employment action). The investigations and reprimand that Mr. Contreras mentions in his Complaint did constitute disciplinary action, nor did they affect his pay or his benefits. See Mari Yonkers Declaration ("Yonkers Declaration") ¶¶ 4-13. For these reasons, the disciplinary portion of the class action Complaint should be dismissed.
E. The Class Claim Based on Awards and Bonuses Should be Dismissed for Failure to Exhaust
The Complaint next alleges a class claim that Customs' method of distributing awards and bonuses is "excessively subjective" and adversely impacts Hispanic agents. See Complaint ¶ 50. This allegation should be immediately dismissed because Mr. Contreras did not allege any harm in connection with awards and bonuses in his administrative class complaint or to an EEO counselor in connection with the class administrative complaint. See Harvey Declaration ¶¶ 34-35, Exh. 17-18. Moreover, Mr. Contreras, the only plaintiff who filed a class administrative complaint, does not allege any harm in connection with awards and bonuses in the Instant Complaint. Therefore, the class claim should be dismissed.
F. The Class Claim Based on Foreign Language Awards Should Be Dismissed for Failure to Exhaust
The Complaint also alleges class-wide discrimination based on Customs' distribution of foreign language awards. See Complaint ¶¶ 53-58. This claim should be dismissed as a class claim because the Complaint contains no allegations pertaining to Mr. Contreras, and similarly, Mr. Contreras' administrative class complaint makes no specific allegations about discrimination based on national
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origin in connection with the distribution of foreign language awards. See Harvey Declaration ¶ 35, Exh. 18. Accordingly, the class foreign language discrimination claim has not been exhausted and should be dismissed.
G. The Class Training Claim Cannot Survive Summary Judgment Because it Was Not Exhausted at the Administrative Level and Because It Does Not Constitute An Actionable Title VII Claim
The seventh class allegation states that Customs discriminates against Hispanic Special Agents with regard to training opportunities. See Complaint ¶ 63. Mr. Contreras alleges that he requested to attend the Customs National Hispanic Agents Association annual training meeting, but was ultimately denied each year from 1995-2000. See Complaint ¶ 64. Mr. Contreras, however, did not bring an administrative class complaint based on these denials. See Harvey Declaration ¶ 35, Exh. 18. The only training Mr. Contreras specifically complained about at the administrative level had nothing to do with the Hispanic Agents Association. See id., Exh. 18. Rather, he based his administrative class claim on the denial of a request to be sent to a financial forfeiture session in February 1995. See Harvey Declaration ¶¶ 34-35, Exh. 17-18. In the absence of Mr. Contreras exhausting his administrative class remedies regarding the Customs National Hispanic Agents Association annual training meetings, he should be denied judicial review of these claims.
In addition, the denials of attendance at the annual training meetings do not amount to adverse employment actions because the meetings were not "materially related to [Mr. Contreras'] job responsibilities or possibilities for advancement." Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1436 n.11 (11th Cir. 1998), cited with approval in Freedman v. MCI Telecomm. Corp.. 255 F.3d 840, 845 (D.C. Cir. 2001); see also Burlington Indust. v. Ellerth, 524 U.S. 742, 762 (1998) (in the
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absence of direct economic harm or some other materially adverse consequence, a claim is not actionable under Title VII); Brown, 199 F.3d at 456 (a plaintiff "does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of her employment").
Here, attendance the Customs National Hispanic Agents Association meetings would not have affected Mr. Contreras' "salary" or his benefits. See Richard J. Hoglund Declaration (“Hoglund Declaration”) ¶ 10 ("[A]ttendance at such an event will not affect an employee's salary or benefits."). In other words, his absence from the Hispanic Agents Association meetings had no direct economic harm on Mr. Contreras, nor did it cause any material consequences with respect to his employment conditions. See id. ¶¶ 10-11 ("I have not viewed the attendance or non-attendance [at such professional conferences] as a critical factor in evaluating any employee’s application for promotion. To my knowledge, the training which may be provided by such organizations is not sponsored, regulated or certified by Customs, nor is it accredited by any other educational institution, and as such, its benefit is difficult to measure.").
Furthermore, Mr. Contreras has attended more than 30 training courses since 1988, all of which Customs paid for. See Lee Heffelfinger Declaration ¶ 4, Exh. 1. In fact, he attended one 12day training in 1995, four trainings in 1996 (one of which was a 12-day training), five trainings in 1998 (one of which was a 10-day training), and four trainings in 1999, see id., even though the general policy is "that an employee can only attend one professional association conference per year, at government expense." Hoglund Declaration ¶ 9. Therefore, Mr. Contreras' own substantial training record shows that he was not discriminated against in connection with job training opportunities. See Chica v.
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Planning Research Corp., 179 F. Supp. 2d 575, 585 (D. Md. 2002) ("Against this backdrop of training opportunities provided by PRC, Chica has failed to establish how the denial of two training requests altered the terms and conditions of his employment"). Accordingly, the denial of attendance at Customs National Hispanic Agents Association annual training meetings cannot be viewed as an adverse action, and this class claim should be dismissed on summary judgment.
H. The Hostile Work Environment Class Claim Should Be Dismissed For Failure to Exhaust
The Complaint alleges that "Hispanic Special Agents are exposed to a severe and pervasive atmosphere of harassment and intimidation." Complaint ¶ 67. There is no allegation in the Complaint concerning Mr. Contreras personally that makes out a hostile work environment claim. Likewise, Mr. Contreras did not raise a hostile work environment claim in the administrative class complaint, nor did he seek EEO counseling prior to filing that administrative complaint about hostile work environment claims. See Harvey Declaration ¶¶ 34-35, Exh. 17-18.14 Accordingly, this class allegation should be dismissed for failure to exhaust.
I. The Retaliation Class Claim Should Be Dismissed for Failure to Exhaust The Complaint finally asserts that the Hispanic Special Agents "have suffered systemic reprisals and retaliation for asserting protected rights under Title VII." Complaint ¶ 78. The Complaint sets forth only one allegation of retaliation concerning Mr. Contreras. Specifically, it alleges that shortly after Mr. Contreras provided deposition testimony regarding class-wide discrimination in the administrative
14 Nor did Mr. Contreras allege hostile work environment in any of his individual administrative complaints. See Harvey Declaration, ¶¶ 28, 30, 42, 44, 46, 48, 54, 57, 60, 63.
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class action suit (in April 2002), he was put under investigation. Mr. Contreras did not initially allege retaliation as part of the class action administrative suit, nor did he timely raise an alleged class-wide retaliation issue with an EEO counselor or even in the administrative suit. See Harvey Declaration ¶¶ 34-35, Exh. 17-18. Furthermore, in January 2002, Administrative Judge Joel Kravetz expressly denied Mr. Contreras’ request to add a retaliation claim to his administrative class complaint. See id. ¶ 39. Therefore, this claim was not administratively exhausted and should be dismissed.
*** In sum, Mr. Contreras is the only one of the eight named plaintiffs to have filed an administrative class complaint, and thus, his class administrative complaint is the sole complaint that should be examined in analyzing exhaustion of the class action. However, a review of Mr. Contreras' administrative class complaint, along with the EEO counselor reports that accompany that complaint, show that Mr. Contreras did not exhaust the administrative remedies for most of the class claims. In addition, several of the class claims do not constitute adverse employment actions under Title VII. Finally, with respect to the class promotion claim, Mr. Contreras cannot establish a prima facie case of discrimination based on the El Paso non-selection, the only claim brought in the Instant Complaint that appears to have been properly exhausted in the administrative class complaint. Accordingly, this Court should rule that all of the class claims of discrimination should be dismissed on this motion for summary judgment. III. THE INDIVIDUAL CLAIMS OF DISCRIMINATION SHOULD BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND/OR TO ALLEGE ACTIONABLE ADVERSE EMPLOYMENT ACTIONS It appears that in addition to alleging class claims of discrimination, the Complaint also alleges
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individual claims of discrimination. As with class claims, individual claims of discrimination must be exhausted at the administrative level to be actionable in federal court. See supra, at 22-24. Furthermore, for individual claims to survive summary judgment, the alleged discriminatory acts must constitute actionable adverse employment actions within the meaning of Title VII. Not one of the individually named plaintiffs has alleged a Title VII claim that can survive summary judgment when tested against these requirements. Accordingly, this Court should dismiss all of the individual claims of discrimination.
A. Miguel Contreras Mr. Contreras has not presented any actionable individual claims of discrimination, and, therefore, any and all of his individual claims should be dismissed on summary judgment.
1. Promotions With respect to Mr. Contreras' claims that he was discriminated against based on national origin when he applied for promotions, he has not identified any specific promotion that he was denied. See Complaint ¶¶ 19-20. Instead, the Complaint states, for example, that "From 1996 until the present, he has applied for over 40 GS-15 positions. . . . In most cases, white Special Agents with similar or less experience or qualifications were selected." Complaint ¶ 20. Accordingly, Mr. Contreras has not alleged any specific individual claim of discrimination. Moreover, to the extent he intended to allege an individual claim with respect to the El Paso non-selection in January 1995, as discussed, supra, at 28-30, this claim cannot survive summary judgment because it does not establish a prima facie case of discrimination. Thus, the Court should dismiss Mr. Contreras' individual discrimination promotions claim to the extent he has asserted such a claim.
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2. Transfers, Assignments and Career-Enhancing Opportunities The only individual claim of discrimination relating to transfers, assignments and career enhancing opportunities that Mr. Contreras alleged in the complaint was with respect to his nonselection to a 1993 GS-13 foreign assignment to Hermosillo, Mexico as the Customs Representative. See Complaint ¶ 28. Not one of Mr. Contreras' individual administrative complaints, however, mentions a 1993 GS-13 Customs Representative position in Hermosillo, Mexico. See Harvey Declaration ¶¶ 27-64. Moreover, as explained supra, at 31, this denied transfer does not constitute an adverse employment action. Accordingly, this claim should be dismissed for failure to exhaust administrative remedies and for failure to allege an actionable claim.
3. Assignments to Undercover and Undercover work As an initial matter, and as explained supra, at 32-33, the Complaint's allegations about discrimination in connection with assignments to undercover work is unfounded. There is nothing coercive or adverse about receiving an undercover assignment while working for Customs. With respect to Mr. Contreras, not one of his individual administrative complaints mentions an instance in which he was placed in an undercover operation, let alone because of any discriminatory animus. See Harvey Declaration ¶¶ 27-64.15 Moreover, the complaint in this action sets forth no specific instance or time frame of such an assignment. Accordingly, there being nothing adverse or coercive about an undercover assignment, and
15 In fact, the only mention of the word undercover in Mr. Contreras' administrative complaints is in relation to a claim that he was denied participation in an undercover operation in 2002, not that he was coerced or placed in an undercover operation, as is alleged in the federal complaint. See Harvey Declaration ¶ 57, Exh. 43.
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because Mr. Contreras failed to raise any claims about undercover assignments in the administrative proceedings, his individual claim of discrimination regarding undercover assignments should be dismissed.
4. Discipline Mr. Contreras alleges discriminatory discipline in five instances, see Complaint ¶¶ 45-49, but each claim of discipline should be readily dismissed. First, the 1992 reprimand, as explained supra, at 33-35, did not constitute official disciplinary action. Therefore, it cannot by definition qualify as an adverse employment action within the meaning of Title VII. Moreover, because Mr. Contreras never sought EEO counseling or filed an individual administrative complaint about the reprimand, this claim should also be dismissed on exhaustion grounds. See Harvey Declaration ¶¶ 27-64. Next, in paragraphs 46, 48, and 49 of the Complaint, Mr. Contreras alleges discrimination with respect to two investigations and a "letter of caution.” However, these claims are not actionable under Title VII because the investigations and letter of caution did not constitute official disciplinary action. See supra, at 33-35; Yonkers Declaration ¶¶ 5-13. Mere investigations and warnings that do not involve any economic harm or material job consequences are not actionable under Title VII. See id.16 Finally, with respect to the discrimination allegations concerning a 1999 letter of removal and a proposed 20-day suspension, Mr. Contreras himself admits that he reached a settlement agreement
16 Mr. Contreras also never filed an administrative complaint about the alleged investigation into his contacts with his cousin’s spouse, a supposed drug smuggler. See Complaint ¶ 48; Harvey Declaration ¶¶ 27-64.
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concerning these actions. See Complaint ¶ 47; see also Harvey Declaration ¶ 50. Therefore, his individual claims pertaining to the letter of removal and suspension should be dismissed. See Thomas v. Reno, 943 F. Supp. 41, 42-43 (D.D.C. 1996), aff'd, 159 F.3d 637 (D.C. Cir. 1997).
5. Awards, Bonuses, Foreign Language Awards and Hostile Environment In the Complaint, Mr. Contreras has raised no specific claims of discrimination based on awards and bonuses foreign language proficiency awards, or harassment and hostile environment. See Complaint ¶¶ 50-62, 68-74.
6. Training In the Complaint, Mr. Contreras complains that despite his requests, he was not permitted to attend the Customs National Hispanic Agents Association annual training meetings in years 1995-2000. See Complaint ¶ 64. Mr. Contreras only brought an administrative complaint with respect to the year 2000 annual training conference. See Harvey Declaration ¶57. Mr. Contreras, however, failed to seek timely EEO counseling on this issue prior to filing the administrative complaint. See Harvey Declaration ¶ 56, Exh. 39-41. Thus, Mr. Contreras' individual training claim should be dismissed for failure to exhaust administrative remedies. In any event, as explained above, the denial of attending a training conference does not constitute an adverse employment decision in the absence of direct economic harm, see Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 762 (1998), or some other "materially adverse consequence[ ]." Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). Mr. Contreras suffered no decrease in salary, diminution in benefits, or any other materially adverse consequence for not having attended these meetings. See Hoglund Declaration ¶ 9-11; see also Heffelfinger Declaration ¶ 4, Exh. 1 (indicating
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that Mr. Contreras has attended over 30 training sessions since 1988). Accordingly, the allegations of discrimination based on the denial of trainings should be dismissed.
7. Retaliation Mr. Contreras alleges only one individual claim of retaliation in the Complaint. That claim alleges that, on April 19, 2002, after giving deposition testimony regarding classwide discrimination, Mr. Contreras was told that he was the subject of an Internal Affairs investigation regarding his misuse of a government vehicle and for giving false statements to a supervisor. See Complaint ¶ 78. Mr. Contreras did not raise this retaliation allegation at the administrative level as he is required to do. See Harvey Declaration ¶¶ 37-64. Accordingly, this individual claim of retaliation should promptly be dismissed. B. John Yera Plaintiff John Yera has alleged individual claims of discrimination based on transfers, undercover work, foreign language awards, and hostile environment. See Complaint ¶¶ 33, 37-39, 60, 72-73. Each of these claims, however, must be dismissed because Mr. Yera has never filed an administrative complaint against the Secretary of Treasury. See Harvey Declaration ¶ 19. Absent pursuit of his administrative remedies, his federal claims should be dismissed. See, e.g., Kidane v. Northwest Airlines, Inc., 41 F. Supp. 2d 12, 15 (D.D.C. 1999) ("[P]laintiff's Title VII retaliation claim is barred for failure to exhaust administrative remedies."). C. William Velasco Plaintiff William Velsco has alleged individual claims of discrimination based on national origin for non-promotions, transfers, awards and bonuses, foreign language awards, and training. See
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Complaint ¶¶ 22-23, 30, 52, 59, 67. Each of these claims must fail because the one administrative complaint that Mr. Velasco filed, asserting discrimination with respect to non-prom, was settled on April 11, 1997. See Harvey Declaration ¶¶ 16-18, Exh. 7; See Thomas v. Reno, 943 F. Supp. 41, 43 (D.D.C. 1996), aff'd, 159 F.3d 637 (D.C. Cir. 1997).
D. Frank Almonte Plaintiff Frank Almonte has brought individual claims of discrimination based on non-selections to competitive positions, assignments to undercover work, foreign language proficiency awards, and a hostile work environment. See Complaint ¶¶ 24, 41, 62, 71. Each claim of discrimination based on national origin should be dismissed because he failed to exhaust his administrative remedies. With respect to non-promotions, Mr. Almonte makes one specific claim of discrimination – that he was not promoted to a "GS-13 position in the SAIC/ New York office." Complaint ¶ 24. Mr. Almonte, however, withdrew his administrative complaint on this issue on January 24, 2001, after receiving a promotion on January 14, 2001 to a GS-13 Criminal Investigator. See Harvey Declaration ¶ 13, Exh. 3-4; Zaner Declaration ¶ 91. Because Mr. Almonte withdrew his administrative complaint, he failed to exhaust and therefore is prohibited from pursing this claim in federal court. See Thomas, 843 F. Supp. at 43. Mr. Almonte filed no other administrative complaints against the Secretary of Treasury, and therefore, his other claims of discrimination must be dismissed for failure to exhaust administrative remedies. See Harvey Declaration ¶ 14; Kidane, 41 F. Supp. 2d at 15.17
17 Mr. Almonte's claim regarding undercover assignments should be dismissed for the additional reason that an assignment to perform undercover work is not an adverse personnel action actionable under Title VII. See discussion, supra, at 32-33. Moreover, Mr. Almonte's allegations that vulgar language was used in the work place on two occasions hardly qualifies as severe and pervasive
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E. Stephen Mercado-Cruz Plaintiff Stephen Mercado-Cruz has filed claims of national origin discrimination based on undercover work, foreign language awards, and a hostile environment. See Complaint ¶¶ 40, 61, 6970. Each of these claims should be dismissed for failure to exhaust administrative remedies. Mr. Mercado-Cruz filed a total of three administrative complaints against the Secretary of Treasury. The first two complaints resulted in findings of no discrimination on December 10, 1991, and February 3, 1993, respectively, and Mr. Mercado-Cruz has pursued no further activity on those complaints. See Harvey Declaration ¶¶ 20-21. Those complaints are therefore time-barred. See 29 C.F.R. § 1614.407(a). In any event, they did not address the issues raised in the instant Complaint. See id. In his third individual administrative Complaint filed on January 18, 2000, Mr. Mercado-Cruz alleged discrimination and retaliation in connection with his non-selection to a group supervisor promotion on November 9, 1999. See Harvey Declaration ¶ 23. This administrative complaint, however, did not raise, mention, or discuss the grounds on which Mr. Mercado-Cruz bases his claims in this suit regarding undercover work, foreign language awards, or hostile environment.18 Accordingly,
harassment that would constitute a hostile environment Title VII claim. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998) (Title VII is not a "general civility code for the American workplace"); Freedman v. MCI Telecomm. Corp.. 255 F.3d 840 (D.C. Cir. 2001) ("[A] single stray comment does not a hostile environment make.") (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001)); Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995) (Title VII does not "purge the workplace of vulgarity"); Estes v. Georgetown Univ., 231 F. Supp. 2d 279 (dismissal "is appropriate where there is evidence of only isolated comments, teasing, or offhand comments."); Kidane v. Northwest Airlines, Inc., 41 F. Supp. 2d 12, 16 (D.D.C. 1999) ("[I]solated remarks are not sufficient to state a claim of hostile work environment under Title VII.") .
18 Furthermore, the undercover work claim is not actionable because it fails to allege the type of adverse employment action required under Title VII. See, supra, at 32-33.
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the claims in this action should be dismissed for failure to exhaust administrative remedies. F. Ramon Martinez Ramon Martinez alleges national origin discrimination based on non-selections to competitive
positions and a hostile work environment. See Complaint ¶¶ 25-26, 74. These claims should be dismissed for three reasons. First, the Complaint does not even specify what competitive positions Mr. Martinez claims he failed to receive. Instead it merely alleges, inter alia, "[s]ince 1997, Special Agent Martinez has applied for numerous GS-14 positions and made the best qualified on several lists, yet has not been selected." Complaint ¶ 16. This vague allegation fails to state a claim because it does not set forth a basis upon which it reasonably could be determined whether he fulfilled the statutory and regulatory prerequisites to sue with respect to promotions.
Second, the hostile environment claim states that his supervisor referred to him as an "Excitable Mexican" and that another supervisor called him an "inferior Investigator." For the reasons discussed, supra, n.17, stray, isolated comments such as these do not, as a matter of law, constitute a hostile work environment claim.
Third – and fatal to all of his claims – Mr. Martinez failed to exhaust his administrative remedies. In 1994 and 1995, Mr. Martinez filed his first two individual administrative complaints, but neither one mentioned any promotion or hostile work environment claim. See Harvey Declaration ¶¶ 65-67. Furthermore, on February 24, 1998, Mr. Martinez entered into a settlement agreement with Customs, terminating those two administrative complaints. See Harvey Declaration ¶ 67. Mr. Martinez's third individual administrative complaint was based on a suspension, and it too did not mention any promotions or hostile work environment. See Harvey Declaration ¶ 68. In any event, the
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third complaint was dismissed as moot on February 15, 1995. See Harvey Declaration ¶ 68, Exh. 49. Thus, any claims arising from it would be time-barred under 29 C.F.R. § 1614.407(a). Therefore, Mr. Martinez's individual claims of discrimination should be dismissed.
G. Ricardo Sandoval Plaintiff Ricardo Sandoval alleges that he suffered discrimination based on his national origin because he has not been promoted to a GS-15 level. See Complaint ¶¶ 31-32.19 He also complains of retaliation. See id. ¶¶ 81-83. Both claims should be dismissed for failure to exhaust administrative remedies. With respect to the allegations about non-promotions, Mr. Sandoval alleges that in February 2002, despite a request that he be placed as "the acting SAIC of the El Centro, California Office of Investigations," Customs denied him this GS-15 position. See Complaint ¶ 31. Mr. Sandoval also alleges that in his current position, he supervises five GS-14 supervisors, and he therefore should be compensated as the GS-15 level. See id. ¶ 32. Although Mr. Sandoval filed several administrative complaints, the most recent filing occurred on March 26, 1998. A final decision on that complaint was rendered finding no evidence of discrimination based on age or retaliation. See Harvey Declaration ¶ 87. Mr. Sandoval has not filed any subsequent complaints, and, in particular, no administrative complaint that mentions or alludes to any recent events, i.e., events on or after February 2002. Accordingly, Mr. Sandoval's failure to promote claims should be dismissed.
19 Mr. Sandoval's non-promotion allegations are contained in the "Discrimination In Transfers, Assignments and Denial of Other Career-Enhancing Opportunities" section of the complaint. Despite the placement of the claim, Mr. Sandoval seems to be alleging denial of a promotion to GS-15.
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Similarly, Mr. Sandoval's retaliation claims should also be dismissed. The Complaint states that Mr. Sandoval already received a recovery from a California federal jury in 1998 based on this retaliation claim. See Complaint ¶ 83. Mr. Sandoval plainly cannot resurrect these retaliation claims that have already been fully adjudicated. Moreover, with respect to the allegations that Mr. Sandoval suffered retaliation when he was not selected to six GS-15 foreign attache positions, see Complaint ¶¶ 83, he fails to provide any dates for these non-selections, and, furthermore, none of his administrative complaints mentions these positions. See Harvey Declaration ¶¶ 80-88. Even if they did, the claims would be time-barred because the most recent administrative filing occurred in March 1998. See 29 C.F.R. § 1614.407(a). Based on the failure to file any administrative complaint about the denial of foreign attache positions, Mr. Sandoval's retaliation claims should be dismissed.
H. Ruben Gonzalez Plaintiff Ruben Gonzalez alleges individual claims of national origin discrimination in connection with promotions, lateral transfers, undercover assignments, and awards and bonuses. See Complaint ¶¶ 21, 29, 36, 51. He also alleges retaliation for engaging in protected EEO activity. See id. ¶ 79. Each of these claims should be dismissed for a variety of reasons, including failure to state a claim, failure to exhaust administrative remedies, and/or failure to allege an actionable Title VII employment action. Mr. Gonzalez's promotions claim does not cite a single job promotion he claims he failed to receive, but instead alleges that "[f]rom 1994 to 2001, Special Agent Gonzalez applied for over thirtyfour (34) GS-15 and Senior Executive Service ("SES") supervisory positions including positions as SAIC, ASAIC, Director, Foreign Area Director, and Customs Liaison . . . and yet he was never
-49-

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interviewed for any of them." Complaint ¶ 21. This vague allegation fails to state a claim because it does not set forth a basis upon which it reasonably could be determined whether he fulfilled the statutory and regulatory prerequisites to sue with respect to promotions.
Moreover, a review of Mr. Gonzalez's administrative complaints shows that only one of them mentions a promotion to a GS-15 position or to an SES position. See Harvey Declaration ¶ 73, Exh. 52. That administrative complaint, however, is defective because Mr. Gonzalez failed to seek EEO counseling within 45 days of October 8, 1999 – the date he learned of his non-promotion to the GS-15 Internal Affairs position. See 29 C.F.R. § 1614.105 ("An aggrieved person must initiate contact with a counselor within 45 days of the date of the matter alleged to be discriminatory"); Harvey Declaration ¶¶ 72-73; Batts Declaration ¶¶ 6, 17. Despite learning of the promotion on October 8, 1999, he waited until December 6, 1999 to seek counseling, which was past the 45-day deadline. See Harvey Declaration ¶¶ 72-73; Batts Declaration ¶ 6 (Mr. Gonzalez "first contacted an EEO counselor on December 6, 1999"), ¶ 11 ("I do not dispute having met with Mr. Gonzalez . . . [on or about November 1999]. However, I clearly recall informing him that I was not an EEO counselor, and that his discussions with me would not toll the time frame for filing an EEO complaint . . . . I reminded him that he would have to contact one of the agency’s EEO counselors within 45 days of the alleged discriminatory event."). In other words, besides the fact that the allegations pertaining to Mr. Gonzalez's failure to promote claim were so vague that they cannot possibly constitute a claim, Mr. Gonzalez did not seek timely EEO counseling for the promotion claims. Thus, his promotion claim at the EEO level was untimely and should be dismissed.
Mr. Gonzalez's next claim, alleging discrimination in connection with lateral transfers, should be -50-

Case 1:02-cv-00923-JR Document 22-2 Filed 03/20/2003 Page 56 of 60
dismissed for multiple reasons. First, like the promotions claim, he fails state what transfer(s) he believes to have been discriminatory. See Complaint ¶ 29 ("Special Agent Gonzalez attempted to secure a lateral transfer to other offices in the United States, but was denied. He was even denied other locations considered to be hardship areas such as the Texas-Mexico border and other areas on the southwest border.") Second, denial of a lateral transfer would not have resulted in a change in pay, or in diminution of benefits, so this lateral transfer claim is not actionable under Title VII. See Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999) ("[A] plaintiff who is made to undertake or who is denied a lateral transfer – that is, one in which she suffers no diminution in pay or benefits–does not suffer an actionable injury unless there are some other materially adverse consequences."); Seraphin Declaration ¶ 21 (stating that lateral moves for Special Agents in the 1811 series "do not change the employee's grade, base salary or benefits"). Finally, Mr. Gonzalez failed to file an administrative complaint alleging discrimination in connection with lateral transfers, and therefore, it should be dismissed on exhaustion grounds as well. See Harvey Declaration ¶¶ 70-79.
Next, Mr. Gonzalez's claims of discrimination in connection with assignments to undercover work should be dismissed because these claims concerning assignments were never raised in any administrative complaint. See Harvey Declaration ¶¶ 70-79, Exh. 50, 52, 60, 63. Furthermore, and as explained supra, at 32-33, there is nothing discriminatory or adverse about undercover work assignments, and, thus, they are not actionable under Title VII. See Brown, 199 F.3d at 453 (not all employment decisions are actionable under Title VII, but only actions that constitute "adverse action by the employer" are "legally cognizable"). Accordingly, the undercover claims should be dismissed.
Mr. Gonzalez also alleges that he was discriminated against on the basis of his national origin -51-

Case 1:02-cv-00923-JR Document 22-2 Filed 03/20/2003 Page 57 of 60
when he was not paid a cash award for his participation in "Operation Powerplay." See Complaint ¶ 51. Mr. Gonzalez raised this cash award issue in administrative complaint TD 01-1068, although it is not clear that he based that claim on national origin discrimination. Although he marked the box indicating that race and national origin were bases of his administrative complaint, the written description of his claims in that complaint appears only to allege retaliation for EEO activity in connection with the cash award issue. See Harvey Declaration Exh. 60, p. 1 ("I appreciate your consideration in conciliating my current complaint of retaliation. . . . It is my believe [sic] that the U.S. Customs Service is continuously retaliating against me for exercising my rights in utilizing the EEO process."); id., Exh. 60, p.3 ("In the complaint the retaliation resulted in that [sic] I was denied cash awards"). Likewise, when Mr. Gonzalez sought EEO counseling regarding the cash award, his letter stated that he “believe[d] this additional act illustrates the continual disparate, adverse and retaliatory treatment against [him] for exercising [his] prerogative to utilize the EEO process and [his] membership in the Hispanic Class Action Litigation." Id., Exh. 58, p. 3. Mr. Gonzalez does not, in the instant Complaint, allege a claim of retaliation based on the “Operation Powerplay” cash award.
In any event, Mr. Gonzalez’s individual claim of national origin discrimination based on that award cannot survive summary judgment because it does not establish a prima facie case of discrimination. Under McDonnell Douglas, to establish a prima facie case, Mr. Gonzalez must show that he and a similarly situated person who was not a member of his protected class were treated disparately. See 411 U.S. at 802. Moreover, Mr. Gonzalez must show that he and the comparable person are “similarly situated in all respects.” Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992). Mr. Gonzalez cannot make such a showing here.
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According to the manager who decided against giving Mr. Gonzalez an award for his
participation in “Operation Powerplay,” the participants who did receive the award “were either
instrumental in the development and implementation of Operation Powerplay, volunteered for
assignments including weekends and evenings, or ensured the timely and accurate communication and
coordination of all enforcement activity under the auspices of this operation.” Affidavit of Marcy
Foreman ¶ 5, attached as Exhibit 1 to the Supplemental Declaration of Mariam Harvey. Mr. Gonzalez
did not receive the award because he did not meet the criteria:
[T]here were a number of reasons that [Mr. Gonzalez] did not receive an award for his participation in Operation Powerplay. Firstly, there were limited monies to be awarded. Therefore, I established certain criteria when determining who should receive an award. Those criteria pertained to those employees who went above and beyond their assigned tasks. Specifically, those individuals who were instrumental in initiating and implementing the operation, and those individuals who volunteered to work evenings and weekends, received awards. To the best of my recollection, [Mr. Gonzalez] had the same opportunity as the other group members to volunteer to lead, initiate, and implement this operation. [He] chose not to. In addition, to the best of my recollection, [Mr. Gonzalez], unless assigned, did not volunteer for any evening or weekend shifts. [He] only did what was tasked, nothing above or beyond those duties.
Id.
Under these facts, Mr. Gonzalez was not “similarly situated in all respects” to the participants
who received the award. Toledo Hospital, 964 F.2d at 583. Unlike those participants, he did not go
above and beyond his assigned tasks and did not volunteer for any evening or weekend shifts. See
Affidavit of Marcy Foreman ¶ 5 (Exhibit 1 to the Supplemental Declaration of Mariam Harvey).
Because he failed to meet the basic criteria for the award (criteria based on factors, such as
volunteering for assignments, which were in his control), he cannot make out a prima facie case of
discrimination. His claim thus cannot survive summary judgment. Furthermore, his failure to meet the
-53-

Case 1:02-cv-00923-JR Document 22-2 Filed 03/20/2003 Page 59 of 60 basic criteria is a legitimate, nondiscriminatory reason for the denial of the award, and his claim could be dismissed solely on that basis as well.
Finally, Mr. Gonzalez's last federal claim alleges retaliation in connection with his participation in the administrative class complaint brought by Mr. Contreras. See Complaint ¶ 79. This claim should be dismissed for failure to exhaust. Mr. Gonzalez did not file an administrative complaint alleging retaliation for having participated in the Mr. Contreras' administrative suit. See Harvey Declaration ¶¶ 70-79. Accordingly, because he failed to follow the required administrative procedures, this individual claim should be dismissed.
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Case 1:02-cv-00923-JR Document 22-2 Filed 03/20/2003 Page 60 of 60

CONCLUSION For the foregoing reasons, defendant's motion for summary judgment should be granted and judgment should be entered for the defendant.

OF COUNSEL: MARC WEINBERGER BENNETT COUREY MATTHEW B. RILEY Office of Chief Counsel Bureau of Customs and Border Protection
Date: March 20, 2003

Respectfully submitted,
ROBERT D. McCALLUM, JR. Assistant Attorney General
ROSCOE C. HOWARD, D.C. Bar #246470 United States Attorney
STUART A. LICHT Assistant Director
/s/ KAIJA M. CLARK, D.C. Bar # 467376 ANDREW H. TANNENBAUM Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, D.C. 20530 Telephone: (202) 514-3489 Facsimile: (202) 616-8470

-55-

Case 1:02-cv-00923-JR Document 22-3 Filed 03/20/2003 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al., )

Plaintiffs

)

)

v.

)

)

TOM RIDGE, SECRETARY,

)

DEPARTMENT OF HOMELAND )

SECURITY,

)

Defendant.1

)

)

Case No. 1:02CV00923(JR)

DEFENDANT'S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE

Pursuant to Local Rule 7.1(h), defendant Tom Ridge, Secretary for the Department of

Homeland Security, by his counsel, the United States Department of Justice, hereby submits the

following statement of material facts as to which there is no genuine issue in connection with the

motion for summary judgment filed herewith:

I. Special Agents

1. Up until March 9, 2003, the United States Customs Service ("Customs" or "Customs Service") was a bureau within the United States Department of Treasury ("Treasury"). See Susan B. Zaner Declaration ("Zaner Declaration") ¶ 3.

2. On March 9, 2003, the Customs Special Agent workforce became a part of the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security (also "Customs" or "Customs Service"). See Zaner Declaration ¶ 3; John J. Seraphin Declaration ("Seraphin Declaration") ¶ 1.

3. Series 1811 is an occupational code for the criminal investigator position. Duties of these investigators include the investigation and enforcement of violations of Customs and related laws, rules and regulations. These investigations may be civil or criminal in nature. Investigations include the utilization of various

1 Pursuant to Fed. R. Civ. P. 25(d)(1), Tom Ridge, Secretary of the Department of Homeland Security, is hereby substituted for the Secretary of Treasury. On March 9, 2003, the majority of the Customs special agent workforce became a part of the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security.

Case 1:02-cv-00923-JR Document 22-3 Filed 03/20/2003 Page 2 of 9

investigative techniques including interviewing, and examining physical, documentary, and other types of evidence. See Zaner Declaration ¶ 7.

4. Lateral moves for Special Agents in the 1811 series "do not change the employee's grade, base salary or benefits." Seraphin Declaration ¶ 21.

II. Undercover Operations and Assignments

5. Participation in undercover operations is always on a volunteer basis. See Paul Michael Kilcoyne Declaration ("Kilcoyne Declaration") ¶ 7.

6. Participation in the undercover training program is one of the few strictly volunteer assignments in Customs. See id. ¶¶ 8-9.

7. Undercover operatives may opt out of an ongoing undercover investigation at any time, to ensure the safety of the undercover agents. See id. ¶ 13.

8.

Undercover assignments are perceived as enhancing agents' promotion potential.

See id. ¶ 16.

9. Participation in undercover assignment has been career enhancing for many special agents. See id. ¶ 16.

III. Miguel Contreras

10. Mr. Contreras filed twelve separate administrative complaints with the Department of Treasury. See Mariam Harvey Declaration ("Harvey Declaration") ¶¶ 27-64.

11. Mr. Contreras is the only one of the eight plaintiffs who filed an administrative complaint alleging national origin discrimination on behalf of a class of Hispanic special agents. See Complaint ¶ 3; Harvey Declaration ¶ 35.

12. On March 23, 1995, Mr. Contreras filed his sole class EEO administrative complaint, titled "Complaint of Class Discrimination of Miguel Angel Contreras." This complaint was later designated as TD 95-0014C. See Harvey Declaration ¶ 35, Ex. 18.

13. Prior to filing the class administrative complaint, on January 9, 1995, Mr. Contreras requested EEO counseling regarding his class claims. See Harvey Declaration ¶ 33.

14. Not one of Mr. Contreras' individual administrative complaints mentions a 1993

2

Case 1:02-cv-00923-JR Document 22-3 Filed 03/20/2003 Page 3 of 9
GS-13 Customs Representative position in Hermosillo, Mexico. See Harvey Declaration ¶¶ 27-64.
15. Mr. Contreras' individual administrative EEO complaint designated TD 99-4107 was dismissed as untimely on April 5, 1999, and no appeal was taken. See Harvey Declaration ¶ 46.
16. Mr. Contreras entered into a settlement agreement that resolved all issues relating to the allegations raised in his individual administrative complaint designated TD 00-4106M, concerning his removal in 1999. See Harvey Declaration ¶¶ 47-50.
17. In early 2002, an EEOC administrative judge dismissed administrative complaint TD 00-4194 for failing to state a claim on the grounds that being the subject of an investigation did not make Mr. Contreras an aggrieved individual under Title VII. See Harvey Declaration ¶ 55, Ex. 36. No appeal was taken on the dismissal. See id. ¶ 55.
18. Although Mr. Contreras sought EEO counseling and/or wrote a letter to an EEO manager about many of the issues raised in administrative complaint TD 00-4269, he did not mention anything about attending the annual Customs National Hispanic Agents Association Conference to the counselor. See id. ¶ 56, Ex. 3739.
19. Attendance at the Customs National Hispanic Agents Association meetings would not have affected Mr. Contreras' salary or his benefits. See Richard J. Hoglund Declaration ¶ 10.
20. Attendance at such conferences is not a critical factor in evaluating an employee's application for promotion. See id. ¶ 11.
21. Mr. Contreras has attended more than thirty training courses since 1988, all of which Customs paid for. See Lee Heffelfinger ("Heffelfinger") Declaration ¶ 4, Ex. 1
22. Mr. Contreras attended one 12-day training in 1995, four trainings in 1996 (one of which was a 12-day training), five trainings in 1998 (one of which was a 10-day training), and four trainings in 1999. See id., Ex. 1.
23. Mr. Contreras voluntarily changed from a GS-14 grade to GS-13, effective May 7, 2000, and he took a Criminal Investigator position in the Office of Investigations in Yuma, Arizona. See Zaner Decl. ¶ 28.
24. There is no reference in the agency’s electronic system that tracks disciplinary
3

Case 1:02-cv-00923-JR Document 22-3 Filed 03/20/2003 Page 4 of 9
actions to a written reprimand concerning Mr. Contreras for a security violation in 1992. Nor is there any reference to such a reprimand in Mr. Contreras’s Official Personnel Folder or the Department of Agriculture database that is used to administer employee pay. See Mari Yonkers Declaration ("Yonkers Declaration") ¶ 7.
25. Any 1992 written reprimand concerning a security violation by Mr. Contreras did not result in an official disciplinary action by the agency. See id. ¶ 10.
26. Any 1992 written reprimand concerning a security violation by Mr. Contreras did not result in a reduction of pay or loss in benefits for Mr. Contreras. See id. ¶ 8
27. The letter of caution Mr. Contreras received on or about March 7, 2002 was not kept in his official personnel folder, it did not constitute an official disciplinary action, and it did not result in any reduction of pay or loss in benefits for Mr. Contreras. See Yonkers Declaration ¶ 5.
28. The agency's database for disciplinary actions contains no record of a 1998 investigation into Mr. Contreras's the possible misuse of the Treasury Enforcement Communications System ("TECS"). Nor is there a reference to such an investigation in Mr. Contreras’s Official Personnel Folder or the Department of Agriculture database that is used to administer employee pay. See id. ¶ 11
29. Accordingly, this alleged investigation did not constitute an official disciplinary action, and it did not result in any loss of pay or benefits to Mr. Contreras. See id. ¶ 12.
30. The 2000 investigation concerning an allegation that Mr. Contreras disclosed confidential information to his cousin (by marriage) did not result in the imposition of any discipline. The investigation also did not result in the reduction of pay or loss of benefits. See id. ¶ 13.
31. The 1994 vacancy announcement for a GS-14 supervisory criminal investigator position Mr. Contreras applied for in El Paso, Texas, and in Laredo, Texas, required each applicant to address six criteria: (1) the ability to direct the operational activities of an office or program; (2) the ability to supervise others; (3) the ability to identify problems and develop innovative programs/systems to meet changing needs; (4) knowledge of federal law and procedure; (5) the ability to communicate and interact effectively with other elements and agencies; and (6) the ability to implement Equal Employment Opportunity Program initiatives. See Jacqueline Small Declaration ("Small Declaration") ¶¶ 4, 8.
4

Case 1:02-cv-00923-JR Document 22-3 Filed 03/20/2003 Page 5 of 9
32. Fifty-two applicants applied under the 1994 announcement. See id. ¶ 6.
33. Because more than 10 applicants applied, an independent panel of subject matter experts was established to review the applications. See id. ¶ 9.
34. Each applicant was rated by the panel on each of the six qualification categories, in order to establish a selection register, or “best qualified list” (“BQL). See id. ¶¶ 10-12.
35. The panel operated independently from the selecting official. See id. ¶ 9.
36. The highest total score that an applicant could receive, after all six category scores were added up, was a 30.0. See id. ¶ 14.
37. Applicants for the El Paso position who scored under 22.5 did not make the BQL. See id. ¶¶ 15-16.
38. The selecting official was not authorized to select an applicant that applied competitively but did not make the BQL. See id. ¶ 17.
39. Mr. Contreras received a total score of 3.0 out of 30.0, and as a result did not make the BQL. See id. ¶ 18.
40. The eight applicants who did make the El Paso BQL received scores of 22.5 or above (with the highest score at 28.5). See id. ¶ 16.
41. Because of his failure to make the BQL, the selecting official did not have the option to select Mr. Contreras for the El Paso position. See id. ¶¶ 17-18.
42. Mr. Contreras’ score for the Laredo position was also a 3.0, whereas the three candidates who made the BQL for that position scored from 22.5 to 28.5. See id. ¶ 16.
43. Mr. Contreras did not make the BQL for the Laredo position. See id. ¶ 18.
IV. John Yera
44. Mr. Yera has never filed an administrative EEO complaint against the Secretary of Treasury, either individually or as a class agent on behalf of a purported class of Customs employees. See Harvey Declaration ¶ 19.
V. William Velasco
5

Case 1:02-cv-00923-JR Document 22-3 Filed 03/20/2003 Page 6 of 9
45. Mr. Velasco has filed one formal individual administrative EEO complaint against the Secretary of Treasury, designated TD 95-1245. On April 11, 1997, that complaint was settled and dismissed with prejudice. See Harvey Declaration ¶¶ 15-18, Ex. 5-6.
VI. Frank Almonte
46. Mr. Almonte has filed one formal individual administrative EEO complaint against the Secretary of Treasury, designated TD 01-3019. See Harvey Declaration ¶ 12, Ex. 1-2. He withdrew that administrative complaint with prejudice on or about January 2001. See Harvey Declaration ¶ 13, Ex. 3-4.
VII. Stephen Mercado-Cruz
47. Mr. Mercado-Cruz filed two individual administrative EEO complaints, TD 912239 and TD 92-2018, in 1991. Final agency decisions were issued for these complaints, on December 10, 1991 and February 3, 1993, respectively, finding no discrimination or retaliation. See id. ¶¶ 20-21, Ex. 7-8.
48. Mr. Mercado-Cruz has filed only one other individual administrative EEO complaint against the Secretary of Treasury, TD 00-4110. See id.¶ 23, Ex. 9. This administrative complaint did not make the claims upon which Mr. MercadoCruz bases this suit, i.e., claims relating to undercover work, foreign language awards, or hostile environment.
VIII. Ramon Martinez
49. Mr. Martinez filed two individual administrative EEO complaints in 1994 and 1995, TD 94-1120 and TD 96-1078. See Harvey Declaration ¶¶ 66-67, Ex. 47-48. On February 24, 1998, Mr. Martinez and the Treasury Department entered into a settlement agreement, resolving these complaints. See id. ¶ 67.
50. Mr. Martinez has filed only one other individual administrative complaint against the Secretary, in January 1995, designated as TD 95-1127. This case was dismissed as moot on February 15, 1995, and no appeal was taken. See id. ¶ 68.
IX. Ricardo Sandoval
51. On November 8, 1993, Mr. Sandoval filed his first individual administrative complaint, TD 94-4099. That complaint was withdrawn on April 4, 1994. See Harvey Declaration ¶ 80, Ex. 65.
52. He filed his second and third individual administrative complaints, designated TD
6

Case 1:02-cv-00923-JR Document 22-3 Filed 03/20/2003 Page 7 of 9
94-4070 and TD 94-4158, in 1994. See Harvey Declaration ¶¶ 82-83, Ex. 66-67. The Department of Treasury issued a final agency decision, on March 13, 1995, dismissing these administrative complaints, after finding no discrimination. See id. Mr. Sandoval did not appeal these dismissals with the agency. See id. ¶¶ 8283.
53. On August 30, 1996, he filed a fourth individual administrative complaint, TD 964247, and on March 26, 1998, a final decision was issued, dismissing the complaint and finding that the evidence did not support the claims. Mr. Sandoval did not appeal this decision. See id. ¶¶ 85-87, Ex. 68-70.
54. Mr. Sandoval filed his last administrative EEO complaint against the Secretary of Treasury on August 7, 1997, which was designated TD 97-4289. This complaint was dismissed for failure to state a claim on September 18, 1997, and Mr. Sandoval did not appeal that dismissal. See id. ¶¶ 81.
X. Ruben Gonzalez
55. Mr. Gonzalez filed his first administrative EEO complaint against the Secretary of Treasury on February 13, 1995, which was designated TD 95-2142. See id. ¶¶ 7071, Ex. 50.
56. Mr. Gonzalez filed his second administrative EEO complaint against the Secretary of Treasury on February 2, 2000, which was designated TD 00-1091. See id. ¶¶ 73, Ex. 52. He alleged race and national origin discrimination, and retaliation, because he was not selected for three GS-15 promotions on October 8, 1999. See id.
57. Mr. Gonzalez initially sought counseling for the alleged non-promotion discrimination on December 6, 1999. See Linda Lynn Batts Declaration ("Batts Declaration") ¶ 6.
58. Mr. Gonzalez later requested that his records be changed to reflect that he sought counseling on November 5, 1999, see Harvey Declaration ¶ 73.
59. Ms. Batts is not, and was not, an EEO counselor. See Batts Declaration ¶¶ 6-16.
60. During Ms. Batts' November 5, 1999 discussion with Mr. Gonzalez, she told him that she was not a counselor and that their conversation would not toll the time frame for filing an EEO complaint. See id. ¶ 11.
61. Ms. Batts informed Mr. Gonzalez that he would have to contact an EEO counselor within 45 days of any alleged discriminatory conduct. See id. ¶ 11.
7

Case 1:02-cv-00923-JR Document 22-3 Filed 03/20/2003 Page 8 of 9
62. Mr. Gonzalez filed another administrative EEO complaint against the Secretary of Treasury on January 3, 2001, which was designated TD 01-1068, alleging retaliation in connection with the denial of a cash award and a denial of an assignment to serve as Assistant Director or Director of the Financial Investigation Division. See Harvey Declaration ¶ 76, Exh. 60.
63. Marcy Foreman, the manager in charge of distributing the cash award for “Operation Powerplay,” established certain criteria in determining who should receive the award. See Affidavit of Marcy Foreman ¶ 5, attached as Exhibit 1 to the Supplemental Declaration of Mariam Harvey.
64. The criteria were necessary because there were limited monies to be awarded. See id.
65. Under those criteria, awards were given to those employees who went above and beyond their assigned tasks. See id.
66. Specifically, those individuals who were instrumental in initiating and implementing the operation, and those individuals who volunteered to work evenings and weekends, received awards. See id.
67. Mr. Gonzalez did not volunteer for any evening or weekend shifts. See id.
68. Mr. Gonzalez had the same opportunity as the other group members to volunteer to lead, initiate, and implement “Operation Powerplay.” See id.
69. According to Marcy Foreman, Mr. Gonzalez “only did what was tasked, nothing above or beyond those duties,” with respect to “Operation Powerplay.” See id.
70. The participants who did receive the cash award were either instrumental in the development and implementation of “Operation Powerplay,” volunteered for assignments including weekends and evenings, or ensured the timely and accurate communication and coordination of all enforcement activity under the auspices of the operation. See id.
71. Mr. Gonzalez filed no other administrative complaints against the Secretary of Treasury. See Harvey Declaration ¶ 79.
Respectfully submitted,
ROBERT D. McCALLUM, JR.
8

Case 1:02-cv-00923-JR Document 22-3 Filed 03/20/2003 Page 9 of 9

OF COUNSEL: MARC WEINBERGER BENNETT COUREY MATTHEW B. RILEY Office of Chief Counsel Bureau of Customs and Border Protection
Date: March 20, 2003

Assistant Attorney General
ROSCOE C. HOWARD, D.C. Bar #246470 United States Attorney
STUART A. LICHT Assistant Director
/s/ KAIJA M. CLARK, D.C. Bar # 467376 ANDREW H. TANNENBAUM Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, D.C. 20530 Telephone: (202) 514-3489 Facsimile: (202) 616-8470

9

Case 1:02-cv-00923-JR Document 22-4 Filed 03/20/2003 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al., )

Plaintiffs

)

)

v.

)

)

TOM RIDGE, SECRETARY,

)

DEPARTMENT OF HOMELAND )

SECURITY,

)

Defendant.1

)

)

Case No. 1:02CV00923(JR)

PRAECIPE RE NOTICE OF EXHIBIT ATTACHMENT

Pursuant to paragraph 7 of Court's Order Establishing Procedures for Electronic Filing,

the exhibits to Mariam Harvey's Declaration are filed separately, on compact disc, with the

Clerk's Office because the documents total more than fifty pages. Contents of the exhibits are

listed in the index attached hereto, and the compact disk will be accompanied by a conventional

certificate of service. This praecipe is concurrently being filed with Defendant's Motion for

Summary Judgment and its accompanying papers in support of the Motion.

1 Pursuant to Fed. R. Civ. P. 25(d)(1), Tom Ridge, Secretary of the Department of Homeland Security, is hereby substituted for the Secretary of Treasury. On March 9, 2003, the majority of the Customs special agent workforce became a part of the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security.

Case 1:02-cv-00923-JR Document 22-4 Filed 03/20/2003 Page 2 of 7

OF COUNSEL: MARC WEINBERGER BENNETT COUREY MATTHEW B. RILEY Office of Chief Counsel Bureau of Customs and Border Protection
Date: March 20, 2003

Respectfully submitted,
ROBERT D. McCALLUM, JR. Assistant Attorney General
ROSCOE C. HOWARD, D.C. Bar #246470 United States Attorney
STUART A. LICHT Assistant Director
/s/ KAIJA M. CLARK, D.C. Bar # 467376 ANDREW H. TANNENBAUM Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, D.C. 20530 Telephone: (202) 514-3489 Facsimile: (202) 616-8470

Case 1:02-cv-00923-JR Document 22-4 Filed 03/20/2003 Page 3 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al., )

Plaintiffs

)

)

v.

)

)

TOM RIDGE, SECRETARY,

)

DEPARTMENT OF HOMELAND )

SECURITY,

)

Defendant.

)

)

Case No. 1:02CV00923(JR)

INDEX OF EXHIBITS TO DECLARATION OF MARIAM HARVEY

1. Individual Complaint of Employment Discrimination for Frank Almonte, with attachments, October 21, 2000

2. Memorandum to Linda Batts from Dorian Morley re: TD Case Number 01-3019, October 26, 2000

3. Withdrawal Statement of Frank Almonte, January 24, 2001

4. Letter to Frank Almonte from Dorian Morley re: withdrawal of complaint of TD Case Number 01-3019, January 24, 2001

5. Individual Complaint of Employment Discrimination for Evelio William Velasco, (no date) with attachments

6. Letter to Dave Jones from Michael Morgan-Gaide re: TD Case Number 95-1245, June 30, 1995

7. Case Data re: Stephen Mercado, Case No. 91-2239, July 1, 1991

8. Case Data re: Stephen Mercado, Case No. 92-2018, October 17, 1991

9. Individual Complaint of Employment Discrimination, Stephen Mercado, January 18, 2000, with attachments

10. Letter to Stephen Mercado from Lois Hofmann re: TD Case No. 00-4110, February 4, 2000

1

Case 1:02-cv-00923-JR Document 22-4 Filed 03/20/2003 Page 4 of 7
11. EEO Counseling Report re: Miguel Contreras, September 26, 1994
12. Memorandum to Stephen Thatcher from Miguel Contreras, September 6, 1994
13. Individual Complaint of Employment Discrimination, Miguel Contreras, September 26, 1994
14. Individual Complaint of Employment Discrimination, Miguel Contreras, December 30, 1994
15. Letter to Miguel Angel Contreras from Lourdes M. Garay, February 2, 1995
16. Complaint of Class Discrimination - Report of EEO Counseling re: Miguel A. Contreras, March 15, 1995
17. Notes of Miguel Contreras's February 16, 1995 Interview with EEO counselor
18. Class Discrimination Complaint, Miguel Contreras, March 23, 1995 with attachments
19. EEO Counseling Report, Miguel Contreras, July 15, 1997, with attachments
20. Memo to Director, Office of Human Resources From Vanaster Brown, Jr., September 8, 1997
21. Individual Complaint of Employment Discrimination, Miguel Angel Contreras, October 16, 1997, with attachments
22. Memorandum to Director, Regional Complaints Center from Anna M. Morales, with attached EEO Counseling Report re: Miguel Contreras, March 30, 1998
23. Chronology of Events, Informal EEO Issue of Miguel Contreras
24. Individual Complaint of Employment Discrimination, Miguel A. Contreras, March 17, 1998, with attachment
25. Letter to Miguel A. Contreras from Jo Ann Blank, April 13, 1998
26. Letter to Miguel A. Contreras from Lois Hoffmann re: TD Case No. 00-4107, April 5, 1999, with attachments
27. EEO Counseling Report - Individual Complaint of Miguel A. Contreras, January 12, 2000
2

Case 1:02-cv-00923-JR Document 22-4 Filed 03/20/2003 Page 5 of 7
28. Memorandum from Miguel Angel Contreras, November 26, 1999
29. Individual Complaint of Employment Discrimination, Miguel Contreras, January 18, 2000, with attachment
30. Letter to Miguel Contreras from Lois Hofmann re: TD Case No. 00-4017, February 10, 2000
31. Letter to Complaint Center from Miguel Angel Contreras, February 26, 2000
32. Letter to Miguel A. Contreras from Lois Hofmann re: TD Case No. 00-4107, August 24, 2000
33. Letter to Regional Complaint Center from Miguel Contreras, November 8, 2000
34. Individual Complaint of Employment Discrimination, Miguel Angel Contreras, April 21, 2000, with attachment
35. Letter to Miguel A. Contreras, from Lois Hoffmann re: TD Case No. 00-4194, August 21, 2000
36. Letter to Lois Hoffmann from Kurt Hodges (Administrative Judge -EEOC), with attached Order of Dismissal, December 24, 2002
37. U.S. Customs Service Informal Complaint Form re: Miguel Contreras, June 28, 2000; Counseling Report re: Miguel Contreras, June 6, 2000
38. EEO Counselor's Report - Individual Complaint of Miguel Contreras, June 29, 2000
39. Individual Complaint of Employment Discrimination, Miguel Contreras, July 11, 2000, with attachment
40. Letter to Miguel A. Contreras from Lois Hoffmann re: TD Case No. 00-4269, August 25, 2000
41. EEO Counseling Report - Individual Complaint of Miguel Contreras, December 21, 2000
42. Letter to Lorainee Cremin and William J. Gimmler from Miguel Angel Contreras, October 4, 2000
3

Case 1:02-cv-00923-JR Document 22-4 Filed 03/20/2003 Page 6 of 7
43. Individual Complaint of Employment Discrimination, Miguel Contreras, December, 28, 2000, with attachment
44. Letter to Miguel Contreras from Vincent Iglio (Customs Service), March 7, 2002
45. Letter to Miguel Contreras from Steve Arizaga (Customs Service) March 6, 2002
46. Individual Complaint of Employment Discrimination, Miguel Contreras, April 5, 2002, with attachments
47. Individual Complaint of Employment Discrimination, Ramon J. Martinez, May 18, 1994 with attachments
48. Individual Complaint of Employment Discrimination, Ramon J. Martinez, December 19, 1995, with attachment
49. Case Data re: Ramon J. Martinez Case No. 95-1127
50. Individual Complaint of Employment Discrimination, Ruben Gonzalez, February 13, 1995, with attachments
51. EEO Counseling Report - Individual Complaint of Ruben E. Gonzalez, February 1, 2000 with attachments
52. Individual Complaint of Employment Discrimination, Ruben E. Gonzalez, February 2, 2000
53. Letter to Kittonia Brooks from Ruben Gonzalez, February 24, 2000
54. Memorandum to File from Kittonia Brooks re: Ruben E. Gonzalez TD Case No. 00-1091, February 24, 2000
55. Letter to Ruben Gonzalez from Michael Morgan-Gaide re: TD Case No. 00-1091, March 1, 2000
56. EEO Counselor's Report, October 10, 2000, with attachments
57. Memorandum to Special Assistant to the Commissioner from Michael MorganGaide re: Complaint of Ruben Gonzalez TD Case No. 00-1209, July 25, 2000
58. Memorandum to Special Assistant to the Commissioner from Michael MorganGaide re: Complaint of Ruben Gonzalez TD Case No. 00-1209, November 22, 2000
4

Case 1:02-cv-00923-JR Document 22-4 Filed 03/20/2003 Page 7 of 7
59. Memorandum to Martha Buracker and Edward Hoisington from Senora Coggs re: Request for Counseling, October 26, 2000; Memorandum to Laureen Cremin from Ruben E. Gonzalez re: Complaint of Hostile Work Environment/Retaliation, October 25, 2000
60. Letter from Ruben E. Gonzalez to Michael Morgan-Gaide, with attached Individual Complaint of Employment Discrimination, January 3, 2001
61. Memorandum to Special Assistant to the Commissioner from Michael MorganGaide re: Complaint of Ruben Gonzalez TD Case No. 01-1068, February 2, 2001
62. Letter to Thomas Allison from Michael Morgan-Gaide re: Complaint of Ruben Gonzalez TD Case No. 01-1086, February 2, 2001
63. Letter to Thomas Allison from Michael Morgan-Gaide re: Complaint of Ruben Gonzalez TD Case No. 00-1209, July 5, 2001
64. Letter to Viola Cole from Ruben E. Gonzalez, June 12, 2001 65. Case Data re: Ricardo A. Sandoval Case No. 94-4099 66. Case Data re: Ricardo A. Sandoval Case No. 94-4070 67. Case Data re: Ricardo A. Sandoval Case No. 94-4158 68. Individual Complaint of Employment Discrimination, Ricardo Sandoval, August
30, 1996, with attachments 69. Memorandum to EEO Officer, South Pacific CMC from Director, Regional
Complaint Center re: Complaint of Ricardo Sandoval TD Case No. 96-4247, November 13, 1996 70. Letter to Dennis L. Ross from Mariam G. Harvey re: Complaint of Ricardo Sandoval Case No. 96-4247, March 26, 1998, with enclosures
5

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 1 of 31
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et aI., )

Plaintiffs,

)

)

v.

)

)

TOM RIDGE, Secretary,

)

Department of Homeland Security, )

Defendant.

)

)

Case No.1 :02CY00923(JR)

DECLARATION I, LINDA LYNN BATTS, declare the following to be true and correct: 1. I am the Special Assistant to the Commissioner of Customs for Equal Opportunity and Director ofEEO for the Bureau of Customs and Border Protection, formerly the U.S. Customs Service. I have held this position since February 1994. Prior to occupying this position, I served as the EEO Manager for the Foreign Service at the U.S. Department of State (1991-1994). I have also managed EEO programs at the Department ofInterior (1990-1991),the Department of the Army (1989-1990), the Defense Mapping Agency (1986-1989), the Department ofYeterans Affairs (1982-1986), and the U.S. Equal Employment Opportunity Commission (1979-1982). This declaration is based on my personal knowledge or information provided to me in my official capacity. 2. In my present position as EEO Director, I supervise a full time staff of 55 employees. My duties include, but are not limited to, coordinating the Bureau's civil rights program, including ensuring its adherence to civil rights laws as well as principles of fairness and equal opportunity in employment. As part of my official duties, managers and supervisors often meet with me on matters of concern to them regarding equal employment. Occasionally, managers

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 2 of 31
will contact me seeking advice and guidance relative to their rights and responsibilities. I also work with individual complainants, advising them of their rights and responsibilities under the equal employment opportunity laws.
3. To initiate an administrative EEO proceeding, an employee first "must consult [an EEO] Counselor prior to filing [an administrative] complaint ...." 29 C.F.R. § 1614.105(a).
4. Section 1614.105 states: "(a) Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter. (1) An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action."
5. I have reviewed several documents related to a formal EEO complaint, designated TD 00-1209, filed by Ruben Gonzalez. Specifically, I have reviewed an EEG counseling report dated February 1,2000, prepared by Adline Tatum of my staff (Exhibit 1 hereto); Mr. Gonzalez's formal complaint, dated February 2,2000 (Exhibit 2 hereto); a Memorandum to File, dated February 24,2000, and authored by Kittonia Brooks, EEG Specialist (Exhibit 3 hereto); and a letter dated February 24,2000, from Ruben E. Gonzalez to Ms. Kittonia Brooks at the Regional Complaint Center in Washington, D.C. (Exhibit 4 hereto).
6. Upon review of the aforementioned documents, it appears that Mr. Gonzalez first became aware of the alleged discrimination pertaining to his non-selections under vacancy announcement numbers HEADQ/99-148, 158, 159MCC, on October 8, 1999, and first contacted an EEO counselor on December 6, 1999 (Exhibit 2). I note that the date of December 6, 1999, is crossed out on the first page of the counseling report and replaced by a date of November 5,
2

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 3 of 31
1999. Under the handwritten "November 5, 1999" date on the counseling report is an annotation "K. Brooks" (Exhibit 1).
7. Exhibit 3 is a Memorandum to File, authore,d by Kittonia Brooks. The memo states that on February 24,2000, Ms. Brooks spoke to Mr. Gonzalez about the date he first sought counseling because Mr. Gonzalez's complaint appeared to be untimely. In her memo, Ms. Brooks concludes that "the Center will use November 5, 1999, as the initial date Complainant sought counseling," because Mr. Gonzalez told her that he met with me on November 5, 1999, "regarding his non-selection issues." Ms. Brooks further states that she contacted Senora Coggs of my staff, who told her that I had met with Mr. Gonzalez on November 5, 1999, "regarding his non-selections,"
8. Exhibit 4 is a letter from Ruben Gonzalez to Ms. Brooks in which he attempts to clarify the date he sought counseling on the above referenced non-selections. He states that he "first met with Linda Batts, Special Assistant to the Commissioner, EEO on November 5, 1999 and sought her counsel about my non-selection for a promotion to which I had made the Best Qualified List (BQL)."
9. Prior to the execution of this declaration, an EEO specialist or other agency official has never contacted me concerning the timeliness ofMr. Gonzalez's complaint of discrimination concerning vacancy announcement numbers HEADQ/99-148, 158, 159 MCC.
10. Rather, it appears that Ms. Brooks changed the date counseling was sought by Mr. Gonzalez to November 5, 1999, based upon information gathered from Mr. Gonzalez and Ms. Coggs regarding my meeting with Mr. Gonzalez on that date.
11. I do not dispute having met with Mr. Gonzalez during that approximate time frame (on or about November 1999). However, I clearly recall informing him that I was not an EEO
3

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 4 of 31
counselor, and that his discussion with me would not toll the time frame for filing an EEG complaint on the matters of concern to him. I reminded him that he would have to contact one of the agency's EEO counselors within 45 days of the alleged discriminatory event.
12. I further recall that Mr. Franklin Jones, Director ofEEO Operations at the Customs Service, was present at the referenced November meeting with Mr. Gonzalez.
13. Concerning the substance of the discussion at the meeting, I recall Mr. Gonzales stating to us that he was not particularly interested in filing a complaint on this issue, but was meeting with Mr. Jones and myself to enlist our support in getting him promoted to the GS-15 level. He was emphatic that he wanted to obtain a promotion without having to initiate a complaint, indicated that he felt he was currently exceptionally qualified to do so, and stated that ifhe obtained a promotion, he would withdraw from any existing administrative EEO proceedings to which he was a party.
14. In my capacity as Special Assistant to the Commissioner, any number of employees express their EEG concerns to me. However, I always have made it a fundamental practice to inform them that I am not an EEG counselor, and that if they wish to file a discrimination complaint, they must contact an EEO counselor within 45 days of the event. We highly publicize the process throughout the agency through EEO posters and use of the payroll notices.
15. In my view, Mr. Gonzalez's meeting with me on or about November 1999, does not and cannot constitute the requisite contact with an EEO counselor as required by the regulations, and he was told this at the meeting. Furthermore, Mr. Gonzalez had previously filed formal EEO complaints and was aware of the regulatory requirement for timely contact with an EEO counselor.
16. In addition, I did not authorize Ms. Kittonia Brooks to consider the meeting with Mr.
4

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 5 of 31
Gonzalez to constitute the requisite contact with an EEO counselor. In fact, I have never discussed this matter with her. I believe that her change of the date upon which EEO counseling was sought was in error.
17. It is my opinion that the above referenced complaint filed by Mr. Gonzalez is untimely.

I declare, under penalty of perjury pursuant to 28 U.S.c. § 1746, that the foregoing is true and correct to the best of my knowledge and belief.

{'I . Executed

on.·

(
'I

j

/}l
(/ /

; 0., i,d,L\

L' 1J"

I (j 2003

\"--1::; DA L
Special Assistant to the Commissioner Bureau of Customs and Border Protection 1300 Pennsylvania Ave, NW Washington, D.C. 20229

5

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 6 of 31
EXHIBIT 1

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 7 of 31

I
. R.eglOnal Complaints ,nter Name, Address Telephone Number
IvflCHAEL MORGAN-GAIDE WASH. RCC 800 K STREET NW STE 640 WASHINGTON, D.C. 20001 (202) 377-6730

EEO COUNSELING REPORT - INDIVIDUAL COMPLAINT PART I (Through lnitiallnterview)
(Follow S(:nanlle instructions)

~ Officer Name,
Address & Telephone - Number
FRANKLIN C. JONES 1300 PENN AVE. NW WASHINGTON, D.C. 20229
(202) 927-1464

3.. EEO Counselor Name, Address & Telephone Number
ADLINE TATUM
1300 PENN AVE NW WASHINGTON, D.C. (20) 927-0707

5. Date of First Interview December 14, 1999

6.

Employee or Applicant:

8.

Matter Causing Complaint or Issue

COMPLAINANT'S NAME Ruben E. Gonzalez

TITLE/SERIES/GRADE

GS-1811·14

HOME ADDRESS

14703 Flagler Ct.

CITY, STATE ZIP CODE

Centreville, VA

WORK TELEPHONE NUMBER (703) 266·4961

Work (202) 927-4195

7.

Basis or Type of Discrimination:

j>{RACE o AGE (Da•• ofBinh)

o COLOR

II

HispanIC

MM DD YY

o NATIONAL ORIGIN

o SEX

o RELIGION

o Appointment

0 Pay

jt5. o Assign ofDuties Promotion

o Time/Attendance o Training

o Awards

o o Reassignment

Within Grade Incr.

o Change to
Lower Grade
o Classification
o Conversion to
Full Time/CC

o Reinstatement o Working

o Removal/

Conditions

Separation

0 Other (Explain)
-

DEvaluation/Appraisal

o ExamlTest

.NDICAP:

~RETALIATIONIREPRISAL

for Involvement in

o Harassment

OMENTAL
o PHYSICAL _ _

Complaints Process

o Overtime

o Terrrun~a~[.llU~II:---
During Probation

.JJ
-

9.

An EEO Counselor cannot reveal the identity ofa person who has wme for cOunseling, except when authorized to do so by the person counseled. Is

Complainant willing to have hisiher name revealed during the counseling stage? Yes 0 No D. Ifanswer is ·Yes, " Complainant must given permission by

signing name in the space following:

10.

Organization Where Alleged Discrimination Occurred and Date of 1I.

Occurrence.

u.s. Customs Service
Office of Internal Affairs. HQ

Give date Complainant became aware of alleged discrimination if substantially different from that shown in 10. Explain.

12.
I

If complaint appears to be untimely, what explanation 15 offered to explam why Counselor was not contacted within 45 (forty-five) days?
Timely

I 13.

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 8 of 31
EEO COUNSELING REPORT - INDIVIDUAL COMPLAINT PART I (Through Initiallnterview)
(Follow senarale instructions) ProVlde a bnef descnptlOn of complamt, surnmanzmg actIons which caused counseling to be sought and whIch complamant believes are discnmmatory.
-

, complainant stated that he applied for four G5-15 position within the Office ofInternlll Affairs (three vacancy announcement). The positions were announced under the merit promotion vacancy announcement. He was referred to the Selecting Official(s) under the Best-Qualified (BQL) Merit Promotion CertifICate for the four vacant positions. The complainant indicated that during the selection process he was Dot notified ofhi<l statu'! of being referred on the SQ list and WllS not intenoiewed for any of the vacant POSitioDII. The complainant stated that the persons sdected for the positions were white, three males and one female. The complainant stated that within the Office of Internal Affairs there are no IliIpanics, Black males or female! at the G5-1S grade leveL There is only one(l) Black SES. The complainant also stated that he was also denied a lateral transfer because of his involvement with the Hispanic Association as welL The complainant stated that there is no diversity, in fact in the entire history of IA, there has only been two male Hispanic GS-IS'! and no female!.
The complainant advised that he has applied for GS 1811-15 approximately 12 times and bas made the SQL nine (9) times. The complainant abo advioled and provide proof of qualification for SES on two occasions. Tbe complainant stated that there are currently 88 GS 1811-1S in the OffICe oflnvestigations (01). There arc approximately 9 GS 1811-15 in the Office ofInternal Affairs (IA), 100"/. Non-Hispanics. Tbe complainant stated tbat 10 Hiolpanci<l in 01 and None in IA at the GS 1811-15 level docs not equate to diversity. The complainant stated tbat based on tbe qualifications alone, he is more qualified than those selected and that he is a victim of discrimination and retaliation.

14.

Remedial Action Desired by Complainant.

Promotion GS- 15

15.

On the same matter, has Complainant filed a grievance under negotiated grievance procedure?

On the same matter, has Complainant filed a grievance under the Agency grievance system?

If the issue presented constitutes a Mixed-Case Complaint, has Complainant
appealed to the Merit Systems Protection Board?

If grievance or appeal has been filed, what is its status?

DYes ~o
DYes }iNO

DYes ~o

16.

Does Complainant elect to have a representative?

o Yes

CkNO

17

s_~ of Coo","'" 'M 0'" "''''/'

/) -

/ ~/

U (~ ;cLL-r--

c:::z-- - ,/~ n

"'1) F 62.()3.1 (o:Ml7) PREVIOUS EDITION TO F fil.131 (06.85) OBSOLETE.
EEO COUNSELING REPORT -INDIVIDUAL COMPLAINT PART" (For counseling after initial interview)

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003
EEO COUNSELING REPORT - INDIVIDUAL COMPLAINT PART II (For counseling after initial interview)

Page 9 of 31

I 18

- CantaGlS Dunng EEO Caunse~lnguiry

"e(s) of Contact (Col. 1)

-
Name, Tille, Grade Telephone (Col. 2)

:
Organization Administrative Code (Col. 4)

REASON FOR CONTACT (Complainant, WJtness, Management Official, Personnel, Etc.) (Col. 4)

Time Spent by Person Contacted (Gal. 5)

1/19/00 1/19/00

Miguel Contreras (520) 344-0088 x511 Rick Sandoval (760) 353-9090 x 107

uses uses

Witness

Historical/personal knowledqe

Witness

Historical/personal knowledoe

-

19.

INFORMATION DEVELOPED DURING INQUIRY (Identify the source of each fact; attach relevant documents provided by employeelapplicant, management offidals

involved, other witnesses, Personnel, etc., or those obtained by the Counselor.)

On October 28, 1999, the complainant requested a meeting with Mr. David Cohen, the Commissioner's Chief of Staff for law enforcement matters. The complainant met with Mr. Cohen and discussed the Issue of his non-selecflon for a variety of positions and the lack 01 Hispanics and diversity. The complainant stated that Mr. Cohen asked that he waft before filing an EEO complaint and he would call him back. The complainant stated that Mr. Cohen did not call therefore; the complainant spoke with Unda Betts, Special Assistant to the Commissioner, EEO.

The complainant advised that a member of the evaluation panel, for one of the positions he made the BQ list. and who (panel member)

did not apply for the position, was subsequently selected for the job.

.

.

The complainant advised that because he spoke out a an Hispanic Conference held In Miami and convinced the Hispanic Association to join and support the Hispanics Class Action against Customs he is being retaliated against.

The selection packages for the four positions the complainant applied for were requested from personnel, but has not been received.

20.

Counselors suggestions to Management Official(s) to Resolve Complaint

No review of selection packages, therefore management was not consulted.

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003
EEO COUNSELING REPORT - INDIVIDUAL COMPLAINT PART II (For counseling after initial interview)

Page 10 of 31

-

22.

Summary description of Complaint Issues Developed During Counseling. (Specify type of discrimination allege<1 and actions which Complainant believes to be

discriminatory. Show dates and occurrences.)

Non~selection
Discrimination and Retaliation - Race - Hispanic

23.

Remedial Action Desired

Promotion to GS-15

'>4.

Grievance and Appeals

NONE

25.

Total Number of Hours Spent Counseling this Case. (Indude all contacts,

preparation and travel time.)

= TOTAL HOURS

Hours

26.

Date of Final Interview

NOTICE ISSUED

27.

Date of this Report

d -/--tf7j

28.

29.

Date Report Sent or Delivere<1 to .Complaints Center

3D.

Endosures (List and Tab and give duplicate legible copies to Complainant".)

" copy OF PART II, PLUS APPROPRIATE AITACHMENTS, MUST BE DELIVERED TO COMPLAINANT OR COMPLAINANrS REPRESENTATIVE, WHEN COMPLAINT IS FILED

Attachment #

COMMENTS andJor description

'...'U"."' fi..Jb.\..oQ0n, 7

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 11 of 31
I, Ruben Eo Gonzaleb HAVE RECEIVED NOTICE OF MY RIGHT TO REMAIN ~OUS DURING THE INFORMAL COlJNSELING INQUIRY OF THE PRE-COMPLAINT PROCESS.
Check one: I AUTHORIZE THE EEO COUNSELOR TO REVEAL MY IDENTITY DURING ANY INFORMAL INQUIRIES INTO THE MATTER(S) \VHICH I HAVE DISCUSSED WITH THE EEO COUNSELOR IN ANY ATTEMPTS TO FACILITATE A RESOLUTION OF MY INFORMAL PRE-COMPLAINT.
o I DO NOT AUTHORIZE THE EEO COUNSELOR TO REVEAL MY
IDENTITY DURING ANY INFORMAL INQUIRIES INTO THE MATTER(S) WHICH I HAVE DISCUSSED WITH THE EEO COUNSELOR. I UNDERSTAND THAT MY RIGHT TO ANONYMITY IS VALID ONLY DURING THE INFORMAL, PRECOMPLAINT COUNSELING STAGE AND WILL CEASE UPON MY FILING A FORMAL COMPLAINT OF DISCRIMINATION.
. (Date

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 12 of 31
Notes from meeting with Ruben Gonzalez
12/6/99 Complainant, Ruben GonzaletGS-1811-14, Office of Investigations, HQ Bases: Race Hispanic ·Issues: Non Selection Resolution: GS-15 in this order of preference--Tucson, EI Paso, Miami or HQ.
Mr. Gonzalez, began the meeting by providing me with the following information: Mr. Ruben indicated he attempted to meet with the Commissioner to discuss his _ frustration and futile attempts in getting promoted to the GS-15. While he was unable to meet with the Commissioner, he was able to meet with the Commissioner's Chief of Staff.
~~
Accordingly, Mr. Gonzalez applied for 4 GS~ 15 positions within the Office of 01. The
positions were announced under a merit promotion vacancy announcement. He was referred to the Selecting Official(s) under the Best-Qualified (BOL) Merit Promotion Certificate for the four vacant positions. The positions were located in Tampa, Tucson, and Headquarters (2). Mr. Gonzalez indicated that during the selection process he was not notified of his status of being referred on the BQ list and was not interviewed for the any of the vacant positions. During our conversation, Mr. Ruben disclosed the race and sex of the persons selected for the positions. The persons selected for the positions he applied for are white,three are males and one is a female.
Mr. Gonzalez disclosed that within the Office of Internal Affairs there are no Hispanic and Black males orfemales at the GS-15 grade level. There is only one 1 Black SES (Marvin Washington).
Although Mr. Gonzalez applied for the 4 previous mentioned positions; he did not submit his application for the vacancy announcement for a position in Chicago. He noted that the person selected for the vacant position in Chicago is a white male.
According to Mr. Gonzalez there is no diversity, in fact in the entire history of IA, there has only been three male Hispanic GS-15's and no females.
The following is information from Mr. Gonzalez regarding the selectees for the four vacant positions he applied for under the four vacancy announcements:
• Vacancy Announcement/Position - Director Internal Investigation (HO) GS-1811-15. Office of Internal Affairs Applicant selected is a white female. She has no field experience other than acting TOY's. The TOY tours have been, not less than 30 . days and not more than 4 months. She has only worked in IA there is no experience in other offices within the Customs Service. Mr. Gonzalez believes she is does; not qualify for the position, yet she was acting in this position prior to being permanently reassigned to the position. Another area she lacks experie(lce according to Mr. Gonzalez, where he exceeds is that she has never made an arrest.

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 13 of 31
2
Mr. Gonzalez has worked in several field offices for more than 4 months. His field experience ex~ to several years at different Customs locations. He also noted his experience in~ludes working in other Customs Offices, he has made several arrests and has supervisory experience.
• Vacancy Announcement/Position-Director Special Investigation Unit (HQ) GS-181115. Office of Internal Affairs Applicant selected is a white male. Alth~ugh the employee has one or two year's experience as a supervisor he has limited Permanent Change Station's (two). Mr. Gonzalez was not certain, whether the applicant completed'a Headquarters tour and worked in the Office of Investigations. The employee moved from a field position to HQ, then from Tampa or Miami to his current position. (My notes are unclear).
Mr. Gonzalez has experience as supervisor, more than two PCS's (maybe four) including Headquarters experience.
• Vacancy Announcement/Position-Deputy Regional Special Agent In Charge (SAC Tucson-Region 3) GS-1811-15. Office of Internal Affairs -Applicant selected is a white male. The applicant selected for this position was promoted in place. He has no Headquarters tour of duty experience and no college degree. Mr. Gonzalez is unsure of the number of PCS's the employee has been involved in with Customs.
The significant differences in the comparative qualifications between Mr. Gonzalez and the applicant shows that Mr. Gonzalez has a college degree, Headquarters experience and is Hispanic (bilingual). The population of Tucson is 90% Hispanic, Mr. Gonzalez is Hispanic. Accordingly, the cultural environment is more conducive to Mr. Gonzalez's heritage and background, knowledge, work experience, skills, and cultural and diversity experiences.
• Vacancy Announcement/Position-Deputy Regional Special Agent In Charge (SAC Tampa) GS-1811-15 Office of Internal Affairs - Applicant selected is a white male and was selected so he could retire in Tampa. There was another Hispanic Male listed on the Best-Qualified Certificate list for this position with superior qualifications. The employee resides in Florida, with two Master Degrees, completed the Harvard School for SES candidates yet he was passed over in the selection of a white male applicant for this position. Consequently two Hispanic males with outstanding qualifications applied for this position and were passed over for someone with substandard qualifications and skills.
Mr. Keefer, Assistant Commissioner Office of Internal Affairs was and is currently the selecting official on the vacancy announcements named in this complaint. Mr. Gonzalez reiterated he was not interviewed for any of the positions and was unaware of any official interviews conducted by Mr. Keefer. While Mr. Keefer has been with· Customs for approximately a year, there is concern regarding the manager or . supervisor recommending employees for selection to Mr. Keefer for these·positions. The employees selections made under these vacancy announcements were internal

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 14 of 31
3

employees. It is noted the selections were made from four different vacancy announcemeng;..±he effective date of the selections was October 8, 1999.

-

"

Currently Mr. Gonzalez has applied for the following GS-15 vacancy announcements in

the Office of Internal Affairs.

1. Director Investigative Operations - Headquarters 2. Assistant Director Covert Operations -Headquarters (SO List) 3. Director of Foreign Operations 4. Assistant Area Director of Foreign Operations 5. Associate Special Area in Charge-Office of Investigations, Miami, New
Orleans (SQ List), Tucson, and Baltimore. The panel has not met to rate and rank applicants for the BO List for Miami, Tucson and Baltimore. This is one announcement with multiple locations. 6. Special Agent in Charge, Boston' 7. Deputy Director Air Marine- (GS-1801-15)

The qualifications are the same for the above mentioned positions.

The Complainant has not received any information nor had any discussions regarding the issue of his non-selection for the positions he sought. He feels he meets the requirements for the positions, based on his experience, education, knowledge and skills. Additionally, Mr. Gonzalez states there is nothing derogatory in his file that precludes him from being selected for any of these positions.

Although there is no set procedure or any process in place to advance your career, it is known that within Customs you must move around the Country to gather knowledge and diverse experience to enhance your skills. In addition the unofficial guidelines include a tour of Headquarters to reach the upper management level at Customs. The unofficial guidelines include a tour through Internal Affairs that can. enhance the employee's knowledge and skills. Mr. Gonzalez feels he has followed the "unofficial" rules.

On 10/28/99 Mr. Gonzalez requested a meeting with David Cohen, the Commissioner's Chief of Staff for law enforcement matters. He met with David and discussed the issue of his non-selection for a variety of positions along with other issues. He noted in his conversation with David Cohen the lack of Hispani"c and diversity. David Cohen asked the complainant to wait before filing an EEO complaint and he would call him back. David Cohen did not call therefore; the complainant spoke with Linda Batts, Special Assistant to the Commissioner, EEO.

The complainant met with Linda and reiterated his frustrations and his futile conversation with David Cohen. Linda sent an E-mail message to David Cohen noting her conversation with the complainant. Again, Mr. Cohen responded that he would get back to her after he reviews information from HRM. To date, he has not responded to the complainant or Linda Batts.

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 15 of 31

JI

4

II
r 11/10/99 tfJe--eBmplainant met with Linda Batts, Fr£nklin Jones, Director Complaints Processing Branch, (HQ-EEO), and George Heb'i, Director for National Labs. He was the previous Assistant Commissioner for Internal Affairs. He attended the meeting on behalf of the complainant, as the complainant's representative.

Accordingly, the complainant made several attempts to resolve his complaint on several occasions through David Cohen or Linda Batts, but to no avail.

Ed Menderos was the last Hispanic grade GS-15 in the field and that was 8 years ago. Mr. Menderos agreed to be a witness for the complainant.

Bill Valsco agreed to be a witness for the Complainant.

Joe Trufjillo who worked in EI Paso, was hired from an outside agency and retired in 1998. The complainant indicated that Joe Truijillio was forced to retire.

The complainant will be on leave December 20, 1999-January 3,2000.
>- 12/7/99 Complainant called and stated Lawrence Berger, General Counsel for the
Federal Law Enforcement Association (FLEOA) will be his representative if he elects mediation. If we have any questions call (516) 873-8600.
>- 12/8/99 the complainant and I discussed his promotion to the GS-14. I needed the
effective date and he indicated he received his promotion to the grade GS-14 July 21, 1996. He also told me he is aware of the class action complaint. The complainant feels his complaint may be settled early due to the class action.

During our conversation he mentioned there are 2 Hispanic RAC's grade GS-14 that are supervisors and they are located in Puerto Rico and theSourthwest Border. In Headquarters there is a Hispanic female GS-14 and a Black male in the Office of Internal Affairs.

Mr. Gonzalez restated his frustration and disappointment in being denied his promotion.
He has been seeking the GS-15 within Customs for 2 years. Ail. jobs he applied he has made the Best-Qualified list, however he has not been selected'~\vIJ)(

Senora Coggs 12/9/1999

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 16 of 31
U.s. CUSTOMS SERVICE EEO COUNSELOR'S REPORT

COMPLAINANT: Ruben E. Gonzalez SOUGHT COUNSELING: Dec 14,1999 (202) 927-4195

COUNSELOR: ADLINE TATUM INITIAL COUNSELING: January 30, 2000 (202) 927-0707

On December 14, 1999, I met with the complainant and conducted the initial interview. During this interview the complainant stated that he applied for four GS-15 position within the Office of Internal Affairs. The positions were announced under the merit promotion vacancy announcement. He was referred to the Selecting Official(s) under the Best-Qualified (BQL) Merit Promotion Certificate for the four vacant positions. The complainant indicated that during the selection process he was not.notified of his status of being referred on the BQ list and was not interviewed for any of the vacant positions. The complainant stated that the persons selected for the positions were white, three males and one female. The complainant stated that within the Office of Internal Affairs there are no Hispanics, Black males or females at the GS-15 grade level. There is only one(1) Black SES. The complainant also stated that the Director, Smuggling advised him that he was not selected for a lateral because he was too involved in the Hispanic Association. The complainant stated that there is no diversity, in fact in the entire history of lA, there has only been two male Hispanic GS-15's and no females.
The complainant stated that he has applied for GS 1811-15 approximately 12 times and has made the BaL nine (9) times. The complainant also stated and provided proof of qualification for SES on two occasions. The complainant stated that there are currently 88 GS 1811-15 in the Office of Investigations (01). There are approximately 9 GS 1811-15 in the Office of Internal Affairs (IA), 100% Non-Hispanics. The complainant stated that 10 Hispanics in 01 and None in IA at the GS 1811-15 level does not equate to diversity. The complainant stated that based on the qualifications alone, he is more qualified than those selected and that he is a victim of discrimination and retaliation.

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 17 of 31
On October 28, 1999, the complainant requested a meeting with Mr. David Cohen, the Commissioner's Chief of Staff for law enforcement matters. The complainant met with Mr. Cohen and discussed the issue of his nonselection for a variety of positions and the lack of Hispanics and diversity. The complainant stated that Mr. Cohen asked that he wait before filing an EEO complaint and he would call him back. The complainant stated, that Mr. Cohen did not call therefore; the complainant spoke with Linda Batts, Special Assistant to the Commissioner, EEO.
The complainant advised that a member of the evaluation panel, for one of the positions he made the SQ list, and who (panel member) did not apply for the position, was subsequently selected for the job.
The complainant advised that because he gave a presentation, at a conference recommending the Hispanic Association support the Class Action against Customs, which was favorable, he is being retaliated against.
The selection packages for the four positions the complainant applied for were requested from personnel, but has not been received.
Mr. Keefer, Assistant Commissioner, Internal Affairs, stated that race was not an issue regarding the selection of these positions and the selections were strictly on merit.
Mr. Keefer stated that there is a lack a diversity in the Office of Internal Affairs and that they were trying to make changes. He stated that more diversity is need in Internal Affairs. Mr. Keefer also stated that he does not know the complainant and therefore race was not a factor in the selection.
RESOLUTION:
Promotion to a GS-15 he was denied

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 18 of 31
/
WITNESS STATEMENT
Mr. William Keefer Assistant Commissioner, Internal Affairs
Mr. Keefer stated that race was not an issue regarding the selection of the position the complainant applied for and the selections were strictly on merit.
Mr. Keefer also stated that there is a lack of diversity in the Office of Internal Affairs and that they were trying to make changes. Mr. Keefer then stated that he does not know the complainant and therefore race was not a factor in the selection.
Miguel Contreias - GS 1811/14 Group Supervisor - 01
Mr. Contreias believes that the complainant is being discriminated against as well as Hispanics. He stated that management is discriminating against Hispanics the way they are handling the disciplinary action and promotions - using the vetting process to perpetuate discrimination. The witness stated that anyone who is or have been under investigation can not be promoted according to the Commissioner's guidelines and anyone facing any adverse action can not be considered for promotion.
The witness also stated that in lieu of the EEO process, ADR has been offered to management and they decline to participate. In his attempt for ADR - he received a letter or proposed removal from the Customs Service for failure to take action against an employee.
The witness stated that he has several EEO Formal complaints which were consolidated in a Class Action suit which currently has over 200 participants and that this Class Action was certified October 22, 1999. The complainant is apart of the Class Complaint.
The witness stated that the complainant, at a conference in Miami, took the podium and spoke about the Class Complaint. The witness stated that he was advised that the Commissioner has commented that if any Customs employee who files an EEO, is a disloyal employee, and will be treated accordingly.

:~ ,:;;.=."." ",. -~

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TID= P6H4 10/08/99 09C:3a3se *1*:02S-EcLvE-0C0) 92P3N-~JR JRDToHcuEmOeFnFt I2C2E-5 OF FIiNleTd E03P/2L0/2003AIRSPa7rg-Xe 19 of 31

ENTERED dY: WAYNE WALLACE The Commissioner and I are pleased to announce the following

PAGE 1 OF 2

selections:

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.:oinda M. Anderson =-=;.y:-t1

Director, Internal Investigations-

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N' ,:...Jl

Division, Headquarters

James B. ("Breck") Ellis

Deputy Reg.lona1 Spec.la1 Agent in

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Charge, Tucson (Region 3)

George E. Evancheck
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Director 1 Special Investigations _ F2..... ..-? .-i 1'(4-

Unit, Headquarters

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John G. Shirley MORE

Deputy Regional Special Agent in Charge, Tampa (Region 2)

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11/10/9911:C1a3se I1d:02S-EcLvE-C0~0T9,2O3N-JR R DTHoEcumOFeFnItC2E2-5OF INFTileEPdl-0T3"'/T2.l0. /200.3~IRS P*a*ge 20 of 31

ENTEREU ly: WAYNE WALLACE

PAGE 1 OF 1

I am pleased to announce that the Commissioner has selected Thomas J. Howe to be the Deputy Regional Special Agent in Charge, Chicago, Illinois.~. Howe is currently Resident Agent in ~harge, Office of_Investigations, Key Largo, Florida.

Authorized by:

William A. Keefer Assistant Commissioner Office of Internal Affairs

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Case 1:02-cv-00) 9I23-JR Document 22-5 Filed 03/20/2003 Page 21 of 31

DATE: 07/12/99

PER-12-0M:H

ANNOt.JNCEMENT #: HEADQ/ 9 9 -14 8MCC TITLE: SUPERVISORY CRIMINAL INVESTI~AT SERIES & GRADE: GS-1811-15 OPEN: 05/05/99 CLOSE: 06/03/99

RUBEN E. GONZALEZ 14703 FLAGLER COURT CENTREVILLE, VA 20120

Dear RUBEN E. GONZALEZ:

Per your request, the scores you received for the above referenced announcement are provided below. The vacancy was paneled and the application was scored using a group scoring method. The highest possible score for primary criteria is 6.0, for secondary ·criteria is 4.0.

Your scores for Grade 15 are as follows:

Criteria

TOTAL Primary

Secondary

31.50 6.0 6.0 6.0 6.0 4.5

3.0

Note: refer to your copy of the Vacancy Announcement to determine the meaning of the criteria applied.

Listed below are the locations to which you applied where referral lists of qualified candidates have been generated. An asterisk (*) indicates your name was included on the list. The format of the data is DATE/LOCATION/GRADE.

* 06-25-99/WASHINGTON, DC/IS

Your interest in the U.S. Cus~cms Service is appreciated.

Sincerely,
~ ~ ~ 7 _. c-o~ -•.•-.~ __ • __ ~~.-l
. M. CINDY CASEY PERS MGMT SPECLST

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 22 of 31

DATE: 07/12/99

PSR-12 -OM: H

llliNOlJ'NCEMENT #: HEADQ/9 9 -15 8t"1CC TITLE: SUPERVISORY CRIMINAL INVEST=GA~ SERIES & GRADE: GS-1811-15 OPEN: 05/12/99 CLOSE: 06/01/99

RUBEN E. GONZALEZ 14703 FLAGLER COURT CENTREVILLE { VA 20120

Dear RUBEN E. GONZALEZ:

Per your request{ the scores you received for the above referenced announcement are provided below. The vacancy was paneled and the application was scored using a group scoring method. The highest possible score for primary criteria is 6.0{ for secondary criteria is 4.0.

Your scores for Grade 15 are as follows:

Criteria ---------------

TOTAL Primary

Secondary

29.50 6.0 6.0 6.0 4.5

3.0 4.0

Note: refer to your copy of the Vacancy Announcement to determine the meaning of the criteria applied.

Listed below are the locations to which you applied where referral lists of qualified candidates have been generated. An. asterisk (*) indicates your name was included on the list. The format of the data is DATE/LOCATION/GRADE.

* 07-02-99/TUCSON/15

* 07-02-99/TAMPA/15

Your interest in the U.S. Customs Service is appreciated.

Sincerely,
.<C'. --:';':"---::-~::--.~~'=:'2,
M. CINDY CASEY PERS MGMT SPECLST

'. "

J.-:

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Case 1:02-cv-0)09, 23-JR Document 22-5 Filed 03/20/2003 Page 23 of 31

DATE: 07/12/99

PER-12-0M:H

ANNOUNCEMENT #: HEADQ/99-159 MCC TITLE: SUPERVISORY CRIMINAL IN'JESTIGAT SERIES & GRADE: GS-1811-15 OPEN: 05/12/99 CLOSE: 06/02/99

RUBEN E, GONZALEZ 14703 FLAGLER COURT CENTREVILLE, VA 20120

Dear RUBEN E, GONZALEZ:

Per your request, the scores you received for the above referenced announcement ar~ provided below. The vac~ncy was paneled and the application was scored using a group scoring method. The
highest possible score for primary criteria is 6.0, for secondary
criteria is 4.0.

Your scores for Grade 15 are as follows:

Criteria ---------------

TOTAL Primary

Seconda:ry

29.50 6.0 6.0 6.0 4.5

3.0 4.0

Note: refer to your copy of the Vacancy Announcement to determine the meaning of the criteria applied.

Listed below are the locations to which you applied where referral lists of qualified candidates have been generated. An asterisk (*) indicates your name was included on the list. The format of the data is DATE/LOCATION/GRADE.

* 07-02-99/WASHINGTON, DC/IS

Your interest in the U.S. Customs Service is appreciated.

Sincerely,

M. CINDY CASEY PERS MGMT SPECLST

Case 1:02-cv-00)92,3--JR Document 22-5 Filed 03/20/2003 Page 24 of 31
Author: RUBEN E GONZALEZ at HQ-3 PO Date: 12/15/99 1:02 PM Priority: Normal Receipt Requested TO: ADLINE Tfl,TUM at JlQ::..i PO
. Subj ect: FYI ----------------------------------- Message Contents ------------------------------------
Adline, I have some documents I want to provide you that may assist you with your interview of Ms. Elissa Brown.
I strongly believe that Ms. Brown either knowingly or was manipulated into retaliating against me, because of my involvement with the Hispanic Association.
Not only was I denied a lateral within her division as Assistant Director at the same grade, but I was transferred out of her Division without any explanation, when others in the Division had never been subjected to being transferred
Although I received commendations and a incentive award' while in the Smuggling Division, Ms. Brown did not see fit to grant me a annual cash award. Everybody else to my knowledge received the cash awards. When I asked Ms. Brown why I did not received the award, she stated that she thought I had received same. Furthermore, she said that she would check into it and let me know. This conversation took place in her office about 5/6 months ago. I have not received any award or received any explanation to date.
As you will note from the documents, I had more assignments (PROGRAMS) in the Smuggling Division than the' other Agents. I received letters of commendation and a certificate from visiting Argentinean Judges I provided training for in U.S. Smuggling Investigations techniques.
Additionally, as you will note from the TECS message for the Assistant Director position, experience in Marine Enforcement Programs would have made me one of the Best Qualified. Especially, since I was a
RAre responsible for both investigations and marine interdiction.
(P.S. r was also received the Commissioners Unit Citation for my accomplishments in the Marine Programs).
I asked Ms. Brown if r was Best Qualified why wasn't I selected. Ms. Brown related that Ms. Connie Fenchel told her that I was too involved in the Hispanic Association. Ms.Brown also related that they (?) did not believe I would complain because it was the same grade.
I know that management knows my involvement with the Hispanic Association and that I was/am an advocate of the Class Action and have publicly stated my membership and support of the Class Action.
For the reasons stated above I know I am a victim of Discrimination/ Retaliation. This Retaliation/Discrimination has further precluded me from being selected to GS-1811-IS.
C,._l.t}D2:1~ "
. . ~ .

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 25 of 31
EXHIBIT 2

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 26 of 31

Form No. TDF 62-03.5 (03/97 Edition)

FOR OFACE USE ONLY

1. Name (Last. Arst, Middle Initial)
Gonzalez,Ruben E.

5. Name.nd Adctr'Ka of Organization Where You Wort (If a
Treasury Employee)

2. TelephonelFax (Include Area Code)

Home: 703-2664961

Fax:

WOl1c: 202-9274195

Fax.: 202-9279373

3·8resent Home Address ('rbu must notify the Department of any changes of address while complaint is pending, or your complaint may be dismissed)

14703 Flagler Court

Bureau

Customs

Offloe and Organizatiooal Component 0 f fie e 0 f Investigations /lnternal Affairs
Street Addnssa 1300 Pennsylvania Ave. ,NW

Street Address

Washington

State DC 2022.Coc»

6. Empioyment Stm.- In Reiatkln to ttUa ~~. ' .

t-:"""'::'CIty ce_n_t_r_e_v_i~1_1_e~_S_tate_V ..A..~2.:..0_1_20~:--=-ZIp-:-Code--:-_...., 0 AppIca1t 0 ProbdoI.-y 0 c..wca.. ~•.

4. If you are • current or former employee 01 the Federal government. list your most recent tttte, lIel'1ea, and grade.

0 Fonner EmpIovw' !'I0at8='L.eft=-'11O::::l'M~_~I.I'Y~~-===.=.::-,.--~~-::W-·"'~~·--· - I
o Retnd

Program Manager/Special Agent

Title

.

Series 1811 Grade14

o Other

7. I certify that IJ.I. of the
and belief.

nts made In this complaint are true, comp6ete, and COlT8Ct to the best of my knowMtdge

8. You may represent yourself in this complaint or you may choose someone to represent you. You'r representative does not have to be an attorney. You may change your designation of a representative at a later date, but you must notify the Department immediately i~, writing of any change. and you must include the same information requested in this
Part.
(Please Print Name) to serve as
ring the course of this complaint. I understand that my representative is authorized to

9. Representative's Mailing Address

FirmlOrganizanon Street Address City

Stale

Zip CoOe

1O. Representative'. Employer (If Federal Agency)

, 1. Repre8entatIw'. TeiephoneI FlIX (Incix:ie Area Code)

Telephone

12. Complainant's Signature ~

, ....... Date

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 27 of 31

13. Name and Addrau of Treasury Bureeu that took the action at lawe (If dfffwent than Item 5.)
same as #5

14. If your com~nt lrrrotves noo~on for II posJticn,
p*58 com~ the following:

Pir and Assoc SAle

1811-15

Street Address City

State

Z1p COOe

HeadQ!99-148,ls8,ls9MCC 100899
VacaI'C'( Annoc..ncement N\Jmber' Dete Leemed at Nonlilldlcn

15. (A) Describe the action taken against you that you beIieYe waac!scM1lnatcxy; (8) Glw!he da18 wtlerI the action 0CCUIT8d, 8Dl1..

the name of each person responsible for 1he action; (C) Deecribe how you were tr'88md dIfterently t!'Ian'olhec ~or, '•.,

appIlc:ants becau&e of your race, color, rellgkJn, sex, national origkl, age, dlaabiUty,. or In retallatlon tor your pertlcipdon ,,:.....~ '.

EEO process or opposition to alleged discriminatory prBdk:es; (0) Indicat8 wt\at ham\, If any, came to ~ In YfU wait aIluaIior'I.

as a resutt of this action. ()'bu may but. lU'8 n« reqcsIt'ed 10 Bt1Bch axtra. she«1L)

.,

On 100899, selections for GS1811-1s positions were made by A!e IA Keefer and

Corom., Kelly of three white males and one white female. I was referred to

the Selecting Official under the BQL., but not selected. I know 1 am equalIy

and more qualified than those selecte ased on my education and experience. I

was discrimianted and retaliated because I am a Hispan~c an my ~nvo vement

in the recently certified Hispanic Class Action. IA has NO Hispanics in the

1811-15 scale and 01 has only approx., 10 Hispanicsfrom 88-GS1S position within

the Office of Investigations. Additionally, a member of the evaluation panel

for one the positions was subsequently selected. This selection to me wa& a possible violation of~~~erit System in itself. It is suspected that the

17. What remedial Of corrective action are you seeking to I"H.OfYe this matfIr? Promotion to GS1811 -15

Month

Year

, 9. When did you first becOme aWare of the alleged

dlscrimlnatlon 7 .--=1""0:.".0:.".8'-"9'-"9

_

Monltl

Day

Year

20. When did you contact an EED counselor?
120699

Monltl

Day

Year

21. Old you discuss all actions raised In Item 15 wittl an

EEO coUnselor? Gl YES D NO

no. ,

00 Ittach«f

22. Name and telephone number of EEO counselor.

Adline Tatum
Name

202-9270707
Telephone No.

23. When did you rece4ve your -NOtIce of Right to FI....?

020100

Month

Day

Y8er

"led 24. On this same m.ttec", have you

III grievance or

IlIppealunder.

Negotiated grievance procedure DYES-DNO

Agency grievance procedure DYESDNO

MSPBappealprocedure

OYESDNO

If you filed a grievance or appeal, prov1cM date filed, caM number, and present status.

.\,'
_0
000002

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 28 of 31
EXHIBIT 3

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 29 of 31

MEMORANDUM TO THE FILE

Ruben E. Gonzalez
TO Case Number: 00-1091

On February 24, 2000, I spoke with Complainant regarding clarification of

his formal complaint of discrimination. First, I inquired about the date

counseling was first sought because the complaint appeared to be

untimely. The formal complaint revealed that Complainant became aware

of discrimination on October 8, 1999. However, the Report of Counseling

indicated that counseling was first sought on December 6, 1999. Based on

the identified dates more than 45 days passed before Complainant sought

counseling. In my conversation with Complainant, I learned that he

actually met with Linda Batts, Special Assistant to the Commissioner on

November 5, 1999, regarding his non-selection issues. Prior to my

conversation with Complainant, I spoke with Senora Coggs, Director, Equal Employment Opportunity regarding the initial counseling date. Ms. Coggs stated that Complainant met with Ms. Batts on November 5,

,

1999, regarding his non-selections. I also requested a statement from the

EEO Office or an amended Report of Counseling to reflect the correct date

that counseling was initially sought. Consequently, the Center will use

November 5, 1999, as the initial date Complainant sought counseling.

Next, I asked Complainant to explain whether he intended to include national origin as one of the bases for this complaint. This question was presented to Complainant because the Report of Counseling did not indicate national origin as a basis; however, the formal complaint did. Complainant stated that he wanted national origin (Puerto Rican) as one of the bases.

Finally, I requested that Complainant respond to my concerns by faxing a statement to my attention regarding the above.

~B'~
Kittoma rooks EEO Specialist 2/24/00

"",'- ns t. l: . l '••

3~

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 30 of 31
EXHIBIT 4

Case 1:02-cv-00923-JR Document 22-5 Filed 03/20/2003 Page 31 of 31

Ms. Kittonia Brooks Regional Complaint Center Equal Employment Opportunity Commission 1400 L Street. NW
Washington, D.C.

FEB 24 2000·

Dear Ms. Brooks:

I appreciate the opportunity to clarify the date I first sought counseling
from EEO. In the EEO counseling report, Part 1, sub·number # 4,
reflects the date of December 6, 1999. In fact I first met with Unda Batts, Special Assistant to the Commissioner, EEO on November 5, 1999 and sought her counsel about my non-selection for a promotion to which I had made the Best Qualified Ust (SQl).

Reference also is made to Part 1 sub-number #12 of the counseling report, where it simply states that counseling was M-fIMELV- .

Additionally, reference is made to Part 1 sub-number #7 of counseling
report. Race is reflected as HISPANIC, not as national origin. I would appreciate if you would include my national origin, Puerto Rican in my complaint.

Therefore, Hispanic, born in Puerto Rico.

If I can be of any further assistance please call me at 202-927-4195.

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et aI., )

Plaintiffs,

)

)

v.

)

)

TOM RIDGE, Secretary,

)

Department of Homeland Security, )

Defendant.

)

)

Case No.1 :02CV00923(JR)

DECLARATION I, MARIAM HARVEY, declare the following to be true and correct: 1. I am the Assistant Director for Complaint Operations, Office of Equal Opportunity Program (OEOP), Department ofthe Treasury, Washington, D.C. I have held this position since August 2001. Prior to occupying this position, I served as Deputy Director, OEOP, from 19992001. I was the Chief, Complaint Operations, from approximately 1996 to 2001. This declaration is based on my personal knowledge or information provided to me in my official capacity. 2. OEOP administers the Department of Treasury's equal employment opportunity (EEO) program by providing policy, oversight and technical guidance to the Department's bureaus. OEOP also manages the Department's EEO complaint process, providing for the consideration and disposition of formal EEO complaints from Treasury employees and applicants for employment, and providing oversight to the four Treasury Complaint Centers, which are responsible for the acknowledgement, acceptance, dismissal and investigation of complaints for all of the Department's bureaus.

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 2 of 32
EEO Records 3. As the Assistant Director for Complaint Operations, OEOP, I am the custodian of
official agency records relating to the filing, administration, and disposition of formal administrative complaints presented to the Department of the Treasury, including the United States Customs Service before it was transferred to the Department of Homeland Security on March 9,2003.
4. To initiate an administrative EEO proceeding, an employee first "must consult [an EEO] Counselor prior to filing [an administrative] complaint.. .." 29 C.F.R. § l6l4.l05(a). The employee must initiate counseling within 45 days of the allegedly discriminatory event, or within 45 days of when he/she first became aware of discrimination. Upon consultation, the EEO counselor typically prepares a written report. Within the Department of Treasury, EEO counseling is normally conducted by an employee of the bureau where the complaint arose. However, counselors may be contractors or may be employees of another Treasury bureau or another agency.
5. If an EEO matter is not resolved informally during the counseling period, the counselor issues a Notice of Right to File a Discrimination Complaint (NRFDC), and the employee must file a written formal administrative complaint within fifteen days from receipt of the NRFDC in order to pursue the matter. Such complaints are filed with one of the four Treasury Complaint Centers (TCCs), previously known as the Regional Complaint Centers.
6. The Treasury Department delegates to the TCCs the authority to acknowledge, accept, dismiss (fully or partially), and investigate claims of discrimination. Typically, the TCC defines the issue of the complaint based on the EEO counseling report and the formal complaint. It is
2

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 3 of 32
standard practice for the TCC to provide the complainant the opportunity to comment on whether the defined issue accurately reflects the complainant's claims. The TCC further determines, based on applicable law, regulations and policy guidance, whether the complaint should be accepted or dismissed.
7. Formal administrative complaints of employment discrimination brought by Treasury employees are filed against the Secretary ofthe Treasury. Authority to settle such complaints, however, lies with the appropriate bureau.
8. OEOP maintains all EEO records, including counseling records and administrative complaints, relating to the processing of a formal complaint of discrimination, with the exception of records relating to (1) complaints that are dismissed at a TCC for one of the reasons outlined in 29 CFR § 1614.107, and (2) complaints that are settled while the complainant was still in the TCC's jurisdiction. Records falling under the two stated exceptions are maintained in one of the TCCs, unless an appeal to the Equal Employment Opportunity Commission, Office of Federal Operations (EEOC, OFO) is filed, whereby the records would be maintained by OEOP. EEO records maintained by OEOP are kept for at least four years after the matter is resolved, pursuant to the National Archives and Records Administration (NARA) records retention schedules.
9. As a routine business practice, this office maintains a file for each administrative complaint. The complaint files are identified by a unique Treasury Department (TD) number. In addition, complaints are tracked in an electronic database known as the Complaint Tracking System (CTS), which is administered for the Department of the Treasury by the Internal Revenue Service (IRS). The CTS database tracks the status of complaints by TD number and/or complainant's name.
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10. I caused a thorough search to be made ofEEO complaint records of this office to determine whether Frank Almonte, Miguel Contreras, Ruben Gonzalez, Ramon Martinez, Stephen Mercado-Cruz (as well as Stephen Mercado), Evelio W. Velasco (as well as E. William Velasco and Bill Velasco), Ricardo Sandoval and John Yera, filed formal administrative complaints of discrimination against the Secretary of Treasury, and if so, the nature of those complaints.
Frank Almonte TD 01-3019
11. An examination of the EEO complaint records of this office indicates that on September 12, 2000, Mr. Almonte sought EEO counseling regarding his non-selection for promotion to a GS-13 Senior Special Agent position (vacancy announcement number CAAPS/00-002KRH). Mr. Almonte claimed to have learned of this non-selection on September 5,2000. The initial counseling interview was held by a Customs EEO counselor on September 19,2000. A NRFDC was hand-delivered to Mr. Almonte on October 13,2000.
12. On October 21,2000, Mr. Almonte filed a formal individual administrative EEO complaint, which was designated TD 01-3019 (Exhibit 1 hereto). On October 26,2000, the Chicago Regional (now Treasury) Complaint Center (CTCC), notified Customs that the following issue was accepted for processing: "[w]as the complainant discriminated against based on his national origin (Hispanic) when on or around September 5, 2000 he learned that he was not selected for the position of Senior Special Agent, GS-1811-13 announced under Vacancy Announcement #CAAPS/00-002KRH?" (Exhibit 2 hereto).
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13. On January 24, 200 1, Mr. Almonte withdrew his formal complaint of discrimination, (Exhibit 3 hereto) and was thereafter notified by the CTCC that the Department terminated the processing of the complaint (Exhibit 4 hereto). Mr. Almonte indicated that he did "not wish to pursue this complaint any further" (Exhibit 3).
14. An examination of the records ofthis office indicates that Mr. Almonte has not filed any administrative complaints of discrimination against the Secretary ofthe Treasury either individually or as a class agent on behalf of a purported class of Customs employees, other than the complaint of discrimination described above and the documents referred to therein.
Evelio W. Velasco TD 95-1245
15. An examination of the EEO complaint records of this office indicates that on February 15,1995, Mr. Velasco sought EEO counseling regarding his non-selection for the positions of Criminal Investigator (Cl) (Special Assistant); Special Agent in Charge (SAC), Los Angeles; and Assistant SAC (ASAC), San Diego.
16. On May 24, 1995, Mr. Velasco filed a formal individual administrative EEO complaint of discrimination, designated TD 95-1245, regarding the above-mentioned nonselections (Exhibit 5 hereto). The issues accepted for processing by the Washington TCC (WTCC) on June 30, 1995, were whether Mr. Velasco was discriminated against based on national origin (Hispanic) when (a) on or about January 18, 1995, he learned that he was not selected for the position of Criminal Investigator (Cl) (Special Assistant), under Vacancy Announcement (VA) # EEB-94-14WM; (b) on January 23,1995, he learned that he was not
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selected for the position of Supervisory CI, Special Agent In-Charge (SAC), VA# EEB-94-13 WM; and (c) on February 28, 1995, he learned that he was not selected for the position of Supervisory CI, Assistant SAC (ASAC), VA# EEB 94-12 WM (Exhibit 6 hereto).
17. On April 11, 1997, Mr. Velasco and Customs entered into a settlement agreement that resolved all issues related to TD 95-1245 and led to Mr. Velasco's withdrawal of that complaint.
18. An examination ofthe records of this office indicates that Mr. Velasco has not filed any administrative complaints of discrimination against the Secretary of the Treasury either individually or as a class agent on behalf of a purported class of Customs employees, other than the complaint of discrimination described above and the documents referred to therein.
John Yera 19. An examination of the EEO complaint records of this office indicates that, as of the
date of this declaration, John Yera has never filed a formal administrative EEO complaint against the Secretary ofthe Treasury, either individually or as a class agent on behalf of a purported class of Customs employees.
Stephen Mercado-Cruz TD 91-2239 and TD 92-2018
20. An examination of the records of this office indicates that, prior to 2000, Mr. Mercado-Cruz filed two formal individual administrative EEO complaints, designated TD 912239 and TD 92-2018, on July 1, 1991 and October 17, 1991, respectively. In accordance with
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NARA's four-year record retention schedule, this office no longer maintains files related to these complaints. However, CTS records show that in TD 91-2239, Mr. Mercado-Cruz alleged discrimination on the basis of national origin (Hispanic) and retaliation regarding issues of evaluation/appraisal. According to CTS, the case was closed on the merits on December 10, 1991, with no finding of discrimination (Exhibit 7 hereto).
21. TD 92-2018 concerned allegations by Mr. Mercado-Cruz that he was discriminated against on the basis of his national origin (Hispanic) and retaliation regarding issues of evaluation/appraisal. According to CTS, the case was closed on the merits on February 3, 1993, with no finding of discrimination (Exhibit 8 hereto).
TD 00-4110 and 00-4296 22. An examination of the EEO complaint records of this office indicates that on
December 6, 1999, Mr. Mercado-Cruz sought EEO counseling regarding his non-selection for a group supervisor position at the RAIC/OI (Resident Agent in Charge/Office of Investigations) in Calexico, CA, on the basis of reprisal and national origin discrimination. Mr. Mercado-Cruz claimed that he was notified on November 9, 1999 of this non-selection. On January 5,2000, the EEO counselor sent Mr. Mercado-Cruz a NRFDC by certified mail.
23. On January 18, 2000, Mr. Mercado-Cruz filed a formal individual administrative EEO complaint, which was designated TD 00-4110 (Exhibit 9 hereto). The complaint was accepted for processing on February 4, 2000. The issue was defined as whether the complainant was discriminated against on the basis of his national origin (Hispanic) and/or in retaliation for prior EEO activity when he was not selected for the position of Group Supervisor, GS-18l1-14
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(SAC San Diego, CA), VA# AN41811, on or about November 9, 1999 (Exhibit 10 hereto). On March 17, 2000, the San Francisco Regional Complaint Center (now Oakland TCC (OTCC)) notified the complainant that it was ceasing processing of this individual complaint because it carne within the definition of the class complaint filed under number TD 95-0014C by Miguel Contreras on behalf of other special agents of Hispanic national origin.
24. On August 21,2000, the OTCC notified Mr. Mercado-Cruz that it decided to bifurcate TD 00-4110 into two separate actions, TD 00-4110 and TD 00-4296. The issue and basis accepted for processing under TD 00-4296, was whether Mr. Mercado-Cruz was retaliated against for prior EEO activity related to his non-selection for the position of Group Supervisor, GS-1811-14 (SAC San Diego, CA), VA# AN41811, on or about November 9,1999. He was further notified that TD-411 0 would remain inactive and TD-4296 would be processed.
25. On May 31, 2001, the OTCC wrote to Mr. Mercado-Cruz indicating that it would cease processing ofTD 00-4110 and TD 00-4296, because they carne within the definition of the class complaint. On November 8, 2002, the OTCC dismissed both complaints because they were the basis of a pending civil action in U.S. District Court.
26. An examination of the records ofthis office indicates that Mr. Mercado-Cruz has not filed any administrative complaints of discrimination against the Secretary of the Treasury either individually or as a class agent on behalf of a purported class of Customs employees, other than the complaints of discrimination described above and the documents referred to therein.
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Miguel Contreras TD 94-3272 and TD 95-3067
27. On August 25, 1994, Mr. Contreras sought EEO counseling regarding allegations that he was being discriminated against on the basis of his national origin on the following matters: evaluation/appraisal (non-merit pay), harassment, training, and working conditions. Specifically, he alleged that on July 25, 1994, he received a performance appraisal with an overall rating of "Fully Successful" but with negative remarks in three areas (Exhibit 11 hereto). He also complained to the counselor that he had received inadequate training (Exhibit 12 hereto). On September 26, 1994, a NRFDC was hand-delivered to Mr. Contreras.
28. On September 26, 1994, Mr. Contreras filed a formal individual administrative EEO complaint of discrimination, which was designated TD 94-3272. The formal complaint alleged discrimination due to his national origin (unspecified) concerning his performance appraisal, retaliation and inadequate training (Exhibit 13 hereto).
29. On October 31, 1994, Mr. Contreras sought EEO counseling regarding the imposition of an October 5, 1994 suspension. At counseling, Mr. Contreras claimed that the suspension was imposed because of his national origin. On December 6, 1994, Mr. C<?ntreras agreed to extend the counseling period for 30 days. On December 29, 1994, Mr. Contreras was issued a NRFDC.
30. On January 6, 1995, Mr. Contreras filed a formal individual administrative EEO complaint, which was dated December 30, 1994. The complaint, designated TD 95-3067, contained allegations of discrimination related to the suspension of October 5, 1994 (Exhibit 14 hereto).
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31. On February 2, 1995, the Chicago Regional (now Treasury) Complaint Center (CTCC) notified Mr. Contreras that TD 94-3272 and TD 95-3067 had been accepted for processing. The issues defined were whether Mr. Contreras was discriminated against on the basis of his national origin and retaliated against for prior EEO activity when (1) on July 25, 1994, he received a performance appraisal with an overall rating of "Fully Successful" but with negative comments in various performance elements; (2) he was not allowed to participate in a training class on September 19, 1994; (3) he was "subjected to a higher level of supervision"; and (4) on October 5,1994, he was suspended for three days (Exhibit 15 hereto).
32. On April 3, 1996, the CTCC notified Mr. Contreras by letter that it was administratively closing TD 94-3272 and TD 95-3067, because the processing of those complaints was affected by matters Mr. Contreras was pursuing in another forum. The letter did not identify the forum, but it apparently was referring to the EEOC's processing ofTD 95-00l4C (see below), the administrative class complaint pursued by Mr. Contreras. The CTCC stated that, after a decision was made in the other forum (on, presumably, the class complaint), Mr. Contreras would have 15 days to notify the CTCC that he wished to reinstate the administrative processing ofTD 94-3272 and TD 95-3067.
TD 95-00l4C/95-00l4CR 33. On January 9, 1995, Mr. Contreras sought counseling regarding his non-selection for
a GS-14 Supervisory CI position. He claimed he became aware of the non-selection on January 6,1995 (Exhibit 16 hereto).
34. On February 16, 1995, Mr. Contreras was interviewed by an EEO counselor.
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Counseling records indicate that during the interview, Mr. Contreras stated his desire to file a class action complaint because of his belief that Hispanic Special Agents (SA's) of the Customs Service, ranging from GS-12 to GS-15, were being discriminated against in the areas of promotions, reassignments, details, job training and language skills (Exhibit 17 hereto). Notes from the interview indicate that the complaint was triggered by Mr. Contreras's alleged discovery on January 6, 1995, that he had not been selected for a Supervisory Criminal Investigator Resident Agent in Charge (RAIC) GS-1811-14 position that he had applied for under VA# ENFI/94-072JS, dated September 26, 1994. The announcement covered duty locations in Miami, Florida, El Paso, Texas, and Laredo, Texas, but Mr. Contreras only applied for El Paso and Laredo. Mr. Contreras also alleged that (1) as a GS-12 from 1988 to1992, he had applied for GS-13 positions thirty-five times before being selected, and that he had applied at least five times since then for a promotion to GS-14 without being selected; (2) he had applied, at an unspecified time, for a position in Mexico but his application had been "blocked" by his supervisor in Detroit, who cited a need for his Spanish language skills in Detroit, as well as the fact that Mr. Contreras had been in Detroit for only thirteen months; (3) he had been denied adequate training, citing the denial of his January 31,1995 request to attend an Advanced Financial Forfeiture class and the denial of his request to attend the Customs National Agents Associations First Annual Training Conference on March 7-8, 1995; and (4) Hispanics were underrepresented nationwide and particularly in Arizona, citing his own nonselection for several unspecified positions in Arizona, as well as for a GS-13 position in Sells, Arizona. On March 15, 1995, a NRFDC was issued to Mr. Contreras via certified mail.
35. On or about March 23, 1995, Mr. Contreras filed an administrative EEO class
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complaint of discrimination "on behalf of himself and all similarly situated past, present, and future Hispanic agents" at Customs, alleging that the class "includes a group of approximately twenty-seven (27) Hispanic GS-1811 Special Agents (Criminal Investigator) Grade 12-15, who are currently employed by [Customs's] Office ofInvestigation and Internal Affairs" (Exhibit 18 hereto). The class complaint contained allegations that Mr. Contreras had been individually discriminated against when (1) Customs continued to seek applications for a lateral transfer position of Resident Agent in Charge (RAIC), Sells, Arizona, even after he applied for the position on January 25, 1995; (2) his February 1, 1995 request to attend a two-week advanced financial/forfeiture training was not referred for consideration; (3) no action was taken on his January la, 1995 application for a lateral transfer to a position in Merida, Mexico, though the status ofthe vacancy announcement was unknown to him at the time of the complaint; (4) after applying for two Supervisory Criminal Investigator positions in El Paso and Laredo, Texas on January 6, 1995, he learned of his non-selection for the El Paso position; (5) on April 7, 1994, he was not selected for a rotational reassignment in the Offices ofInvestigation and Internal Affairs (OI/IA), after applying for such reassignments in Arizona, Texas, and California; (6) over the course of his employment with Customs, at least 38 of his applications for promotions to GS1811-13 and 14 Supervisory CI positions and/or lateral transfers were rejected; (7) in January 1995, he learned of his non-selection for a lateral transfer to Monterrey, Mexico; and (8) after being tentatively selected in October 1993 to a Customs Representative position in Mexico, his transfer was denied by management officials who cited a mobility policy that precluded employees from transferring within a three year period after their last transfer. The class complaint also alleged class-wide discrimination in the areas of promotions, recruitment, hiring,
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work assignments, geographic assignments, transfers, retention, training, foreign language pay, awards, and discipline. Mr. Contreras did not indicate whether he had contacted an EEO counselor within 45 days of any alleged adverse employment action pertaining to any of these allegations.
36. On April 12, 1995, OEOP asked EEOC to assign an Administrative Judge (AJ) to handle the class complaint, designated as TD 95-0014C. On November 21, 1995, the AJ issued an opinion recommending that Mr. Contreras's complaint be processed on behalf of a class. The opinion found that the complaint, on behalf of all past, future, and other Hispanic GS-18ll SA's (Cl's) grades 12-15, who are currently employed by the agency's 01 and lA, and who were geographically dispersed, met administrative class requirements.
37. On December 21, 1995, OEOP issued a final decision rejecting the recommendation to process Mr. Contreras' complaint on behalf of a class, determining that "the class complaint is untimely and also does not meet the prerequisites of class complaints." With respect to timeliness, the agency noted that Mr. Contreras "did not timely raise any allegations of his own experiences with respect to hiring, job assignments, retention, or the use of language skills which occurred within forty-five (45) days of January 9, 1995."
38. Mr. Contreras appealed the agency's December 21, 1995 decision. On May 11, 1998, the EEOC GFO reversed and vacated the agency's decision and certified the class complaint. The EEOC also stated that the class agent's efforts to consolidate his own individual complaints were proper and consolidated TD 94-3272 and TD 95-3067 with the class complaint. On October 22, 1999, GFO denied a request by Customs to reconsider its reversal of the agency's decision, and ordered the agency to process the complaint as a class.
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39. On June 22,2000, EEOC AJ Matthew Bradley defined the class as "All Special Agents (Criminal Investigators, job series 1811, grades 12 through 15, of Hispanic national origin, employed in the Office of Investigations and the Office of Internal Affairs of the United States Customs Service." The AJ continued: "The class does not include applicants. Nor does it include Air Interdiction Officers. However, the class does include agents employed after January 9, 1995. The decision certifying the class does so based upon the theory that the Agency's policies and practices toward Spanish-speaking agents, specifically regarding how they are assigned, have a negative impact with respect to training, promotions, awards, and discipline." The parties processed the case using these definitions of the class and issues until January 2002, when class counsel requested that retaliation be included as an issue. AJ Joel Kravetz denied this request in February 2002.
40. On May 10, 2002, Mr. Contreras withdrew his class complaint from the administrative process and filed a complaint in the District Court of the District of Columbia.
TD 98-4017 41. On July 7, 1997, Mr. Contreras sought EEO counseling concerning his non-selection
for a reassignment as Senior Customs Representative in Hermosillo, Mexico (Exhibit 19 hereto). He claimed that he learned of this non-selection on May 22, 1997. At some point later during counseling, he also raised his non-selection, on or about August 27, 1997, for the position of Assistant Customs Attache, Bangkok (Exhibit 20 hereto). A NRFDC was issued on October 10, 1997, and sent by certified mail.
42. On October 23, 1997, Mr. Contreras filed an individual administrative EEO
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complaint, designated as TD 98-4017 (Exhibit 21 hereto). Accepted for processing on December 11, 1997, the complaint alleged that Mr. Contreras was discriminated against on the basis of his national origin (Hispanic) and/or in retaliation for his prior EEO activity when he was not selected for the position of Senior Customs Representative (Hermosillo, Mexico), GS-181l-l4, on or about April 15, 1997; and for the position of Assistant Customs Attache (Bangkok), GS-18ll-l4, on or about August 27, 1997. On August 16, 2002, Customs was informed by Administrative Judge Salvador that the complaint was dismissed at the agency's request because it contained the same allegations as the class action filed in federal district court.
TD 98-4137 43. On November 3, 1997, Mr. Contreras sought EEO counseling concerning his non-
selection for a promotion to Attache, Bogota, Colombia (Exhibit 22 hereto). He claimed that he learned ofthis non-selection on October 17, 1997. Also during the counseling phase, Mr. Contreras claimed that he learned that that he was not selected for three additional positions: Attache, Caracas (notified 12/8/97), Treasury Liaison (notified 12/17/97), and Associate SAC (ASAC) (Chicago) (notified 1/21/98) (Exhibit 23 hereto). The basis for the discrimination was noted as national origin (Hispanic) and retaliation. A NRFDC was issued on March 12, 1998.
44. On March 17, 1998, Mr. Contreras filed a formal individual administrative EEO complaint regarding these non-selections (Exhibit 24 hereto). On April 13, 1998, the San Francisco Regional Complaint Center (now Oakland TCC) designated the complaint as TD 984137, and the issue accepted for processing was whether Mr. Contreras was discriminated against on the basis of national origin (Hispanic) and/or in retaliation for prior EEO activity,
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when he was not selected for (1) the Customs Attache, GS-1811-15 position in Bogota, Colombia, under VA# INVSC/97-111 TKC, on October 17, 1997; (2) the Customs Attache, GS1811-15 Caracas, Venezuela, position under VA# INVSC/97-111 TKC, on December 8, 1997; (3) the position ofCI (Special Assistant), GS-1811-15, in Washington, D.C., under VA# INVSC/97-158TKC on December 17,1997; and (4) the ASAC, GS-1811-15 in Chicago, IL and/or Miami, FL, under VA# INVSC/97-215TKC on January 21,1998 (Exhibit 25 hereto).
45. On January 5,2000, OEOP discontinued processing the complaint because it came within the definition of the class complaint.
TD 99-4107 46. On April 29, 1998, Mr. Contreras sought EEO counseling concerning his non-
selection on unspecified dates for positions in New Orleans and San Juan. A NRFDC was issued on October 19, 1998 and sent to Mr. Contreras by certified mail on October 20, 1998. On February 9, 1999, Mr. Contreras filed an individual administrative EEO complaint, alleging that he was discriminated against on the basis of national origin and in retaliation for previous EEO activity when he was not selected for GS-1811-l5, ASAC positions in New Orleans and San Juan on unspecified dates. In the formal administrative complaint, Mr. Contreras explained that he did not file the complaint on time because he did not receive the NRFDC, which had been sent to his old address but which he had left in September 1998 due to divorce proceedings. The complaint was designated as TD 99-4107, and a request for information about the timeliness of the filing of the formal complaint was sent to Mr. Contreras on March 18, 1999. Mr. Contreras did not respond, and the complaint was dismissed as untimely filed on April 5, 1999, because he
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had provided no justification that would support waiving the time limits (Exhibit 26 hereto). There is no information in the case file indicating that Mr. Contreras appealed the dismissal.
TD 00-4l06M and TD 00-4107 47. On October 20, 1999, Mr. Contreras sought EEO counseling concerning a
September 28, 1999 proposed termination (Exhibit 27 hereto). Later during the counseling period, he also raised a November 9, 1999 non-selection for Regional Special Agent in Charge positions in Long Beach, CA and El Paso, TX (Exhibit 28 hereto). A NRFDC was issued on January 12, 2000, and sent to Mr. Contreras by certified mail on January 13, 2000.
48. On January 18, 2000, Mr. Contreras filed an individual administrative EEO complaint alleging discrimination on the bases of national origin, age, and retaliation regarding the proposed termination and November 9, 1999 non-selection (Exhibit 29 hereto). On January 24, 2000, the complaint was bifurcated, with the proposed termination addressed in TD 004106M and the non-selection in TD 00-4107. On January 25,2000, the OTCC dismissed 004106M because it concerned a proposal to take a personnel action. Mr. Contreras appealed the proposed termination on February 8,2000.
49. On April 18, 2000, Mr. Contreras's appeal regarding the proposed termination became moot because Customs decided not to terminate him.
50. In October 2000, in connection with a Merit Systems Protection Board (MSPB) appeal on related disciplinary issues, Mr. Contreras reached a settlement agreement that resolved all issues pertaining to TD 00-4106M.
51. On February 10,2000, TD 00-4107, the bifurcated portion of the complaint
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pertaining to the non-selection, was accepted for processing. The issue was defined as whether Mr. Contreras was discriminated on the basis of age (date of birth: November 23,1955), national origin (Mexican American/Hispanic) and/or in retaliation for prior EEO activity when he was not selected for the positions of Regional SAC, ES-1811, Office ofInternal Affairs (EI Paso, TX, and Long Beach, CA), on November 9,1999, under VA# EXSER-99-009NCN (Exhibit 30 hereto). On February 26, 2000, Mr. Contreras contacted the OTCC about a number of other non-selections (Exhibit 31 hereto). On March 17, 2000, processing ceased on TD 004107 because the individual complaint came within the definition ofthe class complaint. On August 24, 2000, the OTCC notified Mr. Contreras that it would continue processing a portion of the complaint (Exhibit 32 hereto). The accepted issues, as amended, were whether the complainant was discriminated against on the basis of his age and/or in retaliation for previous EEO activity when he was not selected for the positions of (1) Regional SAC, ES-1811, Office ofInternal Affairs (EI Paso, TX and Long Beach, CA), VA# EXSER-99-009NCN, on November 9, 1999; (2) SAC (Senior Executive Service (SES)), Office ofInvestigations, New York, NY, under VA# EXSER-99-010NCN, on or about February 3, 2000; (3) Customs Attache, Singapore, Montevideo, Berlin, and Vienna, GS-1811-15, VA# INVSC/99-029-TKA, on or about February 24,2000; and (4) Executive Director of Foreign Operations, GS-1811-15, Headquarters, Washington, D.C., VA# INVSC-99-139JS, on or about February 24,2000.
52. By separate letter on August 24, 2000, the OTCC dismissed the portions of the complaint based on national origin because they stated the same claims that were pending before the EEOC in the class action. On November 8, 2000, Mr. Contreras submitted a letter withdrawing his allegation concerning the New York non-selection (Exhibit 33 hereto).
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TD 00-4194 53. On March 17, 2000, Mr. Contreras sought EEO counseling on the basis ofretaliation
concerning the reopening, by the Office of Inspector General (OIG), of a previously closed investigation into a 1997 incident involving Mr. Contreras. A NRFDC was issued on April 11, 2000. It was sent by certified mail on April 12, 2000, and Mr. Contreras signed the form for a hand delivery on April 18, 2000.
54. On April 21, 2000, Mr. Contreras filed an individual formal administrative EEO complaint, designated TD 00-4194, alleging discrimination on the basis of national origin and retaliation regarding the reopening of the investigation (Exhibit 34 hereto). By letter dated April 27,2000, the OTCC advised Mr. Contreras that it would cease processing the case because it came within the definition of the class complaint. By letter dated August 21, 2000, the OTCC advised Mr. Contreras that it would resume processing of the complaint. The issue accepted for processing was whether Mr. Contreras was discriminated against based on his national origin (Hispanic) and in retaliation for prior EEO activity when, in March 2000, the OIG reopened an investigation into an incident that occurred in 1997 (Exhibit 35 hereto).
55. In February 2002, the agency filed a motion to dismiss TD 00-4194. After considering that motion and Mr. Contreras's response, the AJ determined that TD 00-4194 should be dismissed because it did not state a claim, in that simply being the subject of an OIG investigation did not render Mr. Contreras an "aggrieved person" (Exhibit 36 hereto). There is no information in the case file indicating that Mr. Contreras appealed the dismissal.
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TD 00-4269 56. On May 20, 2000, Mr. Contreras sought counseling about a non-selection, which he
claimed that he learned about on May 15,2000, for a promotion to a position in Singapore (Exhibit 37 hereto). During the counseling period, Mr. Contreras also complained about (1) additional non-selections in May 2000 for promotions to positions in Long Beach, Singapore, Lyon, Tucson, and New Orleans; (2) OIG investigations for which he received information under the Freedom of Information Act on May 31, 2000; (3) an 01 policy to fill positions by lateral reassignment, which he learned of on May 30,2000; and (4) the use by Customs of a "vetting" process (Exhibit 38 hereto). He also told the counselor that that the Tucson SAC said an employee who files a complaint is a "cockroach" Id. On June 28, 2000, a NRFDC was sent to Mr. Contreras by certified mail.
57. On July 11,2000, Mr. Contreras filed an individual formal administrative EEO complaint, designated TD 00-4269 (Exhibit 39 hereto). The issues accepted for processing on August 25,2000, were whether Mr. Contreras was discriminated against in retaliation for prior EEO activity when he was not selected for (1) an Acting assignment and the positions of Regional SAC (SES), lA, Long Beach, CA, VA# EXSER-00-002PJ, on or about May 19, 2000; (2) the position of Customs Representative, INTERPOL, Lyon, France, VA# INVSC-99-029TKA, on or about May 15, 2000; (3) ASAC, 01, Tucson, AZ, VA# INVSC-00-007-JS, on or about May 19, 2000; and (4) SAC, Senior Executive Service (SES), 01, New Orleans, LA, VA# EXSER-99-010NCN, an or about May 25,2000. Also accepted were allegations as to whether Mr. Contreras was subjected to harassment in retaliation for prior BEO activity when (1) he learned on May 31, 2000, that Treasury's OIG initiated an investigation on
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August 5, 1998, concerning his alleged improper use of the Treasury Enforcement Communications System (TECS) and theft/misuse of funds/property; (2) he learned on May 30, 2000, that the 01 requested GS-1811-15 lateral transfers to foreign offices precluding his application for these positions; (3) Customs utilized a "vetting" process to perpetuate discrimination against Hispanics and other minorities; (4) he was not allowed to meet the Commissioner of Customs in early 2000; (5) he was denied attendance on June 6, 2000, at the annual Customs National Hispanic Agents Association Conference; (6) he was issued a memorandum on March 1, 2000, from the Acting ASAC, with an annotation next to his name, "If not fired yet"; (7) he learned that the SAC (Tucson) referred to employees who file EEO complaints as "cockroaches"; and (8) he was denied participation in an undercover assignment with the RAIC (Nogales) in June 2000 (Exhibit 40 hereto).
58. An August 25,2000 letter dismissed the allegations identified above that were filed on the basis of national origin because they stated the same claims pending before the EEOC in the class action. On November 8, 2000, Mr. Contreras submitted a letter withdrawing the allegation concerning the New Orleans non-selection (Exhibit 33).
TD 01-4096 59. On December 5, 2000, Mr. Contreras contacted an EEO counselor about his working
conditions (Exhibit 41 hereto). He provided the counselor with a copy of an October 4, 2000 letter he wrote, which complained of a hostile work environment due to a pattern of harassment and retaliatory actions (Exhibit 42 hereto). A NRFDC was issued by certified mail on December 21,2000.
21

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 22 of 32
60. On December 28, 2000, Mr. Contreras filed a formal individual administrative EEO complaint alleging retaliation by the agency concerning various matters (Exhibit 43 hereto). On February 28,2001, the formal complaint, designated as TD 01-4096, was accepted. The allegations were whether Mr. Contreras was retaliated against for prior EEO activity when (1) he was denied leave on December 16, 2000; (2) he learned on October 2, 2000, that group supervisors were assigned new trucks but he was denied a new truck when he was group supervisor; (3) he was not allowed to work a significant drug smuggling investigation on October 3,2000, and (4) he was counseled by his supervisor on October 4,2000.
61. On November 15, 2002, the OTCC requested that TD 01-4096 be returned for dismissal due to the filing on May 10, 2002 of a class complaint by Mr. Contreras. An order of dismissal was issued by the EEOC on December 24, 2002.
TD 02-4160 62. On March 11, 2002, Mr. Contreras contacted an EEO counselor concerning a letter
of caution and a letter of fitness for duty, both issued to him in March 2002 (Exhibits 44 and 45 hereto). At some point later during counseling, he discussed his reassignment to the San Luis, AZ, port of entry on March 18, 2002. On April 3, 2002, a NRFDC was sent to the Complainant by certified mail.
63. On April 5, 2002, Mr. Contreras filed a formal individual administrative EEO complaint, designated TD 02-4160 (Exhibit 46 hereto). On November 15,2002, the OTCC identified the allegations but then dismissed the complaint. The allegations were whether Mr. Contreras was discriminated against on the basis of national origin (Hispanic) and in retaliation
22

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 23 of 32
for participation in the EEO process when he was (1) issued a March 6, 2002 fitness for duty letter, (2) issued a March 7,2002 letter of caution, and (3) reassigned to the San Luis, AZ, port of entry on March 18, 2002. The OTCC found that this complaint was the basis of a pending civil action in federal district court and dismissed the complaint.
64. An examination of the records of this office indicates that Mr. Contreras has not filed any administrative complaints of discrimination against the Secretary of the Treasury, either individually or as a class agent on behalf of a purported class of Customs employees, other than the complaints of discrimination described above and the documents referred to therein.
Ramon Martinez TD 94-1120 and TD 96-1078
65. An examination of the records of this office indicates that on April 5, 1994, Mr. Martinez sought EEO counseling, alleging he was discriminated against based on his national origin when his Treasury Enforcement Communications System (TECS) access was removed, access to his office was denied, and he was denied access to qualify in firearms with Internal Affairs (IA). He alleged that these events occurred in March 1994. The NRFDC was issued on May 3,1994.
66. On May 18, 1994, Mr. Martinez filed a formal individual administrative EEO complaint, designated TD 94-1120 (Exhibit 47 hereto). On August 3, 1994, the Director, Regional Complaints Center, Washington, accepted the complaint on the allegations as to whether the Mr. Martinez was discriminated against because of his national origin (MexicanAmerican) when allegedly: on March 3, 1994, he was interrogated by IA; on March 7, 1994, he
23

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 24 of 32
was locked out of his office; on March 7, 1994, he was denied TECS system access; on March 9, 1994, he was advised he would be detailed to the Office of Management Inspections; and on March 17 and 18, 1994, he was told he could not qualify with firearms.
67. On August 17, 1995, Mr. Martinez contacted an EEO counselor alleging national origin discrimination and retaliation regarding a July 5, 1995 decision to suspend and reassign him. On December 4, he was issued a NRFDC. On December 19,1995, Mr. Martinez filed a formal individual administrative EEO complaint, alleging he was discriminated against on the basis of national origin and reprisal when he was issued a five-day suspension and reassigned to a Physical Security Specialist, GS-080-13 position in the Security Programs Division, effective July 23, 1995 (Exhibit 48 hereto). This complaint was assigned case number TD 96-1078. TD 94-1120 (above) and 96-1078 were consolidated for hearing on February 18,1997. On February 24, 1998, Mr. Martinez and the agency entered into a settlement agreement resolving case numbers TD 94-1120 and 96-1078. As a result of the settlement agreement, Treasury terminated the processing of those complaints.
TD 95-1127 68. CTS records indicate that a formal individual administrative EEO complaint of
discrimination was filed by Mr. Martinez on January 27, 1995, on the basis of his national origin and on the issue ofa suspension. This complaint was assigned case number 95-1127. Our electronic records indicate that the case was dismissed on February 14, 1995 as a moot issue (Exhibit 49 hereto). There is no information in the case file indicating that Mr. Martinez appealed the dismissal.
24

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 25 of 32
69. An examination of the records ofthis office indicates that Mr. Martinez has not filed any administrative complaints of discrimination against the Secretary of the Treasury, either individually or as a class agent on behalf of a purported class of Customs employees, other than the complaints of discrimination described above and the documents referred to therein.
Ruben Gonzalez TD 95-2142
70. An examination of the records ofthis office reveals that on December 12, 1994, Ruben Gonzalez sought EEO counseling regarding alleged discrimination that occurred on approximately December 12, 1994. Mr. Gonzalez was interviewed by the EEO counselor on January 4, 1995. During counseling, Mr. Gonzalez alleged that he was discriminated against on the basis of his national origin (Puerto Rican) when he was not placed on a best qualified list (BQL) or selected for a supervisory GS-14-1811 position with Internal Affairs in either Miami or El Paso. A NRFDC was issued on February 9,1995.
71. On February 13, 1995, Mr. Gonzalez filed a formal individual administrative EEO complaint of discrimination, designated TD 95-2142 (Exhibit 50 hereto). The formal complaint of discrimination was based primarily on promotion and assignment issues. On June 23, 2002, in accordance with EEOC regulation 29 C.F.R. § 1614.107(a)(3), the Treasury Complaint Center dismissed Mr. Gonzalez's complaint because it was the basis of a pending civil action in United States District Court.
25

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 26 of 32
TD 00-1091 72. On December 6, 1999, Mr. Gonzalez sought EEO counseling, alleging that he was
discriminated against, based upon his race (Hispanic), when he was not selected for four GS-15 positions within the Office ofInternal Affairs Internal Affairs (VA#'s HEADQ/99-148, 158, and 159MCC) (Exhibit 51 hereto). Mr. Gonzalez allegedly became aware that he was not selected for these vacancies on October 8, 1999. Mr. Gonzalez also indicated his belief that he was denied a lateral transfer based upon his participation in the class action. On February 1, 2000, the EEO Counselor provided Mr. Gonzalez with a NRFDC.
73. On February 2,2000, Mr. Gonzalez filed a formal individual administrative EEO complaint of discrimination, alleging that he was discriminated against because of his race and his prior participation in the administrative class action complaint filed by Mr. Contreras, when he was not selected under vacancy announcements HEADQ/99-l48, 158, and 159MCC (Exhibit 52 hereto). This was assigned case number TD 00-1091. By a letter dated February 24, 2000, Mr. Gonzalez requested that the Washington TCC (WTCC) amend his complaint to reflect that he first met with Linda Batts, Special Assistant to the Commissioner on EEO, on November 5, 1999, regarding his nonselection for VA#'s HEADQ/99-148, 158, and 159MCC, and to include his national origin as Puerto Rican (Exhibit 53 hereto). On February 24, 2000, the WTCC prepared a memorandum to file indicating the correct date of counseling should have been November 5,1999, not December 6, 1999 (Exhibit 54 hereto). On March 1, 2000, the WTCC informed Customs and Mr. Gonzalez, that the following issue had been accepted: whether management discriminated against Mr. Gonzalez based upon race (Hispanic), national origin (Puerto Rican), and retaliation (prior EEO complaint and participation in Hispanic class action),
26

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 27 of 32
when management did not select him on October 8, 1999, for promotion to the positions of Supervisory Cl, GS-1811-l5, under VA#'s HEADQ/99-148MCC; HEADQ/99-158MCC; and HEADQ/99-159MCC (Exhibit 55 hereto). On May 4,2000, the WTCC notified Customs that TD 00-1091 was administratively closed pending a decision on the class complaint.
TD 00-1209, TD 01-1068 and TD 01-1086 74. From the records in our office, it appears that Mr. Gonzalez contacted an EEO
counselor on July 14, 2000, to complain about a continuing pattern of non-selections (Exhibit 56 hereto). It appears that some of these non-selections occurred while counseling was ongoing; other announcements were open at the time of the complaint and closed or were canceled shortly after his complaint was filed.
75. On July 25,2000, the WTCC notified Customs that the individual complaint in TD 00-1091 (above) would be divided, with the retaliation claim being processed as an individual complaint (TD 00-1209). The issue accepted in the July 25,2000 memorandum regarding TD 00-1209 was whether management discriminated against Mr. Gonzalez based upon retaliation for previous EEO activity and participation in the class complaint, when management did not select Mr. Gonzalez on October 8, 1999, for promotion to GS-15 under lA VA#'s HEADQ/99-148MCC, 158MCC and 159MCC (Exhibit 57 hereto). The counselor issued a NRFDC on September 22,2000. On September 29,2000, Mr. Gonzalez wrote to the Director of the WTCC, asking that certain other non-selections be consolidated with TD 00-1209. On November 22, 2000, the WTCC notified Customs that they had amended the acceptance letter issued July 25,2000, to include whether Mr. Gonzalez was discriminated against on the basis of
27

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 28 of 32
retaliation for prior EEO activity when management did not select him from October 1999 through October 2000, for promotions in the following vacancies: (1) HEADQ/99-148MCC; (2) HEADQ/99-158MCC, (3) HEADQ/99-159MCC, (4) INVSC/99-133JS, (5) INVSC/99-138JS, (6) INVSC/99-144JS, (7) INVSC/99-147J, (8) INVSC/99-163JS, (9) INVSC/99-TKA, (10) INVSC/00-007JS, (11) INVSC/00-06lJS, (12) INVSC/00-070JS, (13) INVSC/00-072JS, (14) INVSC/00-074JS, (15) INVSC/00-102, (16) INVSC/00-108JS, (17) INVSC/00-122, and (18) HEADQ/00-154MMC (Exhibit 58 hereto).
76. On October 26,2000, Mr. Gonzalez submitted a request for EEO counseling regarding his failure to receive a cash award on October 16, 2000 (Exhibit 59 hereto). A NRFDC was issued on December 20,2000. On January 3,2001, Mr. Gonzalez filed a formal individual administrative EEO complaint, designated TD 01-1068 (Exhibit 60 hereto). On February 2,2001, the WTCC accepted the complaint. The issue accepted was whether Mr. Gonzalez was discriminated against on the basis of reprisal and age when he was denied a cash award, not assigned to act as Assistant Director or Director of Financial Investigation Division, and not given career enhancing collateral duty assignments (Exhibit 61 hereto). The record does not contain the dates that Mr. Gonzalez alleged the discriminatory events (other than the failure to receive the cash award) occurred. Also, on February 2,2001, it appears that the WTCC accepted the same claim on the basis of race (Hispanic) and national origin (Puerto Rican), designated this claim TD 01-1086, and notified Mr. Gonzalez that the WTCC ceased processing the claim because it fell within the definition of the class complaint (Exhibit 62 hereto).
77. On March 1, 2001, Mr. Gonzalez was notified that 01-1068 would be consolidated with 00-1209. On July 5, 2001, the Complaint Center responded to Mr. Gonzalez's request of
28

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 29 of 32
June 12,2001 to further amend his complaint, 00-1209. The amended claims included Mr. Gonzalez's non-selection on the basis of retaliation for (1) SAC, GS-18ll-l5 under INVSC/Ol011, (2) SAC, Denver, CO in June 2001, (3) SAC, San Antonio, TX, in June 2001, and (4) Deputy Regional SAC, announced underHQINT/Ol-003GH (Exhibit 63 hereto). Mr. Gonzalez claimed that he learned of these non-selections in letters dated June 6, 2001 (Exhibit 64 hereto).
78. On July 19, 2002, the WTCC notified Mr. Gonzalez that TD 00-1209 and 01-1068 would be dismissed because the complaints were the basis of a pending civil action in United States District Court.
79. An examination of the records of this office indicates that Mr. Gonzalez has not filed any administrative complaints of discrimination against the Secretary of the Treasury, either individually or as a class agent on behalf of a purported class of Customs employees, other than the complaints of discrimination described above and the documents referred to therein.
Ricardo Sandoval TD 94-4099 and TD 97-4289
80. According to the CTS records maintained by this office, Mr. Sandoval filed a formal individual administrative EEO complaint on November 8, 1993, alleging discrimination based on national origin. The complaint was designated 94-4099. No issues were listed. Mr. Sandoval withdrew his complaint on April 4, 1994 (Exhibit 65 hereto).
81. On August 7, 1997, Mr. Sandoval filed a formal individual administrative EEO complaint of discrimination alleging discrimination based on national origin and reprisal for prior EEO activity. The complaint was designated 97-4289. The matters causing the complaint
29

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 30 of 32
are indicated as terms and conditions of employment. The case was dismissed on September 18, 1997, due to his failure to state a claim. There is no information in the case file indicating that Mr. Sandoval appealed the dismissal.
TD 94-4070 and TD 94-4158 82. According to CTS, Mr. Sandoval filed a formal individual administrative EED
complaint of discrimination on February 3, 1994. The complaint was assigned case number TD 94-4070. The basis of the complaint was national origin and reprisal and concerned a promotion/non-selection and a directed reassignment. The Department of the Treasury issued a final agency decision finding no discrimination on March 10, 1995 (Exhibit 66 hereto). There was no appeal of this decision.
83. According to CTS, Mr. Sandoval filed a formal individual administrative EED complaint of discrimination on June 8, 1994. The complaint was assigned case number TD 944158. The basis of the complaint was national origin and reprisal and concerned a directed reassignment. The Department of the Treasury issued a final agency decision finding no discrimination on April 10, 1995 (Exhibit 67 hereto). There was no appeal of this decision.
TD 96-4247 84. An examination of the EED complaint records of this office indicates that on June
18, 1996, Mr. Sandoval sought EEG counseling because he allegedly was subjected to harassment and retaliation in the form of an Internal Affairs (IA) investigation that was unfounded and intended only to harass him. The counseling report notes that he claimed he
30

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 31 of 32
became aware of the alleged discrimination on May 7, 1996. On August 19, 1996, Mr. Sandoval was issued a NRFDC.
85. On August 30, 1996, Mr. Sandoval filed a formal individual administrative EEO complaint of employment discrimination with the Department of the Treasury (Exhibit 68 hereto). This complaint was designated 96-4247. He alleged that he had previously filed EEO complaints, TD 94-4158 and TD 94-4070, which were, at the time, the subject ofa lawsuit in federal court in San Diego, and that two IA agents initiated investigations of him based on unfounded allegations.
86. On November 13, 1996, the San Francisco Regional Complaints Center notified the Customs Service that it had received a formal complaint of discrimination from Mr. Sandoval and accepted the following basis and issue for processing: whether the agency conducted an Internal Affairs investigation on Mr. Sandoval from March 20 through May 7, 1996, because of discrimination based on his age (Date of Birth: May 10, 1955) and in retaliation for prior EEO activity (Exhibit 69 hereto).
87. On March 26, 1998, OEOP rendered a final decision on Mr. Sandoval's complaint, finding that the evidence was not sufficient to support a claim of discrimination based on age or retaliation (Exhibit 70 hereto). OEOP further notified Mr. Sandoval of his appeal rights. There was no appeal taken.
88. An examination of the records of this office indicates that Mr. Sandoval has not filed any administrative complaints of discrimination against the Secretary of the Treasury, either individually or as a class agent on behalf of a purported class of Customs employees, other than the complaints of discrimination described above and the documents referred to therein.
31

Case 1:02-cv-00923-JR Document 22-6 Filed 03/20/2003 Page 32 of 32

I declare, under penalty of perjury pursuant to 28 US.C. § 1746, that the foregoing is true

and correct to the best of my knowledge and belief.

ll/tut Executed on:

t4 / 9 , 2003

MARIAM HARVEY Assistant Director for Complai erations Office of Equal Opportunity Program Department of the Treasury 1500 Pennsylvania Avenue, NW Metropolitan Square, Room 6070 Washington, D.C. 20220

32

Case 1:02-cv-00923-JR Document 22-7 Filed 03/20/2003 Page 1 of 8
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, ET AL.,)

Plaintiffs,

)

)

v.

)

)

TOM RIDGE, Secretary,

)

Department of Homeland Security, )

Defendant.

)

)

Case No.1 :02CV00923(JR)

DECLARATION I, PAUL MICHAEL KILCOYNE, declare the following to be true and correct: 1. I am the Director, Covert Operations Division (COD), Bureau of Immigration and Customs Enforcement. Prior to March 9, 2003, I held this position in the U.S. Customs Service. On March 9,2003, I was transferred, along with the majority of special agents at the Customs Service, to the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security. I have been Director of the COD since July 2001 and joined the Customs Service as a special agent in September 1985. I served in the Customs Headquarters Smuggling Investigations Division from 1991 to 1998, and as the Associate Special Agent in Charge (ASAIC) in San Juan, Puerto Rico, from January 1998 through July 2001. Beforejoining Customs, I was a police and training officer with the Los Angeles Police Department for seven years. 2. The COD was established in the Customs Service in the mid-1980s. 3. The COD coordinates, reviews, plans and implements all certified Customs covert operations. The COD also trains and certifies special agents for undercover work, and

Case 1:02-cv-00923-JR Document 22-7 Filed 03/20/2003 Page 2 of 8 additionally certifies other agency employees and state and local law enforcement personnel who participate with special agents in task forces.
4. As Director, I oversee all of the program managers in the Division to ensure that all undercover operations are in compliance with established Customs policy and procedure. I have personally performed training for covert operations regarding controlled deliveries and case management.
5. "Certified" covert operations (also known as undercover operations) are likely to be long term, undercover investigations, conducted by special agents who have volunteered, been trained, screened and certified.
6. Many special agents also perform "casual" undercover duties as an element of one of their own investigations, or assist other investigations by performing undercover duties, such as a "buy," a "pick-up" or a "drop off' of money or contraband, or making a telephone call or engaging in a conversation during a meet or introduction scenario.
7. Participation by special agents in all covert operations, both certified and casual, is always on a volunteer basis.
8. Special agents in the certification program are clearly instructed that their participation in the program is one of the few strictly voluntary assignments at Customs. Specifically, agents either volunteer for participation, or they can be recommended by a supervisor. However, even recommended agents are not required to participate in the program. In my experience, it is an honor to be recommended for participation.
9. Because certification training for undercover operations is conducted on a volunteer basis, special agents are provided several opportunities to opt out of the training program.
2

Case 1:02-cv-00923-JR Document 22-7 Filed 03/20/2003 Page 3 of 8 10. During undercover training, students are advised by the instructor that they should be involved in the planning stages of all undercover operations, and any apprehensions they may have should be resolved to their satisfaction prior to proceeding with the operation. As an additional safeguard, throughout the undercover certification class, students are advised to discuss with fellow students and experienced class coordinators (who are peers in the program), any issues or apprehensions they may have about working as an undercover operative. 11. During training, a psychological evaluation and certification of every agent is conducted by a licensed psychologist specializing in undercover as well as law enforcement matters. This is done to assess the agent's ability to participate in undercover operations and to determine their capacity to perform undercover work. The psychological evaluation is also intended to ensure that the agent is voluntarily participating in the program. Furthermore, every SAle office has an undercover operations psychological liaison coordinator, who has access to the contract psychologist, in the event any psychological issue should arise pertaining to undercover operatives. 12. Annual evaluations are made of undercover agents' ability to continue in the operations at the field level. 13. Undercover operatives may opt out of an ongoing undercover investigation (both certified and casual) at any time, to ensure the safety of the undercover agents. 14. No special agent is forced to perform undercover work of any kind, even on an informal basis, since to do so could jeopardize the safety of the agent or others, and result in an unsuccessful investigation.
3

Case 1:02-cv-00923-JR Document 22-7 Filed 03/20/2003 Page 4 of 8 15. Numerous Hispanic special agents, as well as agents of other national origins and races, have performed undercover work, solely on a volunteer basis, as coordinators, instructors, students, and operatives. 16. Many special agents have told me that they participated in the covert operations program because it enhanced their promotion potential. In my experience, participation in the certified undercover program has been career enhancing for many special agents. 17. The COD maintains a database of certified undercover operatives. This database indicates which special agents are available to perform undercover operations, as well as their level of certification, specialized skills, availability for participation, performance parameters, and all federally issued identifications and/or licenses. 18. A recent inquiry of the COD database and class and certification files was performed and the information was utilized to create the attached Exhibit 1.
The Plaintiffs 19. The COD records reflect that Miguel Contreras completed undercover operative
school on March 21, 1991, but that he has not participated in any certified undercover operations. Headquarters has not assigned him any undercover ID. (Exhibit 1)
20. The COD records do not reflect that Ruben Gonzalez has attended the undercover operative school or participated in any certified undercover operations. Nor has Headquarters assigned him any undercover identification. (Exhibit 1)
21. The COD records reflect that Stephen Mercado completed undercover operative school on July 22, 1993. Additionally, Mr. Mercado completed an undercover psychological
4

Case 1:02-cv-00923-JR Document 22-7 Filed 03/20/2003 Page 5 of 8 evaluation on March 28,1995. The records reflect that Mr. Mercado's participated in Operation Whiteline. (Exhibit 1)
22. The COD records reflect that Ricardo Sandoval completed undercover manager's school April 19, 1994. Mr. Sandoval was also issued an undercover social security number on February 11, 1998, which he returned to COD on November 26,2001. The database does not reflect participation in any certified undercover operations. (Exhibit 1)
23. The COD records reflect that Ramon Martinez completed the undercover operative school on May 24, 1991. The records do not reflect issuance of any undercover identification or participation in any certified undercover operations. (Exhibit 1)
24. The COD records reflect that Frank Almonte completed the undercover operative school on May 6, 1995. The records do not reflect issuance of any undercover identification or participation in any certified undercover operations. (Exhibit 1).
25. The COD records reflect that William Velasco completed the undercover operations manager school on May 5, 1998. The records reflect issuance of an undercover operative credit card on August 5, 2002. The records do not reflect issuance of any other undercover identification or participation in any certified undercover operations. (Exhibit 1).
26. The COD records reflect that John Yera completed the undercover operative school on March 21, 1991. The records reflect issuance of an undercover social security number on November 13, 1989. (Exhibit 1).
5

Case 1:02-cv-00923-JR Document 22-7 Filed 03/20/2003 Page 6 of 8 I declare, under penalty of perjury pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and belief.

cf Executed on: 0 J / I

,2003.

i

VJ/ ~ I;:UYM3
PAUL MICHAEL KILCOYNE Director, Covert Operations Division Bureau of Immigration and Customs Enforcement 1300 Pennsylvania Ave, NW Washington, D.C. 20229

6

Case 1:02-cv-00923-JR Document 22-7 Filed 03/20/2003 Page 7 of 8
EXHIBIT 1

Case 1:02-cv-00923-JR Document 22-7 Filed 03/20/2003 Page 8 of 8

This information was obtained by checking covert database, covert class folders/records and UC agent file folders.

Miguel Contreras

UC class # 9302

Date 03211991

Short term UC certification (03191991)

UC Managers # 9301 Date 12031992

No UC 10 listed in database

No UC ops listed in database

No UC agent file folder

Ruben Gonzalez

Not listed in database No UC agent file folder Not listed in any class folders/records

Stephen Mercado

UC class # 9302

Date 07221993

Short term UC certification (07221993)

UC Mangers # 9601

Date 03071996

UC Psych Coord (# unk) Date 04281995)

UC Recordkeeper # 9601 Date unk

No UC 10 listed in database

Operation Whiteline listed in database (no dates)

No UC agent file folder

Ricardo Sandoval

UC Managers # 9402 Date 05191994
No UC ops listed in database UC SSN 10 issued 02111998, returned 11262001 UC agent folder just lists UC 10 info

Ramon Martinez

UC class # 9103 (IA) Date 05241991 No certification listed in database No UC 10 listed in database No UC ops listed in database UC agent file folder only has bio info

Frank Almonte

UC class (# unk)

Date 04061995

No certification listed in database

UC credit card issued 08052002

No UC ops listed in database

No UC agent file folder

William E. Velasco

UC Managers (# unk) Date 04151988 Not listed in database No UC agent file folder

John Vera

UC class # 9302

Date 03211991

Short term UC certification (03191991)

UC SSN 10 issued 11131989

No UC ops listed in database

NoUC agent file folder

MAR-20-2003 16:16

US TREASURY

Case 1:02-cv-00923-JR Document 22-8

P.02
Filed 03/20/2003 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al., )

Plaintiffs,

)

)

v.

)

)

TOM RIDGE, Secretary,

)

Department ofHomeland Security, )

Defendant.

)

)

Case No. 1:02CV00923(JR)

SUPPLEMENTAL DECLARATION I, MARIAM HARVEY, declare the following to be true and correct: 1. I am the Assistant Director for Complaint Operations, Office of Equal Opportunity Program (OEOP), Department of the Treasury, Washington, D.C. I have held this position since August 2001. Prior to occupying this position, I served as Deputy Director, OEOP, from 19992001. I was the Chief, Complaint Operations, from approximately 1996 to 2001. This declaration is based on my personal knowledge or information provided to me in my official capacity. 2. On March 19, 2002, I executed a declaration in connection with the above referenced litigation. That declaration contained 88 paragraphs and 70 exhibits. 3. As previously attested to, as the Assistant Director for Complaint Operations, OEOP, I am the custodian of official agency records relating to the filing, administration, and disposition of formal administrative complaints presented to the Department of the Treasury, including the Bureau of Customs and Border Protection (formerly known as the U.S. Customs Service). 4. Attached hereto is one additional exhibit obtained from Plaintiff Ruben Gonzalez's

MAR-20-2003 16:16

US TREASURY

Case 1:02-cv-00923-JR Document 22-8

P.03
Filed 03/20/2003 Page 2 of 11

investigative file designated TD-I068. This exhibit is an Unsworn Declaration from Marcy Foreman that was executed on July 16, 2001. At the time, Ms. Foreman was the Division Director, Financial Investigative Programs at the Customs Service.
5. This Exhibit is a true and correct copy of the Unsworn Declaration of Marcy Foreman contained in the above referenced investigative file.
I declare, under penalty of perjury pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct to the best ofmy knowledge and belief.

Executed on: ?1}fl.!II.A;z.o ,2003

MARIAM HARVEY' Assistant Director ror Co . t Operations Office of Equal Opportunity Program Department of the Treaswy 1500 Pennsylvania Avenue, NW Metropolitan Square, Room 6070 Washington, D.C. 20220

TOTAL P.03

Case 1:02-cv-00923-JR Document 22-8 Filed 03/20/2003 Page 3 of 11
EXHIBIT 1

Mar-20-2003 02:25pm From-

T-207 P.003/015 F-250

Case 1:02-cv-00923-JR Document 22-8 Filed 03/20/2003 Page 4 of 11

AFFIDAVIT OF
Marcy Foreman (Management Official)

Mar-20-2003 OZ:25pm From-

T-Z07 P004J015 ~-Z50

Case 1:02-cv-00923-JR Document 22-8 Filed 03/20/2003 Page 5 of 11

UNSWORN DECLARATION
SUBJEC'~: Discrimination Complaint of Ruben Gonzalea v. Paul H. OINelll, secretary of the Treuury
UNSWORN DECLARAnON UNDER PENALTV OF PERJURY In response to information requested by EEO Investigator Benjamin R. Lazaro, and in accordance with the previsions of 28 U.S.C. 1746. I, the undersigned, Marcy M. Forman, do hereby make the following unswom declaration, under penalty of perjuryI pertinent to the above
stated subject
1. Pleaee &tate your name, title, eerie., grade and age.
• I am employed by U.S. Customs Service as the Division Director, Flnanciallnvestlgatlve Programs, GS-1811-15, In Washington, D. C. My date of birth is November 16. 1959.
2. Dia you have knowledge oftha Complainants prior activity in the EEO precess (flied an EEO complaint and is a member of a class complaint)? If eo, when did you become aware end how did you
acquire thie Ilnawledge? What was your rol. in that prtor EEO
activity? Were you aware of the Complainant's Age?
• 'fes, I learned of the prior EEO complaint filed by the complainant when an EEO counselor, out of Front Royal, Virginia contacted me. I had heard that the complainant was probably a member of the Hispanic Agents ciass action complaint, but I do not recall who mid me or when. Regarding the prior EEO complaint. the only role I had that I am aware of was giving a statement to the EEO counselor out of Front Royal. I am not aware of the complainant's age.
3. Ple'aM provide a brief employment hi8tory for the laet twa years.
• Division Director, Financial Investigations Division, 09/12199 - Present, Assistant Special Agent in Charge, Houston, Texa&, 05/97-09/99

Mar-ZO-Z003 OZ:Z5pm From-

I'I~- J. j-,II:.IC.I-I

.. I " _

Case 1:02-cv-00923-JR

Document 22-8

T-207 P 005/0\5 ~-250 Filed 03/20/2003 Page 6 of 11

4. What is your profea8lonal relation.hip with the Complainant and What is the duration of thl. relationship?
• I am the complainant's second line superviser. I have been the complainant's second line supervisor since my arrival on September 12. 1999.
5. Why was the Complainant denied an award for h.. participation in OpEJration Powerplay? Please describe the pro~. involved in the living of award, for this operation. Pleas. indicate who received
1W4l1rd8 for ttlla operation and why they received aW\ilrdG
• I wa& the manager who made the decisions as to who recefved these clward&. I am al&o the initiating official on the award submission. and John Varrone, Assistant Commissioner of Investigations. is the approving official. Based upon my recollection, there were a number of reasons that the complainant did not receive an award for his participation in Operation Powerplay. Firstly, there were limited monies 10 be awarded. Therefore, I established certain criteria when determining who should receive an award. Those criteria pertained to those employees Who went above and beyond their assigned tasks. Specifically, those Individuals who were Instrumental in initiating and Implementing the operation, and those individuals who Volunteered to 'Nork evenings and weekends, received awards. To the best of my recollection. the complainant had the same opportunity as the other group members to volunteer to lead. initiate, and implement this operation. The complainant chose not to. In addition. to the best of my recollection, the complainant, unless assigned, did not volunteer for any evening or weekend shifts. The complainant only did what was tasked, nothing above or beyond those duties.
The following individuals received awards for Powerplay.
1. Carlos Cortez - Supervisory Intelligence Analyst, 01 2. Martha Schwing - Intelligence Analyst, 01 3. Donald Anderson - Program Analyst, OFO 4. Efrain Perez - Program Officer, OFO 5. Charles Bartoldus - Deputy Director, Outbound Programs, OFO
0·)0065

Mar-20-2003 02:25pm Frcm-

r-207 P.OOSJ015 ~-250

Case 1:02-cv-00923-JR Document 22-8 Filed 03/20/2003 Page 7 of 11

6. Marcy Forman - Division Director, Financial Investigative Programs 01 7. Catherine Sanz - Program Manager, 01 B. John Kelleghan - Program Manager, 01 9. Joseph Catanzarite - Program Manager, 01 10. Pamela Caudlll- Program Manager, 01 11. Dale Hickman - Program Manager, 01 12. Angelo Torres - Program Manager, 01 13. Michelle Gonzalez - Desk Officer. 01
The aforementioned listed employees received awards because they were either instrumental in the development and implementation of Operation Powerplay. volunteered for assignmtitnt5 including wtitekenQ'i and evenings, or e·nsured the timely and accurate communication and coordination of all enforcement adivity under the auspices of this operation.
6. Wht WiI& the ~ompl.inant not assigned to act in the poeitlon of
As!ilstant Director or Director of the Financial Investigations
DIVision? Please describe what criteria are used to determine acting
assignments In the Division. Please Indicate who has acted In the
poIiitions and the reasons they were selected during the last two
Yllrs.
• The complainant was not assigned to act in the position of Assistant Director or Director of Financial for several reasons. Foremost. I. as the Director. having supervised the complainant. did not have confidence in the complainanfs ability to su~ully act in those positions. The complaInant, In my opinion, lacked the depth of I<ncwlidge. experience. and judgmental abilities. Purlng my tenure as the Financial Director, I
cannot recall when the complainant was assigned a project Dr task that he
did not ask the Assistant Director or his co-workers Where he could get the information and/or how to complete the assignment. The complainant would regularly seek assIstance on assignments that, at his level and position. shOUld have been routine. The complainant. when present In the offic:e, would spend a significant amount oftlme on the telephone and/or visi'ong with co·workersdiscu8sing what I believe were personal matters. During the last fiscaJ year, the complainant took a great deal of annual and sic.: leave. In fact. the complainant had taken so muct!leave that when call.:ulating the complainant's certification for Law Enforcement Availability Pay (LEAP), he almo&t did not qualify. The complainant was counseled
Oi)0066

Mar-ZO-Z003 OZ:ZSpm From-
.. r~ ::a-,,~ "'"--r'"
Case 1:02-cv-00923-JR Document 22-8

T-207 P 0071015 ~.250 Filed 03/20/2003 Page 8 of 11

regarding his time and attendance sinCEI he would routinely arrive at the
omee at 8:00 a.m. and leave between 4:45 p.m. and 5:00 p.m. (Note: The complainant did not have authorization to leave before 5:00 p.m. and It would be extremely difficult to qualify for LEAP under this schedUle). Additionally, there are many i&Sues and taskings that arise after 5:00 p.m. that the complainant is routinely not available to address.
The criteria I used for determining acting assignments were rather simple. Unless otherwise engaged or committed, the Assistant Director for the Division usually aets in my stead. When he is not available, I wtll then selEtet an employee who is knoWledgeable of the program and who I am confident will address taslcings as assigned. I do not recall designating an actbg A$sistant Director, if the permanent Assistant Is acting In my stead.
To !the belt of my recollection the followfng employees have acted in
the posItion of Plrec:tor, FlnanclBllnvestlgiltlve Programs:
• Anthony Mangione, Assistant Division Director • Peter Smith, Assistant Division Director (reported March, 2001) • .John Kelleghan, Program Manager • Martin Schramm I Program Manager • I:;atherine 5anz. Program Manager • Joe Catanzarite, Program Manager • IPam Caudill, Program Manager • ,cave Atwood, Program Manager
This list is complete to the best of my knowledge and recolleCtIon. As
stai.ed above, the A&&istant Directors were alway6 &e1ected to aCC unless the)' were not available. The Program Managers listed above were
selected to act at various times. Their selection was based on their knc,wledge, experience, dependability and initiative While assigned to this division.

Otl0067

Mar-20-2003 02:26pm FromCase 1:02-cv-00923-JR Document 22-8

Filed 03/20/2003 T-20P7 agPe.0099)o01f511 F-250

7. Wh't was the Complainant not given career enhancing collateral dUty assignments? Please describe what criteria are used to determine
collataral duty assignments. Please indicate anyone that has been
givlm collateral dUty assignments during the last two years and why
they were chosen for the assignment5.
• The only collateral assignments that I am aware of in the Financial Investigations Division are; Classified Document Custodian and J\lternate. and the National Fitness Coordinator. It should be noted that the complainant was the Alternate Classified Document Custodian for a period of time. These duties were reassigned as the complainant was !)iven an extended TOY and Peter Smith. who had recently arrived as
the new Assi&tant Director, was available to take over this tasking. I do
110t view these collateral duties as necessarily career enhancing, and as litated above, the complaint did occupy one of these assignments. I do not recall the complainant ever requesting and/or indicating an interest in a collateral assignment.
To :the best of my recollection the following individuals have been assigned collateral duties during the last two years:
• John Kelleghan, Primary Classified Document Custodian • Ruben Gonzalez, Alternate Classified Document Custodian • Peter Smith, Alternate Classified Document Cl.4Stodian • Anthony Mangione, Alternate Cla&Sified Document Custodian • Dave Atwood, Primary Classlfled Document Custodian • William John Davis, National Fitness Coordinator
I w-cas responsible for the selection of John Kelleghan and Peter Smith as
Primary and Altemate Classified Document Custodians. Program Manager Kelleghan was selected as he had performed the same duties while assigned to Internal Affairs. Assistant Director Smith was selected as an alte:rnate due to his availablllty and position.
ThE: Deputy Assistant Commissioner for Investigations selected William JO~ln Davis at the National Fitness Coordinator.
onoos-s

Mar-20-2003 02:26pm From-

r-20T P.OOS/015 F-250

Case 1:02-cv-00923-JR Document 22-8 Filed 03/20/2003 Page 10 of 11

8. Wall the Complainant's age and involvement In thl EEO proce••
facto... In the denial of a cash award for his participation in Operation Povrlerplay? W.re they a factor in not giving him acting assignments
as J,saiatant DD or Director Financial Investigation.? Were they a
facior in him not being given career enhancing collateral duty assignments?
• The complainant's age and involvement In the EEO process were never factors or considerations in the dBCIsion not to award the complainant for his "articipation in Operation Power Play. As stated in question 2, to date. I am net aware of the complalnanfs age nor do I consider it a factor in his job performance. The complainant's Involvement in the EEO precess had no hearing on his failure to receive an award. The complainant was never denied an Acting position based upon his age or involvement in the EEO proc;&ss. The complainant, during my tenure as Division Director, has not demonstrated the knOWledge, initiative and leadership abilities needed to take on this responsibility. These are job performance criteria and nething eiSEl. In regard to career enhancing collateral duties, the complainant for a period of time was aseignect a collateral duty. I do net view the collateral duties as described above as necessarily career enhancing. Even so, the conlplainanfs age and involVement in the EEO precess never played a role
in the selection process.
8. P18i1&8 provide any Infonnatton you may deem necessary that is rel.vant to the Issues In ttl... claim••
• I believe It would be extremely helpful to interview the complainant's c0workers, current and former, to get a perspective of the complainant's
work performance. I have been approached by co-workers within and
l)utside of the division who have expressed concern andlor disdain with
the complainants work perfDrmance.

I declare that the foregoing is true and correct to the best of my knowledge and
000069

Mar-20-2003 02:26pm From-

T-Z07 P 010/015 F-250

Case 1:02-cv-00923-JR Document 22-8 Filed 03/20/2003 Page 11 of 11

belief.

4 . 11- Executed on this day of

2001. at Washingtonl p. C.

re)
Marcy . Farman Division Director Financial Investigations Division Office of Inve8tigations
1300 Pennsylvania Ave. NW
Washington. D.C. 20229

000070

Case 1:02-cv-00923-JR Document 22-9 Filed 03/20/2003 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et aI., )

Plaintiffs,

)

)

v.

)

)

TOM RIDGE, Secretary,

)

Department of Homeland Security, )

Defendant.

)

------------)

Case No.1 :02CV00923(JR)

DECLARATION I, LEE HEFFELFINGER, declare the following to be true and correct: 1. I am the Acting Executive Director, Administration, Planning, and Policy in the Office of Investigations, Bureau of Immigration and Customs Enforcement. Prior to March, 2003, I held this position in the U.S. Customs Service. In March, 2003, my office was transferred to the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security. I also served as the Deputy Executive Director, Administration, Planning, and Policy in the Customs Service from August 25,2002 to November 5, 2002. This declaration is based on my personal knowledge or information provided to me in my official capacity. 2. In my present position as Acting Executive Director, I supervise a full time staff of 103 employees. My duties include, but are not limited to matters related to financial resources, personnel, case management, information disclosure, and logistics within the Office of Investigations. 3. On or about March 12,2003, at the request of Customs counsel, I directed a member of my staff to retrieve the official training records of Miguel A. Contreras. The agency's official

Case 1:02-cv-00923-JR Document 22-9 Filed 03/20/2003 Page 2 of 10
training records are contained in an electronic database known as the Training Records and Enrollment Network (TRAEN). TRAEN stores training information on employees. In addition, per Customs Directive 51410-018A dated January 18, 2001, TRAEN also includes all completed training of 1 hour or more and required training regardless of length. TRAEN began in 1990 but includes all previous databases since 1982. Previously, the Customs Training Policy was described in Customs Directive 51410-018 dated June 4,1993.
4. The official record of training by Miguel Contreras, Exhibit 1, indicates that from 1988 to the present, he participated in 32 Customs sponsored training classes. This means that Customs paid all costs associated with the training. These classes include, but are not limited to Basic Agent Training, Critical Incident Training, and Imprest Fund Training.
5. Attached as Exhibit 2 is a key to understand the acronyms associated with where the training was conducted. By way of example, 6YU equates to RAIC, Yuma, Arizona.

I declare, under penalty of perjury pursuant to 28 U.S.C. § 1746, that the foregoing is true

and correct to the best of my knowledge and belief.

. , Executed on: 3!Jq /

,2003.

Acting Executive Director Administration, Planning, and Policy Office of Investigations Bureau of Immigration and Customs and Enforcement 1300 Pennsylvania Ave, NW Washington, D.C. 20229
2

Case 1:02-cv-00923-JR Document 22-9 Filed 03/20/2003 Page 3 of 10
EXHIBIT 1

Case 1:02-cv-00923-JR Document 22-9 Filed 03/20/2003 Page 4 of 10

TSZZ20

U. S. CUSTOMS SERVICE ACADEMY

PAGE

03/11/03 09:01:01

TRAINING RECORDS AND ENROLLMENT NETWORK

COMPLETED TRAINING REPORT

REPORT SELECTION BASED ON: NAME: MIGUEL A CONTRERAS EMPLOYEE TYPE: ALL EMPLOYEE LEVELS
ACTIVE AND SEPARATED EMPLOYEES REPORT SORTED ON: SSN

LAST NAME

SER GRA COURSE LOC SESSN START END

FIRST NAME SSN ORG CODE IES DE CODE CODE NBR DATE

DATE

TITLE

TRN CPE HOURS CE CAT GOV NONGOV UNITS

CONTRERAS
CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS
CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS
CONTRERAS CONTRERAS
CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS
CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS CONTRERAS

MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL
MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL
MIGUEL MIGUEL
MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL
MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL MIGUEL

526022423 06133001 1811 13 AFFI CNE 9502 09/11/95 09/22/95 FORFEIT FINANCE 07

526022423 06133001 1811 12 CBES CNT 8906 12/06/88 01/27/89 BASIC AGENT

07

526022423 06133001 1811 14 CFIC CNE 9802 06/09/98 06/18/98 FRAUD INVEST 07

526022423 06133001 1811 14 CIIA CNF 9801 07/27/98 07/30/98 CRITICAL INCIDE 07

526022423 06133001 1811 14 CSS 526022423 06133001 1811 12 EEO

CNM 9603 07/29/96 08/09/96 SUPERVISORY SEM 12

CNT 9101 12/04/90 12/06/90 EEO

05

526022423 06133001 1811 14 EEOCBT 6TU 00002 11/15/99 11/15/99 EEO CPTR TRNG 12

526022423 06133001 1811 14 EEOMED MSD 96001 07/25/96 07/26/96 EEO MEDIATION 05

526022423 06133001 1811 14 HET

MSD 97013 11/13/96 11/13/96 HARDLINE ETHICS

526022423 06133001 1811 14 lAS

CNF 9601 06/03/96 06/13/96 IA SEMINAR

07

526022423 06133001 1811 14 IMPF OMI 98009 OS/27/98 OS/28/98 IMPF

526022423 06133001 1811 14 IMPF OMI 98013 06/01/98 06/02/98 IMPF

526022423 06133001 1811 12 NSAM CNE 9204 04/26/92 05/01/92 NARCCO SMUG

526022423 06133001 1811 14 OGEIA CNF 9901 09/30/99 09/30/99 OGE ETHICS

08

526022423 06133001 1811 12 PSSM CNT 8904 02/28/89 03/10/89 PHY SURV SCHOOL

526022423 06133001 1811 14 PURCHA OMI 98017 07/14/98 07/15/98 PURCHASE CARD 10

526022423 06133001 1811 13 SSAS CNE 0103 06/19/01 06/28/01 SA REFRESHER OE

526022423 06133001 1811 12 SSAS CNE 9305 06/14/93 06/25/93 SA REFRESHER OE

526022423 06133001 1811 12 UCMS CNE 9301 .11/30/92 12/03/92 UC MANAGERS

07

526022423 06133001 1811 12 UCOS CNT 9101 03/11/91 03/21/91 UC OPERATIVES 07

526022423 06133001 1811 14 206100 6YU 00650 09/02/99 09/02/99 BEGINNING WORD

526022423 06133001 1811 14 206100 6YU 00652 09/07/99 09/07/99 MICROSOFT OFFIC

526022423 06133001 1811 13 042703 6YU 02001 11/19/01 11/19/01 OFFICER TRNG 04

526022423 06133001 1811 13 042709 6YU 02001 11/19/01 11/19/01 HANDGUN SKILLS 04

526022423 06133001 1811 13 042711 6YU 02001 04/30/02 04/30/02 SHOTGUN SKILLS 04

526022423 06133001 1811 13 042719 6YU 02001 04/30/02 04/30/02 TACT SHOOTING 04

526022423 06133001 1811 13 042720 6YU 02001 11/19/01 11/19/01 POINT SHOOTING 04

0.00
0.00
0.00 0.00 0.00 0.00
0.00 0.00
0.00
0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00
0.00

0.00
0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00
0.00
0.00

0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00
0.00

526022423 06133001 1811 13 042721 6YU 02001 11/19/01 11/19/01 PUSH VERT TRKIN 04 526022423 06133001 1811 13 042729 6YU 02001 04/30/02 04/30/02 USE OF FORCE 04

0.00 0.00

0.00 0.00

0.00 0.00

526022423 06133001 1811 13 042749 6YU 02001 04/30/02 04/30/02 MAKE WEAPON SAF 04

526022423 06133001 1811 13 044700 6YU 02001 11/15/01 12/10/01 FAA REG

04

526022423 06133001 1811 13 084701 6YU 01002 09/30/01 09/30/01 IA3

08

0.00 0.00
0.00

0.00 0.00 0.00

0.00 0.00 0.00

•

TOTAL NUMBER OF RECORDS:

32

Case 1:02-cv-00923-JR Document 22-9 Filed 03/20/2003 Page 5 of 10
EXHIBIT 2

SEL: TR I 1 PF

TRAEN COURSE SCHEDULE LOCATE LOCATION CODE

PRD CPE2030~ CM~~U5U~ 031103 11:04

STARTING LOCACTIaOsNe 1C:0O2D-cEv: -0C0N9E23-JR Document 22-9 Filed 03/20/2003 Page 6 of 10

CODE DESCRIPTION

CNE CUSTOMS NATIONAL ENFORCEMENT TRAINING CNF CUSTOMS NATIONAL INTERNAL AFFAIRS TRAINING eNG CUSTOMS NATIONAL GENERAL TRAINING CNI CUSTOMS NATIONAL INSPECTION & CONTROL TRAINING CNJ CUSTOMS NATIONAL ACADEMY DIRECTOR CNL CUSTOMS NATIONAL CHIEF COUNSEL TRAINING CNM CUSTOMS NATIONAL MANAGEMENT TRAINING CNN CUSTOMS NATIONAL NON-ALIGNED TRAINING CNO CUSTOMS NATIONAL EEO TRAINING
CNR CUSTOMS NAT'L STRATEGIC TRADE/REGULATORY AUDIT TRN CNS CUSTOMS NATIONAL SPANISH LANGUAGE TRAINING CNT CUSTOMS NATIONAL TRAINING

2009 PLACE CURSOR ON LOC CODE AND PRESS 'ENTER'

PF1-SCRN HELP

2-FIELD HELP 3-RETURN

5-CLEAR

8-NEXT

9-SUBMENU

10-MAIN MENU 11-ASDM

7-PREVIOUS 12-LOGOFF

SEL: TR I 1 PF

TRAEN COURSE SCHEDULE LOCATE LOCATION CODE

PRD CPE20302 CM~~U3U~ 031103 11:05

Case 1:02-cv-00923-JR Document 22-9 Filed 03/20/2003 Page 7 of 10 STARTING LOCATION CODE: 6YU

CODE DESCRIPTION

6YU RAC, YUMA, AZ 600 SOUTHWEST REGION 61A INTERNAL AFFAIRS, RAC MCALLEN (DEACTIVATED)
62A INTERNAL AFFAIRS, RAC EL PASO 621 PORT ARTHUR, TX 622 GALVESTON, TX 623 BROWNSVILLE, TX 624 EL PASO, TX 625 PHARR, TX 626 NOGALES, AZ 627 LAREDO, TX 63A INTERNAL AFFAIRS, RAC SAN ANTONIO

2009 PLACE CURSOR ON LOC CODE AND PRESS 'ENTER'

PF1-SCRN HELP

2-FIELD HELP 3-RETURN

5-CLEAR

8-NEXT

9-SUBMENU

10-MAIN MENU 11-ASDM

7-PREVIOUS 12-LOGOFF

SEL: TR I 1 PF

TRAEN COURSE SCHEDULE LOCATE LOCATION CODE

PRD CPE20JU~ CM~~U~U~ 031103 11:06

STARTING LOCATCIaOsNe 1C:0O2D-Ec:v-0O0M9I23-JR Document 22-9 Filed 03/20/2003 Page 8 of 10

CODE DESCRIPTION

OMI OFFICE OF MANAGEMENT - INDIANAPOLIS TRAINING OML OFFICE OF MANAGEMENT - LOGISTICS AKA OSH OMP OFFICE OF MANAGEMENT - PROCUREMENT OMT OFFICE OF MANAGEMENT - TRAINING (OFFICE OF) OMO OFFICE OF MANAGEMENT - MGMT STAFF OOP HEADQUARTERS, OFFICE OF PLANNING OPA HEADQUARTERS, OFFICE OF PUBLIC AFFAIRS OPO HEADQUARTERS OFO, PASSENGER OPERATIONS DIVISION
ORR HEADQUARTERS, OFFICE OF REGULATIONS AND RULINGS
OSP HEADQUARTERS, OFFICE OF STRATEGIC PROBLEM SOLVING
OSS ADMIN SYSTEMS SUPPORT DIVISION
OTD HEADQUARTERS, OFFICE OF TRAINING AND DEVELOPMENT

2009 PLACE CURSOR ON LOC CODE AND PRESS 'ENTER'

PF1-SCRN HELP

2-FIELD HELP 3-RETURN

5-CLEAR

8-NEXT

9-SUBMENU

10-MAIN MENU 11-ASDM

7-PREVIOUS 12-LOGOFF

SEL: TR I 1 PF

TRAEN COURSE SCHEDULE LOCATE LOCATION CODE

PRD CPE20302 CME20301 031103 11:06

Case 1:02-cv-00923-JR Document 22-9 Filed 03/20/2003 Page 9 of 10 STARTING LOCATION CODE: MSD

CODE DESCRIPTION

MSD CMC SAN DIEGO MSE CMC SEATTLE MSF CMC SAN FRANCISCO MSJ CMC SAN JUAN MSY AVIATION BRANCH NEW ORLEANS - AKA AEN MTA CMC TAMPA MTU CMC TUCSON NCC NATIONAL COMMUNICATIONS CENTER (SECTOR) NCS NATIONAL COMMODITY SPECIALIST TRAINING NDA NAFTA CENTER, DALLAS, TX NYC AVIATION UNIT NEW YORK OFO HEADQUARTERS, OFFICE OF FIELD OPERATIONS

2009 PLACE CURSOR ON LOC CODE AND PRESS 'ENTER'

PF1-SCRN HELP

2-FIELD HELP 3-RETURN

5-CLEAR

B-NEXT

9-SUBMENU

10-MAIN MENU ll-ASDM

7-PREVIOUS 12-LOGOFF

SEL: TR I 1 PF

TRAEN COURSE SCHEDULE LOCATE LOCATION CODE

PRD CPE20302 CME20301 031103 11:09

Case 1:02-cv-00923-JR Document 22-9 Filed 03/20/2003 Page 10 of 10 STARTING LOCATION CODE: 6TU

CODE DESCRIPTION

6TU SAC, TUCSON 6YU RAC, YUMA, AZ 600 SOUTHWEST REGION 61A INTERNAL AFFAIRS, RAC MCALLEN (DEACTIVATED) 62A INTERNAL AFFAIRS, RAC EL PASO 621 PORT ARTHUR, TX 622 GALVESTON, TX 623 BROWNSVILLE, TX 624 EL PASO, TX 625 PHARR, TX 626 NOGALES, AZ 627 LAREDO, TX

2009 PLACE CURSOR ON LOC CODE AND PRESS 'ENTER'

PF1-SCRN HELP

2-FIELD HELP 3-RETURN

5-CLEAR

8-NEXT

9-SUBMENU

10-MAIN MENU 11-ASDM

7-PREVIOUS 12-LOGOFF

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 1 of 14
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et aI., )

Plaintiffs,

)

)

v.

)

)

TOM RIDGE, Secretary,

)

Department of Homeland Security, )

Defendant.

)

)

Case No.1 :02CV00923(JR)

DECLARATION I, RICHARD J. HOGLUND, declare the following to be true and correct: 1. I am the Interim Director of Customs Investigations, in the Bureau of Immigration and Customs Enforcement. Prior to March, 2003, I was the Acting Assistant Commissioner, Office of Investigations, U.S. Customs Service. In March, 2003, my office was transferred to the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security. This declaration is based on my personal knowledge or information provided to me in my official capacity. 2. In my present position as Interim Director, I am responsible for the activities of approximately 3,244 Special Agents, and a total staff of about 4,200. My duties include, but are not limited to, the management and control of enforcement programs involving investigations pertaining to, among other things, terrorist funds and weapons of mass destruction. I am also the selecting official for merit promotions through the GS-141eveI. I am the recommending official for GS-15 selections. 3. I am aware of the organization known as the Customs National Hispanic Agents

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 2 of 14
Association, commonly referred to as CNHAA. 4. It is my understanding that the CNHAA, established in 1995, is a non-profit
organization established to promote the United States Customs Service (now the Bureau of Immigration and Customs Enforcement) and the general welfare of Customs employees, particularly Customs special agents of Hispanic descent.
5. I understand that CNHAA sees its mission as fostering a positive employee/management relationship, as well as nurturing and improving the relationship of Customs with the community, particularly the Hispanic community. Furthermore, it works to assure the equitable hiring, training, assignment, development, promotion and fair treatment of all employees, particularly employees of Hispanic national origin.
6. I believe that the CHNAA bylaws indicate that the main purpose of CHNAA is to improve Customs, particularly its special agent workforce, which is accomplished by working with and supporting other organizations that represent minorities and women; working closely with Customs management in the Offices of Investigations and Internal Affairs and their counterparts in other Customs elements; assisting in the identification of members and other potential Hispanic candidates for advancement within Customs; serving as an advocate for members and Hispanic employees in Customs that CNHAA represents relative to assignments and promotions; working to increase the number of Hispanic managers in the Customs elements the CNHAA represents; actively participating in activities promoting education and training for Hispanic employees in the Customs elements that CNHAA represents; assisting members who terminate employment with Customs, under honorable conditions, to obtain employment with other government agencies or in the private sector; and working to obtain the support of all
2

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 3 of 14
Customs managers in meeting the objectives of CNHAA. 7. I have been informed that there are approximately 250 members. The organization's
focus is to provide a mechanism to all Hispanic Customs officers to receive specialized training, mentoring and guidance in career development. The organization is similar to other advocacy groups such as the National Association of Black Customs Enforcement Officers (NABCEO), Women in Federal Law Enforcement (WIFLE) and National Organization of Black Law Enforcement Officers (NOBLE).
8. I believe that the Association will host its 6th annual Professional Development Training Conference in Las Vegas in late June, 2003. The agenda for last year's conference included, but was not limited to, presentations on Green Quest, Anti-Terrorism, street survival, managing stress, identity fraud, and cyber crimes. Last year's attendance exceeded 100 members.
9. The policy to attend professional association conferences, such as the CNHAA conference, is governed by Customs issuances dated March 27,1996, and July 12,1999, from the Assistant Commissioner, Office of Investigations, and Internal Operating Procedures Notification (lOPN) dated October 6,2000. Attached hereto as Exhibit 1,2, and 3. Briefly, all employees may attend these conferences. However, each SAlC office has a limited budget within which to pay the expenses of the employee who is to attend the conference. Accordingly, the general policy has been that an employee can only attend one professional association conference per year, at government expense (except if the employee holds an office in the organization, in which case an exception may be granted to attend more often). Furthermore, "attendance at these events is a privilege bestowed on employees by management and is not an entitlement." See
3

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 4 of 14 Exhibit 3.
10. In my view, such events may enhance an employee's professional development. However, attendance at such an event will not affect an employee's salary or benefits.
11. I have been both a recommending official and a selecting official with Customs. In my view, while the attendance at a professional association meeting may be a beneficial activity for employees, I have not viewed the attendance or non-attendance as a critical factor in evaluating any employee's application for promotion. To my knowledge, the training which may be provided by such organizations is not sponsored, regulated or certified by Customs, nor is it accredited by any other educational institution, and as such, its benefit is difficult to measure.
I declare, under penalty of perjury pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and belief. Executed on: March 18,2003, at Washington, D.C.
FJqJ;£~
Interim Director Customs Investigations Bureau of Customs and Border Protection
4

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 5 of 14
EXHIBIT 1

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 6 of 14
UNITED STATES GOVERNMENT
Memorandum

DATE:
FILE: PER-3-0I:OA MC 01-96-52009

TO

See Distribution

fROM

Assistant Commissioner Office of Investigations

SUBJECT: Proposed Interim Policy Guidelines for Attendance at Advocacy Group Conferences

This memorandum establishes the interim policy for employee attendance at advocacy group conferences (e.g. NOBLE, NABCEO, CNHAA, etc.).
Albeit the ICWIFLE is not considered an advocacy group, I am requesting, for the purpose of adherence to the interim policy guidelines, that the ICWIFLE be considered a "special associationUand included with the other advocacy groups insofar as determinations are made concerning requests for attending training approved by any of these groups.
By way of background, in January 1995, the Offices of Chief Counsel and Equal Employment Opportunity reviewed the u.S. Customs policy relative to participation in "special advocacy groupsu. ICWIFLE was cited as an example of a special advocacy group.
At an ICWIFLE meeting on February 16, 1995, the Deputy Director, Ethics Office, Justice Management Division, was requested to review the Memorandum of Understanding for the interagency committee relative to statutory prohibitions under Title 18 U.S.C 205. Based on the
Directors's review, the ICWIFLE was considered a u.s.
Government agency and not an advocacy group.

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 7 of 14
-2-
The following guidelines listed below is our current policy regarding attendance at advocacy group conferences. These guidelines will provide direction until such time as a uniform Treasury wide policy 1S formulated.
1.) Pursuant to the guidelines related to training described below, an employee can attend no more than one conference per year at the expense of the government. Any employee wishing to attend additional conferences, during the fiscal year, may do so at the employee's own expense, (e.g. travel, annual leave, etc.), consistent with office operational needs and subject to supervisory approval.
2.) Funding for attendance at these events will have to be borne by individual office budgets. When approving attendance, consideration should be given to what can be approved without seriously impacting operational spending requirements. Please note that funds allocated to office travel accounts will not be supplemented by Headquarters as a result of funding shortages.
The intent of the above provisions is to continue, as closely as possible, our current policy and practice that authorizes the payment of expenses for employees to attend advocacy group conferences so long as the conferences provide training that meets the valid needs of the Customs Service (5 U.S.C. 4109). Also, we wish to allow the widest possible employee participation within the limits of operational necessity and funds availability.
In the case of internal advocacy groups, it has not always been clear that the training offered by these groups has always met the valid needs of the Customs Service. Therefore, before granting official time for training in conjunction with employee associations and advocacy groups, the approving official should ensure that the training will enhance the professional development or skills of an employee in his/her current position and that the association is approved or sanctioned by Customs.
Until such time as a policy is established, the administering of official time will be at the discretion of all Office Directors, SACs, Air Center Directors, and Air Branch Chiefs consistent with office operational needs. These managers are authorized approval to grant official time in any amount up to, and including, five working days for attendance at approved work related training.

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 8 of 14
- 3Approval authority for official time in excess of five working days will be at the Deputy Assistant Commissioner level. Requests in excess of 10 working days will require my approval.
cc: Headquarter Directors Special Agents in Charge Air Branch Chlefs Customs Attaches

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 9 of 14
EXHIBIT 2

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 10 of 14
UNITED STATES GOVERNMENT
Memorandum
DATE: . FILE: PER-3-01:AD:OSB

TO FROM

: See Distribution

:

Assistant Office of

Icnovmemsitsisgiaotni~_1t7~-; /tI1·-t.(,/,4

~

SUBJECT: Proposed Policy Guidelines for Attendance at Association/Advocacy Group Conferences

This memorandum establishes the policy guidelines for employee attendance at association/advocacy group conferences/meetings (e.g. NOBLE, NABCEO, CNHAA. ICWIFLE, etc.). It replaces the memorandum dated March 27, 1996, subject: Proposed Interim Policy Guidelines for Attendance at Advocacy Group· Conferences.
The Office of Investigations (01) encourages employee participation in the many recognized organizations available at Customs. The intent of the following is to establish a uniform policy that will allow the widest possible employee participation within the limits of operational necessity and funds availability.
1.) Managers (Executive Directors, Office Directors, Special Agents in Charge, Resident Agents in Charge, Attaches, Customs Senior Representatives and Air Branch Chiefs) are authorized, at their discretion, to grant official time, in any amount, for attendance at any organization/advocacy group meeting/conference as long as it does not seriously impact the operational needs of their office and it qualifies as legitimate agency training.
2.) Funding for attendance (travel, per diem, etc.) at these events is authorized, but will have to be borne by individual office budgets. Please note that funds allocated to office travel accounts will not be supplemented by Headquarters as a result of funding shortages.

l d ~ ~L6S ~09lV 'oN/OO: L 'lS/lO: L 66 ,E ~ 'L (301)

SlO~ Ll6 lOl AJI10d ~ NV1d NlwaV WOH~

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 11 of 14 Any further questions should be directed to the Director, Financial & Logistics Management, Administration, Planning & Policy at (202) 927-1960. Distribution: All Executive Directors
An Air Branch Chiefs
AU Attaches and Senior Customs Representatives AU Special Agents in Charge
All Resident Agents in Charge
r: ~ ) Tilt: n I " 7 L '1'\' T /,," ., •• ~ '"7 ~ . .

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 12 of 14
EXHIBIT 3

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 13 of 14

INTERNAL OPERATING PROCEDURES NOTIFICATION (IOPN)

NUMBER:

00-07

DATE: OCT - 6 2000

SUBJECT:

Guidelines for Attendance at Professional Association Group Training Conferences and Meetings

PROPOSING OFFICE: Administration, Planning and Policy Office of Investigations (01)

DISTRIBUTION:

All 01 Personnel

This establishes 01 policy guidelines for employee attendance at professional association group training conferences and meetings. This replaces the memorandum
dated March 27, 1996, "Proposed Interim Policy Guidelines for Attendance at Advocacy Group Conferences," and the July 12, 1999, memorandum, "Proposed Policy
Guidelines for Attendance at Association/Advocacy Group Conferences." The intent is to establish a uniform policy that will allow the widest possible employee participation, within the limits of operational necessity and funds availability.

Funding for attendance (travel, per diem, etc.) at these events is the responsibility of the individual office. Office travel accounts will not be supplemented by Headquarters as a result of funding shortages.
~
Attendance at these events is a privilege bestowed on employees by management and is not an entitlement. In general, recognized professional law enforcement associations that may enhance an employee's professional development include, but are not limited to, the Hispanic American Police Officer Organization; the International Association of Chiefs of Police; the National Organization of Black Law Enforcement Executives; the National Association of Blacks in Criminal Justice; the National Black Police Association; Women in Federal Law Enforcement; the National Native American Law Enforcement Association; the Customs National Hispanic Agents Association; and the Federal Law Enforcement Officers Association.

The authority to approve attendance at no more than one professional association group training conference or meeting a year, at Government expense, is delegated to Executive Directors; Deputy Executive Directors; Directors; Special Agents in Charge;

1

Case 1:02-cv-00923-JR Document 22-10 Filed 03/20/2003 Page 14 of 14
Customs Attaches; and Air and Marine Branch Chiefs. These officials may grant the use of official time or excused absence from duty up to 5 working days for employees to attend professional association training conferences and meetings. Approval or denial decisions should be based on staffing considerations, workload, budget, and, foremost, the needs of the Service. Local management may approve an exception to the policy and allow attendance at more than one professional association training conference or meeting a year if the employee holds an official position within the association, or has been given specific responsibilities by an organization without necessarily holding an officially designated position. In these instances, approving officials may approve the employee's attendance at more than one event a year. All other requests from the same employee to attend more than one professional association training conference or meeting within one year must be forwarded to the Assistant Commissioner for approval or denial. All requests for official time or excused absence from duty in excess of 5 working days to attend professional association training conferences or meetings must be forwarded to the Assistant Commissioner for approval or denial. If employees elect to use annual leave to attend professional association training conferences and meetings, the leave is subject to supervisory approval. In this case, employees will be responsible for funding their own travel and registration expenses.
~ t,k istant Commissioner ffice of Investigations
2

Case 1:02-cv-00923-JR Document 22-11 Filed 03/20/2003 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et aI., )

Plaintiffs,

)

)

v.

)

)

TOM RIDGE, Secretary,

)

Department of Homeland Security, )

Defendant.

)

)

Case No.1 :02CV00923(JR)

DECLARATION I, JOHN J. SERAPHIN, declare the following to be true and correct: 1. I am the Director of Workforce Management for the Office of Investigations, Bureau of Irnmigration and Customs Enforcement. I held this same position in the U.S. Customs Service from May 2001 to March 2003 (on March 9,2003, the Office ofInvestigations workforce was transferred to the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security). Prior to that, I was the Acting Director, Workforce Management from December 2000 to May 2001. I joined the Customs Service in 1978. This declaration is based on my personal knowledge or information provided to me in my official capacity. 2. In my current position, my duties include the processing and coordination of all personnel actions for the Office of Investigations, including hiring, training, staffing levels, reassignments and promotions. 3. My office also oversees the Hardship Review Board and the foreign language award program. 4. The mission of the Office ofInvestigations includes investigation of terrorism, fraud, money laundering, child pornography, and the smuggling of arms, narcotics, and other prohibited

Case 1:02-cv-00923-JR Document 22-11 Filed 03/20/2003 Page 2 of 5
or regulated items. 5. Approximately 3,244 special agents serve in the Office ofInvestigations (01). Special
agent criminal investigators also serve within the Office ofInternal Affairs (IA) (approximately 180), and the Office of International Affairs (INA) (approximately 97).
6. The approximately 180 agents who serve within IA investigate criminal and serious administrative misconduct by Customs employees. Agents often rotate between 01 and lA, and a typical tour within IA is three to five years.
7. Rotations to IA are filled by a number of mechanisms: (1) merit promotions (i.e., agents are promoted into 1A from 01, IA or INA); (2) responses to Treasury Enforcement Communication System (TECS) announcements that seek volunteers; (3) a nomination system (01 supervisors nominate agents working for them); and (4) requests by IA for certain agents that have come to their attention. Only experienced agents (GS-13 and above) are rotated or promoted into 1A and INA.
8. Criminal investigators in INA conduct collateral investigations to support the domestic offices; initiate investigations for referral to the domestic offices; conduct liaison with local law enforcement officials/foreign counterparts to accomplish the aforementioned responsibilities; and assist the international trade community and general public on Customs lssues.
9. The mission of Customs, which is headquartered in Washington, D.C., mandates a presence throughout the country, with a current total of20 Offices of the Special Agent in Charge (SAIC), in Or. A number of subordinate field offices report to each SAIC; each of these subordinate offices is called a Resident Agent in Charge (RAIC). Customs maintains approximately 99 RA1C offices. There are also offices subordinate to the RAICs called Resident
2

Case 1:02-cv-00923-JR Document 22-11 Filed 03/20/2003 Page 3 of 5
Agents Offices (RAs), of which there are approximately 14. 10. Customs Attache offices are located in many U.S. embassies abroad. 11. In addition, IA is broken into four Regional Special Agent in Charge offices with an
additional presence in 21 RAIC offices. 12. Currently, all series 1811 special agents, regardless of office, are required to agree to
mobility as a condition of employment, as stated in the pre-employment documents filled out by applicants. Agents therefore agree, prior to entering duty, that they are aware that they may have to relocate for the good of the service, and they agree to do so if and when it is necessary. Mobility is also listed as a work environment factor in most, if not all, GS-181l position descriptions.
13 . New series 1811 special agents may not decline the location of their first assignment and are required to remain in that assignment for at least three years. After that time, they may apply for a lateral reassignment or rotation elsewhere.
14. Mandatory employee relocations are called directed reassignments, for which moving and relocation expenses are paid by the government.
15. The directed reassignment process is utilized to move employees to offices and locations where they are needed.
16. Under authority of Customs Directive 099-51335-002 (entitled "Directed Reassignments," and dated August 23, 1984), Assistant Commissioners at Customs, with the concurrence of the Commissioner, can direct and effect reassignment of employees under their line of authority as well as employees from other functional areas in headquarters and the field.
17. Reassignments pursuant to Directive 099-51355-002 are only to be effectuated for legitimate management considerations such as, but not limited to, the need for an employee's
3

Case 1:02-cv-00923-JR Document 22-11 Filed 03/20/2003 Page 4 of 5 special expertise, lack of work at an employee's present location, backlog of cases at the new location, the elimination of tensions in the work place caused by personality conflicts, and/or the need to remove an employee from an environment where his/her effectiveness has been compromised.
18. I have implemented reassignments for additional legitimate management considerations such as staffing imbalances, new program needs, special projects, and for disciplinary reasons.
19. In my experience, directed reassignments have only been effectuated for the legitimate management considerations specified above.
20. In the case of directed reassignments, such relocations do not change the employee's base salary or benefits. However, the locality pay may change from location to location, and like any move, the nature of the work may change depending on the needs of the specific office to which the agent is reassigned.
21. In the case of voluntary lateral reassignments, usually the reassignment opportunity is advertised in TEeS, and all interested special agents can apply for the assignment. Lateral reassignments are not promotion opportunities and do not change the employee's grade, base salary or benefits.
4

Case 1:02-cv-00923-JR Document 22-11 Filed 03/20/2003 Page 5 of 5

I declare, under penalty ofpeIjury pursuant to 28 U.S.C. § 1746, that the foregoing is true

and correct to the best of my knowledge and belief.

-73,'11- 7/· Executed on:

J--C.....jl'-----

' 2003.

OHN J RAPHIN Director, Workforce Management Office of Investigations Bureau of Immigration and Customs Enforcement 1300 Pennsylvania Ave, NW
Washington, D.C. 20229

5

Case 1:02-cv-00923-JR Document 22-12 Filed 03/20/2003 Page 1 of 20
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et aI., )

Plaintiffs,

)

)

v.

)

)

TOM RIDGE, Secretary,

)

Department of Homeland Security, )

Defendant.

)

-----------~)

Case No.1 :02CV00923(JR)

DECLARATION I, JACQUELINE SMALL, declare the following to be true and correct: 1. I am a Personnel Management Specialist with the Office of Human Resources Management, Bureau of Customs and Border Protection (formerly known as the U.S. Customs Service). In March 2003, my office was transferred to the Department of Homeland Security. I have held this position for seven years. Prior to this position, I served as Personnel Staffing Specialist. This declaration is based on my personal knowledge or information provided to me in my official capacity. 2. In my present position my duties include, but are not limited to, (1) providing staff, position management, pay administration and related services to Headquarters and field offices; (2) providing expert advice on personnel issues to the Branch Chief and to other personnelists; (3) serving as a special assistant to the Branch Chief; (4) providing quality assurance of branch work products; and (5) conducting special projects or studies. 3. In 1994, I was the Personnel Staffing Specialist on Announcement No. ENFl/94072JS (Exhibit 1 hereto).

Case 1:02-cv-00923-JR Document 22-12 Filed 03/20/2003 Page 2 of 20
4. This announcement was generated at the request of the agency's Office ofInternal Affairs, which was seeking applications to fill GS-1811-14 Supervisory Criminal Investigator positions in Miami, Florida; Laredo, Texas; and EIPaso, Texas.
5. The announcement was opened on September 26, 1994, and closed October 17, 1994. 6. The records indicate that 52 applicants applied under this announcement. 7. Applicants could apply for one, two, or all three of the locations noted on the announcement. 8. The announcement required each applicant to address six criteria. These criteria were: (1) the ability to direct the operational activities of an office or program; (2) the ability to supervise others; (3) the ability to identify problems and develop innovative programs/systems to meet changing needs; (4) knowledge of federal laws and procedures and, specifically criminal and civil laws and procedures; (5) the ability to communicate and interact effectively with other elements and other federal, state, and local agencies; and (6) the ability to implement Equal Employment Opportunity Program initiatives. 9. Because more than 10 applicants applied for the vacancies, a panel of subj ect matter experts was established to review the applications. While I do not recall the specific number of panel members or their names, it is my belief that, pursuant to the ordinary practice at the time, there would have been three GS-14 members of the panel, with at least two from the Office of Internal Affairs. The panel was independent from the selecting official. 10. Typically, the panel members would first review and score each application individually. As indicated above, the vacancy announcement provided six criteria upon which the scoring was based.
2

Case 1:02-cv-00923-JR Document 22-12 Filed 03/20/2003 Page 3 of 20
11. Each primary criterion was scored with a 6 (excellent), 4.5 (good), 3 (moderate) or 0 (nothing). Each secondary criterion was scored with a 4 (excellent), 3 (good), 2 (moderate) or 0 (nothing).
12. Ordinarily, once each individual panel member rates an applicant, and before a score can be attributed to the applicant, a consensus score among the raters must be reached. For example, if on the first qualification an applicant received a score of 6 from two of the raters and a score of 4.5 from the remaining rater, a discussion among the raters would occur to arrive at a single score, either 6 or 4.5, for the particular qualification.
13. Once all the applicants received a total consensus score, I would then input that score in the database tracking that announcement. The scores for Announcement No. ENF1/94-072JS are attached as Exhibit 2.
14. As indicated in Exhibit 2, under the heading CRIT, applicants under this announcement received a range of different scores, e.g., 30, 255, 75. As the maximum number of points for each primary criterion is 6, and secondary criterion is 4, the total number of points an application could receive is 30.0. Accordingly, these numbers do not show a properly placed decimal point. Therefore, the scores should be read, e.g., 3.0, 25.5, 7.5.
15. Typically after the scores are calculated, a cutoff score is established. While I do not recall exactly what that cutoff score was for Vacancy Announcement ENFl/94-072JS, in my opinion it was 22.5, because that was the lowest score indicated on the three selection registers under this announcement.
16. After the cutoff score is established, a selection register is created for each vacancy. The selection register is also referred to as the best-qualified list ("BQL"). The selection register
3

Case 1:02-cv-00923-JR Document 22-12 Filed 03/20/2003 Page 4 of 20 would consist of the top ten candidates, in rank order, that made the cutoff score. For the El Paso position, only eight applicants were on the selection register, or BQL, because only eight El Paso candidates made the cutoff score (Exhibit 3 hereto). The scores of these eight applicants ranged from 28.5 to 22.5. For the Laredo position, only three candidates made the BQL, along with one alternate-staffing candidate (a candidate that does not have to apply for a vacancy competitively because he/she has already attained that grade level in the announcement). The scores for those three candidates ranged from 28.5 to 22.5 (Exhibit 4 hereto).
17. Once the selection register is created, the selecting official may select any of the candidates on that list, or select an alternate staffing person if available. The selecting official may not select an applicant that applied competitively but did not make the BQL.
18. Mr. Contreras received a score of 3.0, and did not make the BQL for either the Laredo or El Paso positions. The selecting official, therefore, did not have the option of choosing Mr. Contreras for those positions.
19. I note that several applicants received no score. In my opinion, this signifies that they were either candidates eligible for non-competitive selection (alternate staffing), or the application was withdrawn at the applicant's request.
4

Case 1:02-cv-00923-JR Document 22-12 Filed 03/20/2003 Page 5 of 20

I declare, under penalty of perjury pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and belief.

Executed on: ltC/rei? /7 ,2003. I

uit~

1
I
'n~/

CQ LINE SMALL ersonne1 Management Specialist Bureau of Customs and Border Protection 1300 Pennsylvania Ave, NW Washington, D.C. 20229

5

Case 1:02-cv-00923-JR Document 22-12 Filed 03/20/2003 Page 6 of 20
EXHIBIT 1

IU

:

Case 1:02-cv-00923-JR Document 22-12 Filed 03/20/2003 Page 7 of 20

DEPARTMENT OF THE TREASURY

T NUMBER

UNlTal aTA~ OV$TOM!l SERVICE

MERIT PROMOTION ~

,V,;gAaC,_ANCY "ANNOUNCEMENT

POSITiON TiTLE .

Supervi.ory Crlmin. Inttes:tigator.'(Resident Agent-in-cf1.rge, ·Position to be filled is baed on proposed reorganization·
PAY PLAN. $ERIES AND ORACE
GS-1811-14

ORGANIZATiON ANt? OUiY STATiON
Offlca cf Organizational Efftetiveneu Offic. of tnt.mol Affairs Office of'Speciai Agem.J.,.ch..-ge
puty Lacetjcna :S•• Remark.

OF CONSICERATI
ImMCaanoe: ApDlICadms WiD be acceptad from U.S. ultO'mt and the Dtpart:rntm of Trauury Ita'tUS cancfidstel only.
e

ALL APPLICATION MATERIALS MUST BE RECEIVED INTHE OFFICE OF HtMAN BESOlffiCES BY THE CLOSE OF BUSINESS ON OR BEFORE. THE CLOSING PATE LISTED ON THIS VACANCY M'NQUNCEMENT. NOTE mAT APfl,ICATIQNS SENT BY FEDERAL EXPRESS. PRIORITY MAIL,
. OR COURIER WILL NOLDE CONIDERED llNLESs THEY AM RECEIVED QN OR BEFORE ]'HE
CLOSING DAD, '
and! SUMMARy OF D'tJ'DESi The incumbent serves as first-line supervisor to approximately 3-6 Senior Special
. AgentS Who are responsible for conducting investigatiums which arc ~1 civil or adminirtrativc in
nature. Responsible for the planning, olianizati~ administration arid coordination of all investigatio~ and
programs. Supervises, directs and condllcts complex and sensitive investigations involving CUStoms employees at all leyels' within area of responsibility. RevieM. conducts surveys. aDd provides ~ and analysis of investigations. Provides guidance: and advice to District and Regional management and Internal Affairs
managelIJeUl ~ illvc:stigativc strategy.

--

-

SPECIALIZlID ~CBi One (1) year of specialized eXperience in or related to investigation of criminal

violations thAt provided the sp=ific knowledge, skilht and abilities to perform succcssfally tM duties of the pasition. The one (1) year of qualifying specialized ~encc most have been equivalent to the level of

.difficulty and responsibility comparable to the next lower p e in t,he Federal service. Examples of qualifying

~a]jud experience tndude:

*'

_ Leadcr3hip or membership of 'a militnry intelligence or ~rimin31 investigative te2m Or component in which the
priIx;ipal duties consisted of security investigation, intelligence gathering. or criminal prosecution.

_ Analyzin& or evaluating raw iIIvcstiJtative data and preparing comprehensive written investigative reports.
_ Invmipting ~l.x claims involvins ~ crimes or alleged mud.

.

. COntlnued',on Revers!

EQUAL EMPLOYMENT OPPORTUNITY: All canOiaates Will, De ccriSidered w!ttlOut dtse:rlmlnatlon tor any nonmeHt reason sucn as ~ce, ~IOI'. I"eli;lCn, 5e)(, age, l\Wonal ort;I,;, tDwfUll)Olitlc=ll:tffilbtion, rn;;rtt:aI~. PhV;lc:aI h2ndICllO Of not fl Joh ~r1. or memberst'lID

or nonmemoersnlp In ;n employee or;;n/z;t:Ion.

diSfOms,FOnn aaro71'W

SEP-26-1S94 16:32 FROM u S QJSTOM~
, .'OSn:JON TITLE

IU

~Hl'l ..JUMI'l

r. U..J

J "'....CANCY ANNOUNCEMENT-NUMBER

-

Case 1:02-cv'_-<.-0_ 0923-JR Document 22-12 Filed 03/20/2003 _"',,_:;;..:.~1~194-O~:;.:.7:.:2J=t!;;:.S Page 8 of 20

_

•

••

Supervisory CnmrnaJ Investigator

c\'cSING CATE
10-17-94

_ Investigating criminal cases requiring the use of recognized investigative methods and teehni~ and that-

may have included appearing in court to present evidence.

-

:

_ Supervising or conducting interviews or interrogations that involved eliCIting evidence, data or surveillanc

information.

.

_ Law enforcement worle in which 50 percent or more of the time involved criminal investigations' re~
the use of surveillance, undercover, or other criminal detection methods or techniques.

_

Investigating

computerized

business

and/or

accounting

systems

and

forming

sound

conclusions

•
as

to

relate

criminal business practices and compliance with Federal laws regulations.

_ Investigative work that required rapid, accurate judgment and sound decision-making in applying regulatic

instructions, and procedures.

.

HOW TO APf"Ly
latvainht UnIt ~ Cymms Emp!9'!'!!t wIII'lint to be ~'1orttIII wowncy .tlouId (1) 1crwan:I I complt'ttcl and Oriiinall.y-.ignid 51-171 to tIw "-rsonnel Off~ ~ below. and (2) gI.... COITIJMtecI S~tlftefTW Q.ualificatlonl SUtement IQl.307l. ~iul for I'romatlonal Op;lOI'tU~ (CF-308)••,
copy of UlOif C\m'wnt P«1'ormanee 'I)Clt.lSaI of J'IIOOrd Ceithtt CPo1IS or CF-2.81) ta tMit ImInotdlm ~ on or bet~ ttlt closing datt.

III" tlIfI...,. .. Non·a.v1lrWtt UnIC Pos~: CvtttllTl!l EmtzIoyt!! wWinV to be cansldtl"td for t!'I'- vacancy should (1) forward a I:OII'IIlItted ami origina~tdSP0111 tv

~DM" OH1ct Ii5ted bllow. Md (2) give .4 c:ampifl8d Su~mentalChwJificanons StlterMtl1 (CF-3071. ~,.iaaI fOl Proll'iOtional OI)ClOl'Mlitin (CF-3061••,

~ of tI\W ~ ~ 'P9raiHI of.-on! Celttw CP-tl& or CF-2B11 to tM '.totJo"'ltf OffICI r~~ ~DW

~ OIl 01 HforI

a.m. * * " ( All aU. .oPac.ntIJ (SH "'" Of COI'l$ldwmion) Ihoutd forward • campleted and oriQ~;n~ SF-171 and a cooy of tl'lei, cumm aPlniAl of fKOfd to ttIt

htsonn-s Office listed belgw. The

S4.IppIam.rn.1 QuaRflca1iont StatlImMrt lor iW equlva!efttJ. ilI~. bvt lIhoUcI bl lubm/tted in order to

COrnIl!e1. conaldaratlon. -~.,. avail"", from t!'It Plraamel Offiee htItd f*ow.

(Do- not aPPlY Ul'hM cnecUcU 'nlIe OOtitiorl ill 0lIY.-l by Manv.1 8~ment ! 1~1' (fOc'mtriy 1192Oo03l. Selection fIr'octdl.ns lOr Kev Manllgeriel

~. Applicanta lIN to ~bl'nit (1) I ~s.ted II"d otlfinal/y-lligned S'-171. to the Peraonnel OffIce IIstad below, ancl (2) • cooy of umr mcm ~

IUHMtory appraisal of Ottfotmlnca and a Ql-3OI. Implcyea Su;ipJlrneMaI QU*libtlOl'll SUbmenund SUDtl.i$OI ~ APP~iuI for SESnc.y Manageritl Po.h

dat,. 111 their CUftW suoemaot an or belart tfte t:Iclaing

Applicalm for U-e ~ IftOuId not .ubmit a=-306 Of CF-301.

IMPORTANT NOnS:
1. Af3llkants wilhing to biI notIfItd of the na~ Ind dIsclosicloli cd tMIr 'appllc.ttfOft SI'lcN!d COITl$llew a C2l-U. Notit'atiOl\ to ApprIQnt. and tvbmIt It d ttta~
, l' to the P.tsonrltI ~.

2. An Il7p1lcants Irt ~ tD COI'ftpIttt Il'lCf lIUbmit an ~ Fctm 1388, E£O BaclcgtO\ll'ld Survwy o.tI Qu..t1onnau... with their SJl. t 71 It tIw tilM of I9PIIcJ
Hcl_vw. completion of thl110rrft it WiC:ttv wIuntary and wit itt no W8Y impact UCIOl" 'YO\II' COMid.mlDn.

3. ~ 0' ~ d ~ ItIIlrrforrna1fon fotma ... not to be NiM-Jl\ U.s. Go'wenmant -For OfRcial UH Only- PQItIVe and faa peId "'~

""0l'lM! ~ The &r-171 rNIIl be receMd In the

CffIa8 below on or kfn the cIosIno date Iitte4 on thiII'vacancy ~

~ Urilt ~ 9moms Itnp~ The Pe111 mwt In ~ ~ 1tIe c:Iocinv dateliJtH Oft 1NI \'teaney. ADplicantll mutt gMt • ~ of the

~, CF-307. Irld rIlOIt *tnt appraisal of I'tCOI'CI tv their suptt'Yisor Oft 01' IMfon the cIoslrtt datt.

'

NllIHlat;aUllV UnIt PDeIdon: Qmoms EmpIo'C!!S T"- $,.'71, a=-307. IIftd ftlOIt *'tnt lIwniNl of rKOr'd must be recetnd In ttle ~ OffiCI listed l>f

or betON the domg ~.

..'

.

5.

. , No addltionallnforma1lCln or macI'Im.tltI. other than as $OtcifitG .bow••re to be submittad. Do not ~ copies af POsItion ~ 1WIl'da, 01' trlinin{
~".

MAILItG AOOlIIOS:
U.s. Customs Service
Office of Human Resources Attn: ENF1/94-o72JS P,O. Box 66360· Washington, o~c. 20035-6360

ADOlTlOHAI. ~TIO" ABO'.1fiMlS V~ 011 A*>UT 'T)oII
.YNCAllCI'C P'9lIOCII)IJllA MAY II 0ITAJNl!D rr COHTACTl"O: For copies: (202) 834-15240 For information: (202) 634-5065

SEP-26-3:994 16:33 FROM LJ S aJsTOMS

TO

SAN JWHN

1"' ........,

~~ITl~ nTLe . • SuiMvisary CrimCi~aasl eInv1I:P0s2tlg-c.tvO-:0~0923-JR

. ....

..

•...

= tJACAHCY ANNOUNCEMENT NO.

Document 22-12 Filed 0f3./2iF01/21090&3-O'iP2JaSg'e 9 of 2: 0

.

..

. . . ~~AT'. ..

- " ~NOITIO,NS. OF EMPLOYMENT AND OTHER RmUIREMEHTS OF THIS VACANCY (Ulol' Wttich apply t'la.... been che<:ndl.

MAXIMuM ENTRY AG!. ~&c:ant. who haw not ~ hold. law tnfOR:erMntpoait!on II dtflMd In' 5 USC 833 t .~ .uhitct to • r'l'Wci'num lIgt

rtstrietion in flllin~ this position.. Incfividu.1I who \lIiIl'rH~h tI'Ilir 37th birthday before • ~rtifJl;atI of bttlt-quaffitd candi6at.. is forwarded to1t\. Salec:tton

Off~1 'Ippr~ ,.10 d'I)"Iafur the ~i d.u gf thla 1W10YTIC8TTllrrJ wIl ~ filund m~tI fo, thla ~"'f1. '11diTid.llil•• wtr(l r~ ~. 07 .ft., the

on cwrtificat,Qf but-q1Jl1ifrad ca~1 n. beln iuuad but befOl1l thl I'~ procnl hal bnn cctn;Ilttad wi! ;m 'b'e 'bduded be~ of age. 'PMase bl

eertain to lnd!cat! dfrt, tlf birth Ipplic!t!on.

.

...!.. LAW ENFORCEMENT RmRtMENT. This pcsitIon has primary lC MCOndal'yc:oTm;t LmClet II USC 133Gld. Employea who ...Kti I'll &0 or om with
at.leuttwemy yurs Cf Cnld"rtlbl,s.rvicl II. Iawwnfo';;rTl8l'TttlffiC8r'irw qua!ifed for law Inforcement~~Ioy..s who reach .ge 55 with It "$t ~ntyn-ra l1f creditable nrvIee IS • law ernor=memoffICeI'm sub/te't to mandatory MQmentfrom tMt position. ' ,

saIKt., ...L BACXGMlUNO INVESTIGATION. nn is • sansitive position .nd fila tal'Utiw

must unlfargg and lUCCaaafullvccrrclttt • baeltorouncl inYtstI;ation 1&

• conc!itiotl of pll~ratentionjr, tht position.

..

.

..

Ttl.,..,. 1", ~ :~lC.A1.£lCAMtNAnON.

~~ pnv-icJ,1 ,.qvWeFNmI flW thil POCtIol> ~d tentnk..,.-.:t- will bI ~d t(l Ul'Id"oe I ~Il

~i.natlcn prior to actual p1ae.m.ntin the position. T1'lt CusttnTlS S6rviet 'Will provide the I'tqvftd txaminatlonto an tentltivtn~.

;rQm '..is- FTTHtS3 PROGRAM PAR'TlCfl'ATlON. fIo4lt~) flIled

ttl. V~~.•nnwn,mmrt.,. ,ove,.d by tt'le ~ M• ..a~ r'1ttI... !"rovte1'l'l fo, le.,..

" !tIfen:«ntl'lt PoSitiOns. Stlaetn will bl rtquirwd tD undergo rtgular phyliicaJ examination•• Ernployt•• who OCCUlrf positions incJ!Jded In tnt Prtlgrlm mrt. in

thl futlJl'I. be ~d to maintlin. Ievtl of p~l fitM1l1n '~rOlnci wit" IUd! • ~ of fltnea IT'lIV ~G \0 I'tmoval (rom tilt plJaitiOn Dr otI'ltt aetlona a.

the ~a~ inc! l may be sptl:itieC in

lQ
w

U, of the pro;rem.

U.S:

Customs

Sarvi~i

failurt .

to

l'llIinUin

- i ~.

SUPEJMSORYIMAN.'.GERIAl. ~BATJONARYP!R100. IeIletMmaybt ~d to HM I on....v..rprobation.ryperiod' \lPOI'lI;lPOintm.ntto tPIia pD&ition in

. l«OI'C1anet wllh tM Clntoml Pcley on the p~ry~riCd ftIr!'ltw lupirvi$ora and managers. CCIT\1)lItion of an apllropNtesupervbgry1l'eininll ~01J" ill

raquirwd In Icconlance with Cuatcma Dnetiw 5 t 250-08. Compr.tion at. 2-w-.ek baic IUpeM.ory amimttIt the Custol'n$ service Academy in G1yI\co.

tGMeocrooiatnisI.• DrereCNltItt for aocolrltm.nt to • 'UDtrvitorv POSItIM. eancfdaul from wtthln the ~ wi! not be DII~ .in ttl.· positi:ln crier til COl'l'lcNtlon of

_ OvtRTlMl. Thll;'. pesltloft wttieh ~~1Jm N p ' IM~;~lm. worit and the ..t.etHmuet be I"a/labl. for wc:h ~nnwnt•.

..L ADMINISTRATlVELYUNCON'TROIJ.:ABlI OvtJmM! lAUO), AUO it ~~d for this poaitlon.

-!- tfhiRisEAp RMSo . Seles cteei mt.lStt QUialifo y in thn e use 0.1 f.irurml.f'ttr Ippointment and may be rtquil'td to carry and USI rlre'rms in the plrftltTnam:I of tM du,tiel 01

"

1

•

-L DNYEA"S UCENSI. StlKtatrnuat po. ." Of be able ~ obtain. valid ftltadriftr'lliC'tnIt•

. ..L MOSJUTY. Stllte:t"mwt ~ rnHable for both temporary allignmtntsand permanent I't.lli;nmentsas the workload Ind nnds of ~ SerYlGe dlc:tatt•

~ TAX RECORD OlEa. Select.. illubt.etto th. ~ of thl U.S. DeDlrunent of the Truawyto undtraO • ort..1)l)Ointment1l well •• In .",1,/011

.. In~ tax fllin; fKord cheek.

,

_ . - . h . . _ MANDATORY COMPlETION OF BASIC TRAINING. Aee1tpUl"Ie9cf thl. Il'09ltlon wW ,.qui,. tNt ~ ..~ ~

In •

.,=,.. f01'l'Tl'1iui1 COUl'U of ~Ilirtd basic ~caI traltl~' whkh lTl\lU bt sueetUfullyCO!Tl4'Itted according to the ttandlrds of the U.s. ,Customs S.rvicI, ~I't to fuly compltU Tt-. rtq~ eo.n. of &:laic:1TInin; in ac:;o~n~ with thI $tlnd-m, lind pelicitll of tl'lt U.S. C:LlItoms SIrVlCi! will be ~ for

"'IMatery ,.171.....1from ~ po~Io"" eucl'l fa;..,. will _ I t 1ft .ltl\at .~fltt, a diff.,.tlt J>Nltiello cflm~lo". elf "po~jgnfromUla CoNiao by

appn:rpNm pro~a.

.

-L 'fRAV!l. ThtI pcslt10n raqun. _ ,

cqlly

...!.. ovemt;t'it ~mteI on
.

•

~ Wld

r.ec\ITTIl'lgb_lIIln

ordlr to ~hnthwdlltlnaNivnW.

_ UMFOFlMS. Thit POlitlon requirea ~ "IlIctMto wttf., offk:ially-eppnmd urif1xm whilt'in • duty atatuL

...L DfWG TESTING. T1'It posltionls, which may ~ filltd from thia wcanc:y announ~mmt/'laYi bien idlntm.d at ,Testln; Oes~ntUd PQaitlona un~ ~ ~.S.
. Cuatama S.rviced. CruQ-HH WorkoIIca PrOlmm_ Satisf.~comoletlon l1f the·dNa tnt ia • conditiQn l1f placernentlnd/Of tmllloymentin tMiJollt1Of1 and incumbtnU of thlJ Do.it~n Ira, ~.fttr,lubj.etto ~ndom tIN; TtI'tln9.

fl5MAAIC;. tlh_ 'Whiclh 'pply t. thie ...."'tcY nev. Hem cilKllDlQ.

~mON .bIltl.., non~ltivtp~otion '.:... THIS

HAS KNOWN PROMOTION POremAl.. Selem"nnring this P4)tition below the GS_1tw1 will hi'"

potantlill

. to thw M pw/"fQrlMn;W ...,1/ prlMdtd thn II q\llll'rbtlon ~mmuhaYt bnn mwt, the

tl;l wur ~ .\ Lh. hlVil"'t .."w1 II.. t.efl dlrl'lONtrlt.d. ~ \1\.,..

It higher levtl work to bt performad.
. ~ MERIT PAY. 'Thil pasitlon It cCl,Vlnd uncIar the ~ovitiON Of the Merit P.-y System.

ia ~STERS. TNt a long-term vacancy annoar.c.m.nt w!'lICh wi1 tit Used to ~ I f'OSt*f'of but Qualified candlellte. wlUc:h may til used for a ~ of _
_ month. from tht c!lISing dat. of this announetmem. Applicants who wll become lligIbla for considlTltlcn during the Iif'a of thlIannoune:tmtnt muat apply by tM closinodatt. ApplieannfCll' baro,lning unit posltlonsmutt IMat.lI tkM~rad..nd oualificatlonreQunmentain ortllrta til reffl'rld, A;)ll~eantstor nnnrbItttt_inino unit r~lI will "" "'~ wn.n thaly . . within ..my lUy"t tlf I'l'lNtiI'lQ lila qt.,.rrfito.Mlnrland ~ NqUranwnts for the ootit,lon•

.. _ COSToOfI.UVING AUOWANaJGOVERNMINT QUAmRS. StItetHmay be tPglbtl for • ~-of-lWmg.~ (a fa.d pe~Qtof the baM ..~ryl or

, . for lIovemmant fun:!iDhaa ~ at aon'Jin duty 1ItIItiatnG.

..

wh"* _ •GlN!RIC VACANCY ANNOUNCiMENT ~ This It • long-t'rm vaelncv ,nnWnclmtm

willM UIMf to prepart • rostar of bast quelifltd .

ClI~...,hiI;;h m., bt UMdtOf • 1*iod lit 1 year trom the '~;Oi datt of tht. annQl,l~Iment. ClndldatNrNY in:I~• .pacitrw" nvtl'lMt of t.I "''P''1C

pmlnlnClald. paneling on tM oacupatianl. ~ proceduras for IItntifieatlon of Ilteftr'anct. dtdinatlon of offt,. and ~im of appIiCltlon.,.

centained on 1M .ttlchmantto thlt ~.

ADDmO~ ~S lNIybt tcun4 an thI RftfIlI Of tt'lia shHt.

w:.RElOCAnONEXPENSES WlU BE PAID IF APPUCABl.E.IN ACCOROANC£ WITH CUSTOMS' POUCY -'NO APPflOPRIATELAWANCHEGULATION.

u.s. UilS&'2&'l1il745

.

.,AUS

. aJSi'6MS #QlJl\ 141151178/

.IU
.-Pq"Sm~QN~'Tm=£ -::------------------, -. T \NC-Y A-NN- OUN-CE- M~ ENT~ NO•-----
. ' '... Case 1:02-cv-00923-JR Document 22-12 Filed.._0;3/J2I09/240-0073~' Page 10 of 20

CLOSING OAT!
10-17-94

ELIGmLE. CA.1IIDIDATES WILL BE PROMOTION PLAN AGAINST THE

EFVOALLLUOAWTIENDGAC.SRfRIJOWVAID:ED

IN

TH.E

CUSTOMS

SERYICE.MERIT

. 1. Abiiity to direct the operational activities of an .office or program. (Focus upon management techniques used and sys~ developed and/or implemented to improve. activities of the office or program).

2. Ability to supervise others. (Describe permanent and temporary assignment (5), including time frameS, specify y<

responsibilities. and supervisory teclmiques used).

.

3. 'Ability 'to identify problems and develop innovative programs/systems to meet changmg needs. (Clearly indicate ~ role and deiI'CC of participation in the problem identifi~on and solving process, specify ~ques you haY , used to ~lop).

SOENCLOyNIDDAGRHYLYCRQITuEARLIIAF;mn CANDIDATES WILL .THEN. BE EVALUATED AGAINST THE FOLLOWING

,

.

4. Knowledge of Federal ,laws and procedures and, specifically criminal and civi11a'WS and procec1ures~ (Describe yc

degree ofparticipation in various investigations specifically your role and the oatt1re, extent and outcome of the

.~estigations). '

.

. .5. . AbilitY to communicate and interact effectively with other elements and other Federal, state, and local agencies.

(De$cribe your participation in Investigations, special assignments, etc., in whicl1 you had a role as coordiDator or

agenq repres~ve~

\

6. Ability to implement" Equal Employment Opportunity ProBtam initiatives. (Describe experience and/or training tb
demonstmcs usc of affirmative action techniques for employee recruitment, placement, selection for training, and employee recognition, etc.)•
..,,'
REMARKS;

IMMIGRATION REOlJIREMENS: The Immigrntion Reform and Control Act of 198,5 sceb to preserve jobs for thm

who are legally entitled to .them:' American citizens and aliens who are anthorim:l to:work in our country. This law

requires employers to verify that persons arc eligibl~ to work in the United States and requires tmployees to provide a

documcm or documents that establish identity and employment el1&ibllity.

.'

.

Dun LOCATIONS;

Miami, Florida

BlPaso, Texas

Laredo~ Texas
,

.

AwIicatiom are not to be mitiIetillU.S. Government -FOR OFFICIAL USE ONLY" postaie and fee Paid enyetoors·

'N~ of individua}§ submitrln§! aPPlications in govermnep1 enyeIopes will be refetfed to the Office of lntema1 AffaIrS f

aetlOn.

.

.

All application materials must be sem to the mailing address ~ in this announcement. All ~terial must, h1ve the
vaancy' announcement number thcreon.' including the envelope in which the materials are mailed. 1'heie ~y be delays receiptaIXi processing of improperly addressed comspoodecce.

CompletiOn of a 2 week Basic ~ry Seminar at the Custcm8' Service Academy' in Glynco, GA is :a prerequisite fa: appo~. to a ~ory posItiOn. Candidates from within the Scrvi~ will DOt be placed in the position prior to completlon of ~e .course.

SF-171'S AND CF.307'$ REGEJYED AFI'ER THE CLOSING DATE OF THIS VACANCY ANNOUNCEMENT

WILL NOT BE CONSIpERED.

_

. ..'.

.

Case 1:02-cv-00923-JR Document 22-12 Filed 03/20/2003 Page 11 of 20
EXHIBIT 2

03/0 /0-, - :-' .... ~~ APPLICANTS FOR \fA :NUMBER ENF1/94--072JS

CP?B4101 CMK48701

Browse KeCy:ase N1A:0M2E-c: v-00923-JR Document 22-12 Filed 03/20/2003 PSSaNge: 12 of 20

NAME

SOC SEC # RECVD STA GR CRIT LETTER

--------------------------------- --------- ------

------

FLYNN

THOMAS

G 028342081 101194

14

30 101394

fvIANGIONE

ANTHONY

V 035462261 101894

14 255 101994

WILKOWSKI

WALTER

R 040429441 102094

14

30 102194

TIGHE

JAMES

F 042387491 101494

14

30 101794

DEVANEY

JOHN

J 055604116 101794

14 285 101894

GILLETTE

HOWARD

D 058344690 102094 A

102594

GONZALEZ

RUBEN

E 058486883 101894

14

30 101894

SORANNO

DONA

R 059501133 101794 J

14

101894

CALLAN

STEPHEN

R 080409961 101394

14 270 101394

LYNCH

BRIAN

P 082347278 101894

14

30 101994

IGLIO

VINCENT

A 093522074 101894

14 255 101894

PALETTI

JOHN

W 107420310 101894 J

14

101894

MAHABIR

JOEL

107467194 101894

14

30 101994

CONNOLLY

RAYMOND

M 109448184 101394

14 225 101394

CATANIA

LENORE

A . 119408881 101794

14

30 101894

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03/0"3/03 08:51:59 APPLICANTS F8R \"1\ r,n_~'f,·'·--:;·E~. ENF1/94-072JS Browse KeyC:aseN1A:0M2E-:cv-00923-JR Document 22-12 Filed 03/20/2003

CPP84101 CMK48701 PSSaNge: 13 of 20

NAME

SOC SEC # RECVD STA GR CRIT

--------------------------------- --------- ------

O'ROURKE

JAMES

B 127444101 101794

14 225

ROSSI

VINCENT

A 138388297 101894

14

30

KARB

ARKADIS

140367145 101794

14

CLINE

GREGORY

C 145366887 101894

14 225

WADE

HENRY

D 148402073 101394 F

14

CODY

JOHN

I 154448102 1014~4

14

30

DECOTIIS

PAUL

V 157425024 101894

14

75

WHITE

DAVID

A 172427057 101794

14

30

DELSANDRO

JOSEPH

P 185385397 101894

14 225

VITIELLO

GREGORY

N 219745053 101894

14

30

O'CONNELL

MARY

J 227705619 101894

14 225

BORDEN

DAVID

H 228720031 100394

14

30

MULLINS

MARK

H 262171671 101394 B

LAWRENCE

SCOTT

E 262296491 101894

14 255

LOVE

. KEVIN

J 264926746 101794

14

30

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LETTER
------
101894 101994 101894 102194 102694 101794 101994 101994 101994 101894 101994 101394 101894 101894 101894
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03,/OJ,./03 ()8:52:02 AP PL I CAL"JT S FOR VA NUMBER E~~I71//94 -072iJ~; Browse KeyC:aseN1A:0M2E-:cv-00923-JR Document 22-12 Filed 03/20/2003

C~PPB4 .,j l cr"t1:{48 701
SPSaNge: 14 of 20

NAME

SOC SEC # RECVD STA GR CRIT

--------------------------------- --------- ------

CARTER

JOHN

R 265905524 100594

14

30

DEPP

PEDEN

L 267049783 101894

14

30

MCCABE

BRIAN

F 267807545 101894 J

14

ROGERS

GARY

S 364522500 101494 J

14

WARD

RICHARD

C 429844127 101894

14

30

DASPIT

STANLEY

T 436764611 101894

14 255

PERNICIARO

KEITH

J 439086772 101894

14 225

POVLISH

CLINTON

E 449021379 102094

14

30

PINEDA

GERARDO

450136642 101894

14

30

HARGROVE

GARY

K 457787741 101794

14 245

SAMPLE

MICHAEL

D 460805191 101894

14

30

PAYAN

MARCOS

465764106 101194

14

30

FUNK

ANDREAS

H 512524156 101894

14 225

DAVIS

SCOTT

A 523882611 101194

14 285

CONTRERAS

MIGUEL

A 526022423 100394

14

30

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LETTER
------
101994 101894 101994 101794
101894 101994 101994 101994 101894 101994 101394 101894 101394 100594
PTS MENU ASD MENU

03/03/·':'3 0._ ,5:2 . ::= .l,?PLlCANTS fOR VA NuMBER ENF1/94-072JS

CPPB41Gl C:iviK -± 3 ..,. .~

Browse KeyC: aseNA1M:0E2:-cv-00923-JR Document 22-12 Filed 03/20/2003 SPSaNg:e 15 of 20

NAME

SOC SEC # RECVD STA GR CRIT LETTER

--------------------------------- --------- ------

------

WALKER

DANIEL

R 526706074 101894 J

14

101994

BIGLER

JACK

M 536429390 101394 F

110494

PARKER

THOMAS

W 545021426 102494

14 255 101994

PARKER

STEVEN

W 555548456 101894

14

30 101894

BEARD

CHARLES

D 560644972 101394

14

30

DAVILA

RAMON

S 580092214 101494

14

30 101794

SHAW

HENRY

A 585302149 101494

14

30 101794

END OF APPLICANTS FOR THIS VACANCY

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Case 1:02-cv-00923-JR Document 22-12 Filed 03/20/2003 Page 16 of 20
EXHIBIT 3

DEPARTMENT OF THcmEASURY
UNITED STATES CUSTOMS SERVICE
Case 1:02-cv-00923-JU.RS. CUSTDOMoS cSEuRmVICeE MnEtR2IT 2PR-O1M2OTION PFLAiNled 03/20/2003
SELECTION REGISTER

Page 17 of 20

51335. P&PM
\. To the selecting otfleiel: The 101 lOWIng IS e summary of ectlon taJ<en by the evaluation board appointed to identify the best qualified candidates for the following position under the procedures of the Custo",~ Ment promotion Plan You sh:>uld read the tnformation below and instructions on the reverse before taJ<lng selection action.

PoSItion

2. Grade

Supervisory Criminal Investigator (Resident Agent-in-Charge)

GS-1811-14

I LocallQn
El Paso, Texas

4. No of Vacancies
one

5. Announcement No.
ENF1/94-072JS

6. Closing Date
10-17-94

I. Candidate. eligible for nc>--eompeUtlve aelecUon - see reverse. Part E. and InstructionS.

:. Best Qualified CandicUtn Referred for Selection (The numbers In the leh column are to be used for bargaining unit polmonl. the numbel'l m the right column are to be used for non-bargaining unit positions.)

D A.s provided for in Section 25.d. of the Customs Merit Promotion Plan, no evaluation board W8$ convened and candidates on thiS lISt are referred in ALPHABETICAL ORDER.

:J FOR BARGAINING UN IT POSI TI ONS 5

Nama (Candidate. are listed In RANK ORDER) Show "S" beSIde selectee name(s)
Davis, Scott

D FOR NON-BARGAINING UNIT POSITIONS

Mangione, Anthony Iglio, Vincent

9a~AaD

)na vacancy

Lawrence. Scott • Parker, Thomas

Jacqueline Small Personnel Staffing Specialist 11-7-94
Parts Number: 91020000-94-0241

iwo vacancies rhree vacancies

• Hargrove. Gary
.. 0' Connell. Mary

:our vacancIes

.. Perniciaro. Keith

'iva vacancies

..

..

4

One vacancy

,even vacancies

•

:ighl vacancies

•

~one vacancies

..

~

Two vacancies

•

Three vacancies

.

Four vacancies

~en vacanoes

:Ieven vacancIes

••

rwe/ve VacancIes

...

~

Five vacancies

4

Six vacancies

..

Seven vacancies

4

Eight vacancies

;eventeen VacancIBS _ _

>0.

:0=~ ~- 1 [J s-c- lor

g- lJ ~

J

4II_tnal. Khan fequesteo as toUows

g~

-~"iCI
~CIl

fJ

)

n R~l oro... Reo",,.,

_..J.-_--'---'----- ------.

(Name)

~
•
•
•
Remar1cs
2 o ~,:~cc:~=:

Nine vacancies Ten vacancies Eleven vacancies Twelve vacancies

Case 1:02-cv-00923-JR Document 22-12 Filed 03/20/2003 Page 18 of 20
EXHIBIT 4

DEPARTMENT OF THE TR.:ASURY
UNITED STATES CUSTOMS SERVICE
Case 1:02-cv-00923-J-UR.S. Document 22-12 CUSTOMS-SERVICE MERIT PROMOTION FPIiAlNed 03/20/2003

Page 19 of 20

SELECTION REGISTER

_ _ _ _ _ _ __ '~,....,..,.... .....,........,...~'r

51335. P&PM

A. To the selecting official: The following is a summary of action taken by the evaluation board appointed to identify the best qualified candidates for the following position under the procedures of the Cuslo~

Merit Promotion Plan. You should read the information below and instructions on the reverse before taking selection ection.

1. Position

2. Grade

Supervisory Criminal Investigator (Resident Agent-in-Charge)

GS-1811-14

3. location
Laredo. Texas

4. No of Vacancies
One

5. Announcement No.
ENFl/94-072JS

6. Closing Date
10-17-94

B. candidates eligible for no"lcompetJllve selectJon - see reverse. Part E. and instructions.

C. Best Qualified Cendidates Referred for Selection (The numbers in the left column are to be used for bargaining
unit positions. the numbers in the right column are to be used for non-bargaining unit positions.I

O As provided for in Section 25.d. of the Customs Merit Promotion Plan, no evaluation board was convened and candidates on thiS lost are referred in ALPHABETICAL ORDER.

D FOR BARGAINING UNIT POSITIONS

Name (candidates are listed in RANK ORDERI Show "S" beside selectee name(s)

O FOR NON-BARGAINING UNIT POSITIONS

Davis, Scott Mangione, Anthony

Cf~~&

One vacancy Two vacancies

Funk, Andreas
~ ~

, Jacqueline Small Personnel Staffing Specialist 11-7-94
Parts Number: 91020000-94-0241
ALTERNATE STAFFING CANDIDATES ON REVERSE.

Three vacancies

~

Four vacancies

~

Five vacancies

~

Six vacancies

~

Seven vacancies

~

Eight vacancies

~

Nine vacancies

.

Ten vacancies

•

Eleven vacancies

•

Twelve vacancies

.

- - - - ....

One vacancy

- - - - ....

Two vacancies

- - - - ....

Three vacancies

Four vacancies

- - - - ....

Five vacancies

Six vacancies
. .1---- Seven vacancies

Eight vacancies

- - - - ....

Nine vacancies

Ten vacancies

- - - - ....

Eleven vacancies

Seventeen Vacancies

o Selechon lor

vacancies indicaled above

~ale 3.

aclion requested as loUows

~aSS,gn/l,anSfer ~.(jI'~

o Request OPM Reg,sler

(Name)

Remarks

Twelve vacancies

E. Candidates Eligible for Noncompetitive Selection

..:"~Jv

s- ComPetitiv~proniotion pCrocaesdeure1s:a0re2-ncotva-p0p0lic9a2bl3e -toJRthe follDowoincgucmanedindatte2s2; -th1e2y Walker, D a n i e l :

maybFeilseedlec0te3d/I2n0a/n2y0o0rd3er

as Panaagltern2a0te

ostfaf2fin0g

methodC'E;
~1'I'/J'"~:Q'1-0~

INSTRUCTIONS: Your most important responsibility as a selecting official is to select the individual who, in your judgment, is best qualified for the position being filled. In making this decision, you should be aware of the following options, as well as requirements, which apply to the selection process.
• The candidates on the best Qualified list are referred in rank order. Selection may be made without regard to point scores within the best qualified group. You should review the best Qualified candidates' Qualifications as reflected on their applications and other documents; you should also review the CF·62 so that you can consider the ratings received by each best qualified candidate for the various criteria. If you wish to select from the best qualified list, please note the fol· lowing requirements:
• For bargaining unit positions, if you are selecting for more than 1 position, selection for the first vacancy must be made from among the first five candidates on the list (unless more than 5 were referred for one vacancy); selection for the second vacancy must be made from among the first six candidates, and so forth. • For non-bargaining unit positions, if you are selecting for more than 1 position, selection for the first vacancy must be made from among the first ten candidates on the list, selection for the second vacancy must be made from among the first eleven candidates, and so forth. • If the evaluation board has referred best Qualified candidates for more than one vacancy (check the number of vacancies shown in Item A.4.l, but you decide to select for fewer than this number of vacancies, selection must be made from among the appropriate number of candidates who would have been referred for the number of vacancies for which you are actually selecting. Use the appropriate guide arrow in the left column of Item C to help you in applying these rules. • For bargaining unit positions, a selection technique utilized by the selecting official must be uniformly applied to all candidates referred on the best Qualified list, e.g., if one candidate is interviewed, all will be interviewed. For non-bargaining unit positions, if one candidate on the best Qualified list is interviewed, all candidates referred should be interviewed. • If no selection action is taken within 60 days following the closing date of the vacancy announceme!"1t, a new vacancy announcement may need to be issued unless a timely extensIOn is obtained by the issuing personnel office.
• There is no obligation to select from the best qualified list. You may instead initiate other recruitment methods, identify an alternate staffing candidate, ex· pand the area of consideration, etc. The candidates listed in Item E. above are eligible for selection in any Order as an exception to competitive promotion procedures. Such candidates are considered separately and may be selected as an alternate staffing method.
• After indicating your course of action in Item D., this document and all related material should be forwarded to the personnel office in a controlled envelope. The appointments of selectee(s) may be subject to approval by higher authority or special investigative requirements, and no information concerning selection should be released by you at this time. You will be advised by your personnel office at such time as this information may be released.
Customs Form 70 (0210RfilfR"rk)

Case 1:02-cv-00923-JR Document 22-13 Filed 03/20/2003 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al., )

Plaintiffs,

)

)

v.

)

)

TOM RIDGE, Secretary,

)

Department of Homeland Security, )

Defendant.

)

-----------~)

Case No.1 :02CY00923(JR)

DECLARATION I, MARl YONKERS, declare the following to be true and correct: 1. I am the Director of Employee Relations for the Office of Human Resources Management, Bureau of Customs and Border Protection (formerly the United States Customs Service). I have held this position for two years. I previously served as the Director, Labor Relations, with the Department of the Navy, Indian Head facility from October 31, 1999, to December 31, 2000. I have also served as a Branch Chief, Employee Relations, Headquarters Operations, at the Customs Service. I have been employed by the federal government for 16 years in the labor/employment area and I am currently a GS-15. This declaration is based on my personal knowledge or information provided to me in my official capacity. 2. In my current position, my duties include the administration of the agency's Discipline Review Board (DRB). The DRB is comprised of approximately 50 senior managers and supervisors selected throughout the service who propose all adverse actions based on employee misconduct. In addition, I provide advice and guidance to agency senior management on imposition of discipline and adverse actions. 3. I have been asked to provide information concerning the significance of (l) a letter of

Case 1:02-cv-00923-JR Document 22-13 Filed 03/20/2003 Page 2 of 4
caution that was issued to Miguel Contreras on or about March 7,2002; (2) a 1992 written reprimand Mr. Contreras received for a security violation; (3) a 1998 investigation by the Treasury's Office ofInspector General (OIG) into Mr. Contreras's possible misuse of the Treasury Enforcement Communications System (TECS); and (4) a 2000 investigation by OIG into an allegation that Mr. Contreras disclosed confidential information to his cousin (by marriage), who was an alleged member of a drug smuggling organization.
4. The letter of caution was issued in connection with an interview that Mr. Contreras gave to a newspaper. The resulting article and Mr. Contreras's picture appeared in a local paper, Bajo EI Sol. Briefly, the article identified Mr. Contreras as a federal agent with the Customs Service.
5. Letters of caution, such as the one received by Mr. Contreras, are not kept in an employee's official personnel folder, and they do not constitute an official disciplinary action. Further, the issuance of such a letter does not result in any reduction of payor loss in benefits.
6. The main purpose of a letter of caution is to put the employee on notice that particular conduct lacked good judgment.
7. There is no reference to any 1992 written reprimand for a security violation in the agency's electronic system that tracks disciplinary actions. Nor is there any reference to such a reprimand in Mr. Contreras's Official Personnel Folder or the Department of Agriculture database that is used to administer employee pay.
8. Accordingly, records do not indicate that the issuance of such a reprimand resulted in any reduction of payor loss of benefits for Mr. Contreras.
9. Customs counsel informed me that the 1992 written reprimand was issued to Mr. Contreras by a Security Control Officer (SCO), a Customs employee, because Mr. Contreras had

Case 1:02-cv-00923-JR Document 22-13 Filed 03/20/2003 Page 3 of 4
left his TECS terminal on and unattended. I have further been informed that on or around 1992, Customs Headquarters had become concerned about security awareness/lapses pertaining to TECS, and a program was initiated wherein lapses witnessed by an SCO were to be written up as special security reprimands and were to remain in the local office files for one year.
10. In my opinion, the special security reprimand issued by the SCO is not the type of letter of reprimand that constitutes official disciplinary action by the agency. In the case of official disciplinary action, unlike here, the letter of reprimand would ordinarily be issued by the employee's supervisor, and the employee would have a right to challenge the reprimand through the administrative grievance process through a higher level official. Based on these facts, it is my opinion that the 1992 reprimand did not constitute official disciplinary action by the agency. Instead, it is more akin to a letter of caution, which is designed to remind the employee of appropriate behavior (and in this instance, the importance of security awareness related to the TECS system). In any event, there are no records showing any decrease in payor reduction of benefits as a result of a 1992 reprimand.
11. Concerning the 1998 investigation into the possible misuse of TECS by Mr. Contreras, no such record of the investigation is contained in the agency's database of disciplinary actions. Nor is there a reference to such an investigation in Mr. Contreras's Official Personnel Folder or the Department of Agriculture database that is used to administer employee pay.
12. Accordingly, this alleged investigation does not constitute official disciplinary action and did not result in the loss of payor benefits to Mr. Contreras.
13. The 2000 investigation concerned the allegation that Mr. Contreras disclosed confidential information to his cousin (by marriage), Armando Duarte, an alleged drug smuggler.

Case 1:02-cv-00923-JR Document 22-13 Filed 03/20/2003 Page 4 of 4
This allegation was not substantiated and did not result in the imposition of any discipline. Accordingly, it did not result in the reduction of pay or loss of benefits.
I declare, under penalty of perjury pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and belief.
Executed on~o-L(9 , ,2003. J
MARl YON Director, Em 1 yee Relations U.S. Customs Service 1300 Pennsylvania Ave, NW
Washington, D.C. 20229

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et aI., )

Plaintiffs,

)

)

v.

)

)

TOM RIDGE, Secretary,

)

Department of Homeland Security, )

Defundant.

)

)

Case No.1 :02CV00923(JR)

DECLARATION I, SUSAN B. ZANER, declare the following to be true and correct: 1. I am a Supervisory Personnel Management Specialist for the Office of Human Resources Management, Bureau of Customs and Border Protection, formerly known as the U.S. Customs Service. I have held this position since October 4, 1992. Prior to occupying this position, I served as a Supervisory Personnel Staffing Specialist. I joined the Customs Service on April 15, 1974. This declaration is based on my personal knowledge or information provided to me in my official capacity. 2. In my current position, my duties include the review and implementation of the Customs personnel systems, policies and procedures, and national recruitment. 3. On March 9,2003, the U.S. Customs Service was transferred from the Department of Treasury to the Department of Homeland Security and renamed the Bureau of Customs and Border Protection. Also, on the same date, the majority of the Customs special agent workforce was transferred to the new Bureau of Immigration and Customs Enforcement in the Department of Homeland Security. 4. Generally speaking, Customs has been and remains the guardian of the nation's

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 2 of 18
borders; the agency's mission is to enforce the laws of the United States, safeguard the revenue, and foster lawful international trade and travel.
5. Prior to the government reorganization mentioned above, the Customs Service was comprised of approximately 20,000 employees, including, but not limited to, customs inspectors, import specialists, special agents, lab personnel, attorneys, accountants, personnelists, labor and employee relations specialists, congressional liaisons, public affairs specialists, entry specialists and other support personnel. The Bureau of Customs and Border Protection is now comprised of approximately 40,000 employees. The Bureau of Immigration and Customs Enforcement is comprised of approximately 14,000 employees, including, but not limited to, special agents, detention officers, attorneys, personnel staff, and labor and employee relation specialists. Non-competitive Advancement
6. Prior to July 2001, the career ladder for a Customs special agent, GS-18l1, was GS-5 through GS-12. This meant that individuals hired as special agent, GS-1811, below the grade 12, could advance to grade 12 through a series of automatic promotions pursuant to a designated time frame. Promotions beyond grade 12 required applying through a competitive merit-based selection process. Promotions to grades 13 and above were processed under the agency merit promotion plan procedures.
7. Series 1811 is an occupational code for the criminal investigator position. Duties of series 1811 employees include the investigation and enforcement of violations of Customs and related laws, rules and regulations. These investigations may be civil or criminal in nature. Investigations may include the conduction of interviews as well as the examination of physical, documentary and other types of evidence.
8. In July 2001, the "journeyman level" for a Customs special agent, GS-1811, was
2

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 3 of 18
raised to the OS-13 level. This was done through a classification review of the duties of the position. The raising of the journeyman level allowed individuals hired as special agents below the OS-13 level to progress to the OS-13 without additional competition. Merit Promotion Process
9. All competitive promotions for special agent positions occur in accord with the agency's Merit Promotion Plan.
10. The Merit Promotion Plan (Customs Directive Number 51335-03) was issued on August 13, 1986 (effective date was July 1, 1986). The plan provides systematic procedures for filling positions through competitive promotion procedures to ensure that applicants receive fair consideration for advancement opportunities for which they are eligible, and to ensure that positions are filled by well-qualified individuals who can perform their duties effectively.
11. Under the merit promotion procedures, vacancy announcements are issued and applicants apply for vacant positions by submitting an application, Form CF-307 (Supplemental Qualifications Statement), Form CF-306 (Appraisal for Promotional Opportunities) and a copy of their current performance appraisal.
12. An evaluation panel rates each applicant on the significant job-related knowledge, skills, and abilities critical for successful performance in the position to be filled. Numerical ratings are assigned based on these criteria to distinguish between the highly qualified and best qualified candidates. The 10 highest scoring candidates are then referred as best qualified to the selecting official in rank order. If fewer than ten candidates apply, the best-qualified list is referred in alphabetical order. If he/she wishes to do so, the selecting official can interview the candidates referred for selection.
13. At any time during the process of filling a position, a selection may be made from an
3

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 4 of 18
alternate staffing method. 14. In 1991, Appendix C was added to the Merit Promotion Plan. Appendix C described
the procedures to be used for filling Supervisory Criminal Investigator, GS-1811-13 and 14, and Supervisory Customs Inspector, GS-1890-12, positions through the Customs Automated Merit Promotion System (CAMPS). CAMPS was an automated system in which applicants were rated, ranked and referred for consideration based on information provided by the applicant in an optically scanned application booklet.
15. CAMPS was utilized for supervisory special agent positions until approximately 1993. After CAMPS, traditional merit promotion application procedures were utilized and occasionally modified.
16. In April of 1996, the Office of Personnel Management's (OPM) Microcomputer Assisted Rating System (MARS) was utilized to fill GS-1811-13 and 14 positions in the Office ofInvestigations throughout the Customs Service. This system was referred to as "Telephone Application Processing System" (TAPS) and the announcement numbers were WA18113 and WA18114. MARS automated the entire application process by allowing applicants to respond to questions relative to their work experience.
17. Beginning in September of 1997 through October of2000, three more announcements were processed utilizing the OPM MARS system. This system was called Customs Automated Application Processing System (CAAPS). Vacancy announcements WA318ll and WA41811, and announcements AN31811 and AN41811 were utilized to fill GS1811-13 and GS-1811-14 positions within the Office of Investigations and the Office of Internal Affairs throughout the Customs Service. Vacancy announcements CAAPS/00-002KRH and CAAPS/OO-OO1 KRH added the Office of Training and Development 1811 positions.
4

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 5 of 18
18. In mid-1999, the Foreign Assignment Review Board (FARB) was created. The FARB is responsible for review and screening of applicants for Customs Attache and Senior Customs Representative positions at GS-1811-15 and GS-1801-15, respectively.
19. On November 15,2000, additional changes to the Merit Promotion Plan were issued. These changes revised several sections of the plan in order to reduce time in filling positions, improve customer service and eliminate unnecessary review.
20. On November 20,2000, the first special agent 14 (SA-14) announcement opened. SA-14 is a test/examination process specially designed and pre-tested within Customs in order to objectively and fairly measure GS-13 Agent's potential to perform as supervisors or in nonsupervisory positions at the GS-14 level.
21. On March 25,2002, the second Special Agent (SA-14) announcement opened. This announcement solicited applications in a different manner from the first SA-14 announcement. Applicants applied on-line, through the Customs Internet-based CareerFinder system by first registering in the CareerFinder system and submitting an application and a resume through CareerFinder. THE PLAINTIFFS
22. In conjunction with my staff, I have tracked the Customs career progression of each of the named plaintiffs by examining their official personnel files and the Customs personnel history electronic database (PERHIS). Miguel A. Contreras
23. The official personnel records of Miguel Contreras indicate that he joined the Customs Service as a special agent, GS-1811-12, in the Office of Enforcement, in May 1988, in Calexico, California.
5

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 6 of 18
24. In July 1991, Mr. Contreras was reassigned to a GS-1811-12 position, in the Office of Enforcement, Riverside, CA. He served in that position until August 1992, at which time he was promoted to a GS-13 senior special agent in the Office of Enforcement in Detroit, Michigan.
25. From October 11,1994, to October 13, 1994, Mr. Contreras served a suspension. He remained in Detroit until June 1995, at which time he was laterally reassigned as a senior special agent to the Office of Enforcement in Yuma, Arizona. He remained in that position until December 10, 1995.
26. On December 10,1995, Mr. Contreras was promoted to a GS-14 Supervisory Criminal Investigator (a.k.a. Resident in Charge) in the Office ofInternal Affairs in Calexico, California. He served in that position until May 1999.
27. In May 1999, Mr. Contreras was reassigned to a Supervisory Criminal Investigator GS-1811-14 position in the Office of Investigations, Yuma, Arizona.
28. On May 7, 2000, the personnel records indicate that Mr. Contreras was changed to a lower grade. He voluntarily took a GS-13, step 10 Criminal Investigator position in the Office of Investigations in Yuma, Arizona. Ramon Martinez
29. The official personnel records of Ramon 1. Martinez indicate that he began his career with the Customs Service when he was appointed as a Customs Inspector, GS-1890-05-01, in the agency's Inspection and Control Division, on April 4, 1982, in Detroit, Michigan.
30. On April 17, 1983, Mr. Martinez was promoted to the position of Customs Inspector, GS 1890-07-01, in the Inspection and Control Division, in Detroit, Michigan.
31. On September 4, 1983, Mr. Martinez was reassigned to the position of Criminal Investigator, GS 1811-07-01, in the Office of Enforcement, in Detroit, Michigan.
6

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 7 of 18
32. On September 16, 1984, Mr. Martinez was promoted to the position of Criminal Investigator (special agent), GS-1811-09-0 1, in the Office of Enforcement, in Detroit, Michigan.
33. On September 29,1985, Mr. Martinez was promoted to the position of Criminal Investigator (Special Agent), GS-1811-11, in the Office of Enforcement, in Detroit, Michigan.
34. On January 19, 1986, Mr. Martinez was reassigned to the position of Criminal Investigator, GS-18l1-11-0 1, in Office of Enforcement, in Reston, Virginia.
35. On October 12, 1986, Mr. Martinez was promoted to the position of Criminal Investigator, GS-1811-12, in Reston, Virginia.
36. On June 5, 1988, Mr. Martinez was reassigned from the position of Criminal Investigator, GS- 1811-12-02, in the Office of Enforcement, Reston, Virginia, to the position of Criminal Investigator, GS-1811-12-02, in the Office of Enforcement, in Miami, Florida.
37. On January 14, 1990, Mr. Martinez was reassigned from the position of Criminal Investigator, GS-1811-12-04, in the Office of Enforcement, Intelligence Division, in Miami, Florida to the position of Criminal Investigator, GS-1811-12-04, in the Office of Internal Affairs, in Miami, Florida.
38. Effective September 22, 1991, Mr. Martinez was promoted from Criminal Investigator, GS-1811-12-05, in the Office of Internal Affairs to a Criminal Investigator, GS 1811-13-02, in the Office of Internal Affairs in Miami, Florida.
39. On June 3, 1992, Mr. Martinez accepted a directed reassignment to the position of Criminal Investigator, GS 1811-13, within the Office ofInternal Affairs, in Washington, D.C. The reassignment became effective August 23, 1992.
7

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 8 of 18
40. On July 23, 1995, Mr. Martinez was reassigned out of the GS-1811 series to the position of Physical Security Specialist, GS-0080-13-05, in the Office ofInternal Affairs in Washington, D.C.
41. Mr. Martinez remained in this position for nearly three years until he was reassigned, on March 1, 1998, to the position of Criminal Investigator, GS 1811-13-06, Office of Internal Affairs, in Washington, D.C.
42. On April 23, 2000, Mr. Martinez was reassigned to a GS -1811-13-07, Criminal Investigator position in the Office of Investigations, in Baltimore, Maryland. John Vera
43. The official personnel records of John Yera indicate that he joined the Customs Service as a Criminal Investigator, GS-1811-07-01, in the Office of Enforcement, in Newark, New Jersey, on November 21, 1988.
44. Mr. Yera was promoted on December 3, 1989, to a Criminal Investigator position, GS-1811-09-01, in the Office of Enforcement in Newark, New Jersey.
45. On June 3,1990, Mr. Yera was reassigned to the Office of Enforcement, Smuggling Investigations Division, Newark, New Jersey. His position title and grade remained the same as a Criminal Investigator, GS-1811-09-0 1.
46. On December 16, 1990, Mr. Yera was promoted to a GS-1811-11-01 Criminal Investigator position, in the Office of Enforcement in Newark, New Jersey.
47. Mr. Yera was injured during the performance of his duties on or about June 25,1991 and did not return to work until May 2,1993.
48. On May 30, 1993, Mr. Yera was promoted to a GS 1811-12-01, Criminal Investigator position, in the Office of Enforcement, Newark, New Jersey.
8

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 9 of 18
49. Mr. Yera remained a GS-12 Criminal Investigator for almost five years in Newark, New Jersey.
50. Effective April 12, 1998, Mr. Yera was promoted to the position of Criminal Investigator, GS-1811-13-02, in the Office ofInvestigations, Newark, New Jersey.
51. On December 6,1998, Mr. Yera was reassigned to a GS-1811-13-02, Criminal Investigator position in the Office of Investigations, in Sterling, Virginia.
52. Effective July 29, 2001, Mr. Yera was promoted to a GS-1811-14-01, Criminal Investigator position in the Office of Investigations, in Fairfax, Virginia. Ruben Gonzalez
53. The official personnel records of Ruben Gonzalez indicate that he joined the Customs Service on February 24, 1980, as a Customs Patrol Officer, GS-1884-05, step 7, in the Office of Operations, New York, New York. He served with the Customs Service in this capacity until 1983, at which time he became a Criminal Investigator with the Bureau of Alcohol, Tobacco and Firearms.
54. Effective September 14, 1986, Mr. Gonzalez was promoted from a Criminal Investigator GS-1811-11, step 2 position, to a Criminal Investigator GS-1811-12, step 1 position with the Bureau of Alcohol, Tobacco and Firearms, Ft. Lauderdale, Florida.
55. Effective March 15, 1987, Mr. Gonzalez transferred to the Customs Service, Office of Enforcement, Miami, Florida, as a Criminal Investigator, GS-1811-12.
56. Effective January 28, 1990, Mr. Gonzalez was promoted from Criminal Investigator GS-1811-12, step 5 to Criminal Investigator (Senior Special Agent) GS-1811-13, step 2, in the Office of Enforcement, Miami, Florida.
9

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 10 of 18
57. Effective March 11,1991, Mr. Gonzalez was reassigned from the Office of Enforcement, Miami, Florida, to the Office of Internal Affairs, San Juan, Puerto Rico, as a GS1811-13, step 3.
58. Effective March 6, 1994, Mr. Gonzalez was reassigned to a GS-1811-13, step 5 Supervisory Criminal Investigator position in Fajardo, Puerto Rico.
59. Effective July 21, 1996, Mr. Gonzalez was promoted from Supervisory Criminal Investigator, GS-1811-13, step 6, to Supervisory Criminal Investigator, GS-1811-14, step 3, in Fajardo, Puerto Rico, with the Office of Investigations.
60. Effective February 16, 1997, Mr. Gonzalez was reassigned to the Office of Investigations, Administrative Division, Washington, D.C., as a Criminal Investigator, GS-181114 step 3.
61. Effective May 25, 1997, Mr. Gonzalez was given a temporary promotion, not to exceed past September 9, 1997, from a Criminal Investigator, GS-1811-14, step 3, to a Supervisory Criminal Investigator, GS-1811-15 step 1, in the Office of Investigations in Washington, D.C.
62. Effective September 9, 1997, when the temporary promotion ended, Mr. Gonzalez was changed to a Criminal Investigator, GS-1811-14, step 4, in the Office of Investigations, Washington, D.C.
63. Effective January 18, 1998, Mr. Gonzalez was reassigned within the Office of Investigations, Operations Division, Smuggling Branch in Washington, D.C., as a GS-1811-14, step 4.
64. Effective March 28, 1999, Mr. Gonzalez was reassigned within the Office of Investigations, to the Financial Branch in Washington, D.C., as a GS-1811-14, step 4.
10

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 11 of 18
65. Effective March 5, 2001, Mr. Gonzalez was given a temporary promotion, not to exceed past July 2,2001, from a Criminal Investigator, GS-181l-14, step 5, in Washington, D.C., to a Supervisory Criminal Investigator, GS-1811-15, step 2, in the Office ofInvestigations, Los Angeles, California.
66. Effective July 3, 2001, when the temporary promotion ended, Mr. Gonzalez was changed back to the position of Criminal Investigator, GS-1811-14, step 6, in the Office of Investigations, Financial Branch, Washington, D.C.
67. On March 10,2002, Mr. Gonzalez was promoted to a Supervisory Criminal Investigator position, GS-1811-15, step 3, in the Office of Investigations, Houston, Texas. Evelio W. Velasco
68. The official personnel records of Evelio W. Velasco indicate that on February 7, 1982, Mr. Velasco transferred from the Bureau of Alcohol, Tobacco and Firearms to theU.S. Customs Service as a Criminal Investigator, GS-1811-12, step 2, in the Office of Regional Director, Investigations, Miami, Florida.
69. On December 26, 1982, Mr. Velasco was promoted from Criminal Investigator GS1811-12, step 3, to Criminal Investigator, Senior Special Agent, GS-1811-13, step 1 in the Office of the Regional Commissioner, Office of Enforcement, Investigations Division, Miami, Florida.
70. On October 13, 1985, Mr. Velasco was promoted from Criminal Investigator, GS1811-13 step 5, to a Supervisory Criminal Investigator, GM-18ll-14, step 00, in the Office of Enforcement, Miami, Florida.
11

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 12 of 18
71. On July 20, 1986, Mr. Velasco was reassigned to the Office of the Regional Director, Internal Affairs, Internal Security Division, in Miami, Florida, as a Supervisory Criminal Investigator, GM-181l-14, step 00.
72. On August 2,1987, Mr. Velasco was given a temporary promotion, not to exceed past November 29, 1987, to the Regional Director (Internal Affairs) position, GM-0340-15, step 00 in Houston, Texas.
73. When the temporary promotion ended on November 22, 1987, Mr. Velasco was changed back to his permanent position of Supervisory Criminal Investigator, GM-1811-14, in Internal Affairs, Miami, Florida.
74. On January 17, 1988, Mr. Velasco was reassigned from his position of Supervisory Criminal Investigator, GM -1811-14, in the Office of Internal Affairs, Miami Florida, to a Supervisory Criminal Investigator, GM-1811-14 position in the Office of Enforcement, Atlanta, GA.
75. On September 6, 1992, Mr. Velasco was reassigned to a Criminal Investigator, GM1811-14 position in the Office of Enforcement, Washington, D. C.
76. On January 24, 1993, Mr. Velasco was reassigned to a Supervisory Criminal Investigator, GM-1811-14 position in the Financial Crimes Enforcement Network (FINCEN) Director's Office, Arlington, VA.
77. On September 18,1994, Mr. Velasco was reassigned to a Criminal Investigator, GM1811-14 position in the Office of Enforcement, Washington, D.C.
78. Effective January 21, 1996, Mr. Velasco was promoted from a Criminal Investigator position, GM-1811-14, step 00, in the Office ofInvestigations, Operations Division, Smuggling
12

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 13 of 18
Branch to a position of Supervisory Criminal Investigator, GS-1811-15, in the Office of Internal Affairs, Professional Responsibility Division, Operations Branch, Washington, D.C.
79. On November 11, 1998, Mr. Velasco submitted his application for voluntary immediate retirement. Mr. Velasco's retirement was effective May 1, 1999. At the time of his retirement, Mr. Velasco was a Supervisory Criminal Investigator, GS-1811-15, in the Office of Internal Affairs, Washington, D.C. Frank Almonte
80. The official personnel records of Frank Almonte indicate that he joined the Customs Service as a Customs Aid, GS-1897-05, step 1, in the Office of Enforcement, New York, NY, on July 25, 1983. He remained in this position, progressing to GS-7, until March 29, 1987.
81. Effective March 29,1987, Mr. Almonte was promoted from a Customs Aid, GS1897-07, in the Office of Enforcement, New York, NY to an Enforcement Coordinator position, GS-301-09, in the Office of Enforcement, New York, NY.
82. Effective July 19,1987, Mr. Almonte was given a Career Appointment as a Criminal Investigator, GS-1811-05, step 10, in the Office of Enforcement, New York, NY.
83. Effective July 31,1988, Mr. Almonte was promoted from a Criminal Investigator, GS-1811-05 step 10, to a Criminal Investigator, GS-1811-07 step 8, in the Office of Enforcement, New York, NY.
84. Effective August 13, 1989, Mr. Almonte was promoted to Criminal Investigator, GS1811-09, step 3, in New York, NY.
85. Effective November 5, 1989, Mr. Almonte was reassigned within the Office of Enforcement, Strategic Investigations Division, as a Criminal Investigator, GS-1811-09, step 3, in New York, NY.
13

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 14 of 18
86. Effective August 26, 1990, Mr. Almonte was promoted from a Criminal Investigator, GS-1811-09, step 4, to a Criminal Investigator GS-1811-11, step 1, with the Office of Enforcement, Strategic Investigations Division, New York, NY.
87. Effective August 25, 1991, Mr. Almonte was promoted from a Criminal Investigator, GS-1811-11, step 2, to Criminal Investigator, GS-1811-12, step 1, with the Office of Enforcement, Strategic Investigations Division, New York, NY.
88. Effective July 12,1992, Mr. Almonte was reassigned to the Office of Enforcement, Smuggling Investigations Division, New York, NY, as a GS-1811-12, step 1.
89. Effective August 8, 1993, Mr. Almonte was reassigned within the Office of Enforcement, Smuggling Investigations Division, New York, NY, as a Criminal Investigator, GS-1811-12, step 2.
90. Effective December 24, 1995, Mr. Almonte was reassigned to the Office of Investigations, JFK Airport, Queens, New York, as a Criminal Investigator, GS-1811-12, step 4.
91. Effective January 14,2001, Mr. Almonte was promoted from a Criminal Investigator, GS-1811-12 step 7, to Criminal Investigator, GS-1811-13, step 3, in the Office of Investigations, JFK Airport, Queens, New York. Stephen Mercado
92. The official personnel records of Stephen Mercado indicate that on July 29, 1981, he was appointed as a Customs Inspector GS-1890-7-01, in the Office ofthe District Director, San Luis, AZ.
93. Effective August 8, 1982, Mr. Mercado was promoted to a position of Customs Inspector, GS-1890-9, in the Office of the District Director, San Luis, AZ.
14

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 15 of 18
94. On September 4, 1983, Mr. Mercado was reassigned to a position of Customs Patrol Officer, GS-1884-09, in the Office of Enforcement, San Luis, AZ.
95. Effective November 10, 1985, Mr. Mercado was reassigned to a position of Criminal Investigator, GS-1811-09, in the Office of Enforcement, San Luis, AZ.
96. On November 23, 1986, Mr. Mercado was promoted from a GS-1811-09-04, Criminal Investigator, to a GS-1811-11-0 1 Criminal Investigator in the Office of Enforcement, in Yuma,AZ.
97. On December 6, 1987, Mr. Mercado was promoted to a position of Criminal Investigator, GS-181l-l2-01, in the Office of Enforcement, Yuma, AZ.
98. Effective January 15, 1989, Mr. Mercado was promoted from the position of Criminal Investigator, GS-18l1-l2-02, to a Supervisory Criminal Investigator, GS-181l-l3-00, in the Office of Enforcement in Douglas, Arizona.
99. Effective July 29, 1990, Mr. Mercado took a voluntary change to lower grade to a GS-1811-12 Criminal Investigator position in the Office of Enforcement, Yuma, Arizona.
100. On November 24, 1996, Mr. Mercado was promoted from a GS-1811-12-1 0 Criminal Investigator position in Yuma, AZ, to a GS-18l1-l3-06 Criminal Investigator position in the Office of Investigations, Yuma, AZ.
101. Effective March 2, 1997, Mr. Mercado was given a temporary promotion, not to exceed past June 1, 1997, to a GS-18ll-l4-03 Supervisory Criminal Investigator position in the Office of Investigations, Yuma, AZ
102. On June 2, 1997, when his temporary promotion expired, Mr. Mercado was changed back to a Criminal Investigator, GS-1811-13 position in the Office of Investigations, Yuma,AZ.
15

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 16 of 18
103. On May 7, 2000, Mr. Mercado was given a temporary promotion, not to exceed past June 6, 2000, to a OS-1811-14-04 Supervisor Criminal Investigator in the Office of Investigations, Yuma, AZ.
104. On May 27,2000, Mr. Mercado was changed back to a Criminal Investigator OS1811-13 position in the Office ofInvestigations, Yuma, AZ.
105. Effective February 11,2001, Mr. Mercado was promoted to a Supervisory Criminal Investigator position, OS-1811-14, in the Office ofInvestigations, Calexico, CA. Ricardo Sandoval
106. The official personnel record of Ricardo Sandoval indicates that he joined the Customs Service as a Criminal Investigator, OS-1811-12, in the Office of Internal Affairs, San Diego, CA, on September 10,1990.
107. On December 1, 1991, Mr. Sandoval was promoted to a position of Criminal Investigator, OS-1811-13, in the Internal Security Division, Office ofInternal Affairs, Otay Mesa, California.
108. There is documentation in Mr. Sandoval's official personnel record of the following personnel actions: (a) Effective September 6, 1992, Mr. Sandoval was reassigned to a position of Criminal Investigator, OS-1811-13, in the Office ofInternal Affairs, Calexico, CA; (b) on November 13, 1994, Mr. Sandoval was reassigned to a Criminal Investigator, OS-1811-13, position in the Office of Enforcement, El Centro, CA.
109. In addition, the official personnel record indicates that the following actions were processed during November or December of 1998; however the record does not indicate the reason why the actions were processed: (a) Effective December 1,1992 - promotion to a Supervisory Criminal Investigator, OS-1811-14, Office of Enforcement, Calexico, California; (b)
16

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 17 of 18 Effective November 13, 1994 - reassignment to a Supervisory Criminal Investigator, GS-181114, Office of Enforcement, E1 Centro, California (this action was a correction of the earlier action processed effective November 13, 1994); (c) Effective May 24, 1998 - reassignment to a Supervisory Criminal Investigator, GS-1811-14, Office of Investigations, El Centro, California.
110. Effective September 8, 2002, Mr. Sandoval was given a temporary promotion, not to exceed past November 1, 2002, to a position of Supervisory Criminal Investigator, GS-181l15, in the Office ofInvestigations, San Diego, CA.
111. Effective November 2,2002, the temporary promotion ended and Mr. Sandoval was returned back to his permanent position of Supervisory Criminal Investigator, GS-1811-14, in the Office of Investigations, El Centro, California.
112. As discussed above, a review of the Official Personnel Folder indicates that there were numerous corrective and cancellation actions. The corrective actions were dated several years after the original effective date. This leads the reviewer to believe that there may have been some directions such as a grievance decision, settlement agreement, or other court ordered action that mandated the corrective/cancellation actions.
17

Case 1:02-cv-00923-JR Document 22-14 Filed 03/20/2003 Page 18 of 18 I declare, under penalty of perjury pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and belief.
Executed on: fVtM~ J'I ,2003.
'Su~~.~
SUSAN B. ZANER Supervisory Personnel Management Specialist Office of Human Resources Management Bureau of Customs and Border Protection 1300 Pennsylvania Ave., N.W. Washington, D.C. 20229
18

 
 Case 1:02-cv-00923-JR Document 34 Filed 06/26/03 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al.
Plaintiffs,
vs.
THOMAS RIDGE, SECRETARY, DEPARTMENT OF HOMELAND SECURITY
Defendant.

Civil Action No. 02 CV00923 (JR) CLASS ACTION

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiffs Miguel Contreras et al., by counsel, hereby submit their Opposition to Defendants’ (Department of Treasury, United States Customs Service, and Department of Homeland Security) Motion for Summary Judgment. As demonstrated below, Defendants’ Motion should be denied in its entirety because it is predicated on a serious misunderstanding of the law with regard to exhaustion of administrative remedies, adverse employment actions, and the prima facie case requirements under Title VII in a class action. In addition, summary judgment is inappropriate at this stage of the litigation because material issues of disputed fact exist as demonstrated by the separate Statement of Material Issues of Fact, the submitted testimony, documents containing Defendants’ admissions, and other evidence submitted by Plaintiffs. Moreover, Plaintiffs have not had the opportunity for discovery on these issues and are unable to respond fully to many issues and require further discovery under Rule 56(f).

Case 1:02-cv-00923-JR Document 34 Filed 06/26/03 Page 2 of 37
First, with regard to exhaustion of administrative remedies, the Defendants have failed to inform the Court of binding Supreme Court precedent governing the tolling of the statute of limitations in this case. In American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), the U.S. Supreme Court held that the filing of a class action claim tolls the statute of limitations for all putative members of the class who may be parties if the suit is permitted to continue as a class action. Additionally, in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350 (1983), the Court expanded and clarified this doctrine stating that the “filing of class action by others tolled statute of limitations as to respondent because he was a putative member of the class.” (collectively, Plaintiffs refer to this line of cases as the “American Pipe tolling doctrine.” ). The application of the American Pipe tolling doctrine is fatal to all of Defendants’ arguments with regard to exhaustion of administrative remedies. All of the Plaintiffs’ claims have been timely exhausted because the statute of limitation was tolled by either the Contreras class charge or a previous class action brought by Peter Gonzalez in 1988.
Second, there is no merit to Defendants’ argument under Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999), that class-wide discrimination in work assignments, lateral transfers, undercover and other undesirable assignments, training, and discipline are not actionable in this class action. Brown held that in individual disparate treatment cases, federal employees must show that they have suffered an adverse personnel action in order to establish a prima facie case of discrimination. Defendant attempts to extend the Brown decision beyond its legitimate parameters to reach pattern and practice discrimination claims. See, e.g. Moore v. Summers, 113 F.Supp.2d 5, 23-24 (2000).
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Case 1:02-cv-00923-JR Document 34 Filed 06/26/03 Page 3 of 37
Notwithstanding Brown, the class-wide discrimination in assignments, lateral transfers, undercover and other undesirable assignments, training, and discipline alleged by the Plaintiffs are, or certainly could be with adequate discovery, adverse employment actions as defined by Brown. As shown herein, Plaintiffs have produced evidence showing that these types of employment practices constitute a significant change in employment opportunities. Plaintiffs also have requested discovery under Rule 56(f) on these issues. Therefore, material disputed issues of fact exist as to these issues that can only be resolved after further discovery.
Moreover, class-wide discrimination in these challenged practices contribute to the establishment of a racially hostile work environment under Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), and thus would be actionable on that basis.
With regard to Defendants’ arguments regarding Plaintiffs’ alleged failure to plead or prove a prima facie case, Plaintiffs are not required to plead a prima facie case in the complaint under Swierkiewicz v. Soreman N.A., 534 U.S. 506 (2002). As discussed below, it is sufficient that the pleading put the defendants on notice of the claims. To the extent that a response is required, Plaintiffs’ request discovery on these issues pursuant to Rule 56(f).
STATEMENT OF FACTS GS-13 Special Agent Miguel A. Contreras contacted an EEO counselor on January 9, 1995 and filed a formal class action administrative charge against the United States Customs Service (“USCS”) which was later designated TD 95-0014C. See Contreras Declaration, attached hereto as Exhibit 1 at ¶7; Contreras class charge TD 950014C, attached hereto as Exhibit 2 ; See also, Defendants’ Memorandum of Points and
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Case 1:02-cv-00923-JR Document 34 Filed 06/26/03 Page 4 of 37
Authorities in Support of Defendants’ Motion for Summary Judgment (hereinafter
“Defendants’ Memorandum”), Harvey Declaration at ¶35. The class charge was drafted
by Special Agent Contreras without the assistance of an attorney. See Contreras
Declaration, Exhibit 1 at ¶7. He brought the case on behalf of himself and all similarly
situated past, present, and future series 1811, United States Customs Service Special
Agents. In his administrative charge, Special Agent Contreras provided the following
statement of the class allegations:
DESCRIPTION OF CLASS ALLEGATION OF DISCRIMINATION
Mr. Contreras and the class he represents applied for promotions; USCS had vacancies for which it was seeking applicants; Mr. Contreras and members of the class qualified to seek such promotions; Mr. Contreras and the class were denied the positions; and the USCS continued to seek applicants or filled the positions with persons from a different class.
The current policies and programs at USCS in relation to Hispanic special agents tend to limit, segregate and classify them in a way which is depriving them of employment opportunities. Such policies are adversely affecting their status as employees because of their National Origin. Furthermore, the current merit promotion policies and programs relative to the use of subjective criteria by USCS when promoting employees to higher grades have a substantial adverse impact on all Hispanic special agents. The subjective criteria currently in use by USCS is faulty and illegal in the areas of recruitment of applicants, hiring, initial job assignments, transfers, promotions, retention and training. Hispanic special agents have been disproportionately impacted by such practices.
USCS’ repeated failure to promote Mr. Contreras to a supervisory position is the result of its discriminatory practices by which Hispanic agents such as Mr. Contreras, who are fluent in Spanish, receive a disproportionately large share of unfavorable work assignments including Spanish-English translation, wiretap monitoring, temporary duty, undercover work, geographical transfers and assignment to dangerous and otherwise undesirable posts. In addition, USCS has failed and refused to assign Hispanics to positions and locations which provide promotional opportunities.
4

Case 1:02-cv-00923-JR Document 34 Filed 06/26/03 Page 5 of 37
Because of the aforementioned practices, Mr. Contreras and similarly situated Hispanic special agents have been precluded from obtaining the training and diverse work experience which constitute the basis upon which applicants for promotion are evaluated. In addition, USCS has failed to accord proper recognition and weight to the expertise and experience that Hispanic agents have obtained. For these reasons, Hispanic agents are underrepresented within USCS Offices of Investigation and Internal Affairs, particularly at the higher grades.
As a result of USCS’ discriminatory practices, Mr. Contreras and similarly situated Hispanic agents spend more time in grade before being promoted to the next higher grade than do non-Hispanic agents before being promoted to the next higher grade than do non-Hispanic agents. Hispanic special agents at USCS are paid less than similarly situated non-Hispanics special agents. In addition, Hispanic agents at USCS are not being compensated for their use of a foreign language, a special skill which similarly situated Hispanic special agents at the Federal Bureau of Investigation and the Drug Enforcement Administration are being compensated for.
Hispanic agents at USCS are also subject to discrimination with respect to the terms and conditions of employment, including awards, training and imposition of discipline.
The aforementioned specified USCS practices constitute a pattern and practice of unlawful discrimination based on National Origin. The class of Hispanic Special agents at USCS who are victims of this pattern and practice is so numerous that joinder of all members is impracticable. There are questions of law and fact common to this class, the claims of Mr. Contreras are typical of the claims of all members of the class, and Mr. Contreras will fairly and adequately represent the interest of this class. USCS has acted on grounds generally applicable to the class, thereby making appropriate both final injunctive and declaratory relief with respect to the class as a whole.
See Contreras Class Charge, Exhibit 2 at 3-4.
Special Agent Contreras had attempted to exhaust a class-wide charge of
retaliation in his administrative charge, but was advised by the EEO counselor that he
was not permitted to so under the administrative regulations. See Contreras Declaration,
Exhibit 1 at ¶7; see also, 29 C.F.R. § 1614.204(a).
5

Case 1:02-cv-00923-JR Document 34 Filed 06/26/03 Page 6 of 37
On April 12, 1995, the Department of Treasury’s Office of Equal Opportunity Programs (“OEOP”) petitioned the Equal Employment Opportunity Commission (“EEOC”) to assign an Administrative Judge to handle the Contreras class charge. See Defendants’ Memorandum, Harvey Declaration at ¶36. The Administrative Judge issued an opinion in November 1995, finding that the complaint was not subject to dismissal under any of the provisions of 29 C.F.R. § 1614.107 and that it met the prerequisites of 29 C.F.R. § 1614.204(a)(2). The Administrative Judge certified the class as pled by Contreras and ordered the Department of Treasury to process it as a class action. See EEOC Opinion, attached hereto as Exhibit 3 at 1.
On December 21, 1995, the Treasury Department issued its final agency decision rejecting the Administrative Judge’s opinion because it found that the class complaint was untimely and did not meet the prerequisites of a class complaint. See Defendants’ Memorandum, Harvey Declaration at ¶37. On January 17, 1996, Special Agent Contreras appealed the final agency decision to the EEOC. See EEOC Opinion, Exhibit 3 at 1.
On May 11, 1998, the EEOC vacated the Department of Treasury’s final agency decision and certified the class again. In its final agency decision, the Department of Treasury had dismissed all of the class allegations as untimely with the exception of training, promotions and lateral transfers. 1 See EEOC Opinion, Exhibit 3 at 3. The EEOC specifically found that the Department of Treasury had read the EEOC regulations with regard to the certification of a class complaint too narrowly. The EEOC determined that Contreras had addressed agency practices with regard to awards, discipline, language
1 There should be absolutely no dispute in the instant motion as to whether the class claims regarding training, promotions and lateral transfers have been exhausted since the Defendants never challenged them as proper class allegations in the administrative process.
6

Case 1:02-cv-00923-JR Document 34 Filed 06/26/03 Page 7 of 37
skills during EEO counseling and that he had individual EEO complaints concerning discipline and performance evaluations which were properly consolidated with the class complaint. Id. The EEOC concluded that allegations concerning promotions, training, assignments, awards, discipline and work assignments based on language skills were timely raised. Id.
The EEOC conducted an exhaustive analysis of the class complaint and found that it satisfied the class certification requirements of numerosity, commonality, typicality and adequacy of representation. The EEOC vacated the agency’s decision, certified the class complaint, and directed the Department of Treasury to continue processing the class complaint. See id. at 4-5.
The Department of Treasury sought reconsideration of the EEOC’s decision to certify the class. On October 22, 1999, the EEOC denied the request and ordered again that the Contreras’ charge be processed as a class complaint. See Defendants’ Memorandum, Harvey Declaration at ¶38.
On June 22, 2000, EEOC Administrative Judge Matthew Bradley issued an order defining the class as all Special Agents (Criminal Investigators), job series 1811, grades 12 through 15 of Hispanic national origin, employed in the Office of Investigations and the Office of Internal Affairs of the United States Customs Service. See June 22, 2000 Order, attached hereto as Exhibit 4. The Order stated that the “decision certifying the class does so based on the theory that the Agency’s policies and practices toward Spanish-speaking agents, specifically regarding how there are assigned, have a negative impact with respect to training, promotions, awards and discipline.” Id.
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Case 1:02-cv-00923-JR Document 34 Filed 06/26/03 Page 8 of 37
The case was reassigned to EEOC Administrative Judge Joel Kravetz. On December 21, 2001, Administrative Judge Kravetz entered an Order allowing a substitution of the undersigned class counsel and setting an extremely short discovery period for the case. See December 21, 2002 Order, attached hereto as Exhibit 5. The Order listed ten other cases that had been subsumed into the Contreras class complaint. See id. at 7. The Order further noted that “the parties also agree that each of the five alleged actions (training, assignments, awards, discipline, and promotion) comprise adverse actions.” See id. at 2 (emphasis added).2 The Scheduling Order set the case for an administrative hearing to begin on June 10, 2002.
The parties began discovery on promotions, training, assignments, awards and discipline. On February 1, 2002, Plaintiffs’ new class counsel petitioned the Administrative Judge to add allegations of class-wide retaliation to the complaint. See Plaintffs’ Motion to Include Retaliation Claims, attached hereto as Exhibit 6. On February 15, 2002, the Administrative Judge denied Plaintiffs’ motion and Entered a Protective Order to facilitate discovery in the case. See February 15, 2002 Order, attached hereto as Exhibit 7. In April 2002, Customs’ Office of Chief Counsel sent out notice of the EEOC class action complaint to the Hispanic Special Agent class members, along with a Privacy Rights Waiver and a Class Member Contact Information form. See Notice of EEOC Class Complaint, attached hereto as Exhibit 8.
The parties continued with discovery in preparation for the hearing until Plaintiffs withdrew from the administrative process due to the lack of adequate discovery and filed
2 Again, since the Defendants agreed to this proposition in the administrative process, they should be estopped from challenging it here.
8

Case 1:02-cv-00923-JR Document 34 Filed 06/26/03 Page 9 of 37
their class complaint in the United States District Court for the District of Columbia on May 10, 2002.
ARGUMENT Defendants’ Motion for Summary Judgment should be denied in its entirety because it is predicated on a serious misunderstanding of the law with regard to exhaustion of administrative remedies, adverse employment actions, and the prima facie case requirements. In addition, summary judgment is inappropriate here because Defendants have failed to demonstrate the absence of a disputed material issue of fact. Moreover, Plaintiffs have not had the opportunity for discovery on these issues and is unable to respond fully to many issues and require further discovery under Rule 56(f). I. STANDARD OF REVIEW Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. See Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Bonds v. Heyman, 950 U.S. 1202 (D.D.C. 1997). In addition, the Court “may not make credibility determinations or weigh the evidence.” Reeves. v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). Untimely exhaustion of administrative remedies is an affirmative defense, and the defendant bears the burden of pleading and proving it. See Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985). If the defendant meets its burden, the plaintiff then bears the burden of pleading and proving facts supporting equitable avoidance of the defense. See Bayer
9

Case 1:02-cv-00923-JR Document 34 Filed 06/26/03 Page 10 of 37
v. United States Dept. of the Treasury, 956 F.2d 330, 332 (D.C. Cir. 1992). As demonstrated below, Plaintiffs have met that burden.
II. THE CONTRERAS CLASS CLAIMS HAVE BEEN EXHAUSTED A. Defendants’ Exhaustion Arguments Are Contrary to Established Law
By any measure, the Plaintiffs have exhausted the allegations in their class complaint and by extension their individual claims. As the D.C. Circuit Court of Appeals has emphasized:
[e]xhaustion is not an end in itself; it is a practical and pragmatic doctrine that ‘must be tailored to fit the peculiarities of the administrative system Congress has created.’ Exhaustion under Title VII, like other procedural devices, should never be allowed to become so formidable a demand that it obscures the clear Congressional purpose of ‘rooting out . . . every vestige of employment discrimination within the federal government.’ Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985) (quoting President v. Vance, 627 F.2d 353, 363 (D.C. Cir. 1980)). Defendants’ arguments regarding exhaustion attempt to do exactly what the D.C. Circuit warned about in Brown v. Marsh,-- stand Title VII on its head and create an exhaustion doctrine so formidable that it obscures the Congressional purpose of ‘rooting out . . . every vestige of employment discrimination within the federal government.” Id. Under Defendants’ “theory” of exhaustion, claims in a Title VII discrimination federal lawsuit are not “exhausted” unless they precisely track the exact contours of the administrative charge. See Defendants’ Memorandum at 23, 27, 30-36, 38-39, 41-52.3
3 Defendants also ignore the operation of American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), and its progeny, to argue that administrative exhaustion requires every class member to contact an EEO counselor within 45 days of a challenged personnel action. See Defendants’ Memorandum at 23-34, 27-28, 31-36, 38-39, 41-52.
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Case 1:02-cv-00923-JR Document 34 Filed 06/26/03 Page 11 of 37
Defendants’ positions in this regard are contrary to well-established law. Courts have long allowed federal Title VII claims so long as they are sufficiently “like or related” to those specified in the administrative charge. See Mackin et al. v. Specter Freight Systems, Inc. et al., 478 F.2d 979, 988 (D.C. Cir. 1973) (“the matters the Commission proceeds to investigate should determine the scope of the complaint for purposes of applying Title VII’s jurisdictional requirements.”); Klein v. Derwinski, 869 F.Supp. 4, 10 (D.D.C. 1994) (“when a plaintiff alleges new claims from the same basis of discrimination, they can be litigated, notwithstanding the failure to raise them at the administrative level, if they could ‘reasonably be expected to grow out of the charge of discrimination.’”); Armstrong v. Reno, 172 F. Supp. 2d 11, 20 (D.D.C. 2001) (including complaints that “would have logically arisen in the course of DEA’s investigation of the plaintiffs’ five EEO complaints, had they completed the investigation.”); see also, Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1976). Thus, a Title VII action may be based not only on the specific claims contained within the EEOC charge, but also on any kind of discrimination similar to or related to the allegations of the charge, limited only by the scope of the EEOC investigation that could be expected to grow out of the charge. See Newberg on Class Actions § 24.88 (3d ed. 1992) (hereinafter “Newberg”). B. All of Plaintiffs’ Claims Are Like Or Related To The Class Charge
All of the claims contained in Plaintiffs’ federal class action complaint were “like or related” to the Contreras class charge and could be reasonably be expected to grow out of an investigation of it. In the administrative process, the EEOC specifically rejected the Department of Treasury’s narrow reading of the EEOC class certification regulations,
11

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and certified the Contreras class complaint. The EEOC found that Contreras had timely raised class allegations of discrimination in promotions, training, assignments, awards, discipline and work assignments based on language skills. See EEOC Opinion, Exhibit 3 at 3. Plaintiffs’ federal class action complaint alleged the exact same discriminatory practices: promotions, training, assignments (including transfers, undercover and other work undesirable assignments), awards (including bonuses and foreign language awards) and discipline. See Complaint at ¶¶13-67.
The only additional claims were those based retaliation, harassment and hostile work environment. Id. at 68-83. As to the retaliation claim, there is no requirement to exhaust such a claim in this Court, it can be raised for the first time in federal court. See, Baker v. Billington, No. 99-2394 (PLF), 2003 U.S. Dist. LEXIS 6993, at *16 n.4 (D.D.C. April 24, 2003) (“it is generally accepted that the exhaustion of administrative remedies doctrine does not apply to claims based on alleged retaliation”); Hayes v. Shalala, 902 F. Supp. 259, 266 (D.D.C. 1995); Webb v. District of Columbia, 864 F. Supp., 175, 184 (D.D.C. 1994) (requiring plaintiffs to file every new instance of discrimination would serve only to invite further retaliation and erect needless procedural barriers); Hunt v. D.C. Department of Corrections, 41 F. Supp. 2d 31, 37 (D.D.C. 1999) 4; see also, Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992) (“all circuits that have considered the matter agree that plaintiff need not exhaust administrative remedies for a retaliation claim”).
4 The rationale for excusing administrative exhaustion under such circumstances is that the retaliation is “like or reasonably related to . . . and growing out of [the discrimination claims],” and by exhausting discrimination claims, the plaintiff has in effect exhausted her remedies with respect to the retaliation claim growing out of that discrimination claim. Hunt at 37 (citing Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989). Moreover, the D.C. Circuit has held that “so long as the employer (1) was on notice that its actions allegedly violated Title VII, and (2) has been afforded an adequate opportunity to pursue a mutually satisfactory resolution with the employee, no purpose would be served by demanding a stream of further administrative pleadings.” Loe v. Heckler, 768 F.2d 409, 420 (D.C. Cir. 1985).
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Even if there were a requirement to exhaust retaliation claims, in this particular instance, Special Agent Contreras did everything he could to exhaust the class claims. He attempted to file a class administrative charge regarding retaliation, but was told by an EEO counselor that it could not be done under the regulations. See Contreras Declaration, Exhibit 1 at ¶7. Later, by counsel, Contreras tried to add the retaliation charge again in the administrative process, but was denied. Id.
Although the hostile work environment and harassment claims were not specifically pleaded in the administrative process, such claims have been exhausted because they reasonably could be expected to grow out of the EEOC investigation of the Contreras class charge. See e.g. Klein v. Derwinski, 869 F.Supp. 4, 10 (D.D.C. 1994) (When a hostile work environment results from the same discrimination that formed the basis as the charge in the administrative process, it is deemed to be exhausted.) Plaintiffs’ claims here involve the cumulative effect of Defendants’ systemic class-wide discrimination against Hispanic Special Agents in promotions, training, assignments, awards, discipline and work assignments based on language skills. Such discrimination was severe and pervasive, creating a hostile work environment that caused serious and debilitating emotional distress and interfered with the official duties of members of the class. Contrary to Defendants’ arguments, these claims go far beyond “a few stray” remarks based on national origin, they are based on the sum total of the systematic discrimination and retaliation felt by the Hispanic Agents. See Defendants’ Memorandum at 45-46. See Brown v. Brody, 199 F.3d 446, 454 (D.C. Cir. 1999) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)) (“plaintiffs could
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maintain an action even in the absence of a tangible economic effect on employment if the work atmosphere” amounted to a hostile work environment). C. The EEOC Found That Contreras Had Exhausted The Class Claims
On May 11, 1998, the EEOC vacated the Department of Treasury’s final agency decision and certified the class for the second time. Specifically, the EEOC found that Treasury had read the EEOC regulations regarding class certification too narrowly. See EEOC Opinion, Exhibit 3 at 3. The EEOC determined that Contreras had addressed agency practices with regard to awards, discipline, language skills during EEO counseling and that he had individual EEO complaints concerning discipline and performance evaluations which were properly consolidated with the class complaint. The EEOC concluded that allegations concerning promotions, training, assignments, awards, discipline and work assignments based on language skills were timely raised. Id. The EEOC ordered Treasury to process the complaint as a class action. Treasury requested reconsideration and the EEOC denied it. Discovery began and the class case was set for a hearing in June 2002 until the Plaintiffs filed the instant action in federal court. See December 21, 2002 Order, attached hereto as Exhibit 5. By any measure, the Contreras class complaint was administratively exhausted. D. The EEOC’s Decision Is Entitled To Great Deference
The EEOC’s interpretation of its own regulations was reasonable and as such is entitled to great deference. See EEOC v. Shell Oil Co., 466 U.S. 54, 74 (1974) (“EEOC’s interpretation of its own rules is entitled to deference.”); Griggs v. Duke Power Co., 401 U.S. 424, 433-434 (1971) (EEOC’s interpretation “entitled to great deference”); Chevron U.S.A. Inc., v. National Resources Defense Counsel, 467 U.S. 837,
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845 (1984) (“If this choice represents a reasonable accommodation of the conflicting policies that were committed to the agency’s care by statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.”). Absent a showing that the EEOC’s decision was one that Congress clearly would not have sanctioned with regard to Title VII, Defendants are not entitled to upset the EEOC’s decision. D. Contreras Tolls The Statute Of Limitation For All Claims After 1995
In American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), the U.S. Supreme Court held that the filing of a class action claim tolls the statute of limitations for all putative members of the class who may be parties if the suit is permitted to continue as a class action. Additionally, in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350 (1983), the Court expanded and clarified this doctrine stating that the “filing of class action by others tolled statute of limitations as to respondent because he was a putative member of the class.” The principles of the American Pipe tolling doctrine are fully applicable to administrative limitations periods. See McDonald v. Secretary of Health & Human Serv. 834 F.2d 1085, 1092 (1st Cir. 1987). This is why individual EEO cases are consolidated into the class actions at the administrative stage by the Department of Treasury’s Office of Equal Opportunity Programs (“OEOP”).
The application of the American Pipe tolling doctrine is fatal to all of Defendants’ arguments with regard to exhaustion of administrative remedies, particularly those based on the failure to contact an EEO counselor within 45 days and did appeal adverse decisions. See Defendants’ Memorandum at 23-34, 27-28, 31-36, 38-39, 41-52. Putative class members can rely on the class complaint to toll the statute of limitations. For
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claims within the parameters of the Contreras class action, the class members do not need to file separately with Defendants’ EEO office or take further action to preserve their administrative remedies. This tolling of their claims continues until there is a final resolution of the class allegations in the case.
Therefore, all claims as detailed in the Contreas Complaint have been preserved since the filing of the Contreras administrative charge in 1995. E. Gonzalez Tolls The Statute of Limitations For Claims Before 1995
There was a prior class action case against the Customs Service that was brought by Hispanic series 1811 Special Agents and other Hispanic employees with allegations substantially similar to the Contreras case. In Gonzalez et al v. Brady et al., Civ. Action No. 89-0120 (D.D.C.), the Plaintiffs alleged discrimination based on Hispanic national origin in assignments (including wiretap, language duty and undercover), training, promotional opportunities, benefits (including awards) discipline and Spanish language use. The Gonzalez plaintiffs further alleged class-wide reprisals and retaliation for asserting their equal employment opportunity rights. See Complaint in Gonzalez et al v. Brady et al., Civ. Action No. 89-0120 (D.D.C.) (hereinafter “Gonzalez Complaint”) attached hereto as Exhibit 9 at 14-19.
The Gonzalez class administrative charge was filed on May 20, 1988. It was filed in federal court in January 18, 1989 and was not resolved until February 26, 1998. See Gonzalez et al. Docket sheet, attached hereto as Exhibit 10. The Contreras class administrative charge was filed on March 23, 1995 and hence overlapped the Gonzalez class action. Under the American Pipe tolling doctrine, claims relating to assignments, training, promotions, discipline, awards and language use are tolled for all Special Agents
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who were members of the Gonzalez class up until the present time because of the
subsequent initiation of the Contreras class action. In other words, the Gonzales class
action tolled the claims of these putative members until at least 1998, but in the interim
the Contreras action was filed, these claims are preserved to the present.5
In United Airlines v. McDonald, 432 U.S. 385 (1977), the Supreme Court held
that the American Pipe tolling doctrine applies until the final disposition of the class
allegations. In that case, the district court denied class certification and the case
proceeded for several years until it was settled. After the settlement, a putative class
member attempted to intervene in order to appeal the denial of class certification. The
Supreme Court held that such intervention was proper and that the statute of limitations
was tolled through the entire lawsuit, so that a new named plaintiff could appeal the prior
denial of class certification.
5 In addition, such pre-1995 claims may be preserved as a continuing violation or pursuant to equitable estoppel. The U.S. Supreme Court limited the scope of continuing violations doctrine in Natl’ R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The Court explicitly noted that it did not consider the timely filing question with regard to class-wide “pattern-or-practice” claims under Int’l Bhd. Of Teamsters, 431 U.S. 324 (1977). Id. at 115, n.9 Thus, the continuing violation theory with respect to pattern-orpractice cases continues to remain viable. See Lyons et al. v. England, 2002 U.S. App. LEXIS 21055 at *24, n.8. (October 9, 2002) (“noting that question of how Title VII’s filing deadlines should be applied to pattern-or-practice claims based on a series of discriminatory acts, some of which occurred outside the limitations period, has been left unanswered by the [Supreme] Court.”). There also are strong indications that equitable estoppel may apply to some of these claims, because of systematic retaliation in the Customs Service. Former Assistant Commission Walter Biondi testified that Customs Service Commissioner George Weise told him about a meeting in December 1996 or January 1997 with then Treasury Undersecretary for Enforcement Raymond Kelly and Treasury Deputy Assistant Secretary Elizabeth Bresee. At this meeting, Undersecretary Kelly gave orders that “Anybody who filed an EEO complaint against their agency is a disloyal employee, should be shown no favor, and treated accordingly.” See Biondi Deposition excerpts, attached hereto as Exhibit 11 at 98:10-99:16. Portions of a Customs 1995 EEO Task Force Report also reveal that “there was a broad based concern in the Office of Investigations workforce that filing an EEO complaint will adversely affect an employee’s career and subject her/him to retaliation.” “Fear of retaliation was raised as an issue in 55% of the interviews conducted, and was judged a critical issue by 43% of the employees in those interviews.” “The survey asked the respondents if they thought they would be labeled a troublemaker and suffer career damage if they filed a grievance or discrimination complaint. Nearly, 74% (1,752 out of 2,384) of the employees responding to the question indicated that they would be adversely affected.” See Customs 1995 EEO Task Force Report (hereinafter “1995 EEO Task Force Report”), attached hereto as Exhibit 12 at 54.
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III. ADVERSE ACTIONS A. Plaintiffs’ Need Not Establish “Adverse Actions” In A Pattern & Practice Case
Defendants maintain that Plaintiffs’ discrimination claims relating to assignments, lateral transfers, undercover and other undesirable assignments, training, and discipline are not actionable under Title VII because they do not rise to the level of “adverse employment actions,” as that term is defined in Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999). See Defendants’ Memorandum at 30-34, 36-38, 41-43, 49-52.
Brown held that in individual disparate treatment cases, federal employees must show that they have suffered an adverse action in order to establish a prima facie case of discrimination.6 Defendants seek to extend that holding to encompass pattern and practice class action cases. Notably, Defendants are unable to cite a single case from any court that supports this conclusion. Indeed, Brown itself calls into question the Defendants’ entire position in this regard for class cases.
In Brown, the plaintiff argued that any sort of personnel action that is undertaken by a federal employer for a discriminatory reason is actionable under Title VII. For support, the Plaintiff pointed to the following passage in Palmer v. Schultz, 815 F.3d 84, 97-98 (D.C. Cir. 1987), which is equally applicable in the case at hand:
A plaintiff may bring a Title VII claim for alleged discrimination with respect to any employment decision by an agency of the federal government. The statute itself states that “all personnel actions affecting employees or Applicants for employment . . . shall be made free from any discrimination based on [race, color, religion, sex or national origin].” 42 U.S.C. §2000e-16[(a)]. [This language covers] “all personnel actions” [based on race, color, religion, sex, or national origin] regardless of whether the personnel action affects promotions or causes other tangible or economic loss.
6 A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with different responsibilities or a decision causing a significant change in benefits. Brown, 199 F.3d at 456.
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The Brown court noted that Palmer’s language appeared to conflict with Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985), and McKenna v. Weinberger, 729 F.2d 783 (D.C. Cir. 1984), and other cases in the circuit. Brown at 453. The Court then reconciled Palmer with its other decisions. Id. at 453-54. The Court explained that unlike Palmer, but like Mitchell and McKenna, Brown’s claim was an individual disparate treatment claim rather than a pattern or practice claim. The “very different” nature of the claim in Palmer placed in context the quoted language at issue. As a result, the Brown court carefully limited its holding to individual disparate treatment plaintiffs, such as Brown, finding that they must show an adverse personnel action in order to establish a prima facie case under the McDonnell Douglas framework. Id. at 455.
The Brown court recognized that pattern or practice cases are different than individual cases. While the key inquiry in an individual’s case is the reason for a particular employment action, “at the liability stage of a pattern or practice case the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking.” Cooper v. Federal Reserve Bank, 467 U.S. 867, 876 (1984) (quoting International Bhd. of Teamsters, 431 U.S. at 360 n.46) (emphasis added). Due to these manifest differences, the Brown court specifically left Palmer v. Schultz, 815 F.2d 84 (D.C. Cir. 1987), undisturbed as to class actions.
Claims relating to a pattern or practice of discrimination are not subject to Brown’s limitations regarding adverse employment actions. Indeed, this makes perfect sense given that in most cases, the predominant form of relief in class action employment discrimination suits is injunctive relief. Here, Plaintiffs have sought certification under Rule 23(b)(2) and (b)(3). If class action plaintiffs could not even get to first base with
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claims regarding discriminatory assignments, transfers, training or discipline, it would be impossible to secure reforms to these and other class-wide employment practices.
No matter what, class-wide discrimination in assignments, lateral transfers, undercover and other undesirable assignments, training, and discipline would certainly constitute evidence of a hostile work environment. See Brown, 199 F.3d at 454 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)) (“plaintiffs could maintain an action even in the absence of a tangible economic effect on employment if the work atmosphere” amounted to a hostile work environment). If, as Plaintiffs allege, the Defendants have engaged in a pattern and practice of requiring Hispanic Special Agent to undertake dangerous undercover assignments, dead-end assignments or unwanted transfers to undesirable locations, members of the class would suffer the effects of a hostile environment, even if there were not immediately ascertainable economic harm. Thus, even if the Court were to determine that such employment practices were not cognizable under Brown, evidence of those claims is relevant to and supports the existence of a hostile environment claim.
In addition to the non-applicability of Brown to pattern and practice cases, the Defendants are estopped from arguing that assignments, lateral transfers, undercover and other undesirable assignments, training, and discipline are not adverse actions because they had previously agreed in the administrative proceedings that such employment actions were adverse actions. See December 21, 2002 Order, attached as Exhibit 5 at 2. (noting “the parties also agree that each of the five alleged actions (training, assignments, awards, discipline and promotion) comprise adverse actions.”).
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In any event, the determination of whether any particular challenged employment practice is an “adverse personnel action” is a material disputed issue of fact as demonstrated below. B. The Specific Class Claims Are Adverse Actions In Any Event 1. Assignments and Lateral Transfers:
Assignments and lateral transfers are adverse personnel actions because they affect the ability of Special Agents to be promoted or to obtain locality pay. Plaintiffs require additional discovery on these issues before they can further respond to this portion of the Defendants’ motion. See, Rule 56(f) Declaration of David J. Shaffer at __. Previously, Defendants refused to produce a 30(b)(6) witness on the documents and databases relating to these subjects. Plaintiffs have filed a motion to obtain this discovery, but will require additional discovery on the substance of these practices. See Plaintiffs’ Motion for an Order to Direct Defendants and their Counsel to Preserve Documents and to Compel Discovery. 2. Undercover and other Undesirable Assignments:
Undercover assignments are adverse employment actions because they are dangerous and can negatively impact the career development of Special Agents. See, e.g. Segar v. Civiletti, 508 F. Supp. 690, 713 (D.D.C. 1981) (finding disproportionate assignment to undercover work subjected African-American Drug Enforcement Agents to greater dangers and hardships, precluded obtaining experience necessary for promotion, teaches limited range of skills, and impairs ability to remain current with administrative duties); Stross v. Michigan Department of Corrections, 250 F.3d 336, 342 (6th Cir. 2001) (holding lateral transfer in prison an adverse action if it would be
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objectively intolerable to a reasonable person). Additionally, John Magaw, who served as Director of the Bureau of Alcohol, Tobacco and Firearms (“BATF”) and the United States Secret Service, testified before Congress that assignments to undercover work prevented female and minority agents from getting the proper training to compete for promotions. See Relevant excerpts of John Magaw Testimony, Transcript of Senate Judiciary Committee Hearings on Federal Law Enforcement and the Good Ol’ Boys Round, July 21, 1995, attached hereto as Exhibit 14 at 20-21.
Undercover, as well as Title III wiretap work involving language translation and tape transcription duties are not as highly valued for promotion as other duties. The inordinate amount of undercover and Spanish language related duties has affected the ability of Hispanic Agents to obtain the diverse experiences necessary for equal consideration for promotion. See Contreras Declaration, Exhibit 1 at ¶15.
In addition, Special Agent John Yera who was paralyzed from a gunshot wound during an undercover operation, submitted a declaration attesting to the fact that undercover work is dangerous and not career enhancing.7 See Declaration of Special Agent John Yera, attached hereto as Exhibit 15. According to Agent Yera, Hispanic Agents are assigned undercover work, especially so called “casual” undercover without training and they are often not provided with adequate backup or support. Id. at ¶15. Undercover work is not career enhancing because the undercover agent cannot serve as
7 The dangerousness of undercover work was confirmed by Jimmy Gurule, the Undersecretary for Enforcement for the Department of Treasury. In a recent speech to the Hispanic American Police Commanders Association (“HAPCOA”), he saluted Hispanic Americans for their contributions to law enforcement and specifically singled out two Hispanic Agents who made the ultimate sacrifice. See HAPCO Speech of Jimmy Gurule (hereinafter “Jimmy Gurule HAPCOA Speech”), attached hereto as Exhibit 16 at 1-2. One was BATF Agent Ariel Rios who was murdered on an undercover assignment when a drug cartel discovered his true identity. The BATF building was later named in honor of Special Agent Rios. The other was DEA Agent Enrique Camarena who was kidnapped, tortured and murdered by one of the drug cartels and a local police officer in Guadalajara, Mexico.
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the “case agent,” only the “case agent” receives primary credit for any seizures or arrests that result from an undercover operation. Id. at ¶4.
Defendants rely solely on the testimony of Mr. Paul Kilcoyne as to their arguments regarding undercover. However, there are significant limitations and deficiencies to Mr. Kilcoyne’s knowledge of Defendants’ undercover policies, practices and procedures. In a recent 30(b)(6) deposition, Kilcoyne testified that his knowledge of the program goes only from July 2001 to approximately November or December 2002. See Kilcoyne Deposition excerpts, attached hereto as Exhibit 17, at 43:19-44:7. He also testified that he had no knowledge about any documents prior to July 2001 used in the Customs undercover program. See, id. at 8-10. Since Mr. Kilcoyne was the Defendants’ 30(b)(6) witness, this means that the Defendants have no such knowledge and Plaintiffs are entitled to an adverse inference on this issue.
Mr. Kilcoyne testified that there are no records in covert operations kept on “casual” undercover assignments, but there may be in a Report of Investigation. See, id. at 17:11-14. He testified (and therefore so did the Defendants) that he did not have any knowledge about the use of undercover agents in Internal Affairs. See, id. at 17:18-21. Mr. Kilcoyne testified that did not know if there were documents showing when someone opted out of undercover training and that covert operations did not have any documents that showed agents opted out of an undercover assignment due to safety concerns. See, id. at 21:16-21; 27:11-14. Mr. Kilcoyne testified that he was not aware of any documents that showed that performing undercover work was career enhancing. See, id. at 32:6-9. Again, Plaintiffs are entitled to an adverse inference on these issues.
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Plaintiffs submit that they have submitted sufficient evidence to defeat Defendants’ Motion for Summary Judgment with respect to undercover assignments or that Defendants’ lack of knowledge entitles them to an adverse inference in their favor. However, to the extent that Plaintiffs have not met that burden, Plaintiffs request further discovery pursuant to Rule 56(f). See, Rule 56(f) Declaration of David J. Shaffer at 13.
Defendants have refused to produce 30(b)(6) witnesses as to documents and databases pertaining to Title III wiretap work, tape translation duties or other assignments involving Spanish language duties. Such refusal is the subject of Plaintiffs’ pending motion. See Plaintiffs’ Motion for an Order to Direct Defendants and their Counsel to Preserve Documents and to Compel Discovery. Plaintiffs require this discovery as well as discovery on the substance of those issues, before they can respond adequately to this portion of the Defendants’ motion. See, Rule 56(f) Declaration of David J. Shaffer at 13. 3. Training:
With regard to the denial of training, Plaintiffs require additional discovery on this issue before they can respond adequately to this portion of Defendants’ motion. See, Rule 56(f) Declaration of David J. Shaffer at 13. Moreover, Defendants’ 30(b)(6) witness testified that she knew of no documents connecting training with the Merit Promotion Plan for promotion. See Lynne Smith Deposition excerpts, attached hereto as Exhibit 23 at 17:9-14. She also lacked any knowledge of the training database, except that it is not complete prior to 1999 or 2000. Id. at 28:5-22. She lacked knowledge of any policies prior to 2000. Id. at 43:12-16. In any event, training is a vital aspect of promotability and denial of training impacts a Special Agent’s career and effectiveness,
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which also impacts performance evaluations. All of these are career-enhancing opportunities and are therefore adverse actions.
Defendants also allege that Plaintiffs cannot state a claim for relief regarding Contreras’ repeated denials of attendance at the Customs National Hispanic Association Conferences, which interfered with his ability to organize and prosecute this case and receive training that was provided those conferences. See Contreras Declaration, Exhibit 1 at ¶¶13-14. This action is retaliatory, as well, since other minority Special Agents who did not have class actions pending against the agency were permitted to attend minority issues conferences. 4. Discipline:
With regard to discrimination in disciplinary actions, Plaintiffs require discovery on this issue before they can respond adequately to this portion of Defendant’s motion. See Rule 56(f) Declaration of David J. Shaffer at 13. In any event, the admissions of Defendants create material issues of fact regarding this issue. The Customs Services’ own Blue Ribbon Panel Report found that “the program has allowed Customs employees under proposed discipline or performance action to circumvent established channels for handing such actions, effectively negating appropriate personnel action.” See Blue Ribbon Panel Report, attached hereto as Exhibit 21 at 27. It also found that “[a] widespread perception exists that discipline has been unevenly applied within the Office of Enforcement, partially as a result of a protective system employed by various ‘oldboy’ networks.” Id. at 27. Further findings on this issue are set forth in Section IV below. In total, however, they reflect a completely dysfunctional discipline system.
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In addition, as set forth in Plaintiffs’ discovery motion, discipline review panel briefing documents were shredded to prevent third parties from obtaining them. See Mary Yonkers Deposition excerpts, attached hereto as Exhibit 22 at 17:8-12; 19:14-20:8. Plaintiffs’ Memorandum in Support of Motion for an Order Directing Defendants and their Counsel to Preserve Documents. Moreover, the Treasury Inspector General found that the discipline database (DAATS) was found to be “inaccurate and incomplete.” See Treasury IG Integrity Oversight Review of the United States Customs Service (hereinafter “Treasury IG Report”), attached hereto as Exhibit 20 at 17. IV. PRIMA FACIE CASE
Defendants have argued that Plaintiffs have not pled or cannot prove a prima facie case with respect to non-selection of Miguel Contreras for an El Paso position and the denial of an award to Ruben Gonzalez. See Defendants’ Memorandum at 28-30 and 52-54. A. It Is Not Necessary To Plead A Prima Facie Case
With regard to pleading, Plaintiffs are not required to plead a prima facie case in the complaint under Swierkiewicz v. Soreman N.A., 534 U.S. 506 (2002). All that is required is that the pleading put the defendant on notice of the claim. The complaint gave the defendant sufficient notice under Fed. R. Civ. P. 8(a) and given that the EEOC certified the class and was preparing to try the case on its merits, it certainly must have concluded that the Defendant received sufficient notice of the claims.. B. Plaintiffs Require Discovery on Prima Facie Case
To the extent that a response is required regarding proof of a prima facie case, Plaintiffs’ request discovery on these issues pursuant to Rule 56(f). See, Rule 56(f)
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Declaration of David J. Shaffer at 13. Indeed, no prima facie case can be alleged due to the lack of comparators in many instances because Defendants testified in Ms. Zaner’s 30(b)(6) deposition that the Merit System Promotion Plan was not always followed and that numerous exceptions existed. See Susan Zaner Deposition, attached hereto as Exhibit 24 at 68:18-69:4; 74:3-19. For example, she testified that key managerial positions were not included in the posting of applicant flow process that fed into the Merit System Promotion Plan. Id. at 36:10-19. Moreover, she testified that the vacancy announcement system (“VAACS”) was not reliable. Id. at 37:9-13.
Thus, Plaintiffs need only allege that Contreras and other Hispanic Special Agents applied for positions for which they reasonably believed that they met the minimum qualifications and non-Hispanics were not selected to state a prima facie case in the total absence, because according to Defendants no uniform standard was observed for promotion. C. DEFENDANTS MADE SIGNIFICANT ADMISSIONS IN THE CASE
Finally, there are significant admissions by Defendants substantiating the class allegations in the Complaint and further proving a prima facie class case. These include, but are not limited, to the following: (1.) BLUE RIBBON PANEL REPORT
On June 3, 1991, the Commissioner of Customs convened a Blue Ribbon Panel and requested a full and complete examination of allegations of corruption and mismanagement in the Southwest Region of the Service. See Blue Ribbon Panel Report, Exhibit 21. The report stated:
The Panel focused its inquiry on the Southwest Region, particularly the Enforcement of Internal Affairs functions. Inspection and Control and other Customs components were not accorded the same scrutiny. Although the complexities of the Customs organization and mission preclude the applicability of every finding to every situation, the
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implications of our findings and recommendations can be applied to the entire Customs Service. On several occasions, the Panel was told that the circumstances that precipitated the unacceptable situation in the Southwest Region could be attributed to a unique and unfortunate combination of events and personalities. The Blue Ribbon Panel rejects this explanation. Instead, we found fundamental deficiencies in the management systems that were originally intended to safeguard the Customs Service.
The problems encountered in the Southwest Region are symptomatic of the rapid growth of the Customs Service in the 1980’s, which outpace the capacity of management systems to effectively support the organization. Managers were forced to solve problems on an ad hoc basis and in doing so, their solutions depended in part upon various interpersonal networks (referred to in this report as “old boy” networks). As a result, allegiances developed among persons in Customs rather than to the Customs Service as an institution. The Panel’s recommendations are designed to reassert national authority and control, to eradicate the conditions that caused a “Balkanization” of the Customs Service.
The findings of this report should be considered separate and apart form its recommendations. The findings are based on over 150 in-depth briefings and interviews with kef Federal, State and local law enforcement officials in Washington and in the Southwest. This process also included extensive and candid discussions with U.S. Customs managers, supervisors and employees. The findings represent the unanimous view of the Panel.
In conclusion, the Panel’s findings cannot be mitigated or dismissed. They represent the unanimous opinion of its members.
Many of the findings are particularly relevant here, for example:
(a) INTEGRITY
• Finding 4: Internal Affairs failed in its mission to fully investigate and resolve allegations of corruption.
• Finding 5: Internal Affairs consciously elected not to investigate serious mismanagement issues which had directly contributed to the perception of corruption.
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(b) MANAGEMENT
• Finding 1: There is no reliable, Servicewide system to identify, report, address, investigate or resolve questions of mismanagement. Customs lacks a coherent system to assess organizational management.
• Finding 2: There is a notable lack of accountability among managers at all levels for actions which are taken or which fail to be taken with respect to management issues. The systems to deal with ineffective supervisors and managers do not work.
• Finding 4: There was a general inability to take action due to the perception that personal relationships were more important than organizational considerations. Individuals were characterized by their loyalty to different managers, rather than by institutional loyalty.
-Managers and supervisors felt that they were unable to take action on numerous problems throughout the Southwest Regional Office of Enforcement due to the various “old boy” networks, and “connections.”
• Finding 6: There is a lack of honest, thorough communication on serious management and performance problems. Employees ranging from senior managers to lower level employees indicate that they were never told “what they did was wrong”.
• Finding 7: As a result of the networks of personal relationships, strained relationships, and ineffective communication, respect for and the authority of managers at every level were diminished. Performance problems could not be appropriately addressed.
-Supervisors and managers whose performance was considered inadequate or whose overall demeanor was unacceptable went uncounseled.
-“Problems” were addressed by reassignments of individuals without providing the specific or honest rationale that prompted the move. Directed reassignments became a normal corrective action rather than the exception.
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-Some of these reassignments appeared to employees as punitive and/or retaliatory.
-On other occasions, “special assistant” positions (nonsupervisory) were established for individuals, leaving them in place geographically. This not only failed to resolve the reassigned employee’s status and future, but also crated the appearance of favoritism.
(c) OFFICE OF ENFORCEMENT
• Finding 1: The Panel found personnel at every level in the Southwest Office of Enforcement neither accept responsibility for managerial deficiencies nor are held accountable for their actions. The absence of a clear line of authority contributes to the problem.
• Finding 2: No career path exists in the Office of Enforcement, the net effect of which is to inhibit professional development. The current agent mobility policy is inconsistently applied and has been used more to punish or reward than to enhance professional development.
• Finding 3: The Customs Service recruitment policy that permits the employment and assignment of personnel to their home towns encourages vulnerability to and perceptions of corruption. It promotes loyalty to persons rather than the institution. This hiring policy also perpetuates “old boy” networks that work to the detriment of the Customs Service.
• Finding 4: In some instances, supervisory and managerial selections were made without consideration of supervisory potential and were based more upon personal favoritism than professional qualifications.
• Finding 5: Minority employees are largely recruited from local areas in which they are to be employed. Because there are insufficient numbers of minorities, there is a tendency to focus these employees in areas were their language skills are needed, such as undercover assignments and as monitors for Title I investigations. This limits their exposure to a wider range of enforcement operations.
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• Finding 6: Minority employees are not being aggressively encouraged to compete for supervisory promotions.
• Finding 8: First line supervisors are often inexperienced and lack proper training.
• Finding 9: OE office inspections were clearly insufficient in that they did not focus on management issues and did not provide for follow-up to correct noted deficiencies.
• Finding 10: The Panel found instances where ratings of performance bore no resemblance to actual performance.
(d) OFFICE OF INTERNAL AFFAIRS
• Finding 1: IA did not adequately address serious and continuing allegations against Customs Service managers, thus perpetuating perceptions of mismanagement and corruption.
• Finding 2: The Internal Affairs policy that referred all noncriminal misconduct issues back to management for investigation permitted misconduct allegations to remain unresolved. Unacceptable conduct and/or management actions were minimized. It also contributed to a generalized perception and in some cases the reality that IA does not act independently of management.
• Finding 3: IA failed to review and monitor certain investigations to misconduct that were conducted by management, contributing to the appearance (and in some cases the reality) that managers take arbitrary actions against selected Customs personnel.
• Finding 4: Customs personnel (including managers) in the Southwest Region did not understand Customs policy for reporting allegations of corruption and misconduct.
• Finding 5: AI’s investigative procedures did not ensure timely and complete investigations that could provide management with clear results or permit final closure on critical issues.
• Finding 6: In key cases reviewed by the Panel, neither the targets of the allegations nor supervisory personnel directly associated were interviewed by IA.
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• Finding 7: Because of the failure to conclude investigations, employees who were targets of allegations of serious misconduct and/or perceived integrity violators remain under a cloud of suspicion.
(e) TRAINING
• Finding 1: Customs agents operating on the Southwest border need special attention to unique training requirements, technical law enforcement skills, Spanish language proficiency, emphasis on increased vulnerability to integrity concerns, and rigid adherence to constitutional and ethical standards.
• Finding 2: There is no formalized management training or continued in-service supervisory training program for supervisory personnel.
• Finding 3: Middle-level supervisors lacked the ability to effectively manage subordinate agents because they themselves lacked necessary leadership skills and investigative experience.
• Finding 4: New agents lack proper supervision in investigations and case management.
• Finding 5: Service-wide ethical and professional standards are inadequately addressed by existing training programs. Servicewide standards are also undermined by parochial perspectives and allegiances to “old boy” networks. Existing training programs do not adequately address this shortfall.
(vi) DISCIPLINE
• Finding 1: A widespread perception exists that discipline has been unevenly applied within the regional Office of Enforcement, partially as the result of a protection system employed by various “old boy” networks.
• Finding 2: There was an informal system within OE in which employees could be subject to “disguised” disciplinary actions such as punitive details or transfers as a result of disagreements between supervisors and employees.
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• Finding 3: The system did not mandate that all incidents of misconduct be report to Internal Affairs, allowing managers and supervisors autonomy to make the determination as to whether acts of misconduct warranted investigation and action.
• Finding 4: The system which managers investigate noncriminal misconduct does not contain sufficient safeguards to prevent managers from investigating incidents within their chain of command, calling into question the objectivity of the inquiry. At the same time, the use of regional staff members to investigate incidents in SAC office has a negative effect on working relationships.

(2.)

THE GOOD O’ BOY ROUNDUP REPORT

On July 11, 1995, a newspaper article appeared on the front page of the

Washington Times entitled “Racist ways die hard at Lawmen’s retreat—Annual

‘Good O’Boys Roundup’ cited as evidence of ‘Klan Attitude’ at ATF.” See Jerry

Seper, Racist ways die hard at Lawmen’s retreat, Washington Times, July 11,

1995. The article detailed allegations of racist misconduct by personnel of the

BATF and other federal law enforcement agencies at an annual retreat outside

Ocoee, Tennessee. The next day WJLA, channel 7, a local Washington television

station of ABC aired an investigative series, featuring a videotape that showed

events at the Roundup. The tape was shocking. It showed a “Nigger check point”

sign at which, ostensibly, cars were checked to determine whether blacks were

trying to attend the Roundup. Another sign asked, “Any niggers in that car?”

There were also Confederate flags posted at the event.

On July 21, 1995, the Senate Judiciary Committee convened hearings regarding

the participation of federal law enforcement personnel in the “Good Ol’ Boys Roundup.”

In his testimony, Bureau of Alcohol, Tobacco and Firearms (“BATF”) Director John

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Magaw, explained that the event was organized by former Resident Agent-in-Charge Gene Rightmyer of the BATF Office in Knoxville, Tennessee. He acknowledged that racist activity had taken place at the Roundup every year it occurred since 1985. Director Magaw described to the Committee some of the activities at the Roundup, including a skit that was put on in which a person dressed as a Klu Klux Klansman simulated performing sodomy on a person with a blackened face.
The public outrage over the Roundup fueled intensive settlement negotiations in a racial discrimination class action against BATF by its African-American Special Agents and a proposed Settlement Agreement was reached. It was submitted to the Court and was granted preliminary approval on July 9, 1996. See Stewart et al. v. Rubin, 948 F.Supp.1077 (D.D.C. 1996).
Robert Rubin, the Secretary of Treasury acknowledged significant involvement by Customs officers in Senate testimony on the Good O’ Boy Roundup Report, including 13 Customs Officers. See Statement of Secretary Rubin, attached hereto as Exhibit 18 at 7. Yet, the Chair of the Citizens’ Review Panel, Professor Dorsen, complained that the Panel was not permitted to review the “hundreds” of Memoranda of Investigation and that they could not, therefore, “ascertain” whether they supported Treasury’s Report and whether the investigation was conducted properly. See Professor Norman Dorsen Letter, attached hereto as Exhibit 19 at 4.
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(3.)

1995 EEO TASK FORCE REPORT

Although there are numerous matters on which Plaintiffs require discovery,
Defendants’ 1995 EEO Task Force Study, Exhibit 12, provides some of the best
examples:
• 62% of minority men and 54% of minority women believe they had hit a road block [as a Customs employee]. Many of the reasons given were employees not playing ‘office politics’, whistleblower retaliation, “not being a part of the “Good O’ Boys” network, and lack of objectivity in the selection process.
• The Study found that the factors having the most negative effect on chances for promotion were gender, age and race/color/national origin.
• Of the 266 respondents who were planning to leave Customs, one of the most common reasons cited was to “get away from a discriminatory work environment.”
• 23% of minorities, compared to 14% of non-minorities, reported that they had been asked to take hardship post.
• 32% of Hispanics, and 10% of Blacks, have been asked to take a hardship post.
• 74% of the respondents agreed with the statement that, in Customs “people are promoted because of who they know.”
• 53% of minorities, compared to 40% of non-minorities, reported doing at least some undercover work in the past two years.
• 67% of Hispanics reported doing at least some undercover work in the past two years.
• 13% of Hispanics, double the amount of any other group, reported spending more than one-quarter of their time doing undercover work.
• Of those who have done undercover work, 18% believed the assignment had a negative effect on their career.

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• Although a total of only 28% of the total respondents said they had been subject to an IA investigation or inquiry, 37% of Hispanics were subject to such investigation or inquiry.
• 24% of minorities and 14% of non-minorities said the inquiry/investigation affected promotion, reassignment, careerenhancing assignments and/or training opportunities.
• 49% of the respondents reported having experienced discrimination with respect to hiring, promotion, reassignment, career-enhancing assignments or training in the last three years.
• 27% indicated they chose not to file a complaint because of the fear of retaliation; 24% did not file because they felt it was not worth the effort.
• 74% of the respondents said that filing a grievance or complaint of discrimination would adversely affect their careers.
• 60% of whites believe that EEO is “something that is just designed to benefit minorities and women.”
• 40% of respondents do not believe that discrimination claims are resolved in a fair and just manner.
• 65% of Hispanics believe their group has made little or no progress in the last 3 years.
• There were no female or Hispanics employed in the Senior Executive Service (“SES”) within the Office of Investigations. Id. at 47.
• The report referenced the three class actions discussed in this brief, but stated “there have been no structured efforts to mediate these complaints.” Id. at 81.
(4.) INTEGRITY OVERSIGHT REVIEW AND SHREDDING
In November of 2000, the Treasury Department’s Inspector General found
that the “USCS Management did not always administer discipline in accordance
with the Table of Offenses and Penalties,” and that information in its discipline
database (“DAATS”) “was not always accurate and, in many instances,
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incomplete.” See Treasury IG Report, Exhibit 20 at 16-17. Ms. Yonkers

confirmed that Disciplinary Review Board (“DRB”) briefing papers were

shredded. See Yonkers Testimony, Exhibit 22 at 14:6-20. She further testified

that when this was uncovered, Defendants ceased creating such documents

altogether. See Id. at 18:15-19:3. All of this conduct should create an inference

in Plaintiffs’ favor, that is more than sufficient to overcome Defendants’ Motion for Summary Judgment. See, McCormick on Evidence at Volume 2 at 264 (4th

ed. 1992).

V. PLAINTIFFS REQUEST PERMISSION TO FILE A SUPPLEMENTAL COMPLAINT

To the extent, if any, that this Court determines Plaintiffs’ Complaint is

inadequate on any of the grounds set forth in Defendants’ Motion, Plaintiffs respectfully

request permission to file a Motion for Leave to File an Amended and/or Supplemental

Complaint under Fed.R.Civ.P. 15(c) and (d). Plaintiffs anticipate filing for Leave to File

a Supplemental Complaint under Rule 15(d) regarding information that they have learned

since the filing of the original complaint, relating in part, to the effect of the Gonzalez

class action as well other evidence they have discovered in the 30(b)(6) depositions and

other sources.

Respectfully submitted,

Dated: June 26, 2003

______________/s/____________________ David J. Shaffer (D.C. Bar #413484) Ronald A. Schmidt (D.C. Bar # #465129) Garvey Schubert Barer 1828 L. Street, N.W., Suite 901 Washington, DC 20036 (202) 789-8188 (202) 223-2219 Attorneys for Plaintiffs

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For Opinion See 89 Empl. Prac. Dec. P 42747 , 305 F.Supp.2d 126 , 225 F.Supp.2d 16
United States District Court, District of Columbia. Miguel A. CONTRERAS, et al., Plaintiffs, v.
Michael CHERTOFF, Secretary, Department of Homeland Security, Defendant. No. 1:02CV00923(JR). May 5, 2006.
Defendant's Renewed Motion for Summary Judgment on Plaintiffs' Pattern or Practice Claims
Marc Weinberger, U.S. Customs and Border Protection (CBP), William R. Kraus, U.S. Immigration and Customs Enforcement (ICE), Of Counsel.Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, United States Attorney, Stuart A. Licht, Assistant Director, Federal Programs Branch, Civil Division, Karen K. Richardson (Tex. Bar No. 785610), James J. Schwartz (D.C. Bar No. 468625), Adam D. Kirschner (Ill. Bar No.6286601), Trial Attorneys, U.S. Department of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Avenue, NW, Room 6126, Washington, DC 20530, Telephone: (202) 514-3374, Facsimile: (202) 616-8460, Attorneys for Defendant. Defendant Michael Chertoff, Secretary for the Department of Homeland Security, hereby renews his Motion for Summary Judgment on Plaintiffs' Pattern or Practice Claims, pursuant to Rule 56 of the Federal Rules of Civil Procedure and pursuant to this Court's Order dated September 21, 2005 [Docket # 112]. In support of defendant's renewed Motion for Summary Judgment, the Court is respectfully referred to Defendant's previously filed Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment (Docket #97), Defendants' Reply In Support of Motion for Summary Judgment (Docket #106), and the Memorandum of Points and Authorities in Support of Defendant's Renewed Motion for Summary Judgment and Exhibits attached hereto. Respectfully submitted,
OF COUNSEL:
MARC WEINBERGER
U.S. CUSTOMS AND BORDER PROTECTION (CBP)
WILLIAM R. KRAUS
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE)
Date: May 5, 2006
PETER D. KEISLER
Assistant Attorney General
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KENNETH L. WAINSTEIN United States Attorney STUART A. LICHT Assistant Director Federal Programs Branch Civil Division /s/ KAREN K. RICHARDSON (Tex. Bar No. 785610) JAMES J. SCHWARTZ (D.C. Bar No. 468625) ADAM D. KIRSCHNER (Ill. Bar No.6286601) Trial Attorneys U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Room 6126 Washington, DC 20530 Telephone: (202) 514-3374 Facsimile: (202) 616-8460 Attorneys for Defendant
TABLE OF CONTENTS
INTRODUCTION ... 1 BACKGROUND ... 4 ARGUMENT ... 6 I. THERE IS NO STATISTICAL EVIDENCE OF A PATTERN OR PRACTICE OF DISCRIMINATORY DISCIPLINE AGAINST HISPANIC SPECIAL AGENTS. ... 6
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A. To Establish A Pattern Or Practice Discipline Claim, Plaintiffs Bear The Burden Of Showing That The Discipline Imposed On Hispanic Agents Was Harsher Than That Imposed On Comparably Situated White Agents For The Same or Similar Offenses. ... 6
1. To Be Similarly-Situated, Hispanic and White Employees Must Have Committed The Same or Similar Offense. ... 7
2. To Be Comparably-Situated, Hispanic and Whites Must Have “Nearly Identical” Employment Histories. ... 8
B. No White and Hispanic Agents Are Sufficiently Similar in the Offense Charged and Employment History To Conduct A Proper Statistical Comparison. ... 10
II. EVEN USING ALTERNATIVE STATISTICAL ANALYSES, THE EVIDENCE SHOWS THAT HISPANIC AGENTS DID NOT RECEIVE HARSHER PENALTIES THAN WHITE AGENTS. ... 12
A. Overall Analysis of Days Suspended, Excluding Comparison of Offenses And Employment Histories ... 12
B. Analysis Of Similar Offenses, Excluding Comparison of Employment Histories ... 13
C. Analysis of Different Offenses With Same Recommended Penalty Range ... 13
D. Analysis of Penalties Falling Below or Above Recommended Penalty Range ... 15
E. Regression Analysis Controlling for Recommended Penalty Range ... 16
F. Regression Analysis Controlling for Recommended Penalty Range and Douglas Factors ... 17
CONCLUSION ... 18
INTRODUCTION
Plaintiffs have received all of the discovery to which they are due by order of this Court dated September 21, 2005, including approximately 182,000 pages of discipline files. Rather than helping them, however, such discovery defeats their discipline claim. The statistical evidence derived from those files conclusively demonstrates that Hispanic agents did not receive harsher discipline than white agents.
In his initial Motion for Summary Judgment on Plaintiffs' Pattern or Practice Claims, defendant presented uncontradicted statistical evidence showing that Hispanic Special Agents at the former U.S. Customs Service (“Customs”) were treated as well as, if not better than, white Special Agents in almost every aspect of their employment, including promotions, transfers, awards, training and assignment claims. Defendant further demonstrated that Customs did not engage in a pattern or practice of retaliation. In this renewed motion for summary judgment, defendant presents additional statistical evidence that also defeats plaintiffs' discipline claim.
Defendant retained Dr. Frank Landy, an expert in the field of industrial organization psychology, to review and code the 182,000 pages of discipline files to extract relevant information pertaining to the suspensions of Hispanic and white agents, including the length of the suspensions, the number and type of offenses charged, whether the penalty was consistent with the range of penalties recommended by Customs' Table of Offenses and Penalties (“TOP”), and whether any mitigating or aggravating circumstances (“Douglas Factors”) were a factor in the length of the suspension. Dr. Landy's coding of the discipline files resulted in the creation of a new data
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set that defendant's statistical expert, Dr. Bernard Siskin, then analyzed. Dr. Siskin's analyses confirm that Customs did not treat Hispanic agents any more harshly than white agents in discipline.
First, there is no instance in which a white Special Agent and an Hispanic Special Agent were charged with the same offense, had the same number of prior offenses and had other, comparable mitigating and/or aggravating Douglas Factors that would make them similarly-situated. In the absence of statistical comparisons to similarlysituated white agents, plaintiffs cannot establish a pattern or practice of discriminatory discipline against Hispanics.
Even when one performs other, alternative statistical comparisons, no “pattern” of discrimination against Hispanic agents in discipline emerges. For example, when Dr. Siskin compared the average number of days that the 234 white and Hispanic agents were suspended during the relevant time period, regardless of the type of offense committed or other relevant factors, he found no statistically significant difference in the number of suspension days that white and Hispanic agents received.
Dr. Siskin also compared white and Hispanic agents who were charged with the same offense and had the same number of previous offenses, irrespective of the differences in individual employees' circumstances that make employees not similarly-situated (e.g., performance record, length of service or other Douglas Factors). Even when excluding the Douglas Factors, he found only five Hispanic agents who had committed similar offenses and had the same number of prior offenses as white agents. More importantly, in all five of the matched groups, the Hispanic Special Agents received fewer, or the same number of, suspension days than the white Special Agents received, on average.
To increase the relevant sample size for his statistical analysis, Dr. Siskin also compared the lengths of suspensions imposed on agents who committed different offenses, but where the offenses carried the same recommended penalty length (i.e., treating as equivalent two different offenses that both carried a recommended penalty of, for example, 5 to 14 days). Again, Dr. Siskin found no statistically significant difference in the penalties received by white and Hispanics.
Finally, Dr. Siskin conducted a logistic regression analysis to study the impact that an agent's national origin may have had on an agent's suspension length by specifically controlling for factors that might otherwise affect the penalty imposed (i.e., the minimum and maximum penalty recommended by Customs' TOPs and the Douglas Factors). Dr. Siskin concluded that Hispanic agents received fewer days of suspension, on average, than expected as compared to white special agents. The result favoring Hispanics, although not statistically significant, is clearly inconsistent with a finding of discrimination. In sum, whichever way the data is analyzed, the conclusion remains the same; Customs did not treat Hispanic agents more harshly than white agents in discipline.
The burden of production is on the plaintiffs and the data show that they cannot sustain that burden on any of their claims. Accordingly, pursuant to the instructions of this Court by its Order dated September 21, 2005, defendant hereby renews its motion for summary judgment on plaintiffs' pattern or practice claims, including the claims relating to promotions, transfers, training, awards, assignments, retaliation and discipline. Defendant refers the Court to the memorandum in support of defendant's initial motion for summary judgment on plaintiffs' pattern or practice claims [Docket #97] and defendant's Reply [Docket#106] for a full recitation of the legal authority and evidence supporting defendant's renewed motion. The statistical evidence presented in that earlier motion, as well as the supplemental evidence set forth herein conclusively demonstrates that Customs did not engage in a pattern or practice of discrimination and that defendant is entitled to summary judgment on all of
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plaintiffs' claims.
BACKGROUND
On August 30, 2004, defendant moved for summary judgment on plaintiffs' pattern or practice claims, including promotions, transfers, awards, training, work assignments, discipline and retaliation. See Mem. in Support of Def's Mot. for SJ on Plfs' Pattern or Practice Claims (“Def's SJ Mem”) [Docket #97]. In that motion, defendant presented statistical evidence showing that (1) Hispanic special agents at Customs were promoted to supervisory positions at a rate slightly higher, not lower, than whites, see Mem. in Support of Def's Mot. for SJ on Plfs' Pattern or Practice Claims (“Def's SJ Mem”) [Docket #97], at 26-29; Exhibit 10 Declaration of Bernard R. Siskin (“Siskin Decl.”), ¶¶ 18, 21-24, 29, 34; (2) Special agents assigned to the Southwest border or Puerto Rico were more, not less, likely to be promoted than agents not assigned to those areas and Hispanic agents transferred to the Southwest border or Puerto Rico were more likely to be promoted than similarly situated white agents assigned to those same areas, see Def's SJ Mem at 35-37; Exhibit 10, Siskin Decl. at ¶¶ 47, 56; (3) Hispanic special agents were proportionately represented in foreign posts, including those in Europe, see Def's SJ Mem at 37-38; Exhibit 10, Siskin Decl. at ¶ 36; (4) Hispanic agents received a proportionately greater number of awards than whites and those awards, on average, had a higher monetary value than the awards white agents received, see Def's SJ Mem at 43-44; Exhibit 10, Siskin Decl. at ¶ 46; (5) Hispanic special agents received statistically significantly more training than white agents, see Def's SJ Mem at 49; Exhibit 10, Siskin Decl. at ¶¶ 61-63; (6) Hispanic agents who performed some undercover work were promoted faster than agents who did not, and the same as whites who did a similar amount of undercover work, see Def's SJ Mem at 53; Exhibit 10, Siskin Decl. at ¶ 66; (7) Only 13 more Hispanic agents were suspended than expected by chance over the entire ten-year period from January 1, 1993 and March 9, 2003, see Def's SJ Mem at 65-66; Exhibit 10, Siskin Decl. at ¶ 79, Tables 42A & B; and (8) No statistical evidence existed that would show that Hispanics received harsher discipline than similarly-situated white agents for the same or similar offense, see Def's SJ Mem at 65-66; Exhibit 10, Siskin Decl. at ¶¶ 9, 75, 76 & 79.
In his motion, defendant also cited legal authority supporting the conclusion that retaliation claims are not suitable for class treatment because of their fact-sensitive and individualized nature. Id. at 68-71. Defendant also demonstrated that Customs had a formal discipline system that was designed to promote consistency and neutrality. Id. at 60-64.
“For administration and docket control reasons,” this Court denied without prejudice the defendant's Motion for Summary Judgment on Plaintiffs' Pattern or Practice Claims. See Order dated Sept. 21, 2005 at 21. The Court also partially granted plaintiffs' Rule 56(f) discovery requests, permitting plaintiffs discovery on the “reasons for and harshness of sanctions imposed on Hispanic and white agents.” Id.[FN1] Defendant produced approximately 182,000 pages of investigative and discipline files responsive to plaintiffs' discovery requests. Defendant is entitled to summary judgment based on the data derived from those produced files with respect to plaintiffs' discipline claim, and on all of plaintiffs' other claims -- promotions, transfers, training, awards, assignments, and retaliation -- for the reasons set forth in defendant's prior briefs.
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FN1. Defendant also produced to plaintiffs the definitions of the fields in the PERHIS, TRAEN, VAACS and TECS data systems, as well as the possible values that are contained in those fields. See Order dated Sept. 21, 2005, at 21.
ARGUMENT
I. THERE IS NO STATISTICAL EVIDENCE OF A PATTERN OR PRACTICE OF DISCRIMINATORY DISCIPLINE AGAINST HISPANIC SPECIAL AGENTS.
A. To Establish A Pattern Or Practice Discipline Claim, Plaintiffs Bear The Burden Of Showing That The Discipline Imposed On Hispanic Agents Was Harsher Than That Imposed On Comparably Situated White Agents For The Same or Similar Offenses.
To establish a prima facie case of discriminatory discipline, it is not sufficient for plaintiffs to show that Hispanics were suspended more often than whites; they must show that Hispanic agents received harsher penalties than white agents who committed the same or similar offenses and had “nearly identical” employment histories. See Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995); Carter v. Rubin, 14 F. Supp. 2d 22, 38 (D.D.C. 1998), As this Court stated, “a prima facie case of discrimination in discipline includes showing that ‘the discipline imposed [on the minority group] was harsher than that imposed on comparably situated whites.’ ” See Order dated Sept. 16, 2005, at 20, quoting Wilmington v. J.I. Case Co., 793 F.2d 909, 915 (8th Cir. 1986): see also Stotts v. Memphis Fire Department, 858 F.2d 289, 298 (6th Cir. 1988) (“What is essential to proof of ‘pattern and practice’ is a showing that the other ‘employees involved in acts against [the employer] of comparable seriousness' received less stringent discipline”), quoting McDonald v. Sante Fe Trail Transportation Co., 427 U.S. 273, 283 n.11 (1976) (emphasis in original); Def's SJ Mem. at 64-65. Therefore, “evidence showing that Hispanics were suspended more frequently than whites, without evidence about the offenses for which suspensions were imposed, or the length of the suspensions, is not enough to satisfy plaintiffs' burden of production.” Order dated Sept. 16, 2005, at 20.
The burden is on plaintiffs to show a statistically significant “disparity between the minority and majority groups in an employer's workforce.” See Order dated Sept. 16, 2005, at 4, quoting Segar v. Smith, 738 F.2d 1249, 1267 (D.C. Cir. 1984). For a discriminatory treatment case. “[t]his usually means providing evidence -often in statistical form -- of a disparity in the position of members of the plaintiff class and comparably qualified whites. Similarly, on the disparate impact challenges to specific employment practices the plaintiff class must present evidence that the practices have a disproportionately adverse effect on the plaintiffs.” Segar, 738 F.2d at 1267 (emphasis retained): see also Coral Constr. Co. v. King County, 941 F.2d 910, 919 (9th Cir. 1991) (“[w]hile anecdotal evidence may suffice to prove individual claims of discrimination, rarely, if ever, can such evidence show a systematic pattern of discrimination.”).
As applied to this case, plaintiffs' burden requires a statistically significant showing that Hispanic agents received harsher penalties than similarly situated whites for comparable offenses. A proper statistical comparison requires (1) that the offenses of whites and Hispanics be the same or similar, and (2) that the employees being compared have “nearly identical” employment histories,
1. To Be Similarly-Situated, Hispanic and White Employees Must Have Committed The Same or Similar Offense.
Offenses are not comparable simply because they fall into the same category of misconduct (e.g., firearm viola-
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tions), they must be the same or of comparable seriousness within that category. See Carter v. Rubin, 14 F.Supp. 2d 22, 39 (D.D.C. 1998). In Carter, the plaintiff, a GS-1811 Special Agent at the Bureau of Alcohol, Tobacco, and Firearms (ATF), had resigned after being threatened with removal for a firearms violation. Id. at 26. The plaintiff had been involved in a dispute that had “resulted in an automobile accident between plaintiff's government-owned vehicle and the vehicle that [her adult male friend] was operating and the firing of the government-issued Smith and Wesson revolver by [plaintiff] at [her friend].” Id. at 27. The Court examined each of the eight firearm violations the plaintiff cited as evidence that similarly situated males were treated more favorably, but found that none were similar enough for comparison. Id. at 39. Of the eight incidents, two did not involve firearms, a third was an accidental discharge of a government-issued firearm, a fourth involved an individual who failed to report the discharge of a firearm, and three others did not involve the firing of the gun at an individual. Id. at 39-40. The final incident involved the same offense as the one plaintiff committed, discharge of a government-issued firearm, but due to the factual circumstances surrounding that incident, the court did not consider the individual committing the offense to be similarly situated to the plaintiff. Id. at 40.[FN2] Thus, even when offenses are within the same general category of misconduct, one must still determine if the employees' misconduct is truly the same or of comparable seriousness.
FN2. Similarly, in Stotts, the Sixth Circuit found that the plaintiff did not demonstrate a pattern or practice of disparate discipline even though “in each of the four incidents [of fighting], if a black participated he initially received more severe discipline than the whites at the hands of the Department.” Stotts, 858 F.2d at 296 (internal punctuation omitted). The Sixth Circuit examined the fights involved and found the “district court's finding of a pattern and practice to be clearly erroneous because it is based upon comparisons of a series of factually unique and qualitatively dissimilar incidents and a corresponding series of appropriately individualized disciplinary actions which have been imposed in complete consistency with racially neutral and nonarbitrary guidelines,” Id. at 298. 2. To Be Comparably-Situated, Hispanic and Whites Must Have “Nearly Identical” Employment Histor-
ies.
Not only must the offenses be comparable, but the employees being compared must have “nearly identical” employment circumstances. See Carter, 14 F. Supp. 2d at 38 (“[t]he plaintiff must prove that all of the relevant aspects of her employment situation are nearly identical to those of the male employees who she alleges were treated more favorably. The similarity between the compared employees must exist in all relevant aspects of their respective employment circumstances.”) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994) (internal quotations omitted); see also Neuren, 43 F.3d at 1514 (“In order to show that [plaintiff] was similarly situated to the male employee, [she] was required to demonstrate that all of the relevant aspects of her employment situation were ‘nearly identical’ to those of the male associate.”) (internal citation omitted).
Whether compared employees have “nearly identical” employment circumstances can be ascertained by analyzing “Douglas Factors,” a series of twelve factors federal agencies use to determine appropriate discipline penalties. See Douglas v. Veteran's Administration, 5 MSPB 313, 305-06 (1981). The Douglas Factors include, among other things; the nature and seriousness of the offense; the employee's job level and type of employment; the existence of any past disciplinary record; whether or not the offense would have an effect on the employee's ability to perform at a satisfactory level; the impact of the offense on the reputation of the agency; and the potential for the employee's rehabilitation. Id; see also Supplemental Expert Report: Discipline by Dr. Frank Landy (“Suppl. Landy Report”), Attachment C (attached hereto as Exhibit 1).
At Customs, deciding officials considered more than whether the investigated employee committed the miscon-
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duct for which he or she was charged; they also considered the Douglas Factors in determining the appropriate discipline penalties. See Declaration of Christopher Pignone (“Pignone Decl.”) at ¶ 7 (attached as Exh. 2 to Def's SJ Mem). For example, two individuals who commit identical offenses may not have the same employment record. One employee may have had a long history of disciplinary problems while the other may have had a long history of good behavior. Because the application of the Douglas Factors played an important role in the determination of the appropriate penalty, they must be analyzed as a predicate to any statistical comparison of individuals (white and Hispanic) to ascertain whether they can be classified as similarly situated. See Suppl. Landy Report at 33; see Stotts, 858 F.2d at 298 (disciplinary penalties cannot be adequately compared without considering employees' “disparate personnel histories,” including whether individuals were “repeat offenders].”).
In short, plaintiffs bear the burden of presenting statistical evidence showing that Hispanics received harsher penalties than comparably situated whites for similar offenses. Any statistical analysis would have to compare Hispanic and white agents who were “nearly identical” in employment circumstances and similarly situated in the offenses that they committed. As shown below, plaintiffs cannot sustain their burden because, for purposes of a proper statistical comparison, there are no similarly-situated white and Hispanic agents who committed the same or similar offenses.
B. No White and Hispanic Agents Are Sufficiently Similar in the Offense Charged and Employment History To Conduct A Proper Statistical Comparison.
Plaintiffs' claim that Hispanics were treated differently than white agents must fail because the data show that there are no Hispanic and white agents who are similarly-situated. Customs did not maintain a data set that would allow for a statistical analysis of the harshness of penalties imposed. Therefore, Dr. Frank Landy, an expert in the field of industrial organization psychology, reviewed all of the discipline files recently produced to plaintiffs to determine whether Hispanic agents received lengthier suspensions than comparably situated white agents for the same or similar offenses. Dr. Landy established a protocol for coding the 234 discipline files for white and Hispanic agents who were suspended from January I, 1993 to March 9, 2003.[FN3] See Suppl. Landy Report at 17-21. Each discipline file was then coded for information relating to the length of suspension, the date of the decision, the offense(s) charged, whether the penalty imposed was consistent with the penalty ranges recommended by Customs' Tables of Offenses and Penalties (“TOPs”), and whether there were mitigating and/ or aggravating Douglas Factors that influenced the penalty imposed (e.g., whether the employee had a prior disciplinary record). Id. at 17-18, The coding resulted in the creation of a new data set that was then analyzed by Dr. Bernard R. Siskin, a statistical expert. Id. at 15.
FN3. As this Court noted, the statutory period for this putative class action began ninety days before plaintiff Contreras filed his EEOC complaint. See Mem. Order dated Sept. 21, 2005, at 3; 29 C.F.R, §§ 1614.105, 1614.204. Because the EEOC complaint was filed on March 3, 1995 (EEOC complaint attached hereto as Exhibit 2), the appropriate class period began on December 23, 1994, not December 23, 1992, as the Court surmised. However, for purposes of statistical analysis, defendant voluntarily included (and produced) data extending back almost another two years to January 1, 1993.
Analyzing the new data set, both Dr. Landy and Dr. Siskin concluded that there were no truly comparable white and Hispanic discipline cases for purposes of conducting a statistical analysis. Out of the 234 discipline cases reviewed, there was not any instance in which an Hispanic agent and a white agent were charged with the same offense(s), had the same number of previous offenses, and had corresponding Douglas Factors applied to their cases. See Suppl. Landy Report at 40-41; Supplemental Report of Dr. Bernard R. Siskin (“Suppl. Siskin Re-
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port”) at 4 (attached hereto as Exhibit 3). Accordingly, no white and Hispanic agents were sufficiently comparable in terms of their employment circumstances and the offenses charged to make them similarly-situated. [FN4] Consequently, plaintiffs cannot sustain their burden and defendant's summary judgment motion must be granted.
FN4. Many discipline cases are not comparable for evident reasons. First, an agent charged with multiple offenses (e.g., drinking while on duty and misuse of a government owned vehicle) cannot be compared to one charged with a only a single offense (e.g., drinking while on duty). See Suppl. Landy Report at 43; Suppl. Siskin Report at 6-7. Nor can an agent who has a history of disciplinary problems be compared to one who has no history of prior discipline. See Suppl. Landy Report at 32, 42. Even when comparing two agents who are charged with the same offense and have the same number of prior offenses, the employment circumstances of the two agents may differ significantly. One could be an employee with many years of service; the other could be a new hire with a less than perfect performance record. Such factors can play a role in the length of suspension imposed and must be considered when determining whether agents are similarly situated. Id. at 33, 42. II. EVEN USING ALTERNATIVE STATISTICAL ANALYSES, THE EVIDENCE SHOWS THAT HISPANIC AGENTS DID NOT RECEIVE HARSHER PENALTIES THAN WHITE AGENTS.
In the absence of truly comparable discipline actions to analyze, Dr. Siskin undertook a series of alternative analyses to determine whether there was any statistical “pattern” of disparity that was adverse to Hispanics based on the lengths of suspensions imposed. He concluded that no such statistical disparity exists in this case.
A. Overall Analysis of Days Suspended, Excluding Comparison of Offenses And Employment Histories
First, Dr. Siskin examined the data to ascertain whether Hispanic agents received, on average, longer suspensions than white agents, irrespective of the type of offenses charged or whether any Douglas Factors affected the penalties imposed. Dr. Siskin found that there is no statistically significant difference between the suspension lengths imposed on whites and Hispanics. See Suppl. Siskin Report at 8-9, Table 1.
B. Analysis Of Similar Offenses, Excluding Comparison of Employment Histories
Dr. Siskin then matched white and Hispanic discipline cases by the type of offense charged. He excluded other factors, like the Douglas Factors, that might otherwise be included because, as noted above, see supra Section I, B, when he analyzed these factors, he found no comparable white and Hispanic cases. See Suppl. Siskin Decl. at 4, 5. Even excluding Douglas Factors, he found only five matched groups of offenses. In four of the five matched offenses (involving 4 Hispanics and 9 whites), the Hispanics agents received fewer days of suspension than the white agents received, on average. See Suppl. Siskin Report at 9, Table 2. In the fifth matched offense, involving one Hispanic agent and one white agent, the Hispanic and white agents received an equal number of days suspended. Id.
C. Analysis of Different Offenses With Same Recommended Penalty Range
Because the sample size of comparable discipline cases was too small to draw meaningful statistical conclusions, Dr. Siskin performed a third alternative analysis grouping offenses that were different in nature, but that carried the same recommended penalty range as set forth in Customs' TOPs. See Suppl. Siskin Report at 9. During the relevant period (1993 to 2003), Customs had in place two separate TOPs; one issued in 1990 and a modified version issued on August 23, 1999. See Suppl. Landy Report at 8, Attachments A & B, In those TOPs, Cus-
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toms provided guidance as to the recommended penalty range for particular offenses. Id. at 26. For example, in the 1990 TOP, the recommended penalty for an agent with no prior offenses who was charged with refusal to carry out a proper order (i.e., insubordination) was 5 to 10 days of suspension. See id., Attachment A. In that same TOP, the recommended penalty range for an agent with no prior offenses who was charged with unnecessary display of a firearm was also a 5 to 10 day suspension. Id.
By treating as equivalent different offenses that carried the same recommended penalty range, Dr. Siskin was able to study a total of 69 cases, involving 16 Hispanic agents and 53 white agents. See Suppl. Siskin Report at 9-10. He found seven sets of offenses for which the offenses in each set carried the same penalty range. Id. at 9. Analyzing those sets of offenses, he found no statistically significant difference in suspension length for Hispanic and white agents. Id. at 9-10 & n.8. In three of the seven penalty range groups, the white agents had, on average, longer suspensions than the Hispanics. See Suppl. Siskin Report at 9, Table 3.[FN5] Moreover, of the 16 Hispanic agents represented in the seven groups, a majority (11) were in the three penalty range groups in which the white agents had, on average, longer suspensions than the Hispanic agents. Id. at 10, Table 3. Of the remaining five Hispanic agents studied, there was no statistical significance when compared with whites. Three received substantially longer suspensions than white agents, with those three Hispanics receiving suspensions of 6 to 10 days longer than the whites in the groups. Id. Because of the small sample size, those three outlier Hispanic suspensions resulted in Hispanics receiving, on average, slightly longer suspensions than whites among all of the 16 Hispanics studied. Id. Nevertheless, the disparity was not statistically significant, representing only 0.62 units of standard deviation. Id. Table 3.
FN5. As Dr. Siskin notes in footnote 8 of his Supplemental Report, because 3.5 (half of the seven groups) is not a possible outcome, one would expect either 3 or 4 of the groups to favor Hispanics by chance. See Suppl. Siskin Report at 10, n. 8. Thus, Dr. Siskin's finding that Hispanics were favored in three out of seven of the matched groups comports with statistical expectations and does not support plaintiffs' allegation of discrimination.
Moreover, the suspension data showed no statistically significant disparity adverse to Hispanics regardless of the TOP period (i.e., from January 1, 1993 to August, 22, 1999, representing the period before Customs' TOP was substantively revised, and from August 23, 1999 to March 9, 2003, the period after the revisions to the TOP occurred).[FN6] See Suppl. Siskin Report at 10-11, Tables 3A & 3B. Thus, no statistically significant difference in the length of suspension for Hispanics and whites existed during either period or overall. Id.
FN6. Dr. Landy opined in his report, and Dr. Siskin concurred, that revisions to the TOP in 1999, as well as other changes to the discipline system at Customs that occurred in 1999, require that the period prior to August 23, 1999, be treated distinctly from the period from August 23, 1999, to March 9, 2003. See Suppl. Landy Report at 37-41; Suppl, Siskin Report at 3. Accordingly, both Dr. Landy and Dr. Siskin analyzed the data from the two periods separately, as well as over the entire time period between January 1, 1993 to March 9, 2003, See Suppl. Landy Report at 37-41; Suppl. Siskin Report at 3.
D. Analysis of Penalties Falling Below or Above Recommended Penalty Range
To increase the sample size of his study, Dr. Siskin also examined whether the penalties imposed on white and Hispanic special agents were either below or above the recommended penalty guidelines of the relevant TOPs. This was done to determine whether the chance of receiving a suspension either above or below the recommended range of penalties was affected by Hispanic national origin. See Suppl. Siskin Report at 6. For the analysis of suspension lengths exceeding the recommended penalty guidelines, Dr. Siskin studied 90 white and Hispanic
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suspensions, involving 16 Hispanics and 74 whites.[FN7] See Suppl. Siskin Report at 7. Dr. Siskin found that two out of 16 Hispanic agents received a suspension above the recommended maximum penalty, while 7 of 74 white agents received above the recommended maximum penalty. Id. at 11. The difference between whites and Hispanics was not statistically significant, representing 0.441 units of standard deviation. Id. For the analysis of suspension lengths that fell below the recommended penalty guidelines, Dr. Siskin studied 80 suspensions, involving 17 Hispanics and 63 whites. See Suppl. Siskin Report at 7. Dr. Siskin found parity between whites and Hispanics, with 0.0 units of standard deviation. Id. at 11. All of these results are exactly what one would expect if national origin was irrelevant to the discipline process. Id., Tables 4, 4A, 4B, 5, 5A, & 5B (statistical results reported during the overall period and separately for the two distinct periods).
FN7. Dr. Siskin excluded all cases where multiple offenses were charged because there was no way to determine in those cases whether the penalty imposed was outside of the penalty range. See Suppl. Siskin Report at 6; Suppl. Landy Report at 43. In addition, Dr. Siskin excluded offenses that carried a possible minimum penalty of zero days suspended from his analysis of suspensions falling below the minimum recommended penalty range because there is no possibility of receiving a suspension of less than 1 day. Similarly, for his analysis of suspensions above the maximum recommended penalty range, Dr. Siskin excluded offenses that carried a maximum penalty of removal because an agent could not receive a penalty greater than a removal. See Suppl. Siskin Report at 6.
E. Regression Analysis Controlling for Recommended Penalty Range
Finally, Dr. Siskin performed regression analyses which allowed him to increase further the number of cases studied and, thus, the validity of the statistical analysis. The purpose of Dr. Siskin's regression analysis was to examine the effect, if any, of Hispanic status as a factor in the length of suspension. Id. at 12. To do so, he controlled for other factors that could affect the discipline decision.
In the first regression analysis, Dr. Siskin studied 138 suspensions, including 111 white and 27 Hispanic suspensions, excluding only cases involving multiple offenses and indefinite suspensions where an agent did not receive a specified number of days of suspension. See Supp. Siskin Report at 7. In this regression, he controlled for the penalty range recommended in the TOP for the particular offense charged and, in doing so, eliminated that factor as a cause for the penalty imposed. Id. at 12, Table 6.[FN8] By controlling for the minimum and maximum penalty and the number of prior offenses, Dr. Siskin found that, on average, Hispanic agents received 1.45 fewer days of suspension than would be expected if they were compared to white agents who committed offenses with the same range of recommended penalties and had the same number of prior offenses. See Suppl. Siskin Report at 12, Table 6. The difference favoring Hispanics was not, however, statistically significant. Id.
FN8. It is necessary to control for penalty ranges because, as Dr. Landy notes in his Supplemental Report, the TOP guidelines influenced the length of suspensions. See Suppl. Landy Report at 42-45. F. Regression Analysis Controlling for Recommended Penalty Range and Douglas Factors
In addition to the TOP, the Douglas Factors play a significant role in the discipline decision. As Dr. Landy noted, in fully 82% of the 234 discipline cases studied, the deciding officials specifically indicated that they applied the Douglas Factors for purposes of determining the appropriate penalty. See Suppl. Landy Report at 33. [FN9] For this reason, Dr. Siskin also controlled for the effect of the Douglas Factors in his next regression analysis. See Suppl. Siskin Report at 12.[FN10] Again, Dr. Siskin found that controlling for the Douglas Factors tended to favor Hispanic agents in terms of the length of suspensions, although not to a statistically significant degree. Id., Table 7. Dr. Siskin found that Hispanics were receiving, on average, shorter suspensions than expec-

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ted if they were compared to whites who committed offenses that carried the same recommended penalty range, had the same number of prior offenses and had the same mitigating and aggravating Douglas Factors. Id. at 13.
FN9. Application of the Douglas Factors and the TOP guidelines is an important aspect of any state of the art discipline system. Use of the Douglas Factors and TOP guidelines provide consistency in the imposition of discipline, create a perception of fairness among employees and put employees on fair notice of the consequences of misbehavior. See Suppl. Landy Report at 27-29, 34-36.
FN10. By controlling for Douglas Factors, Dr. Siskin could determine the effect of national origin on suspension length independent of the Douglas Factors applied to each individual, and could include in the study individuals who had different Douglas Factors.
In sum, statistical evidence shows that plaintiffs cannot satisfy their burden of demonstrating a statistically significant disparity adverse to Hispanics in the length of suspensions. Rather, the statistical evidence shows that Customs did not treat Hispanic Special Agents any more harshly than white Special Agents in the suspension lengths imposed. Therefore, defendant is entitled to summary judgement on plaintiffs' discipline claim.
CONCLUSION
For the reasons set forth above and as set forth in the Memorandum In Support of Defendants' Motion for Summary Judgment on Plaintiffs' Pattern or Practice Claims (Docket #97) and Defendants' Reply In Support of Motion for Summary Judgment (Docket # 106), defendant respectfully requests that the Court grant summary judgment to defendant on all of plaintiffs' claims. Respectfully submitted,
OF COUNSEL:
MARC WEINBERGER
U.S. CUSTOMS AND BORDER PROTECTION (CBP)
WILLIAM R. KRAUS
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE)
Date: May 5, 2006
PETER D. KEISLER
Assistant Attorney General
KENNETH L. WAINSTEIN
United States Attorney
STUART A. LICHT
Assistant Director

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Federal Programs Branch Civil Division __________ /s __________ KAREN K. RICHARDSON (Tex. Bar 785610) JAMES J. SCHWARTZ (D.C. Bar No. 468625) ADAM D. KIRSCHNER (Ill. Bar No. 6286601) Trial Attorneys U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Room 6126 Washington, DC 20530 Telephone: (202) 514-3374 Facsimile: (202) 616-8460 Attorneys for Defendant Miguel A. CONTRERAS, et al., Plaintiffs, v. Michael CHERTOFF, Secretary, Department of Homeland Security, Defendant. 2006 WL 1780818 (D.D.C. ) (Trial Motion, Memorandum and Affidavit ) END OF DOCUMENT

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 Case 1:02-cv-00923-JR Document 103 Filed 04/05/05 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al.

Plaintiffs,

Civil Action No. 02 CV00923 (JR)

vs.
THOMAS RIDGE, et al. SECRETARY, DEPARTMENT OF HOMELAND SECURITY
Defendant.

CLASS ACTION

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ PATTERN OR PRACTICE CLAIMS

Plaintiffs Miguel Contreras et al., by counsel, respectfully submit their Opposition to

Defendants’ Motion for Summary Judgment on Plaintiffs’ Pattern or Practice Claims.

Plaintiffs oppose Defendants’ summary judgment motion for the reasons set forth in

Plaintiffs Memorandum in Opposition to Defendants’ Motion.

As an initial matter, Defendants are unable to meet their burden of production by

showing the absence of any genuine issue of material fact with respect to the pattern and practice

discrimination claims. As admitted by the Defendant’s 30(b)(6) deposition witnesses and expert

witnesses, the databases Defendant relied upon to develop its “statistical analysis” are deficient.

Therefore, Defendants’ statistical conclusions lack foundation and cannot support summary

judgment. In addition, Defendants’ own internal reports and documents contain admissions of

discrimination which by themselves are sufficient to defeat Defendant’s motion. Even if the

deficiencies presented in Defendants’ statistical analyses are ignored, Plaintiffs have presented

sufficient proof through declarations and deposition testimony to show material disputed issues

of fact sufficient to defeat summary judgment.

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In addition, Plaintiffs have responded under Fed. R. Civ. P. 56(f) and are entitled to full discovery before responding to Defendants’ motion with their own cumulation of statistical and anecdotal evidence.
Furthermore, Plaintiffs assert that class-wide treatment of their pattern and practice retaliation claims is proper under Rule 23. Customs’ internal reports from 1995 and 2003 amply demonstrate through both statistical and anecdotal evidence that the retaliation is systematic and pervasive, not individual or isolated. Under such circumstances, class treatment of Plaintiffs’ retaliation claims is both warranted and necessary if Title VII is to fulfill its remedial purposes.
Plaintiffs apologize to the Court for the delay in responding to Defendants’ summary judgment motion, but the time was necessary to (1) for Plaintiffs’ experts to analyze Dr. Siskin’s report and deal with the severe deficiencies in the databases; (2) analyze the numerous complex legal and factual issues in Defendants’ Motion and (3) the intervening holidays.
The evidence conclusively demonstrates that there exists numerous disputed issues of material fact, sufficient to deny summary judgment or, in the alternative, the need for Plaintiffs to take additional discovery to prepare a full response on the merits under Fed. R. Civ. P. 56(f). For these reasons, Plaintiffs oppose Defendants’ Motion.
Respectfully submitted,

Date April 5, 2005
DC_DOCS:634931.1 [21592-00100]

/s/ David J. Shaffer (DC Bar #413484) Ronald A. Schmidt (DC Bar #465129) GARVEY SCHUBERT BARER 1000 Potomac Street, NW, Suite 500 Washington, DC 20007 Telephone: (202) 965-7880 Facsimile: (202) 965-1729

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04/5/05 1:05 PM

 
 Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL A. CONTRERAS, et al.,

:

:

Plaintiffs,

:

:

v.

: Civil Action No. 02-0923 (JR)

:

TOM RIDGE, Secretary, Department :

of Homeland Security,

:

:

Defendant.

:

MEMORANDUM ORDER

The eight named plaintiffs in this case seek to represent a class of between 400 and 500 Hispanic special agents who are or have been employed by the United States Customs Service (“Customs”) under the Department of Homeland Security (the “Department”). They bring “pattern or practice” claims of disparate treatment and disparate impact under Title VII, 42 U.S.C. § 2000e-16. Before the Court is defendant’s motion for summary judgment.1 The plaintiffs oppose the motion but also seek further discovery pursuant to Fed. R. Civ. P. 56(f) before preparing a “full response on the merits.”
Procedural History Miguel Contreras filed an administrative complaint before the Equal Employment Opportunity Commission on March 23,

1 On February 26, 2004, certain of plaintiffs’ claims were dismissed on a previous motion for summary judgment for failure to exhaust administrative remedies (Dkt. #70). The instant motion would dispose of all remaining claims.

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1995. An Administrative Law Judge recommended the matter for class processing on November 20, 1995. That recommendation was rejected by the Director of the Office of Equal Opportunity Programs on December 21, 1995, but accepted by the Commission on May 15, 1998. Customs’ request for reconsideration was denied on October 22, 1999. The parties then engaged in discovery, which included the exchange of thousands of pages of documents and several meetings between the parties’ expert witnesses to discuss the data they would use to perform that statistical analysis. Dkt. #38-1 at ¶ 7, 17-18; Dkt. #106-5 at ¶ 3; Dkt. #106 at 5-6; Dkt. #106-2 at ¶¶ 4-6 and accompanying exhibits. The administrative complaint was then sent to an Administrative Judge for a hearing that was scheduled to begin in June 2002. The hearing never took place, however, because, on May 10, 2002, the day on which plaintiffs were to serve and file their statistical analysis, Dkt. #38-1 at ¶ 7, plaintiffs moved for dismissal of their administrative complaint and filed suit here.
On August 30, 2004, Customs moved for summary judgment as to the claims that survived its first motion for summary judgment, see note 1, supra, namely, the claims of discrimination in promotions, transfers, work assignments, training, discipline, awards and bonuses, and retaliation. Plaintiffs did not respond to that motion for summary judgment for more than seven months. They finally did so only after they were ordered to show cause
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why the summary judgment motion should not be granted as conceded. Plaintiffs’ opposition and Rule 56(f) motion were filed on April 5, 2005.
Class period Although the first class action complaint was not filed until 1995, the plaintiffs assert, invoking theories of equitable estoppel and continuing violation, that the class period should extend back to January 1, 1974 or January 1, 1977. Dkt. #1 at ¶ 1 -- to the time when the defendants were “first put on notice of the nature of its employment practices impacting the putative class.” Dkt. #103-65 at 20. “To establish a continuing violation . . . [plaintiffs] would have to show ‘a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the (limitations) period.’” Valentino v. U.S. Postal Service, 674 F.2d 56, 65 (D.C. Cir. 1982) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (Supp.1979)). See Anderson v. Zubieta, 180 F.3d 329, 337 (1999). The statutory period began December 23, 1992, 90 days before plaintiff Contreras filed his EEOC complaint, 29 C.F.R. §§ 1614.105, 1614.106. Before we reach the issue of whether the class period extends backwards from December 23, 1992, we must determine whether plaintiffs have satisfied their burden of production as to acts or events occurring since then.
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Pattern or practice claims Classwide allegations of discrimination are commonly referred to as “pattern or practice” cases. A pattern or practice case “challenges a host of employment decisions over time; in effect, it challenges an employment system.” Segar v. Smith, 738 F.2d 1249, 1274 (D.C. Cir. 1984). The “proof sequences” of disparate treatment and disparate impact pattern or practice cases are different, but for a case proceeding on both theories, as this one does, “an important point of convergence exists,” id. at 1267:
Both pattern or practice disparate treatment claims and disparate impact claims are attacks on the systemic results of employment practices. The pattern or practice claim amounts to an allegation that an observed disparity is the systemic result of an employer's intentionally discriminatory practices. The disparate impact claim amounts to an allegation that an observed disparity is the systemic result of a specific employment practice that cannot be justified as necessary to the employer's business. Consequently the proof of each claim will involve a showing of disparity between the minority and majority groups in an employer's workforce.
Such a showing may theoretically be made by individual testimony alone, see McKenzie v. Sawyer, 684 F.2d 62, 71 (D.C. Cir. 1982); cf. McReynolds v. Sodexho Marriott Services, Inc., 349 F. Supp. 2d 1, 7-8 (D.D.C. 2004)(citing Palmer v. Schultz, 815 F.2d 84, 90 (D.C. Cir. 1987)), but I have found no decision in this Circuit, nor have plaintiffs cited any, ruling in plaintiff’s favor in a pattern or practice case in the absence of statistical proof of
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discrimination. See Coral Constr. Co. v. King County, 941 F.2d 910, 919 (9th Cir. 1991) (“While anecdotal evidence may suffice to prove individual claims of discrimination, rarely, if ever, can such evidence show a systemic pattern of discrimination.”)
These plaintiffs have adduced no statistical evidence of the disparities they claim. Indeed, they instructed their expert Dr. Mann not to perform any statistical analyses, Dkt. #103-34 at ¶ 11.
Defendant’s motion for summary judgment
The main point of the government’s motion is that these plaintiffs have not made, and cannot make, the requisite “showing of disparity” between Hispanic agents and white agents2 in Customs’ workforce. That point is somewhat obscured, to be sure, by the government’s submission pursuant to Local Civil Rule 7(h) of 192 propositions of fact as to which it asserts there are no genuine issues -- a submission that has given the plaintiffs the opportunity to file a response disputing almost every one of them, or stating that they are unable to respond without discovery.3
2 The terms “Hispanic” and “white” have become the lingua franca of this case, even though everyone knows that many Hispanic people identify themselves as Latino, and that Hispanic or Latino people may be of any race.
3 The government might reasonably respond that the shape of the motion was not its idea. At a status conference held on June 30, 2004, I said, “[T]he Defendant could narrow the issues
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Almost all of the government’s 192 assertedly undisputed facts, however, are material mostly to the defense the government would have to prove if the plaintiffs had established the requisite “showing of disparity between the minority and majority groups in [Customs’] workforce.” Those factual propositions, in other words, chiefly support the negative of the proposition that it is plaintiffs’ burden to prove. They relate primarily to the statistical report of the government’s expert, Dr. Bernard Siskin, Dkt. #97-10. Using data maintained by Customs and made available to plaintiffs, Dr. Siskin concluded that Hispanic agents are generally more likely than or as likely as white agents to be promoted and receive transfers; that Hispanic agents are more likely to receive awards than white agents; that Hispanic agents receive more training than expected given their overall representation at Customs; that Hispanic agents are indeed more likely than whites to be assigned undercover work, but that the chances of promotion increase for agents who work fewer than 10 percent of their hours undercover and that the negative impact on the chances of promotion for agents who work more than 10 percent of their hours undercover is not
significantly if the Defendant were to move for summary judgment on the basis that the statistical evidence doesn’t establish appropriate pattern and practice for the promotion claim. . . . [L]et’s see that motion, and then the Plaintiff will proceed under Rule 56(f) and we will find out what we really need to learn in discovery.” Dkt. #82 at 3.
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statistically significant; and that Hispanic agents are not demoted or removed more often than white agents, although they are suspended more often than whites.4
Dr. Siskin’s analysis does not deal with plaintiffs’ claims of discrimination in retaliation -- here the government’s motion does simply note that the plaintiffs have not produced statistical support for their claims -- but the government also argues that retaliation claims are not suitable for class treatment because of their individualized, fact-sensitive nature.
Plaintiffs’ Opposition Plaintiffs oppose the motion for summary judgment on four fronts. First, they assert that genuine issues of material fact are demonstrated by various internal and external studies of employment at Customs and by anecdotes recounted by the named plaintiffs. Second, they assert, primarily through the declaration of their expert Dr. Charles Mann, that Dr. Siskin’s analysis is incomplete and unreliable. Third, they proffer the non-statistical testimony of Jan Duffy as an expert in management and equal opportunity practices. Fourth, they assert under Rule
4 Customs argues that a prima facie case of discrimination must show, not only that Hispanics were suspended more often than whites, but also that Hispanics received harsher punishments than whites for the same or similar offenses. Plaintiffs have made no such showing.
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56(f) that they require more discovery in order to establish
disputed issues of material fact.
1. Reports and investigations
Plaintiffs rely heavily on several internal and
external reports and investigations into Customs employment
practices. They are
1) A 1991 “Review of Integrity and Management Issues of the U.S. Customs Service” convened by the Commissioner of Customs. Dkt. #103-19. The panel found “fundamental deficiencies in the management systems” and found that managers’ problem solving there depended in part on “various interpersonal networks (referred to . . . as ‘old boy’ networks).” Id. at 2. The panel also noted employee perceptions that discipline was not applied evenly across the board. Id. The panel’s findings were based on over 150 briefings and interviews with law enforcement officials, and on discussions with Customs managers, supervisors, and employees. Id.
2) A 1990 Government Accounting Office (GAO) study of the relationship between certain employee characteristics and performance evaluations and promotions. GAO found an indirect relationship between ethnicity and employee ratings.5 As for promotions, GAO found indirect relationships between ethnicity and promotions for non-supervisory employees, and a direct relationship between ethnicity and promotion for managerial and supervisory employees. Dkt. #103-20 at 3-7. Among general management (GM) employees, white
5 “A direct relationship exists when, after we control for the influence of other factors, the outcome variable (e.g., performance rating) depends on the category of the independent variable (e.g., field or headquarters). An indirect relationship exists when, after we control for the influences of other factors, two or more variables jointly influence the outcome (e.g., being promoted depends on whether one is a black male or female or a white male or female).” Dkt. #103-20 at 3 n.2.
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females had a 2.1 times greater chance than nonwhites of being rated outstanding instead of highly successful, and nonwhite males had 1.6 greater odds than whites of being rated satisfactory rather than highly successful. Id. at 5. For promotions, the report found that, for general schedule (GS) employees in headquarter locations, white employees had 1.4 times greater odds of being promoted than nonwhites, and that in field locations whites had .7 times lower odds of being promoted than nonwhites. Id. at 6. Among GM employees, whites were twice as likely as nonwhites to be promoted. Id. at 7.
3) Excerpts from a 1988 report on Customs Affirmative Employment Program for minorities and women. It notes an imbalance in the number of women and minorities above grade 12 and in supervisory positions. The report does not identify discrimination on the basis of race, ethnicity, or any other protected characteristic as one of the “Probable Barriers” to minority and female advancement. Dkt. #103-21 at 3.
4) A 1995 EEO Task Force Report issued by Customs’ own Office of Equal Opportunity and Office of Investigations. The report’s findings are based in large part on the results of surveys, employee interviews, and structured group interviews and on some statistical analysis of those survey and interview results. Dkt. #103-4 at 3. The report notes, among other things, that 23 percent of minorities compared to 14 percent of non-minorities reported being asked to take a hardship assignment; that all liaison positions in fiscal years 1992 to 1994 were filled by white males; that there is a “perception” among employees that “good old boy” networks exist and undermine EEO effectiveness; that employees feel hindered by lack of a career path handbook or written hiring, promotion, discipline and rotation policies; that field managers and agents expressed concern that Hispanic agents were over-utilized in wiretap and undercover assignments; that 37 percent of Hispanics reported that they had been subject to disciplinary investigation; and that in fiscal year 1994 disciplinary rates for minorities were higher than for whites. Dkt. #103-66 at 1-4.
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 10 of 22
5) An integrity oversight review published in 2001 and conducted by the Office of Inspector General (OIG) of the Department of Treasury “to assess the quality of their internal investigative operation”. The study was based upon OIG’s review of investigative files, management inquiry files, and discipline files. The study found that the majority of investigative files did not comply with reporting requirements, that inquiries into allegations of misconduct were not always efficiently addressed, that management inquiries were not sufficiently thorough, that Customs management did not always discipline employees in accordance with guidelines, and that the Discipline Adverse Action Tracking System (DAATS) database was incomplete and inaccurate. Dkt. #103-31.
6) A study of reprisals at Customs, conducted by an outside research team and published in July 2003. It found that Hispanics filed complaints in numbers disproportionate to their demographics within the agency. Dkt. #103-55, 56, 57.
The first three of these reports, published in 1991,
1990 and 1988, respectively, cover time periods earlier than the
statutory beginning of plaintiffs’ claim. The fourth report was
published in 1995 but covers data collected for earlier periods.
The dated nature of these reports does not make them irrelevant,
see Valentino v. U.S. Postal Service, 674 F.2d 56, 71 n. 26 (D.C.
Cir. 1982), but it does make them less important. The fifth
report was published within the statutory period of plaintiffs’
claim, but it relates to the quality of internal investigations,
and does not speak to discriminatory treatment of Hispanics in
either statistical or anecdotal terms. The sixth report, on
reprisals, found that Hispanics filed more complaints than their
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 11 of 22
white counterparts, but that finding, without more, is no proof of discrimination.
Individual assertions of discrimination are found in the declaration of Special Agent Anita Trujillo, Dkt. #103-32, the declaration of Special Agent Arturo A. Renteria, Dkt. #10341, the deposition of Miguel Contreras, Dkt. #103-46, the declaration of Agent John Yera, Dkt. #103-47, the deposition of Stephan Mercardo, Dkt. #103-41, the declaration of Special Agent E. William Velasco, Dkt. #103-50, the internal affairs report of investigation of Leonard Lindheim, Dkt. #103-51, and the deposition and trial testimony of Walter Biondi, Dkt. #103-53, 54.
Even if plaintiffs’ proffered reports were admissible evidence, plaintiffs could not meet the challenge of the government’s motion for summary judgment. The reports, together with the declarations and depositions filed by plaintiffs, are not sufficient to make a “showing of disparity” between the minority and majority groups in their employers’s workforce during the time period covered by this case.
2. Attack on Dr. Siskin’s report Plaintiffs broadly assert that Dr. Siskin’s statistical analysis should not be credited because it is based upon unreliable and incomplete data, and because Dr. Siskin did not
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 12 of 22
account for the findings of the studies upon which plaintiffs rely. Their specific complaints about the Siskin report are many, but the central ones are (a) that any findings based on VAACS should not be credited because of VAACS’ shortcomings, as admitted by a Customs Rule 30(b)(6) witness; (b) that Dr. Siskin does not account for certain characteristics that may have an effect on his findings (for example, the effects of “maturity and ambition” on performance); (c) that Dr. Siskin does not account for “time in grade” and therefore, compares employees who may not have been similarly situated; (d) that the race and national origin (RNO) data relied upon by Dr. Siskin is inaccurate; and (e) that plaintiffs do not have enough information as to Dr. Siskin’s method of analysis, or the data fields he used from the various Customs personnel databases, to replicate his findings.
The plaintiffs’ attack on Dr. Siskin’s report, and the government’s defense of it, consume the great majority of the many pages of briefs and attachments submitted by the parties on this motion. All of this emphasis misplaces the burden of production. Plaintiffs cite only Greenberg v. FDA, 803 F.2d 1213, 1215-16 (D.C. Cir. 1986), for the proposition that Customs must “demonstrate the absence of disputed material facts” before plaintiffs are called upon to demonstrate an issue of disputed material fact. Dkt. #103-65 at 36. That proposition is
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 13 of 22
erroneous. “[I]f the movant is defending the claim at issue, the initial summary judgment burden is satisfied if the movant establishes that the claimant lacks adequate proof of an essential element of the claim,” or, in other words, “[i]f the movant does not bear the ultimate burden of persuasion on a particular claim at trial, it may satisfy its initial burden by pointing out that the record lacks substantial evidence to support a necessary element of the nonmovant’s claim.” Moore’s Federal Practice 3d ¶ 56.13[1] at 56-135, 56-138 (emphasis added)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324-26 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Here, it is not necessary for the government to prove that Dr. Siskin’s statistical analyses are undisputed. Plaintiff’s attack upon them is thus beside the point.
3. Testimony of Jan Duffy The opinion of Jan Duffy, an expert in management and equal employment opportunity practices, is that the flaws in Customs management and personnel practices -- as chronicled in the internal and external reports that plaintiffs have proffered -- were system-wide; that Customs’ practices were “seriously deficient and out of keeping with the usual and reasonable management practices of similarly situated American employers.” Dkt. #103-22 at ¶ 7; and that a general lack of leadership at Customs permitted the development of an
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 14 of 22
organizational culture that enabled discrimination, retaliation, and other unlawful practices to “flourish,” failed to educate managers as to equitable practices, and failed to implement sound and accessible complaint systems. Ms. Duffy’s opinion adds nothing to the “showing of disparity” that plaintiffs must make if they are to overcome defendant’s motion for summary judgment.
4. Rule 56(f) “Adequate time for discovery" should precede summary judgment. See Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C. Cir. 1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If a party opposing summary judgment requires additional discovery and states its reasons in an affidavit, the court may “order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” Fed. R. Civ. P. 56(f). Rule 56(f) motions may also be granted when a party demonstrates facts indicating that genuine and disputed issues of material facts exist, but that “‘for some good reason he is unable to produce them on the motion.’" Exxon Corp. v. F.T.C., 663 F.2d 120, 126 (D.C. Cir. 1980) (quoting Donofrio v. Camp, 470 F.2d 428, 431 (D.C. Cir. 1972)). Plaintiffs argue, with justice, that their discovery has been circumscribed by orders of this Court and that a Rule
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 15 of 22
56(f) response to the government’s motion was invited.6 Plaintiffs want to depose Dr. Siskin so that they can “understand and replicate his statistical analyses.” They want “testimony from Customs representatives on the time-in grade and RNO [race and national origin] data and other database issues.” They seek paper and deposition discovery about the policies, procedures, and practices Customs employed during the class period with respect to promotions, transfers and assignments, awards and bonuses, undesirable assignments, discipline, and vetting. They seek “all documents relating to Defendants’ . . . equal opportunity issues and problems”; discovery on document retention and destruction; and discovery “into the issue of continuing violations, equitable estoppel and successorship.” Dkt. #103-60 at ¶¶ 1-6. Pressed on this expansive discovery agenda at a hearing of the instant motion on August 19, 2005, plaintiffs’ counsel conceded that the “big things” he needs in discovery relate to “the RNO question”; more detailed information about the meaning of codes used in the PERHIS database; and time in grade
6 At a hearing held on June 30, 2004, I limited discovery to the pertinent databases and did not approve depositions. “Not yet.” Dkt. #82 at 27. I told the plaintiffs to “take as much time as you want to respond to that motion for summary judgment, but I expect you are going to want to respond pretty quickly, at least under 56(f), because I anticipate that your response will be, ‘I can’t possibly respond to this unless I have X, Y and Z.’ But that’s when we’re going to take a targeted look at what your actual discovery request will be.” Id.
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 16 of 22
information, plus information on “how the promotion system works.” Dkt. #111 at 6-10.
The rhetoric of the government’s argument against further discovery -- that giving plaintiffs leave to “boil the oceans in a vague hope that new evidence will come to light” would only “prolong a vexatious suit,” Dkt. #106-1 at 2, citing Donofrio v. Camp, 470 F.2d 428, 431 (D.C. Cir. 1972) -- is overwrought. The substance of the argument, however, is for the most part correct.
Plaintiffs’ asserted difficulty with the PERHIS database, and with the VAACS, TECS and TRAEN databases, is that their expert has “not been provided with definitions of either the fields, or the definitions of the values that can appear in those fields,” Dkt. #103-34 at ¶ 3. Plaintiffs do not deny that Dr. Mann has worked previously with PERHIS data (and its various fields) in other cases, Dkt. #106-5 at ¶ 9, or dispute the government’s assertion that “there was no suggestion at the administrative phase that he did not know what these codes meant,” Dkt. #111 at 22. The databases used by Dr. Siskin were produced to plaintiffs during the administrative discovery period, Dkt. #38-1 at ¶ 18, and the experts met during the administrative stage to discuss the common data they would use in their analyses. Dkt. #106-4 at ¶ 3 (“We were both supplied with the data, layouts and data dictionaries for each file and then we
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 17 of 22
discussed and agreed upon the fields potentially relevant for study.”). Plaintiff questioned eleven Customs witnesses pursuant to Rule 30(b)(6) in 2003 and has received production of thousands of documents. Dkt. #106-2 at ¶¶ 4-6, Exs. A-B. I have considered whether responses to Dr. Mann’s questions about “definitions of . . . the fields, or the definitions of the values that can appear in those fields,” Dkt. #103-34 at ¶ 3, might satisfy the plaintiffs. Discussion of that point at the August 19 oral argument provides no basis for optimism. Plaintiffs’ counsel acknowledged that he had been provided a printout dictionary of the PERHIS database, describing each of the fields that are populated with data, but complained that the “codes are not self-explanatory.” Dkt. #111 at 6; see id. at 41. If further generalized discovery on this point were to be permitted, the government’s “boil the oceans” metaphor is perhaps not too far off the mark, for the kind of deposition discovery plaintiffs counsel has in mind to pursue his questions about the databases could go on “for months and months.” Dkt. #111 at 7. The parties may be assured that “months and months” of discovery will not be permitted. Nevertheless, because my previous orders have arguably constrained the discovery plaintiffs should have taken by now, and because Circuit precedent on Rule 56(f) so clearly frowns upon granting summary judgment without discovery, Information Handling Services v. Defense Automated Printing
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 18 of 22
Services, 338 F.3d 1024, 1031-1036 (D.C. Cir. 2003), plaintiffs will be permitted reasonable discovery in this limited area.
Plaintiffs’ request for discovery as to RNO data is actually a request to re-poll a number of Customs agents to determine whether they are “really” Hispanic. The request will be denied. It is undisputed that Customs has used RNO data obtained through a self-identification process,7 and plaintiffs have not refuted the assertion by the government at the August 19 hearing that the two sides’ experts agreed during the administrative stage to use an agent’s last reported RNO designation as the basis for their analyses, Dkt. #111 at 16. Plaintiffs have not offered a persuasive rationale for remeasuring the height of the goalpost. Plaintiffs’ concern with time-in-grade data appears to be principally one of law: that “[b]ecause Dr. Siskin failed to account for this minimum time-ingrade requirement, Palmer and Davis 8 mandate that his statistical analyses be disregarded.” Dkt. #103-66 at 39. As already indicated, however, Dr. Siskin’s statistical analyses are
7 Plaintiffs purport to “dispute” this statement, see Dkt. #103-1 at ¶ 7, but they do so without the affidavit support required by Rule 56. The statement that “approximately 80 individuals have different Hispanic racial identities during the period provided,” id., may be true, but it does not refute the proposition that the RNO data was the product of selfidentification.
8 Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987); Davis v. Chevy Chase Financial Ltd., 667 F.2d 160 (D.C. Cir. 1981).
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 19 of 22
disregarded for purposes of this motion, and they need not be considered until, and unless, plaintiffs have made the requisite “showing of disparity.” It is undisputed, in any event, that time-in-grade information is not available for employees who joined Customs before April 19, 1992, Dkt. #111 at 13, 40, and plaintiffs can offer nothing but speculation that the statistical picture might be more favorable to them if pre-1992 time-in-grade data were available, or that discovery into “document retention (and destruction) issues,” Dkt. #103-16 at ¶ 5, might lead to adverse inferences, or both. See Greenberg v. Food and Drug Admin., 803 F.2d 1213, 1224 (D.C. Cir. 1986), (“If the court determines that the discovery sought . . . would be wholly speculative, relief under Rule 56(f) must be denied.”); Exxon Corp. v. F.T.C., 663 F.2d at 128 (“It is not the intent of Rule 56 to preserve purely speculative issues of fact for trial.”).
The last of the “big things” plaintiffs seek in discovery is information on “how the promotion system works.” If the plaintiffs had made a showing of disparity, and if Customs had responded that the disparity could be explained by a facially neutral promotion system, discovery on how the system works would be appropriate. Neither of those things has happened.
Discipline The government itself has placed in the record statistical evidence favorable to plaintiffs on the subject of
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 20 of 22
discipline. Dr. Siskin finds that 42 Hispanic agents were suspended from 1993 to March 2003 compared to 156 White agents over the same period. Dkt. #97-10 at Table 39. Thirteen more Hispanic agents were suspended over this period than would be expected considering Hispanic representation at Customs -- a disparate number by 2.6 units of standard deviation. Id. at Table 40. When broken down by year and grade, the disparity in suspensions for the years 1993 through 1998 is not statistically significant, but for the years 1999 through March 2003 the disparity increases to 4.07 units of standard deviation. Id. at Tables 42A-B.
This evidence showing that Hispanics were suspended more frequently than whites, without evidence about the offenses for which suspensions were imposed, or the length of the suspensions, is not enough to satisfy plaintiffs’ burden of production. See Wilmington v. J.I. Case Co., 793 F.2d 909, 915 (8th Cir. 1986) (prima facie case of discrimination in discipline includes showing “the discipline imposed was harsher than that imposed on comparably situated whites”); Pension Ben. Guar. Corp. v. Federal Labor Relations Authority, 967 F.2d 658, 667 (D.C. Cir. 1992) (“The linchpin of the disparate treatment analysis is the similarly situated status of the employees being compared.”).
The plaintiffs have not emphasized their claim of disparate discipline in this case -- it has been my impression
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 21 of 22
that the crux of their complaint has been promotions -- and their submission under Rule 56(f) mentions the subject only in passing. Dkt. #103-60 at ¶ 3. Nevertheless, discovery on the reasons for and harshness of disciplinary sanctions imposed on Hispanic and white agents would be permitted, if plaintiffs wish to pursue the subject.
* * * * * * * For the reasons set forth above, plaintiffs will be permitted to take discovery on “definitions of . . . the fields, or the definitions of the values that can appear in those fields” in the PERHIS, VAACS, TECS and TRAEN databases, and, if they wish, on the reasons for and harshness of sanctions imposed on Hispanic and white agents. Counsel are to meet and confer upon a discovery program consistent with this opinion and submit an agreed upon order no later than October 5, 2005. If they cannot agree, a discovery conference will be held on October 6, 2005, at 3:00 p.m. Discovery is to be completed within 90 days of the date of this order. For administrative and docket control reasons, the government’s motion for summary judgment [#97] will be denied without prejudice. It may be refiled, if at all, in
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Case 1:02-cv-00923-JR Document 112 Filed 09/21/05 Page 22 of 22 abbreviated form, incorporating by reference any motions or other material already of record.
It is SO ORDERED. JAMES ROBERTSON
United States District Judge
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 United States District Court, District of Columbia. CONTRERAS, et al., v. RIDGE. No. 102CV00923. June 16, 2006.
Date: June 16, 2006
Memorandum in Oppostion to Defendant's Renewed Motion for Summary Judgment on Plaintiffs' Pattern and Practice Claims
Garvey Schubert Barer Attorneys for Plaintiffs, Benjamin J. Lambiotte, D.C. Bar No. 421288, Roger L. Hillman , Garvey Schubert Barer, 1000 Potomac Street, N.W., Fifth Floor, Washington, D.C. 20007, Telephone: (202) 965-7880, Facsimile: (202) 965-1729.
TABLE OF CONTENTS
INTRODUCTION ... 1
BACKGROUND ... 2
STANDARD FOR SUMMARY JUDGMENT ... 3
STANDARDS FOR PROVING CLASS DISCRIMINATION ... 5
ARGUMENT ... 8
A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISCRIMINATED AGAINST WITH RESPECT TO PROMOTIONS ... 8
A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISCRIMINATED AGAINST WITH RESPECT TO TRANSFERS & ASSIGNMENTS ... 10
A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISCRIMINATED AGAINST WITH RESPECT TO AWARDS & BONUSES ... 12
A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISCRIMINATED AGAINST WITH RESPECT TO TRAINING OPPORTUNITIES ... 12
A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISCRIMINATED AGAINST WITH RESPECT TO UNDERCOVER, WIRETAP & OTHER UNDESIR-

ABLE ASSIGNMENTS ... 13 Undercover ... 13 Wiretap: ... 14 A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISPROPORTIONATELY SUBJECT TO HARSHER DISCIPLINE THAN NON-HISPANIC AGENTS ... 15 Defendant's Analysis is Directed to Only One Step in the Discipline Process ... 15 Dr. Landy was Selective in the Data Which he Considered in His Analysis ... 16 CONCLUSION ... 16
TABLE OF AUTHORITIES
CASES Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ... 8 Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999) ... 8 Beatty v. WMATA, 860 F.2d 1117 (D.C. Cir. 1988) ... 5 Celotex Corp. v. Catrett, 477 US 317 1986 ... 5 Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 US 579 (1993) ... 9 Davis v. Chevy Chase Financial Ltd., 667 F.2d 160 (D.C. Cir. 1981) ... 5, 9 EEOC v. American National Bank, 652 F.2d 1176 (4th Cir. 1981) ... 7 Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) ... 7 Greenberg v. FDA, 803 F.2d 1213 (D.C. Cir. 1986) ... 4, 5, 8 Griggs v. Duke Power Co., 401 U.S. 424 (1971) ... 8 Int'l Bhd. Of Teamsters v. United States, 431 U.S. 324 (1977) ... 5, 6 Koger v. Reno, 98 F.3d 631 (D.C. Cir. 1996) ... 10 McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982) ... 7 Mozee v. Am, Comm. Marine Serv. Co., 940 F.2d 1036 (7th Cir. 1991) ... 10 Nat'l Ass‘n of Gov't Employees v. Campbell, 593 F.2d 1023 (D.C. Cir. 1978) ... 4

Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987) ... 7, 9
Petition of Bloomfield S. S. Co., 298 F.Supp. 1239 (D.C.N.Y. 1969) ... 4
Scales v. George Washington Univ., No. 89-0796-LFO, 1993 U.S. Dist. LEXIS 10692 (D.D.C. Jul. 27, 1993) ... 9
Segar v. Smith, 738 F.2d 1249, 1269 (DC Cir. 1984), cert. denied, 471 US 1115 (1985) ... 6
Taylor v. D,C. Water & Sewer Auth., 205 F.R.D. 43 (D.D.C. 2002) ... 6, 7
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) ... 6
STATUTES
42 U.S.C. § 2000e et seq ... 5, 6
42 U.S.C. § 2000e-2(k)(1)(A)(i) ... 8
42 U.S.C. § 2000e-2(k)(1)(A)(ii) ... 8
RULES
Fed. R. Civ. P. 56(c) ... 4, 8
TREATISES
10A C. Wright A. Miller & M. Kane, Federal Practice and Procedure (1998) ... 4, 5
INTRODUCTION
Plaintiffs Miguel Contreras et al., by counsel, respectfully submit their Opposition to Defendant's Renewed Mo- tion for Summary Judgment on Plaintiffs' Pattern or Practice Claims.
Plaintiffs oppose Defendant's Renewed Motion for Summary Judgment for the reasons set forth below and as set forth in Plaintiffs' previously filed Memorandum in Opposition to Defendant's Motion for Summary Judgment on the Pattern and Practice Claims (Docket # 103).
The evidence conclusively demonstrates that there exist numerous disputed issues of material fact, sufficient to deny summary judgment or, in the alternative, the need for Plaintiffs to take additional discovery to prepare a full response on the merits under Fed. R. Civ. 56(f). For these reasons, Plaintiffs oppose Defendant's Renewed Motion.
The Court's September 21, 2005, Memorandum Order permitted Plaintiffs to “take discovery on “definitions of... the fields, or the definitions of the values that can appear in those fields” in the PERHIS, VAACS, TECS and TRAEN databases, and, if they wish, on the reasons for the harshness of sanctions imposed on Hispanic and white agents.” Pursuant to that Order, Defendant provided Plaintiffs thousands of pages of documents pertaining to discipline. As this memorandum explains, those documents, along with Defendant's expert's analysis of those documents, do not demonstrate an absence of disputed material facts with respect to Plaintiffs' pattern or prac-

tice claims regarding discipline. Accordingly, Defendant's Renewed Motion for Summary Judgment must be denied.
Plaintiffs also respectfully request the Court to refer to Plaintiffs' previously filed Memorandum in Opposition to Defendant's Motion for Summary Judgment on the Pattern and Practice Claims. Based on its previous submis- sions and the arguments set forth below, Plaintiffs urge the Court to deny Defendant's Motion and permit Plaintiff to take discovery on matters pertaining to promotions, transfers and assignment, awards and bonuses, training opportunities, work assignments and further discovery on discipline.
BACKGROUND
In August 2004, the Defendant filed a motion for summary judgment seeking to dismiss Plaintiffs' complaint al- leging systemic discrimination against Hispanic Special Agents based on their national origin. The Court denied the government's motion and permitted Plaintiffs to take discovery on “definitions of... the fields, or the defini- tions of the values that can appear in those fields” in various databases as well as with respect to the reasons for and harshness of sanctions imposed on Hispanic and white agents.”
After the limited amount of discovery was conducted, Defendant retained the services of Dr. Frank Landy to code the discipline data and tasked Dr. Bernard Siskin with the analysis thereof. Based on its depositions of various Customs personnel, Plaintiffs reassert their argument that the databases relied upon by Dr. Siskin and Dr. Landy are incomplete and unreliable. Without reliable and valid databases, the statistical inferences drawn by Dr. Siskin and Dr. Landy lack foundation and cannot be valid or considered sufficiently reliable to support a grant of summary judgment. Thus, Customs cannot demonstrate the absence of any genuine issue of material fact and therefore its motion should be denied.
Second, even if the databases were valid and reliable, there are sufficient questions about Dr. Landy's coding and Dr. Siskin's methodology that prevent summary judgment. Dr. Siskin's statistical analyses do not account for the myriad number of internal Customs personnel reports that contain admissions of discrimination, such as Customs' 1995 EEO Task Force Report or Blue Ribbon Panel Report.[FN1] Indeed, it does not appear that Dr. Siskin was even provided these documents. See Def. Mot. Summ. J., Siskin Decl., Exhibit 10. Thus, Customs can- not demonstrate the absence of any genuine issue of material fact and therefore its motion should be denied.
FN1. See e.g. Blue Ribbon Panel, attached hereto as Exhibit 4; 1995 EEO Task Force Report,” Pl. Opp. Defs. Mot. Summ. J., Exhibit 2.
Even if Dr. Siskin's and Dr. Landy's analyses could be credited, Plaintiffs have presented sufficient evidence to create material disputes of fact. Finally, statistical and anecdotal evidence from Customs' own internal reports support Plaintiffs' claims.
To defeat Customs summary judgment motion, it is sufficient at this stage for Plaintiffs to show that Defendant has not demonstrated an absence of disputed material facts by proving Plaintiffs failed to establish an essential element of their case. The evidence amply shows that such disputed questions exist.
STANDARD FOR SUMMARY JUDGMENT
Summary judgment is a drastic remedy. Courts should grant it with caution so that no person will be deprived of his or her day in court to prove a disputed material factual issue. “As the Supreme Court has reminded us, the

nonmoving party is to be given the benefit of the doubt.” Greenberg v. FDA, 803 F.2d 1213, 1216 (D.C. Cir. 1986). “If the evidence presented on a dispositive issue is subject to conflicting interpretations, or reasonable persons might differ as to significance, summary judgment is improper.” Id.; see also, Nat'l Ass‘n of Gov't Em- ployees v. Campbell., 593 F.2d 1023, 1027 (D.C. Cir. 1978) (record must leave no room for controversy and must demonstrate that nonmoving party would not be entitled to prevail under any discernable circumstances). Thus, as Professor Wright has stated, “Summary judgment will only be granted in clear cases.” 10A C. Wright A. Miller & M. Kane, Federal Practice and Procedure § 2725 at 428-29 (1998).
Summary judgment should be approached even more cautiously in complex cases. The resolution of complex questions of law frequently requires fuller development of the facts which cannot be accomplished through sum- mary judgment. See 10A. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2725 at 415 (1998). The Court, in Petition of Bloomfield S. S. Co., 298 F.Supp. 1239, 1242 (D.C.N.Y. 1969) defined summary judg- ment with “everlurking issues of fact” as a “treacherous shortcut” that is “too fragile a foundation for so heavy a load” in complex cases. The Court continued, “Such a relief is always discretionary, and in cases posing com- plex issues of fact and unsettled questions of law, sound judicial administration dictates that the court withhold judgment until the whole factual structure stands upon a solid foundation of a plenary trial where the proof can be fully developed, questions answered, issues clearly focused and facts definitely found.” Id.
Summary judgment is appropriate where “there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A party seeking summary judgment al- ways bears the initial responsibility of informing the court of the basis for its motion, and identifying those por- tions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affi- davits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
As noted by Justice White, “the movant must discharge the burden the Rules place on him: It is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to support his case.” Id. at 328 (White J., concurring). Thus, “[i]t is only after the mov- ing party has demonstrated the absence of any issue of material fact that the burden shifts to the party opposing the motion to demonstrate that an issue of material fact exists.” Greenberg v. FDA, 803 F.2d 1213, 1215-16 (D.C. Cir. 1986) (emphasis in original); see also Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 172 (D.C. Cir. 1981). As the D.C. Circuit has explained, “the crucial question is always whether the pleadings and other submissions show that there is no genuine issue of fact as to any material fact and that the moving party is en- titled to judgment as a matter of law.” See Beatty v. WMATA, 860 F.2d 1117, 1121 (D.C. Cir. 1988).
Plaintiffs recognize that when the moving party does not bear the burden of proof at trial, it is required to prove that the nonmovant failed to establish an essential element to that party's case. To do so, the moving party must demonstrate that the nonmoving party's evidence itself is insufficient to establish an essential element of its claim. Once that is done, the nonmoving party must then dispute that contention by calling evidence to the atten- tion of the court. 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727 at 472 (1998).
STANDARDS FOR PROVING CLASS DISCRIMINATION
A plaintiff in a Title VII action can prove liability under two theories: disparate treatment or disparate impact. [FN2] Both pattern or practice disparate treatment claims and disparate impact claims are attacks on the systemic results of employment practices. Segar v. Smith, 738 F.2d 1249, 1267 (D.C. Cir. 1984).

FN2. Although Customs argues that Plaintiffs must choose between disparate impact or disparate treat- ment theories, such is not the law. See Segar at 1266, (“Either theory may, of course, be applied to a particular set of facts.” quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 366 n.15 (1977)).
In a disparate treatment claim, a plaintiff seeks to prove that an employer intentionally “treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Int'l Bhd. Of Teamsters v. United States, 431 U.S. 324, 324, 361-362 (1977). Proof of illicit motive is essential, but especially in cases al- leging classwide discrimination, illicit motive can be inferred from a sufficient showing of disparity between members of the plaintiff class and comparably qualified members of the majority group. Segar v. Smith, 738 F.2d 1249, 1265-66 (D.C. Cir. 1984).
Suits alleging pattern or practice claims are typically divided into two phases, a liability phase and a damages phase. In the first phase, the plaintiffs must establish through a common method of proof that the employer is li- able to the class for the pattern or practice of discrimination. This is usually done with a combination of statistic- al evidence regarding the defendant's treatment of the class as a whole and anecdotal testimony from individual class members regarding specific acts of discrimination. Taylor v. D.C. Water & Sewer Auth., 205 F.R.D. 43, 46 (D.D.C. 2002).
However, Plaintiffs in a Title VII pattern and practice case need not rely on statistical evidence alone. Because the ultimate issue in a disparate treatment case is whether the disparity resulted from unlawful discriminatory animus, plaintiffs may introduce any additional evidence which is probative of this issue.[FN3] See Palmer v. Shultz. 815 F.2d 84, 96 (D.C. Cir. 1987); see also, Segar at 1278 (“[t]o make out a prima facie case plaintiffs must meet the functional standard of Teamsters, Burdine and Furnco; they must present evidence sufficient to support an inference of discrimination. All evidence that a plaintiff presents can contribute to this inference, and should therefore be considered cumulative.”); EEOC v. American National Bank, 652 F.2d 1176, 1188 (4th Cir. 1981) (“prima facie case can be made out ...” by a cumulation of evidence, including statistics, patterns, prac- tices, general policies, or specific instances of discrimination.”).
FN3. The statistical evidence must meet the 5% level in Segar for it alone to establish a prima facie case under Title VII. Taken together, a two tailed test and a 5% probability of randomness require statistical evidence measuring 1.96 standard deviations. Palmer at 96. However, when plaintiffs in a Title VII pattern or practice case rely on evidence in addition to the evidence of the disparity itself, the issue for the trier of fact in determining whether the plaintiffs have established a prima facie case must be whether the totality of plaintiffs' evidence demonstrates, that, more likely than not, the disparity resul- ted from an unlawful discriminatory animus. Id. at 97.
In its Memorandum Order, the Court recognized that a showing of disparity may “theoretically be made by indi- vidual testimony alone”, Memorandum Order, at pg. 4, citing McKenzie v. Sawyer, 684 F.2d 62, 71 (D.C. Cir. 1982). While the Court further explains that it has not found and Plaintiffs did not cite any cases “ruling in plaintiff's favor in a pattern or practice case in the absence of statistical proof of discrimination”, Id. at pg. 5, that does not mean that the Court is precluded from doing so.
If the plaintiffs succeed in establishing liability in the first phase, the court may order class-wide injunctive and declaratory relief. If the plaintiffs seek monetary relief, they may proceed to second stage, “hearings,” where each plaintiff enjoys the presumption that any adverse employment action taken against him or her was due to the pattern or practice of discrimination. Taylor at 46.

In a disparate impact case, a three-step, burden shifting framework is employed. The plaintiff must first make out a prima facie case by showing policies or practices that are neutral on their face and in intent but that non- etheless discriminate in effect against a particular group. Anderson v. Zubieta, 180 F.3d 329, 338-39 (D.C. Cir. 1999). In the second step, the burden shifts to the employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” Id. citing 42 U.S.C. § 2000e-2(k)(1)(A)(i); see also Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). Finally, if the defendant demonstrates business necessity, plaintiffs must be given the opportunity to demonstrate that an alternative employment practice could meet the employer's legitimate needs without a similar discriminatory effect. Zubieta citing 42 U.S.C. § 2000e-2(k)(1)(A)(ii); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).
ARGUMENT
As demonstrated below, Customs is unable to meet its burden of production under Fed. R. Civ. P. 56(c) by showing the absence of any genuine issue of material fact with respect to Plaintiffs' pattern and practice discrimination claims by establishing that Plaintiffs failed to establish an essential element of its case. Without such a demonstration, the burden does not shift to Plaintiffs to demonstrate an issue of disputed material fact. See Greenberg v. FDA, 803 F.2d 1213, 1215-16 (D.C. Cir. 1986).
However, even if Customs were successful in showing the absence of any genuine issue of material fact in their motion, Plaintiffs have presented sufficient evidence herein to create material disputes of fact. Thus, in either case, Customs' motion should be denied in its entirety.
A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISCRIMINATED AGAINST WITH RESPECT TO PROMOTIONS
Defendant's Renewed Motion for Summary Judgment must be denied because it does not demonstrate an absence of disputed material facts with respect to Plaintiffs' pattern or practice claims regarding promotions.
Dr. Siskin's statistical analyses should be disregarded because in setting up his “pools analysis,” Dr. Siskin does not take into account the one year time-in-grade requirement. See Defs. Mot. Summ. J., Exhibit 10, Siskin Decl. at ¶¶ 2338. In fact, Dr. Siskin recognizes that his “[m]ultiple pools analysis is limited that it cannot consider the factor of timein-grade.” Id. at 38.
As explained in its initial Opposition to Defendant's Motion for Summary Judgment, vacancy announcements is- sued under the U.S. Customs Service Merit Promotion Plan explicitly require that “[a]pplicants must have served 52 weeks at the next lower grade in Federal service to meet the time-in-grade requirement.” See e.g. January 1999 Vacancy Announcement for Associate Special Agent-in-Charge, Pl. Opp. Defs. Mot. Summ. J., Exhibit 21. According to Dr. White, Customs' expert during the administrative process, “the minimum qualifica- tions for promotions into grades 13 through 15 include, but are not limited to, the requirement that the individual has at least one year of service in the next-lower pay grade.”[FN4] It is not required that the time spent in a pay grade occurs immediately before the promotion. It may occur years prior to the agent's eligibility for promotion. [FN5]
FN4. Dr. White learned of these requirements through conversations with various Customs officials, including Tonya Bennett, Customs' Director of Employees Service. Because of the unreliability of the pay grade information, the year in grade requirement was not factored into Dr. White's statistical analysis. See Paul F. White, Analysis of Promotions to Series 1811, Pay grades 13-15 and SES positions at the

U.S. Customs Service, May 8, 2001 at 2, 5-6, Pl. Opp. Defs. Mot. Summ. J., Exhibit 11. Dr. Siskin ig- nored this critical factor as well.
FN5. This may be a particularly significant factor due to the lack of a mobility policy in Customs, many agents have taken downgrades from GS-14 to GS-13. Some hold GS-13 positions, but meet the 1 year timein-grade requirement in GS-14 to compete for GS-15 positions.
Because Dr. Siskin failed to account for this minimum time-in-grade requirement, Palmer and Davis mandate that his statistical analyses be disregarded.[FN6] See also Koger v. Reno, 98 F.3d 631, 637 (D.C. Cir. 1996) (analyses that omit “major factors” may be inadmissible, as “[c]ourts have not, however, understood Bazemore to require acceptance of regressions from which clearly major variables have been omitted - such as educa- tion and prior work experience.”) (emphasis added).
FN6. In addition, it is excludable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993). See Scales v. George Washington Univ., No. 89-0796-LFO, 1993 U.S. Dist. LEXIS 10692 (D.D.C. Jul. 27, 1993) (expert statistical testimony excludable under Daubert).
The question of whether the time-in-grade variable is a major factor alone establishes a material question of fact sufficient to defeat Defendant's summary judgment motion. See Mozee v. Am. Comm. Marine Serv. Co., 940 F.2d 1036, 1048 (7th Cir. 1991) (vacating and remanding for resolution of a factual dispute involving whether a major factor accounted for a disparate impact).
Defendant erroneously argues that “controlling for time-in-grade would hurt plaintiffs' case”. Even if that state- ment were true, it is immaterial in the instant proceeding. The fact that Defendant initially relied upon an incom- plete set of data is sufficient to give rise to a genuine issue of material fact.
A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISCRIMINATED AGAINST WITH RESPECT TO TRANSFERS & ASSIGNMENTS
Customs' renewed motion for summary judgment must be denied because it does not demonstrate an absence of disputed material facts with respect to Plaintiffs' pattern or practice claims regarding transfers and assignments.
Despite the fact that the lack of a written rotation policy and inconsistent application of “policies by practice” was identified in Customs 1995 EEO Task Force Report as “problematic,” Customs did not implement its Cus- toms border rotation policy until 2000.[FN7] See Defs. Mot. Summ. J. at 34. Even after the policy was implemented, Customs was not able to fund transfers for all agents who had completed a minimum of three years of service at designated locations. It should be noted that before any agent can be transferred under the rotation policy, the agent must clear an overall background review or vetting. See Royer Decl. at ¶ 18. Customs claims that it offered all eligible 1811 special agents an “opportunity” to submit self-funded lateral reassignment re- quests from the Southwest border locations.
FN7. See 1995 EEO Task Force Report at 58, Pl. Opp. Defs. Mot. Summ. J., Exhibit 2. In addition, the Report found that 32% of Hispanics had been asked to take a hardship post assignment and “[e]mployees were unable to identify the criteria management applies to promotions, transfer or train- ing...” Id. at 24, 61.
Defendant attempts to rebut Plaintiffs arguments with evidence that transfers to offices on the Southwest border

helped agents receive promotions. Defendant alleges that “Plaintiffs ... have failed to present any statistical ana- lysis that would create genuine issues of material fact on their pattern or practice claim relating to transfers.” Reply in Support of Defs. Mot. Summ. J., pg. 18. Defendant erroneously suggest that Plaintiffs were required to present statistical evidence pertaining to its transfer claim. Because Plaintiffs are in an unfair situation by having to defend their complaint prior to formal discovery, they do not have access to a complete set of statistical data pertaining to the transfer of Special Agents. Plaintiffs do, however, have anecdotal evidence from various Spe- cial Agents, including Special Agent Trujillo and Special Agent Renteria who both applied for and were denied transfers on numerous occasions. See Pl. Opp. to Defs. Summ. J.
Yet again, Dr. Siskin's transfer analyses should be disregarded in their entirety given that he relied on the VAACS database, which is not considered reliable by Customs.
A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISCRIMINATED AGAINST WITH RESPECT TO AWARDS & BONUSES
Customs' renewed motion for summary judgment must be denied because it does not demonstrate an absence of disputed material facts with respect to Plaintiffs' pattern or practice claims regarding awards and bonuses. Bey- ond the problems previously referenced with respect to Customs' database, Dr. Siskin's analysis fails to control for several pertinent fields such as region and individual agent performance characteristics. Furthermore, Dr. Siskin's analysis fails to take into consideration various factors which would greatly affect the validity of its conclusions.
A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISCRIMINATED AGAINST WITH RESPECT TO TRAINING OPPORTUNITIES
Customs' renewed motion for summary judgment must be denied because it does not demonstrate an absence of disputed material facts with respect to Plaintiffs' pattern or practice training claims during the class period. Ac- cording to Customs' 30(b)(6) designee, the TRAEN database is only complete from 1999. Thus, Dr. Siskin's stat- istical analyses of TRAEN (Tables 32-33), which purports to cover the 1993 through March 2003 period, cannot satisfy the foundational standard to be admitted as expert testimony, let alone satisfy the higher standard neces- sary for summary judgment.
Defendant argues that even though the even though the entry of information was not mandatory until 1999, the database is still reliable because Customs personnel entered the training data into the database prior to 1999, al- though they were not required to do so. The fact that some Customs personnel voluntarily chose to enter that in- formation into the database does not mean the database is complete thereby rendering it reliable.
A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISCRIMINATED AGAINST WITH RESPECT TO UNDERCOVER, WIRETAP &
OTHER UNDESIRABLE ASSIGNMENTS
Customs' renewed motion for summary judgment must be denied because it does not demonstrate an absence of disputed material facts with respect to Plaintiffs' claims relating to undercover, wiretap and other undesirable work assignments.
Plaintiffs respectfully request the Court to refer to Customs' 1995 EEO Task Force Report referenced in Plaintiffs' Memorandum in Opposition to Defendant's Motion for Summary Judgment. In that report, Customs

found that 67% of Hispanics reported doing at least some undercover work in the past two years and that 13% of Hispanics, double the amount of any other group, reported spending more than 25% of their time doing under- cover work. See 1995 EEO Task Force Report at 26, attached as Exhibit 2 to Pl. Opp. Mot. Summ. J. The Report further documented that Office of Investigations (“OI“) field managers were concerned that “Hispanic agents were being put at a disadvantage by being heavily utilized in specialized assignments, including wiretaps and undercover assignments.” Customs field managers stated that “those types of assignments resulted in Hispanic agents being unable to work their own cases and gain a broader base of professional experience.” Id. at 67. While the Court indicates that the report “covers data collected for earlier periods”, it also acknowledges that “the dated nature of these reports does not make them irrelevant” (internal citations omitted). Accordingly, the admissions contained in that report alone, or in combination with other matters or record, are sufficient to defeat Customs' motion for summary judgment.
Undercover:
In an attempt to defend its motion for summary judgment, Defendant alleges that “agents who worked some undercover were promoted faster than agents who did no undercover work.” Reply in Support of Defs. Mot. Summ. J. at 28. To support its argument, Defendant relies on incomplete databases that do not accurately report undercover hours, and Dr. Siskin's faulty analysis. Defendant also unsuccessfully attempt to dismiss Plaintiffs' arguments about the “voluntary nature” of undercover work and affidavits of several agents who were adversely affected by Customs' “requirement” that they perform undercover work.
Plaintiffs provided more than sufficient evidence to establish their claim with respect to the disparate impact of undercover assignments through affidavits, testimony and/or depositions of Special Agent Contreras, Special Agent John Yera, Special Agent John Magaw and Special Agent Trujillo. See Pl. Opp. To Defs. Mot. Summ. J. and Exhibits thereto.
Wiretap:
Defendant fails to address Plaintiffs' claim with respect to the disadvantageous nature of wiretap assignments. Customs made findings in its 1995 EEO Task Force Report that Hispanic Agents were disadvantaged by wiretap assignments, because they were unable to work their own cases and gain a broader base of professional experi- ence. By itself, this alone is sufficient to defeat Custom's motion for summary judgment.
In their initial Motion for Summary Judgment, Defendant argued that summary judgment was appropriate because the partial data it had demonstrated that between 1993 through 1999, Hispanic agents logged hours to only 48 cases where field offices sought approval from headquarters. In 2000, Customs claims it implemented a policy whereby field offices were encouraged to hire contractors to monitor wires, transcribe them and, if neces- sary, to translate them into English. Customs used substantially more wiretaps in 2001. See Defs. Mot. Summ. J. at 53-54.
Customs' claim should be denied, not only because the database upon which it relies is incomplete, but also be- cause it fails to account for the agents assigned to wiretap duties with joint task forces in connection with the FBI, DEA or ATF or state or local law enforcement agencies.
A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER HISPANIC CUSTOMS AGENTS ARE DISPROPORTIONATELY SUBJECT TO HARSHER DISCIPLINE THAN NON-
HISPANIC AGENTS

In support of its initial Motion for Summary Judgment, Defendant submitted a Declaration and Report of Bern- ard R. Siskin, Ph.D. In that Report, Dr. Siskin concedes that, based upon his analysis, “Hispanic agents are more likely than white agents to be suspended for disciplinary reasons.” Decl. of Bernard R. Siskin, Exhibit 10 to Defs. Mot. Summ. J., at p. 4. In an effort to dispel the clear inference of Dr. Siskin's initial statistical analysis, Defendant now submits a Supplemental Report of Dr. Siskin and a Supplemental Report of Dr. Frank Landy. However, these submissions, and Defendant's Renewed Motion for Summary Judgment, do not address the un- derlying disparity supported by Dr. Siskin's initial analysis.
Defendant's Analysis Is Directed to Only One Step in the Discipline Process
By his own admission, the purpose of Dr. Landy's investigation was an analysis of suspensions. Landy Report at p. 15. Neither his nor Dr. Siskin's Supplemental Report address the undisputed fact that Hispanic agents were disproportionately more likely to be charged with offenses which could and did result in suspension than their nonHispanic counterparts. To analogize to the criminal process, the analyses provided by Defendant in support of its Renewed Motion for Summary Judgment address the sole issue of the application of “sentencing guidelines.”
These analyses do not address the issue raised by Plaintiffs and confirmed by Dr. Siskin, i.e., Hispanic agents are disproportionately charged with and found to have committed offenses resulting in suspension. In order to refute this conclusion, Defendant must come forward with evidence demonstrating the basis for this dispropor- tionality, in order to rebut the clear inference that it is based on race. Defendant has put forth no analysis sup- porting a conclusion that Hispanic agents are more likely than non-Hispanic agents are more likely to commit such offenses. The uniformity of punishment, does not, in and of itself, resolve the underlying genuine issue of material fact as to the basis for Hispanic agents being disproportionately charged with offenses resulting in sus- pension. Decl. of Richard Startz, attached hereto as Exhibit 1.
Dr. Landy Was Selective in the Data Which He Considered in His Analysis
Exhibit E to the Report of Dr. Landy purports to be a spreadsheet of those suspensions which he had analyzed. However, assuming this to be the case, Dr. Landy's analysis was based upon selective data and, therefore, fatally flawed.
Attached hereto as Exhibit 2 is an undated memorandum from James Cottos, Assistant Inspector General for Investigations, to Assistant Commissioner, Office of Internal Affairs. This reflects that, based upon the same in- cident, three agents, one Hispanic and two non-Hispanic, were suspended. Of these, only one, George Ninmoor, is included in Dr. Landy's analysis. Ramon Martinez, the Hispanic agent who was both suspended and demoted, is not included on Exhibit E. Wayne Wallace, a non-Hispanic agent who received a shorter period of suspension than Agent Martinez for the same incident, is also not included on Exhibit E. Both of these would tend to under- cut Dr. Landy's conclusion. Further, this belies Dr. Landy's statement that there are no instances sufficiently similar to permit a proper comparison of suspension lengths. Landy Report at pp. 41, 42. Whether by design or carelessness, this demonstrates a defect in Dr. Landy's analysis which goes to his ultimate conclusions. There- fore, his analysis should not be considered by this Court.
CONCLUSION
Customs is unable to meet its initial burden of demonstrating the absence of any genuine issue of material fact with respect to Plaintiffs' pattern and practice discrimination claims. However, even if Customs were successful

in showing the absence of any genuine issue of material fact in their motion, Plaintiffs have presented sufficient evidence herein to create material disputes of fact. Therefore, Plaintiffs respectfully request the Court to deny Defendants Renewed Motion for Summary Judgment in its entirety. Date: June 16, 2006 Respectfully submitted, GARVEY SCHUBERT BARER ATTORNEYS FOR PLAINTIFFS By: /s/ BENJAMIN J. LAMBIOTTE D.C. Bar No. 421288 ROGER L. HILLMAN Garvey Schubert Barer 1000 Potomac Street, N.W., Fifth Floor Washington, D.C. 20007 Telephone: (202) 965-7880 Facsimile: (202) 965-1729 CONTRERAS, et al., v. RIDGE. 2006 WL 6508441 (D.D.C. ) (Trial Motion, Memorandum and Affidavit ) END OF DOCUMENT

 
 305 F.Supp.2d 126 (2004)
Miguel A. CONTRERAS, et al., Plaintiffs, v.
Tom RIDGE, Secretary, Department of Homeland Security, Defendant.
No. CIV.A. 02-0923(JR).
United States District Court, District of Columbia.
February 26, 2004.
1278 *127 *128 David J. Shaffer, Shaffer, Rapaport & Schmidt, LLP, Ronald A. Schmidt, Garvey Schubert Barer, Washington, DC, for Plaintiffs.
Kaija Clark, Stuart A. Licht, Karen Kathleen Richardson, Shayna Susanne Cook, U.S. Department of Justice, Washington, DC, for Defendant.
MEMORANDUM ORDER
ROBERTSON, District Judge.
The eight named plaintiffs in this case are or were special agents of the United States Customs Service ("Customs Service"), a bureau of the defendant, the Department of Homeland Security.[1] They seek to represent a class of current and former Customs Service agents bringing allegations of pattern and practice discrimination on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The Department of Homeland Security moves for summary judgment.
Background
The named plaintiffs are (1) Miguel A. Contreras, a GS-13 Senior Special Agent in the Office of Investigations in Yuma Arizona; (2) Ruben E. Gonzalez, a GS-15 Associate Special Agent in Charge in the Office of Investigations in Houston, Texas; (3) E. William Velasco, a retired GS-15 Special Agent; (4) John Yera, a GS-14 Special Agent with the Cybersmuggling Center in Fairfax, Virginia; (5) Ricardo Sandavol, a GS-14 Special Agent and Resident Agent in Charge in the Office of Investigations in El Centro, California; (6) Stephan Mercado-Cruz, a GS-14 Special Agent and Group Supervisor in the Office of Investigations in El Centro, California; (7) Frank Almonte, a GS-13 Special Agent in the Office of the Special Agent in Charge at John F. Kennedy Airport; and (8) Ramon Martinez, a GS-13 Special Agent in the Baltimore-Washington Office of Investigations.
Only Miguel Contreras pursued a class action complaint at the administrative level. He first contacted an EEOC counselor about class claims on January 9, 1995, and subsequently filed a formal class action administrative charge raising claims "on behalf of himself and all similarly situated past, present and future Hispanic special agents at [the Customs Service]," Compl. of Class Discrimination, dated March 23, 1995 ["Class Administrative 129 Charge"], at 2, *129 and seeking to represent "254 employees of Hispanic national origin assigned to the position of GS-1811 Special Agent ..., Grades 12-15, in the [Customs Service's] Office of Internal Affairs and the Office of Investigation." Contreras v. Rubin, Appeal No. 01961671, 1998 WL 253533 (E.E.O.C. May 11, 1998) ["May 11, 1998 EEOC Decision"], at 1. Contreras alleged that the Department discriminated against Hispanic special agents on the basis of national origin when it:
0905 denied them promotions for which they had applied and "continued to seek applicants or filled the positions with persons from a different class," despite the fact that "members of the class [were] qualified to seek such promotions";

0905 carried out "policies and programs ... [that] limit[ed], segregate[d] and classif[ied]" Hispanic special agents in a manner that adversely affected their status as employees;
0905 applied merit promotion policies and programs that had an adverse impact on Hispanic special agents in "areas of recruitment of applicants, hiring, initial job assignments, transfers, promotions, retention and training," and disparately impacted them;
0905 gave Hispanic special agents who are fluent in Spanish "a disproportionately large share of unfavorable work assignments including Spanish-English translation, wiretap monitoring, temporary duty, undercover work, geographical transfers and assignment to dangerous and otherwise undesirable posts";
0905 "failed and refused to assign Hispanics to positions and locations which provide promotional opportunities";
0905 precluded Hispanic special agents "from obtaining the training and diverse work experience which constitute the basis upon which applicants for promotion are evaluated";
0905 "failed to accord proper recognition and weight to the expertise and experience that Hispanic agents have obtained[, causing] Hispanic agents [to be] underrepresented within [the Customs Service's] Offices of Investigation and Internal Affairs, particularly at the higher grades," and to have to "spend more time in grade before being promoted to the next higher grade than ... nonHispanic agents";
0905 paid Hispanic special agents "less than similarly situated non-Hispanic agents";
0905 did not compensate Hispanic special agents "for their use of a foreign language"; and
0905 subjected Hispanic agents "to discrimination with respect to the terms and condition of employment, including awards, training and imposition of discipline."
Class Administrative Charge, at 4-5.
The Department asked the EEOC to assign an administrative judge to handle Contreras's complaint on April 12, 1995. On November 20, 1995, the administrative judge issued an opinion finding that the complaint was not subject to dismissal under any of the provisions of 29 C.F.R. § 1614.107 and that it met the prerequisites of 29 C.F.R. § 1614.204(a)(2), which governs class complaints. On December 21, 1995, the Department issued a final agency decision rejecting the administrative judge's recommendation to process Contreras's administrative complaint on behalf of a class, determining that the class complaint was untimely and that it did not meet the prerequisites of a class complaint.
130 *130 On May 11, 1998, the EEOC vacated the agency decision and certified the class complaint. The EEOC found the class allegations to be timely, explaining:
The agency dismissed all allegations, with the exception of training, promotions and lateral transfers, as untimely on the grounds that appellant "did not timely raise any allegations of his own experiences with respect to hiring, job assignments, retention, or the use of language skills which occurred within forty-five (45) days of [the date he contacted an EEO counselor]." The agency reads our regulations with regard to the certification of a class complaint too narrowly. The record shows that appellant addressed agency practices with regard to awards, discipline, and language skills during EEO counseling and that appellant had individual EEO complaints concerning discipline and performance evaluations. The AJ ordered that appellant's individual complaints be held in abeyance pending a decision as to certification of the class complaint.... Also, we note that discriminatory practices that assign work duties based on language skills are ongoing actions. For these reasons, therefore, we find that allegations concerning promotions, training, assignments, awards, discipline, and work assignments based on language skills were timely raised.

Id., at *3. On October 22, 1999, the EEOC denied the Department of Homeland Security's request for reconsideration and ordered the Department to process the complaint as a class action. On June 22, 2000, the administrative judge issued an order defining the class as: "All Special Agents (Criminal Investigators), job series 1811, grades 12 through 15, of Hispanic national origin, employed in the Office of Investigations and the Office of Internal Affairs of the United States Customs Service."[2] The parties then proceeded with the case until Contreras withdrew his administrative complaint and filed the instant class action complaint on May 10, 2002.
In this Court, the plaintiffs seek class relief for eight allegations of national origin discrimination, including discrimination in connection with: (1) competitive positions and promotions; (2) transfers, assignments and other career-enhancing opportunities; (3) undercover and other undesirable work; (4) discipline; (5) awards and bonuses; (6) foreign language proficiency awards; (7) training; and (8) harassment and hostile work environment. Class relief is also sought for allegations of retaliation, allegedly arising from plaintiffs' reporting of discrimination.
Analysis
Defendant's motion rests on two theories, either one of which defendant asserts would be dispositive if successful: (1) failure to exhaust administrative remedies; and (2) failure to make out a prima facie case of discrimination.
1. Exhaustion of Administrative Remedies
a. Is the question to be decided de novo?
131 Plaintiffs offer the threshold contention that an administrative exhaustion inquiry *131 is unnecessary because the EEOC has already resolved this issue in their favor. For this argument, they rely upon the EEOC's May 11, 1998 order vacating the Department's decision that the class complaint was untimely and its explicit finding of timeliness. Plaintiffs argue that the EEOC decision is entitled to deference, and that, absent a showing that it was "one that Congress clearly would not have sanctioned," Pls.' Opp'n, at 15, the Department is not entitled to upset it here.
When a plaintiff takes a Title VII complaint to court before an administrative agency has made a merits determination, however, the government is not bound by the EEOC's adverse finding of timeliness, and the adverse finding is not entitled to deference. See, e.g., Wade v. Sec'y of the Army, 796 F.2d 1369, 1376-77 (11th Cir.1986) (holding that, when the agency has made no finding on the merits and failure to exhaust has been alleged, the district court must determine whether the employee has complied with regulation requirements without deference to the agency or complaint examiner's findings); Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1017 (1st Cir.1979); Boarman v. Sullivan, 769 F.Supp. 904, 908 (D.Md.1991). This rule is grounded in the statutory provision that permits a federal employee to bring a Title VII action to federal court, 42 U.S.C. § 2000e-16(c): a federal employee, "if aggrieved ... by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of [Title 42]." The "civil action" referred to in § 2000e-16(c) is a "de novo `civil action' equivalent to that enjoyed by private-sector employees." Chandler v. Roudebush, 425 U.S. 840, 863, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976); see also Timmons v. White, 314 F.3d 1229, 1233 (10th Cir.2003). As the D.C. Circuit has explained (in another context), "de novo" ordinarily means "a fresh, independent determination of `the matter' at stake; the court's inquiry is not limited to or constricted by the administrative record, nor is any deference due the agency's conclusion." Doe v. United States, 821 F.2d 694, 697-98 (D.C.Cir.1987) (addressing whether the term "de novo" permitted a plaintiff to bring a de novo action under the Privacy Act challenging a Department of State decision not to amend the plaintiff's records); see also Timmons, 314 F.3d at 1236 ("[I]t is undisputed that a federal agency is bound by a finding of discrimination in a civil action to enforce an EEOC decision[, but that does not support] the proposition that a federal agency is similarly bound when the employee elects to `seek relief from the district court in the same manner as a state or private-sector employee.'" (citation omitted)). Nonetheless, the EEOC's findings on the issue of timeliness are not "rendered irrelevant [by the fact that] federal employees [are] permitted to seek de novo review in district court because `

[p]rior administrative findings made with respect to an employment discrimination claim may, of course, be admitted as evidence at a federal-sector trial de novo.'" Timmons, 314 F.3d at 1234-35 (quoting Chandler, 425 U.S. at 863 n. 39, 96 S.Ct. 1949).
The Department is not bound in this Court by the EEOC's adverse determination on the timeliness issue, and I will review it de novo.
b. Were plaintiffs' claims exhausted?

At oral argument, on January 12, 2004, the Department conceded that one of Contreras's eight claims of discrimination 0907 the claim of discriminatory denial of promotions 0907 was administratively exhausted. As to the 132 other seven discrimination *132 claims and the claim of retaliation, however, the Department's position is either that the class representative failed to contact an EEOC counselor within 45 days of the alleged discrimination or that the claims were not raised in the class administrative complaint.

"Exhaustion of administrative remedies by at least one named plaintiff is a condition precedent to sustaining a class action under Title VII." Thomas v. Reno, 943 F.Supp. 41, 43 (D.D.C.1996) (citing Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395 (D.C.Cir.1988), aff'd, 159 F.3d 637 (D.C.Cir.1997) (unpublished table decision)). The exhaustion must be accomplished "in a timely fashion," Briones v. Runyon, 101 F.3d 287, 289 (2d Cir.1996), and, for a federal employee's administrative complaint to be timely, the employee "must initiate contact with a[n EEOC] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). "A federal complaint does not have to be a mirror image of the administrative complaint," Kent v. AVCO Corp., 815 F.Supp. 67, 69 (D.Conn.1992) (citations omitted), but the Title VII claims are "limited in scope to claims that are `like or reasonably related to the allegations of the charge and growing out of such allegations.'" Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995) (quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994)). "This requirement is satisfied if (1) there is a reasonable relationship between the allegations in the EEO charge and the civil complaint; and (2) the civil claim can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge." Mack v. Strauss, 134 F.Supp.2d 103, 109 (D.D.C.2001) (citation omitted), aff'd, case No. 01-5122, 2001 WL 1286263 (D.C.Cir. Sept. 28, 2001).

Contreras first contacted an EEOC counselor with a class claim on January 9, 1995, three days after he learned that he had not been selected for the vacant position of Supervisory Criminal Investigator. The EEOC counseling report states that

[t]he complaint was triggered when Special Agent Miguel Contreras was not selected for [the] Supervisory Criminal Investigator ... position that he applied for .... The complainant stated that a White male was selected for the position.... The complainant didn't know how he ranked on the selection register that was referred to the selecting official or even if a selection register was referred. However, the complainant did not feel that this information was relevant in this case. Because in the opinion of the complainant the system used to select individuals for promotion and transfer has been so corrupted that it discriminates against Hispanics and other minorities.

Compl. of Class Discrimination, Report of EEO Counseling, dated March 15, 1995 ["EEOC Counseling Report"], at 3. The report explains that "Hispanic special agents of the U.S. Customs Service believe that they are being discriminated against in the areas of[:] promotions, reassignments, details, job training and language skills," id., at 3, and that the discriminatory allocation of work assignments to Hispanic agents "den[ies] them opportunities for promotion." Id., at 5. As a specific "example of how the system has dealt with Hispanic agents to prevent them from being promoted to a higher level," the report explains that

[when t]he complainant was recommended for [a] position [in Mexico] and his name was

133

submitted to the Headquarters Office of Investigation ... [t]he *133 [Special-Agent-in-Charge in

Detroit] blocked the transfer, stating that the complainant had only been in the Detroit office for

thirteen (13) months and the office needed his ability to speak and interpret Spanish. The

complainant feels that this action has adversely impacted his career development [i]n that the

knowledge[,] skills and experience he would have gained [from] the position would have prepared him for promotion to the next level.
Id., at 4. There is little subtlety to these allegations, and the class counseling report clearly establishes that Contreras complained, on behalf of Hispanic agents with Spanish language capability, about discrimination in promotions, as well as transfers, training, assignments, and other opportunities related to promotions.
Contreras's formal class administrative charge, filed on March 23, 1995, echoes these allegations, stating that
[the Customs Service's] repeated failure to promote Mr. Contreras to a supervisory position is the result of its discriminatory practices by which Hispanic agents such as Mr. Contreras, who are fluent in Spanish, receive a disproportionately large share of unfavorable work assignments including Spanish-English translation, wiretap monitoring, temporary duty, undercover work, geographical transfers and assignment to dangerous and otherwise undesirable posts. In addition, [the Customs Service] has failed and refused to assign Hispanics to positions and locations which provide promotional opportunities.[3]
Class Administrative Charge, at 5. As a result of the Customs Service's alleged discriminatory policies and programs, the charge concludes that "Mr. Contreras and similarly situated Hispanic agents spend more time in grade before being promoted to the next higher grade than do non-Hispanic agents." Id. According to the charge, therefore, the "aforementioned specified [Customs Service's] practices constitute a pattern and practice of unlawful discrimination based on National Origin." Id.
Because Contreras contacted an EEOC counselor three days after he was denied a promotion opportunity, and because both the EEOC class counseling report and the class administrative charge repeatedly allege discriminatory denial of promotions to Hispanic agents, I find that the claim of discriminatory denial of promotions was timely exhausted. The class claims that are related to the denial of promotions claim 0907 concerning transfers, assignments, and other career-enhancing opportunities, undercover and other undesirable work, discipline, awards and bonuses, and training 0907 are like or reasonably related to the timely exhausted promotions claim because they concern work opportunities that would credential or position Hispanic agents for promotions. Any EEOC investigation of the denial of promotions claim would necessarily involve investigation into the building 134 blocks of promotion. Accordingly, because there is *134 a reasonable relationship between the class claim of denial of promotions and the class claims of transfers, assignments, and other career-enhancing opportunities, undercover and other undesirable work, discipline, awards and bonuses, and training, these claims are also appropriate for adjudication.
The claims of harassment/hostile work environment and foreign language proficiency awards, however, were not properly asserted to the EEOC counselor or in the administrative charge or were not timely asserted, and, because of failure to exhaust, are not properly before the Court.[4]
The EEOC counseling report and administrative charge do not even suggest that Contreras is raising a harassment or hostile work environment claim on behalf of the class. The words are not mentioned, nor does the content of either document give any indication of a "workplace ... permeated with discriminatory intimidation, ridicule, and insult ... sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks and citations omitted).
As for the foreign language proficiency awards claim, although both the class counseling report and administrative charge mention discrimination in compensation for use of language skills, there is no indication in the record that this claim was brought to the EEOC counselor's attention in a timely manner 0907 i.e. within 45 days of an alleged discriminatory compensation action. Nor is there any indication as to how this claim is like or reasonably related to the exhausted claim of discriminatory denial of promotions. Instead, this claim concerns the manner in which Spanish language proficiency is tested, or in which the foreign language proficiency compensation statute makes compensation awards. It is clear from both the counseling report and the administrative charge that this claim is in addition to, or separate from, the denial of promotions and other related claims. This claim is therefore precluded.

The Department's argument that the class retaliation claim should be dismissed on administrative exhaustion 135 grounds, see Def.'s Mem., at 39, is rejected. *135 "[I]t is generally accepted that the exhaustion of administrative
remedies doctrine does not apply to claims based on alleged retaliation." Baker v. Library of Congress, 260 F.Supp.2d 59, 66 n. 4 (D.D.C.2003). Claims of retaliation must, "[a]t a minimum ... arise from the administrative investigation that can reasonably be expected to follow the underlying charge of discrimination," Park, 71 F.3d at 907 (internal quotation marks and citation omitted), but whether or not the class retaliation claim is such a claim is a matter of fact that cannot be decided without a fuller record.
2. Prima Facie Case[5]

The Department of Homeland Security argues that, even if they were administratively exhausted, plaintiffs' claims of denial of promotions, transfers, assignments, undercover and other undesirable work, discipline, and training must be dismissed because Contreras, the only plaintiff to have exhausted them on behalf of the class, cannot establish a prima facie case as to each one under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), framework.

This argument misses the mark. The complaint at issue is brought on behalf of a class, and seeks classwide relief for pattern and practice discrimination. "Although there is little case authority discussing summary judgment motions in pattern-or-practice cases, ... [p]resumably ... such motions must be analyzed in light of the orders of proof peculiar to pattern-or-practice cases." Thiessen v. GE Capital Corp., 267 F.3d 1095, 1108-09 (10th Cir.2001). In contrast to a disparate treatment discrimination claim, as to which the courts apply "the familiar test of McDonnell Douglas," Russell v. Principi, 257 F.3d 815, 817-18 (D.C.Cir.2001), "[d]uring the first stage of a pattern-or-practice case, ... a summary judgment motion (whether filed by plaintiffs or defendants) must focus solely on whether there is sufficient evidence demonstrating that defendants had in place a pattern or practice of discrimination during the relevant limitations period." Thiessen, 267 F.3d at 1109; see also Taylor v. D.C. Water & Sewer Auth., 205 F.R.D. 43, 46 (D.D.C.2002) ("Suits alleging pattern or practice claims are typically divided into two phases, a liability phase and a damages phase. In the first phase, the plaintiffs must establish through a common method of proof that the employer is liable to the class for the pattern or practice of discrimination. This is usually done with a combination of statistical evidence regarding the defendant's treatment of the class as a whole and anecdotal testimony from individual class members regarding specific acts of discrimination."). As the Tenth Circuit explained:

Until the first stage is resolved, we question whether it is proper for a court to consider summary

judgment motions regarding second stage issues (i.e., whether individual plaintiffs are entitled to

136

relief). Even assuming, arguendo, such motions can properly be considered *136 prior to

resolution of the first stage, it is clear they would not be analyzed under the typical McDonnell-

Douglas framework.

Thiessen, 267 F.3d at 1109 (citing Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 357-61, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)).

The Department has not yet contested the plaintiffs' argument that it had in place a pattern or practice of discrimination with regard to Hispanic agents. However, it is clear that whether plaintiffs' class claims of discrimination can survive summary judgment does not depend on Contreras's ability to state a prima facie case.

Having considered the defendant's motion for summary judgment and the opposition thereto, it is this,

ORDERED that the motion for summary judgment [22] is granted in part and denied in part.

[1] At the time the action was filed, the Customs Service was a bureau within the United States Department of the Treasury. On March 9, 2003, most of the Customs Service's special agent workforce became part of the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security. See Def.'s Mem., at 3. The defendant will be referred to as "Department of Homeland Security" or "the Department."

[2] The administrative judge's definition of the class is narrower than the class on behalf of which this complaint has been asserted, see Compl., at 2 ("Plaintiffs, Hispanic Special Agents of the United States Customs Service ... bring this action, on their own behalf, and on behalf of a class of all other Hispanic Special Agents in the GS-1811 series who have been employed as GS-1811's at any time from, at least January 1, 1974 to the present, or in the alternative from January 1, 1977 to the present."). The implications of this will be resolved at another time.
[3] The charge also explains that
Because of the aforementioned practices, Mr. Contreras and similarly situated Hispanic special agents have been precluded from obtaining the training and diverse work experience which constitute the basis upon which applications for promotion are evaluated.
In addition, [the Customs Service] has failed to accord proper recognition and weight to the expertise and experience that Hispanic agents have obtained. For these reasons, Hispanic agents are underrepresented within [the Customs Service's] Offices of Investigation and Internal Affairs, particularly at the higher grades.
Class Administrative Charge, at 5.
[4] In their responsive memorandum, the plaintiffs argue that the tolling principles set forth in Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), are "fatal to all of Defendants' arguments with regard to exhaustion of administrative remedies, particularly those based on the failure to contact an EEO counselor within 45 days," and toll the claims of the class from 1988 to the present. Pls.' Opp'n, at 15-17. This tolling argument is premised on the notion that this class action can piggyback onto the administrative complaint and subsequent class action of Gonzalez v. Brady, 136 F.R.D. 329 (D.D.C.1991) (filed on May 20, 1988, on behalf of Hispanic series 1811 special agents and other Hispanic employees of the Customs Service and raising similar complaints to those raised here). However, these cases do not permit this type of piggybacking, and the statute of limitations period for this class action will not be tolled by Gonzalez. See Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir.1994) ("The courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class." (emphasis in original; internal quotation marks and citation omitted)); see also, e.g., Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987); Salazar-Calderon v. Presidio Valley Farmers Ass'n, 765 F.2d 1334, 1351 (5th Cir.1985); Fleck v. Cablevision VII, Inc., 807 F.Supp. 824, 826 (D.D.C.1992).
[5] The Department of Homeland Security argues that many of plaintiffs claims should be dismissed on the grounds that plaintiffs have failed to assert adverse employment actions and/or have failed to establish a prima facie case of discrimination. Because the adverse employment action requirement is subsumed in the prima facie case inquiry, the Court will address them concurrently. See, e.g., Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002) ("This court ... requires a plaintiff to state a prima facie claim of discrimination by establishing that: `(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.'" (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999))).
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 Contreras v. Chertoff, Not Reported in F.Supp.2d (2007)
2007 WL 861123 United States District Court,
District of Columbia.
Miguel A. CONTRERAS, et al., Plaintiffs, v.
Michael CHERTOFF, Secretary, Department of Homeland Security, Defendant.
Civil Action No. 02-0923(JR). | March 20, 2007.
Attorneys and Law Firms
Karen Kathleen Richardson, Adam D. Kirschner, James J. Schwartz, U.S. Department of Justice, Washington, DC, for Defendant.
Benjamin J. Lambiotte, Garvey Schubert Barer, Washington, DC, Roger L. Hillman, Garvey Schubert Barer, Seattle, WA, for Plaintiffs.
Juan Martinez, pro se.
Opinion
MEMORANDUM
JAMES ROBERTSON, United States District Judge.
*1 This class action discrimination case is before me on defendant’s renewed motion for summary judgment. Dkt. # 124. The named plaintiffs seek to represent a class of current and former Customs Service agents alleging discrimination on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. For the reasons set forth below, defendant’s motion will be granted.
Procedural History Miguel Contreras filed an administrative complaint before the Equal Employment Opportunity Commission on March 23, 1995. An Administrative Law Judge recommended the matter for class processing on November 20, 1995. That recommendation was rejected by the Director of the Office of Equal Opportunity Programs on December 21, 1995, but accepted by the Commission on May 15, 1998. Customs’ request for reconsideration was denied on October 22, 1999. The parties then engaged in discovery, which included the exchange of thousands of pages of documents and several meetings between the parties’ expert witnesses to discuss the data they would use to perform that statistical analysis. Dkt. # 38-1 at ¶ 7, 17-18; Dkt. # 106-5 at ¶ 3; Dkt. # 106 at 5-6; Dkt. # 106-2 at ¶ ¶ 4-6 and accompanying exhibits. The administrative complaint was then sent to an Administrative Judge for a hearing that was scheduled to begin in June 2002. The hearing never took place, however, because, on May 10, 2002, the day on which plaintiffs were to serve and file their statistical analysis, Dkt. # 38-1 at ¶ 7, plaintiffs moved for dismissal of their administrative complaint and filed suit here.
Finding that plaintiffs had failed to exhaust claims of hostile work environment and foreign language proficiency awards, I granted summary judgment for defendants as to those two claims on February 26, 2004. On August 30, 2004, Customs moved for summary judgment as to the claims that survived its first motion for summary judgment, namely, the claims of discrimination in promotions, transfers, work assignments, training, discipline, awards and bonuses, and retaliation. Plaintiffs did not respond to that motion for summary judgment for more than seven months. They finally did so only after they were ordered to show cause why the summary judgment motion should not be granted as conceded. Plaintiffs’ opposition and Rule 56(f) motion were filed on April 5, 2005.
1

Contreras v. Chertoff, Not Reported in F.Supp.2d (2007)
On September 21, 2005, I denied defendant’s motion for summary judgment without prejudice and partially granted plaintiffs’ Rule 56(f) motion for further discovery. Defendant filed a renewed motion for summary judgement on May 5, 2006. Plaintiffs’ opposition and defendant’s reply memoranda were duly filed thereafter, and the matter is ripe for decision.
Defendant’s Renewed Motion for Summary Judgment The order granting plaintiffs’ Rule 56(f) request allowed discovery on (1) the definitions of the fields-or the values that can appear in the fields-in the PERHIS, VAACS, TECS and TRAEN databases, and (2) the reasons for and harshness of sanctions imposed on Hispanic and white agents. At that point, I considered plaintiffs’ evidence insufficient to withstand defendant’s motion for summary judgment, and was not optimistic that further discovery would alter the calculus. I have received no word of any discovery disputes, and, as far as I understand it from the parties’ briefs, the additional discovery permitted by my order has been concluded. Dkt. # 124 at 1, Dkt. # 128 at 2. It is appropriate, then, to consider what-if any-new information relevant to the merits of plaintiffs’ claims has emerged through this additional discovery.
*2 Defendant asserts that the plaintiffs have been provided all the additional discovery that the September 21 order allowed, including not only definitions and values from PERHIS, TRAEN, VAACS and TECS, but also more than 182,000 pages of discipline files. Dkt. # 124 at 1, 5 n. 1. Defendant has now submitted an extensive expert analysis of the discipline files to address the question of whether or not Hispanic customs agents received harsher disciplinary treatment than similarly situated white customs agents, concluding (1) that because no disciplined Hispanic and white customs agents were similarly situated, a proper statistical comparison is impossible, id. at 6-10, and (2) that, even using alternative statistical analysis, there was no evidence indicating discrimination against Hispanic agents in the disciplinary context, id. at 12-18.
Plaintiffs have apparently discovered nothing among these thousands of documents worth presenting to the court to substantiate their claims of discrimination. Instead, their opposition to the renewed motion for summary judgment only complains again that defendant’s analysis is inadequate. As I tried to make clear in my September 21 memorandum order, however, it is the plaintiffs, and not the government, who have the burden of proving discrimination.
That is why plaintiffs’ challenges-to the reliability of the databases relied upon by defendant’s expert, and, to the expert’s methodology in analyzing the data-do not identify genuine issues of material facts. Critiques of defendant’s statistical analysis do not help plaintiffs carry their burden to produce evidence demonstrating that the discipline imposed on Hispanic agents was harsher than that imposed on comparably situated white agents. Dkt. # 112 at 20, see also Wilmington v. J.I. Case Co., 793 F.2d 909, 915 (8th Cir.1986). In short, plaintiffs’ current memorandum in opposition to summary judgment fails to advance the ball.
In my memorandum order of September 21, 2005, I supposed that a prima facie showing of discrimination could theoretically be made by individual testimony alone, but I noted that I had neither found nor been directed to any cases finding in plaintiff’s favor without statistical evidence of disparity. Dkt. # 112 at 4. Plaintiffs had not then, and still have not, presented statistical evidence supporting their claims of discrimination. Instead, they offer studies of Customs employment practices, anecdotal evidence from the named plaintiffs, an expert disputing Dr. Siskin’s analysis, and the testimony of an expert in management and equal opportunity practices. The reports, anecdotes, and expert testimony are still insufficient to make a showing of disparity for the reasons discussed at Dkt. # 112, 7-11, 13-14, and the objections to Dr. Siskin’s analysis are still of no moment. I now find that, for the reasons discussed in my memorandum order of September 21, 2005, plaintiffs’ responses to defendant’s motions for summary judgment are insufficient to defeat defendant’s renewed motion. Dkt. # 112 at 7-21; see Anderson v. Libby Lobby, 477 U.S. 242, 253 (1986) (“[t]he question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by governing law or that he did not.”).
*3 Plaintiffs’ request for further Rule 56(f) discovery is denied. I rejected all but two areas of Rule 56(f) discovery the last time around, and this time plaintiffs have failed to identify with specificity the areas of additional discovery they seek.
An appropriate order accompanies this memorandum.
Parallel Citations
89 Empl. Prac. Dec. P 42,747
2

Contreras v. Chertoff, Not Reported in F.Supp.2d (2007) 3

 
 District of Columbia live database

4/1/08 12:03 AM

CLOSED, TYPE-H
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:02-cv-00923-JR

CONTRERAS et al v. RIDGE Assigned to: Judge James Robertson Demand: $9,999,000 Cause: 42:1981 Civil Rights
Plaintiff MIGUEL A. CONTRERAS

Date Filed: 05/10/2002 Date Terminated: 03/30/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant
represented by David J. Shaffer WASHINGTON METROPOLITAN TRANSIT AUTHORITY 600 Sixth Street, NW Washington, DC 20001 (202) 962-2820 Fax: (202) 962-2569 Email: dshaffer@wmata.com TERMINATED: 10/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff RICARDO SANDOVAL
Plaintiff STEPHEN MERCADO-CRUZ
Plaintiff FRANK ALMONTE
Plaintiff RAMON MARTINEZ Individually and on behalf of all other similarly-situated persons

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V.
Defendant
PAUL H. O'NEILL TERMINATED: 03/14/2003

represented by Andrew H. Tannenbaum U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 20 Massachusetts Ave., NW Washington, DC 20044 (202) 514-4263 Fax: (202) 616-8202 Email: andrew.tannenbaum@usdoj.gov TERMINATED: 10/15/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Defendant THOMAS RIDGE TERMINATED: 05/05/2006
Defendant MICHAEL CHERTOFF

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Date Filed 05/10/2002 05/10/2002 05/10/2002 05/17/2002
05/30/2002 05/31/2002 06/10/2002 06/17/2002
06/24/2002

# Docket Text
1 COMPLAINT class action against PAUL H. O'NEILL ( Filing fee $150 ). Filed by MIGUEL A. CONTRERAS, RUBEN E. GONZALEZ, RAMON MARTINEZ, STEPHEN MERCADO-CRUZ, RICARDO SANDOVAL, E. WILLIAM VELASCO, JOHN YERA. (bcs, ) (Entered: 09/13/2002)
SUMMONS Issued (3) as to PAUL H. O'NEILL , U.S. Attorney and U.S. Attorney General (bcs, ) (Entered: 09/13/2002)
2 NOTICE OF RELATED CASE by FRANK ALMONTE, MIGUEL A. CONTRERAS, RUBEN E. GONZALEZ, RAMON MARTINEZ, STEPHEN MERCADO-CRUZ, RICARDO SANDOVAL, E. WILLIAM VELASCO, JOHN YERA. Case related to Case No. 90-2841. (bcs, ) (Entered: 09/13/2002)
3 Joint MOTION to Consolidate Cases 90cv2841, 00cv953, and 02cv923 by FRANK ALMONTE, MIGUEL A. CONTRERAS, RUBEN E. GONZALEZ, RAMON MARTINEZ, STEPHEN MERCADO-CRUZ, RICARDO SANDOVAL, E. WILLIAM VELASCO, JOHN YERA. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 5# 7 Exhibit 6)(bcs, ) Modified on 9/16/2002 (bcs, ). (Entered: 09/13/2002)
4 Consent MOTION for Extension of Time to File Response/Reply re 3 to plaintiffs motion to consolidate by PAUL H. O'NEILL. (bcs, ) (Entered: 09/13/2002)
5 ORDER granting Motion for Extension of Time to 6/10/02 to file opposition to the motion to consolidate 4 . Signed by Judge Royce C. Lamberth on 5/31/02. (bcs, ) (Entered: 09/13/2002)
6 Memorandum in opposition to motion re 3 to plaintiffs joint motion to consolidate filed by PAUL H. O'NEILL. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(bcs, ) (Entered: 09/13/2002)
7 Consent MOTION for Extension of Time to File Response/Reply re 3 a reply to defendants opposition to plaintiffs joint motion to consolidate by FRANK ALMONTE, MIGUEL A. CONTRERAS, RUBEN E. GONZALEZ, RAMON MARTINEZ, STEPHEN MERCADO-CRUZ, RICARDO SANDOVAL, E. WILLIAM VELASCO, JOHN YERA. (bcs, ) (Entered: 09/16/2002)
8 ORDER granting Motion for Extension of Time to file a reply to defendants

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opposition to plaintiffs joint motion to consolidate. Plaintiffs shall file their reply by 6/28/02 re 7 . Signed by Judge Royce C. Lamberth on 6/24/02. (bcs, ) (Entered: 09/16/2002)
9 REPLY to opposition to motion re 3 to plaintiffs joint motion to consolidate filed by FRANK ALMONTE, MIGUEL A. CONTRERAS, RUBEN E. GONZALEZ, RAMON MARTINEZ, STEPHEN MERCADO-CRUZ, RICARDO SANDOVAL, E. WILLIAM VELASCO, JOHN YERA. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(bcs, ) (Entered: 09/16/2002)
10 NOTICE of subsititution of counsel by PAUL H. O'NEILL (bcs, ) (Entered: 09/16/2002)
11 Unopposed MOTION for Extension of Time to File Answer re 1 to the complaint by PAUL H. O'NEILL. (bcs, ) (Entered: 09/16/2002)
12 MOTION for Extension of Time to File motion for class certification by FRANK ALMONTE, MIGUEL A. CONTRERAS, RUBEN E. GONZALEZ, RAMON MARTINEZ, STEPHEN MERCADO-CRUZ, RICARDO SANDOVAL, E. WILLIAM VELASCO, JOHN YERA. (bcs, ) (Entered: 09/16/2002)
13 ORDER granting Motion for Extension of Time to Answer complaint by 9/30/02 re 11 . Signed by Judge Royce C. Lamberth on 8/8/02. (bcs, ) (Entered: 09/16/2002)
Case Reassigned to Judge James Robertson. Judge Royce C. Lamberth no longer assigned to the case. (bcs, ) (Entered: 09/16/2002)
14 ANSWER to Complaint by PAUL H. O'NEILL. (bcs, ) (Entered: 10/01/2002)
Calendar Entry, Set/Reset Hearings: Meet and Confer Hearing set for 10/22/2002 05:00 PM in Judge James Robertson's chambers. (dam, ) (Entered: 10/03/2002)
15 ORDER establishing procedures for electronic filing. Signed by Judge James Robertson on October 4, 2002. (MT) (Entered: 10/04/2002)
16 ATTORNEY APPEARANCE. (Tannenbaum, Andrew) (Entered: 10/11/2002)
17 Joint MOTION to Continue LCvR 16.4 Conference by FRANK ALMONTE, MIGUEL A. CONTRERAS, RUBEN E. GONZALEZ, RAMON MARTINEZ, STEPHEN MERCADO-CRUZ, PAUL H. O'NEILL, RICARDO SANDOVAL, E. WILLIAM VELASCO, JOHN YERA. (Chambers, Felicia) (Entered: 10/18/2002)
MINUTE ENTRY: Court grants joint motion to continue Rule 16.4 conference 17 . The conference has been reset to 1:30 p.m. on November 22, 2002 in J. Roberson's chambers, room 6315. Signed by Judge James Robertson on October 18, 2002. (MT) (Entered: 10/18/2002)

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18 MEET AND CONFER STATEMENT. (Chambers, Felicia) (Entered: 11/14/2002)
19 NOTICE of Change of Address by Felicia L. Chambers (Chambers, Felicia) (Entered: 12/16/2002)
20 NOTICE by PAUL H. O'NEILL Notice of Substitution of Counsel (Chambers, Felicia) (Entered: 12/19/2002)
21 MOTION for Leave to File Excess Pages by PAUL H. O'NEILL. (Tannenbaum, Andrew) (Entered: 03/14/2003)
MINUTE ENTRY: Court grant defendant's motion for leave to file excess pages 21 . Signed by Judge James Robertson on March 19, 2003. (MT) (Entered: 03/18/2003)
22 MOTION for Summary Judgment by PAUL H. O'NEILL. (Attachments: # 1 Defendant's Memorandum of Points And Authorities In Support of Defendant's Motion For Summary Judgment# 2 Defendant's Statement of Material Facts As To Which There Is No Genuine Issue# 3 Praecipe Re Notice of Exhibit Attachment# 4 Declaration of Linda Lynn Batts and Attached Exhibits# 5 Declaration of Mariam Harvey# 6 Declaration of Paul Michael Kilcoyne and Attached Exhibits# 7 Supplemental Declaration of Mariam Harvey and Attached Exhibit# 8 Declaration of Lee Heffelfinger and Attached Exhibits# 9 Declaration of Richard J. Hoglund and Attached Exhibits# 10 Declaration of John J. Seraphin# 11 Declaration of Jacqueline Small and Attached Exhibits# 12 Declaration of Mari Yonkers# 13 Declaration of Susan B. Zaner)(Tannenbaum, Andrew) (Entered: 03/20/2003)
23 Emergency MOTION to Compel and Preserve Documents by MIGUEL A. CONTRERAS. (Attachments: # 1 Memorandum of Law# 2 Text of Proposed Order # 3 Exhibit Exhibit 1# 4 # 5 Exhibit Exhibit 3# 6 Exhibit Exhibit 4# 7 Exhibit Exhibit 5# 8 Exhibit Exhibit 6# 9 Exhibit Exhibit 7# 10 Exhibit Exhibit 8# 11 Exhibit Exhibit 9# 12 Exhibit Exhibit 10# 13 Exhibit Exhibit 11# 14 Exhibit Exhibit 12# 15 Exhibit Exhibit 13# 16 Exhibit Exhibit 14# 17 Exhibit Exhibit 15# 18 Exhibit Exhibit 16# 19 Index of Exibits)(Schmidt, Ronald) (Entered: 06/16/2003)
24 Emergency MOTION to Expedite or Shorten Time by MIGUEL A. CONTRERAS. (Attachments: # 1 Text of Proposed Order)(Schmidt, Ronald) (Entered: 06/16/2003)
25 NOTICE by MIGUEL A. CONTRERAS Praecipe (Schmidt, Ronald) (Entered: 06/16/2003)
26 Memorandum in opposition to motion re 24 for an Order Shortening Time filed by MIGUEL A. CONTRERAS. (Clark, Kaija) (Entered: 06/17/2003)
27 REPLY to opposition to motion re 24 Shortening Time filed by MIGUEL A. CONTRERAS. (Schmidt, Ronald) (Entered: 06/17/2003)

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MINUTE ORDER denying 24 Motion to Expedite. Signed by Judge James Robertson on 6/19/03. (Robertson, James) (Entered: 06/19/2003)
28 MOTION for Extension of Time to File Opposition to Defendants' Motion for Summary Judgment by MIGUEL A. CONTRERAS. (Attachments: # 1 Text of Proposed Order)(Schmidt, Ronald) (Entered: 06/19/2003)
29 ENTERED IN ERROR.....Memorandum in opposition to motion re 28 for extension of time filed by MIGUEL A. CONTRERAS. (Clark, Kaija) Modified on 6/25/2003 (rje, ). (Entered: 06/19/2003)
30 REPLY to opposition to motion re 28 Extension of Time filed by MIGUEL A. CONTRERAS. (Schmidt, Ronald) (Entered: 06/19/2003)
31 ORDER denying plaintiffs' motion for extension of time 28 . Plaintiffs have until June 26, 2003 to file their opposition. Signed by Judge James Robertson on June 19, 2003. (MT) (Entered: 06/19/2003)
NOTICE OF CORRECTED DOCKET ENTRY. Document No. 29 was entered in error and counsel was instructed to refile said pleading. (rje, ) (Entered: 06/25/2003)
32 ENTERED IN ERROR.....RESPONSE to Plaintiffs' Motion for Extension of Time filed by PAUL H. O'NEILL. (Clark, Kaija) Modified on 6/26/2003 (rje, ). (Entered: 06/25/2003)
NOTICE OF CORRECTED DOCKET ENTRY. Document No. 32 was entered in error and counsel was instructed to refile said pleading. (rje, ) (Entered: 06/26/2003)
33 RESPONSE to in Opposition to Plaintiffs' Motion for Extension of Time filed by PAUL H. O'NEILL. (Clark, Kaija) (Entered: 06/26/2003)
34 Memorandum in opposition to motion re 22 Summary Judgment filed by MIGUEL A. CONTRERAS. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21 # 22 # 23 # 24 # 25 # 26 # 27 # 28 # 29 Text of Proposed Order # 30)(Schmidt, Ronald) (Entered: 06/26/2003)
35 NOTICE by MIGUEL A. CONTRERAS re 23 Emergency MOTION to Compel and Preserve Documents Praecipe (Schmidt, Ronald) (Entered: 06/30/2003)
36 NOTICE by MIGUEL A. CONTRERAS re 35 Notice (Other) Praecipe (Schmidt, Ronald) (Entered: 06/30/2003)
37 RESPONSE to 36 , 35 and Opposition to Plaintiffs' Praecipe by PAUL H. O'NEILL. (Tannenbaum, Andrew) (Entered: 06/30/2003)
38 Memorandum in opposition to motion re 23 filed by PAUL H. O'NEILL. (Attachments: # 1 Exhibit 1 (Declaration of John P. Helm)# 2 Exhibit 2 (December 21, 2001 Order of AJ Kravetz)# 3 Exhibit 3 (Notice of 30(b)(6) Deposition)# 4 Exhibit 4 (Letter of May 19, 2003)# 5 Exhibit 5 (Letter of May

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28, 2003)# 6 Exhibit 6 (George Steel Deposition Transcript)# 7 Exhibit 7 (Mari Yonkers Deposition Transcript)# 8 Exhibit 8 (Susan Zaner Deposition Transcript)# 9 Exhibit 9 (Franklin Jones Deposition Transcript)# 10 Exhibit 10 (Ellen Mulvenna Deposition Transcript)# 11 Exhibit 11 (Barbara Zakrison Deposition Transcript)# 12 Exhibit 12 (Paul Kilcoyne Deposition Transcript)# 13 Exhibit 13 (Mariam Harvey Deposition Transcript)# 14 Exhibit 14 (Lynne Smith Deposition Transcript))(Tannenbaum, Andrew) (Entered: 06/30/2003)
39 REPLY to opposition to motion re 23 Order Directing Defendants and Their Counsel Preserve Documents and to Compel Discovery filed by MIGUEL A. CONTRERAS. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12)(Schmidt, Ronald) (Entered: 07/11/2003)
40 ENTERED IN ERROR.....ERRATA by MIGUEL A. CONTRERAS. (Schmidt, Ronald) Modified on 7/15/2003 (rje, ). (Entered: 07/14/2003)
41 ERRATA by MIGUEL A. CONTRERAS. (Schmidt, Ronald) (Entered: 07/14/2003)
NOTICE OF CORRECTED DOCKET ENTRY. Document No. 40 was entered in error the pleading was refiled. See document No. 41. (rje, ) (Entered: 07/15/2003)
42 NOTICE of Appearance by Karen Kathleen Richardson on behalf of all defendants (Richardson, Karen) (Entered: 07/15/2003)
Set/Reset Hearings: Motion Hearing set for 8/5/2003 10:00 AM in Courtroom 18 before Judge James Robertson. (dam, ) (Entered: 07/16/2003)
43 MOTION to Continue and Reschedule Hearing on Plaintiffs' Motion to Compel and to Schedule Oral Argument on Defendant's Motion for Summary Judgment by PAUL H. O'NEILL. (Tannenbaum, Andrew) (Entered: 07/18/2003)
44 Memorandum in opposition to motion re 43 PLAINTIFFS? OPPOSITION TO DEFENDANTS? MOTION AND MEMORANDUM IN SUPPORT OF MOTION TO RESCHEDULE HEARING ON PLAINTIFFS? MOTION TO COMPEL AND TO SCHEDULE ORAL ARGUMENT ON DEFENDANTS? MOTION FOR SUMMARY JUDGMENT filed by MIGUEL A. CONTRERAS. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14)(Schmidt, Ronald) (Entered: 07/22/2003)
45 REPLY to opposition to motion re 43 to Reschedule Hearing on Plaintiffs' Motion to Compel and to Schedule Oral Argument on Defendant's Motion for Summary Judgment filed by PAUL H. O'NEILL. (Clark, Kaija) (Entered: 07/24/2003)
ORDER denying defendant's motion to continue August 5, 2003 hearing 43 . Signed by Judge James Robertson on July 28, 2003. (MT) (Entered: 07/28/2003)
46 MOTION for Leave to File Supplemental Declarations Responding To The Supplemental Documentary Submissions Filed With Plaintiffs' Opposition To

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Defendant's Motion To Reschedule Hearing On Plaintiff's Motion To Compel by PAUL H. O'NEILL. (Attachments: # 1 Affidavit Supplemental Declaration of John Helms# 2 Affidavit Declaration of Bethanne Killoran# 3 Text of Proposed Order)(Richardson, Karen) (Entered: 08/01/2003)
47 Memorandum in opposition to motion re 46 Supplemental Declarations filed by MIGUEL A. CONTRERAS. (Attachments: # 1 Exhibit # 2 Text of Proposed Order)(Schmidt, Ronald) (Entered: 08/04/2003)
48 REPLY in support of motion re 46 for Leave to File Supplemental Declarations filed by PAUL H. O'NEILL. (Tannenbaum, Andrew) (Entered: 08/04/2003)
Minute Entry for Motions Hearing held before Judge James Robertson on 8/5/2003: Oral argument heard on plaintiffs' motion for an order directing defendants and their counsel to preserve documents and to compel discovery; Motion to compel discovery denied pending decision on pending motion for summary judgment; Motion to preserve documents taken under advisement pending receipt of supplmental materials from parties. (Court Reporter Dennis Dinkel) (cdw) (Entered: 08/06/2003)
49 NOTICE by PAUL H. O'NEILL Defendant's Notice of Filing (Attachments: # 1 Supplemental Declaration of Bethanne Killoran)(Richardson, Karen) (Entered: 08/13/2003)
50 MOTION for Leave to File Excess Pages by PAUL H. O'NEILL. (Clark, Kaija) (Entered: 08/14/2003)
51 REPLY in support of motion re 50 Defendant's Motion for Summary Judgment filed by PAUL H. O'NEILL. (Richardson, Karen) (Entered: 08/15/2003)
52 NOTICE by MIGUEL A. CONTRERAS re 49 Notice (Other) Plaintiffs' Response to Defendants' Notice of Filing Supplemental Declaration (Attachments: # 1 # 2 # 3 # 4)(Schmidt, Ronald) (Entered: 08/20/2003)
MINUTE ENTRY: Court grants defendant's motion for leave to file excess pages 50 . Signed by Judge James Robertson on August 25, 2003. (MT) (Entered: 08/25/2003)
55 NOTICE OF TRANSCRIPT FILED for motions hearing dates 8/5/03. (bcs, ) (Entered: 09/02/2003)
53 RESPONSE to Plaintiffs' August 20, 2003 Filing of Supplemental Declaration filed by PAUL H. O'NEILL. (Attachments: # 1 Exhibit Michael C. Brown)(Clark, Kaija) (Entered: 08/28/2003)
54 ORDER granting in part and denying in part plaintiffs' motion for an order to preserve documents and to compel discovery 23 . Signed by Judge James Robertson on August 29, 2003. (MT) (Entered: 08/29/2003)
56 NOTICE by PAUL H. O'NEILL of Dates Counsel is Available for Summary Judgment Hearing (Clark, Kaija) (Entered: 09/05/2003)

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57 MOTION for Leave to File Sur-reply by MIGUEL A. CONTRERAS. (Attachments: # 1 Text of Proposed Order)(Schmidt, Ronald) (Entered: 10/14/2003)
58 MOTION for Leave to File Plaintiffs Sur-reply in Opposition to Summary Judgment by MIGUEL A. CONTRERAS. (Attachments: # 1 Exhibit # 2)(Schmidt, Ronald) (Entered: 10/14/2003)
59 NOTICE by PAUL H. O'NEILL of Withdrawal of Counsel (Tannenbaum, Andrew) (Entered: 10/15/2003)
60 Memorandum in opposition to motion re 57 plaintiffs' motion to file surreply to defendant's motion for summary judgment filed by PAUL H. O'NEILL. (Attachments: # 1 Text of Proposed Order)(Richardson, Karen) (Entered: 10/21/2003)
61 First MOTION Conference Plaintiffs' Motion for Rule 16 Conference to Regulate Defendants' Communications with the Class by MIGUEL A. CONTRERAS. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 Text of Proposed Order)(Schmidt, Ronald) (Entered: 11/26/2003)
62 ORDER that oral argument is set for December 12, 2003 at 10:00 a.m. Signed by Judge James Robertson on December 8, 2003. (MT) (Entered: 12/08/2003)
63 ENTERED IN ERROR.....First MOTION For Modification of Hearing Date by MIGUEL A. CONTRERAS. (Attachments: # 1 Text of Proposed Order)(Schmidt, Ronald) Modified on 12/10/2003 (bcs, ). (Entered: 12/09/2003)
64 Second MOTION For Modification of Hearing Date by MIGUEL A. CONTRERAS. (Attachments: # 1 Text of Proposed Order)(Schmidt, Ronald) (Entered: 12/09/2003)
Set/Reset Hearings: Motion Hearing set for 1/12/2004 02:00 PM in Courtroom 16 before Judge James Robertson. (dam, ) (Entered: 12/10/2003)
"NOTICE OF CORRECTED DOCKET ENTRY. Document No. 63 was entered in error and counsel has already refiled their motion for modification of hearing date." (bcs, ) (Entered: 12/10/2003)
65 Memorandum in opposition to motion re 61 for Rule 16 Conference to Regulate Defendant's Communcations with Class filed by PAUL H. O'NEILL. (Attachments: # 1 Exhibit 1, Declaration Franklin C. Jones# 2 Exhibit 2, Declaration Brian R. McBride# 3 Exhibit 3)(Clark, Kaija) (Entered: 12/17/2003)
MINUTE ENTRY: Court denies plaintiff's motion for Rule 16 conference 61 . Signed by Judge James Robertson on December 22, 2003. (MT) (Entered: 12/22/2003)
66 NOTICE of Appearance by Shayna Susanne Cook on behalf of PAUL H. O'NEILL (Cook, Shayna) (Entered: 01/02/2004)
Minute Entry for proceedings held before Judge James Robertson: Motion

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Hearing held on 1/12/2004 re 22 MOTION for Summary Judgment filed by PAUL H. O'NEILL. Motion heard and taken under advisement. Plaintiffs' motion for Rule 16 conference to regulate defendants' communications with the class heard and denied. (Court Reporter Willaim McAllister.) (zdam, ) (Entered: 01/12/2004)
67 NOTICE by MIGUEL A. CONTRERAS Supplemental Authority (Attachments: # 1 Exhibit)(Schmidt, Ronald) (Entered: 01/13/2004)
68 NOTICE by PAUL H. O'NEILL of Supplemental Authority (Cook, Shayna) (Entered: 01/15/2004)
69 NOTICE by MIGUEL A. CONTRERAS Supplemental Authority (Attachments: # 1 Exhibit N.Y. Times Article)(Schmidt, Ronald) (Entered: 02/03/2004)
70 ORDER granting in part and denying in part defendant's motion for summary judgment 22 . Signed by Judge James Robertson on February 26, 2004. (MT) (Entered: 02/26/2004)
71 MOTION for Reconsideration UNDER RULE 59(e) OR IN THE ALTERNATIVE TO AMEND THE COURT?S ORDER TO ALLOW FOR 28 U.S.C. ? 1292(b) CERTIFICATION by MIGUEL A. CONTRERAS. (Attachments: # 1 Motion for Reconsideration\Memorandum In Support Of Plaintiffs? Motion For Reconsideration Under Rule 59(e) Or In The Alternative To Amend The Court?s Order To Allow For 28 U.S.C. ? 1292(b) Certification# 2 Text of Proposed Order Proposed Order# 3 Table of Exhibits# 4 Exhibit A - Relevant Portions of EEO Class Counseling Report# 5 Exhibit B - February 18, 1998 Memorandum regarding Foreign Language Proficiency Awards Reporting# 6 Exhibit C - April 22, 1998 Memorandum regarding Foreign Language Awards Program - Lessons Learned# 7 Exhibit D - January 31, 1996 Memorandum and Transmittal Letter regarding Language Proficiency Award for Law Enforcement Officers (LEOs) in Customs# 8 Exhibit E - March 27, 1998 Memorandum regarding Foreign Language Proficiency Awards Program# 9 Exhibit F - March 27, 1998 Memorandum regarding Foreign Language Proficiency Awards Program# 10 Exhibit G - Declaration of Special Agent Miguel A. Contreras# 11 Exhibit G1 Contreras? January 24, 1995 Letter to George Weise# 12 Exhibit G2 Contreras' February 28, 1995 letter to Hispanic Special Agents# 13 Exhibit H Declaration of Special Agent Ruben E. Gonzalez# 14 Exhibit I - Customs Directive regarding Foreign Tours of Duty)(Schmidt, Ronald) (Entered: 03/11/2004)
72 Memorandum in opposition to motion re 71 Plaintiffs' Motion for Reconsideration Under Rule 59(e) Or for Certification under 28 U.S.C. 1292(b) filed by THOMAS RIDGE. (Attachments: # 1 Exhibit Complaint filed in Gonzalez v. Brady# 2 Text of Proposed Order)(Richardson, Karen) (Entered: 03/18/2004)
73 REPLY to opposition to motion re 71 RECONSIDERATION UNDER RULE 59(e) OR IN THE ALTERNATIVE TO AMEND THE COURT?S ORDER TO ALLOW FOR 28 U.S.C. ? 1292(b) CERTIFICATION filed by MIGUEL A.

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CONTRERAS. (Attachments: # 1 Exhibit 1 - Paul L. Green, With Nada for Bonus, Inspectors Threaten Spanish Language Boycot# 2 Exhibit 2 - Press Release, U.S. Customs Service, Customs Statement on Foreign Language Awards for Customs Officers# 3 Exhibit 3 - Customs and Border Protection Budget Manual at 11-4# 4 Exhibit 4 - Mexican Mafia Letter# 5 Exhibit 5 Joseph Webber deposition excerpts# 6 Exhibit 6 - Luncheon Flyer and Photos of Charles Winwood# 7 Exhibit 7 - Relevant sections of Committee Report# 8 Exhibit 8 - Statement of Assistant Commissioner# 9 Exhibit 9 - Stewart EEO charge# 10 Exhibit 10 - Stewart Complaint relevant excerpts# 11 Exhibit 11 Excerpts of Treasury OIG Report on Good O' Boy Roundup# 12 Exhibit Index of Exhibit)(Schmidt, Ronald) (Entered: 03/29/2004)
74 MOTION for Discovery Scheduling Order by THOMAS RIDGE. (Attachments: # 1 Text of Proposed Order Proposed Discovery Scheduling Order# 2 Exhibit Declaration of Marc Weinberger)(Cook, Shayna) (Entered: 05/07/2004)
75 NOTICE by THOMAS RIDGE of Withdrawal of Counsel (Clark, Kaija) (Entered: 05/17/2004)
76 MOTION for Order Permitting Ex Parte Communication with Putative Class Members by THOMAS RIDGE. (Attachments: # 1 Text of Proposed Order)(Cook, Shayna) (Entered: 05/18/2004)
77 ORDER denying plaintiff's motion for reconsideration 71 . The Clerk is directed to set a status conference . Signed by Judge James Robertson on May 21, 2004. (MT) (Entered: 05/21/2004)
Status Conference set for 6/9/2004 04:15 PM in Courtroom 16 before Judge James Robertson. (dam, ) (Entered: 05/25/2004)
78 Memorandum in opposition to motion re 74 Defendants' Motion For Entry of a Scheduling Order and Plaintiffs' Alternative Scheduling Order filed by MIGUEL A. CONTRERAS. (Attachments: # 1 Exhibit 1 - Plaintiffs' Proposed Discovery Scheduling Order# 2 Exhibit 1A - Protective Order of Confidentiality# 3 Exhibit 1B - Privilege Log# 4 Exhibit 2 - Declaration of Ronald A. Schmidt# 5 Exhibit 2A - Koontz November 28, 2001 letter)(Schmidt, Ronald) (Entered: 05/25/2004)
Status Conference re-set for 6/30/2004 04:45 PM in Courtroom 16 before Judge James Robertson. (dam, ) (Entered: 05/26/2004)
79 Memorandum in opposition to motion re 76 Defendants? Motion To Permit Ex Parte Communication With Putative Class Members filed by MIGUEL A. CONTRERAS. (Attachments: # 1 Exhibit 1 - Proposed Order# 2 Exhibit 2 Gutierrez Special Master Opinion# 3 Exhibit 1A - Advisory Warnings)(Schmidt, Ronald) (Entered: 06/01/2004)
80 REPLY to opposition to motion re 76 Entry of Order Permitting Ex Parte Communication with Putative Class Members filed by THOMAS RIDGE. (Cook, Shayna) (Entered: 06/07/2004)

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81 REPLY to opposition to motion re 74 for Entry of Discovery Scheduling Order filed by THOMAS RIDGE. (Attachments: # 1 Exhibit Administrative Class Charge# 2 Exhibit Memorandum Opinion in Roney v. Ashcroft# 3 Text of Proposed Order Defendant's Proposed Protective Order)(Richardson, Karen) (Entered: 06/14/2004)
Status Conference held. Motion for Summary Judgment to be filed by the defendant within 45 days. (Court Reporter Beth Wasserman, Miller Reporting.) (dam, ) (Entered: 06/30/2004)
82 NOTICE OF TRANSCRIPT FILED for dates June 30, 2004 for Status Hearing before the Honorable James Robertson, Court Reporter: Elizabeth L. Wasserman, Miller Reporting Company. (bm) (Entered: 07/21/2004)
83 MOTION for Discovery Protective Order by THOMAS RIDGE. (Attachments: # 1 Text of Proposed Order)(Richardson, Karen) (Entered: 07/23/2004)
84 Memorandum in opposition to motion re 83 Protective Order and Plaintiffs' Motion for an Entry of Alternative Protective Order filed by MIGUEL A. CONTRERAS. (Attachments: # 1 Exhibit 1 - July 15, 2004 Letter to Karen Richardson# 2 Exhibit 2 - Letter to R. Schmidt# 3 Exhibit 3 - Plaintiffs? Proposed Protective Order# 4 Exhibit 4 - Tucker Confidentiality Order)(Schmidt, Ronald) (Entered: 07/26/2004)
85 NOTICE TO COUNSEL . Signed by Judge James Robertson on July 28, 2004. (MT) (Entered: 07/28/2004)
86 REPLY to opposition to motion re 83 MOTION for Discovery Protective Order filed by THOMAS RIDGE. (Attachments: # 1 Affidavit Supplemental Declaration of Paul M. Kilcoyne# 2 Text of Proposed Order Modified Version of Plaintiffs' Proposed Protective Order)(Richardson, Karen) (Entered: 07/30/2004)
87 MOTION for Extension of Time to File Motion for Summary Judgment on Plaintiffs' Pattern or Practice Claims by THOMAS RIDGE. (Attachments: # 1 Text of Proposed Order)(Richardson, Karen) (Entered: 08/03/2004)
88 MOTION for Leave to File Sur-Reply In Further Response to Defendants Motion for a Protective Order by MIGUEL A. CONTRERAS. (Attachments: # 1 Text of Proposed Order Order)(Schmidt, Ronald) (Entered: 08/09/2004)
89 SURREPLY to re 88 MOTION for Leave to File Sur-Reply In Further Response to Defendants Motion for a Protective Order, 83 MOTION for Discovery Protective Order filed by MIGUEL A. CONTRERAS. (Attachments: # 1 Exhibit A - Plaintiffs Compromise Protective Order of Confidentiality)(Schmidt, Ronald) (Entered: 08/09/2004)
90 Memorandum in opposition to motion re 88 MOTION for Leave to File SurReply In Further Response to Defendants Motion for a Protective Order filed by THOMAS RIDGE. (Attachments: # 1 Text of Proposed Order Defendant's Second Modified Version of Plaintiffs' Proposed Protective Order of

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Confidentiality)(Richardson, Karen) (Entered: 08/12/2004)
91 REPLY to opposition to motion re 88 MOTION for Leave to File Sur-Reply In Further Response to Defendants Motion for a Protective Order filed by MIGUEL A. CONTRERAS. (Schmidt, Ronald) (Entered: 08/12/2004)
MINUTE ENTRY: Court grants defendant's motion for extension of time 87 to August 30, 2004 . Signed by Judge James Robertson on August 13, 2004. (MT) (Entered: 08/13/2004)
92 ORDER granting 88 plaintiff's motion for leave to file surreply 88 . See this order re proposed discovery protective order . Signed by Judge James Robertson on August 13, 2004. (MT) (Entered: 08/13/2004)
93 NOTICE by MIGUEL A. CONTRERAS Joint Notice of Protective Order of Confidentiality (Attachments: # 1 Text of Proposed Order Protective Order of Confidentiality)(Schmidt, Ronald) (Entered: 08/17/2004)
MINUTE ENTRY: Court approves and so orders the parties' agreed protective order of confidentiality 93 . Signed by Judge James Robertson on August 24, 2004. (MT) (Entered: 08/24/2004)
99 TRANSCRIPT of Proceedings held on January 12, 2004, Motions Hearing before Judge James Robertson. Court Reporter: William D. McAllister. (bm) (Entered: 09/01/2004)
94 Unopposed MOTION for Leave to File Excess Pages by THOMAS RIDGE. (Attachments: # 1 Text of Proposed Order)(Cook, Shayna) (Entered: 08/26/2004)
MINUTE ENTRY: Court grants defendant's unopposed motion for leave to file excess pages 94 . Signed by Judge James Robertson on August 27, 2004. (MT) (Entered: 08/27/2004)
95 MOTION to Seal by THOMAS RIDGE. (Attachments: # 1 Text of Proposed Order)(Cook, Shayna) (Entered: 08/30/2004)
96 NOTICE by THOMAS RIDGE of Filing Certain Documents Under Seal (Cook, Shayna) (Entered: 08/30/2004)
97 MOTION for Summary Judgment on Plaintiffs' Pattern or Practice Claims by THOMAS RIDGE. (Attachments: # 1 Exhibit Seraphin Declaration# 2 Exhibit Pignone Declaration# 3 Exhibit Royer Declaration# 4 Exhibit Bennett Declaration# 5 Exhibit Kilcoyne Declaration# 6 Exhibit Smith Declaration# 7 Exhibit Shepherd Declaration# 8 Exhibit Zaner Declaration# 9 Exhibit Burton Declaration# 10 Exhibit Siskin Declaration# 11 Exhibit Excerpts from Transcript# 12 Exhibit Statistical Abstract# 13 Exhibit Brown Declaration# 14 Exhibit Webber Declaration# 15 Exhibit Unzueta Declaration# 16 Exhibit OPM Report# 17 Exhibit Riggs Declaration# 18 Exhibit White Declaration# 19 Exhibit Ogden Declaration# 20 Exhibit Browning Declaration# 21 Exhibit Geddes Declaration# 22 Exhibit D.G. Declaration (Filed Under Seal)# 23

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Exhibit Yonkers Declaration (Filed Under Seal)# 24 Exhibit Exhibit List# 25 Text of Proposed Order Proposed Order)(Cook, Shayna) (Entered: 08/30/2004)
98 ERRATA to Defendant's Motion for Summary Judgment on Plaintiffs' Pattern or Practice Claims by THOMAS RIDGE. (Attachments: # 1 Exhibit Seraphin Declaration# 2 Exhibit Pignone Declaration# 3 Exhibit Royer Declaration# 4 Exhibit Bennett Declaration# 5 Exhibit Kilcoyne Declaration# 6 Exhibit Smith Declaration# 7 Exhibit Shepherd Declaration# 8 Exhibit Zaner Declaration# 9 Exhibit Burton Declaration# 10 Exhibit Siskin Declaration# 11 Exhibit Transcript Excerpts# 12 Exhibit Statistical Abstract# 13 Exhibit Brown Declaration# 14 Exhibit Webber Declaration# 15 Exhibit Unzueta Declaration# 16 Exhibit OPM Report# 17 Exhibit Riggs Declaration# 18 Exhibit White Declaration# 19 Exhibit Ogden Declaration# 20 Exhibit Browning Declaration# 21 Exhibit Geddes Declaration# 22 Exhibit D.G. Declaration (filed under seal)# 23 Exhibit Yonkers Declaration (filed under seal)# 24 Exhibit List# 25 Text of Proposed Order Proposed Order)(Richardson, Karen) (Entered: 08/31/2004)
ORDER granting defendant's motion for leave to file under seal 95 . Signed by Judge James Robertson on September 24, 2004. (MT) (Entered: 09/26/2004)
100 NOTICE OF SUBSTITUTION OF COUNSEL by THOMAS RIDGE (Schwartz, James) (Entered: 02/18/2005)
101 ORDER that plaintiffs have until April 5, 2005 to show cause why motion for summary judgment 97 should not now be granted as conceded. Signed by Judge James Robertson on March 22, 2005. (MT) (Entered: 03/22/2005)
102 MOTION for Leave to File Excess Pages by MIGUEL A. CONTRERAS. (Attachments: # 1 Text of Proposed Order Order)(Schmidt, Ronald) (Entered: 03/25/2005)
103 Memorandum in opposition to motion re 97 Defendants Motion for Summary Judgment on Plaintiffs Pattern and Practice Claims filed by MIGUEL A. CONTRERAS. (Attachments: # 1 PLAINTIFFS? RESPONSE TO DEFENDANT?S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE ARE NO GENUINE ISSUES# 2 Text of Proposed Order Order# 3 Exhibit 1 - Complaint in Gonzalez et al. v. Brady et al.# 4 Exhibit 2a Task Force Preliminary Report - 1995.pdf# 5 Exhibit 2b Task Force Preliminary Report - 1995-2# 6 Exhibit 2c Task Force Preliminary Report - 1995-3# 7 Exhibit 2d Task Force Preliminary Report - 1995-4# 8 Exhibit 2e Task Force Preliminary Report - 1995-5# 9 Exhibit 2f Task Force Preliminary Report 1995-6# 10 Exhibit 2g Task Force Preliminary Report - 1995-2# 11 Exhibit 3a Good O' Boy Roundup 95-1-028-I# 12 Exhibit 3b Good O' Boy Roundup 95-1028-I-2# 13 Exhibit 3c Good O' Boy Roundup 95-1-028-I-3# 14 Exhibit 3d Good O' Boy Roundup 95-1-028-I-4# 15 Exhibit 3e Good O' Boy Roundup 951-028-I-5# 16 Exhibit 3f Good O' Boy Roundup 95-1-028-I-6# 17 Exhibit 3g Good O' Boy Roundup 95-1-028-I-8# 18 Exhibit 3h Good O' Boy Roundup 951-028-I-9# 19 Exhibit 4 - Blue Ribbon Panel Report.pdf# 20 Exhibit Exhibit 5 GAO Study on Performance Management# 21 Exhibit 6 - Selected Excerpts of

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US Customs Service 1988 AEP.pdf# 22 Exhibit 7 - Declaration of D Jan Duffy Part 1.pdf# 23 Exhibit 7 Cont'd - Declaration of D Jan Duffy-2 cont'd# 24 Exhibit 8 - Selected Excerpts from Mariam Harvey Declaration.pdf# 25 Exhibit 9 - Office of Investigations Quick Reference Guide June 2003.pdf# 26 Exhibit 10 - Selected Excerpts of Barbara Zakrison 30(b)(6) Deposition.pdf# 27 Exhibit 11 - Paul F White Analysis of Promotions to Series 1811.pdf# 28 Exhibit 12 Selected Excerpts of US Customs Service 1992 Annual Affirmative Employment Program.pdf# 29 Exhibit 13 - Selected Excerpts of Susan Zaner 30(b)(6) Deposition.pdf# 30 Exhibit 14 - Selected Excerpts of the US Customs Service 1999 Annual Affirmative Employment Program.pdf# 31 Exhibit Exhibit 15 - Treasury OIG Integrity Oversight Review of US Customs Service.pdf# 32 Exhibit 16 - Declaration of Special Agent Anita Trujillo.pdf# 33 Exhibit 17 Selected Excerpts of Lynne Smith 30(b)(6) Deposition.pdf# 34 Exhibit Exhibit 18 - Declaration of Dr Charles Mann.1.pdf# 35 Exhibit 18 cont'd - Declaration of Dr Charles Mann-2.pdf# 36 Exhibit 19 - November 3, 2004 letter from David Shaffer to Karen Richardson, and November 23, 2004 letter in response from Karen Richardson.pdf# 37 Exhibit 20- Selected excerpts of 94-95-96-97 AEP Accomplishment Report.pdf# 38 Exhibit 21 - January 1999 Vacancy Announcement for Associate Special Agent-in-Charge.pdf# 39 Exhibit 22 GAO Personnel Practices Circumstances Surrounding U.S. Customs Service?s Use of Schedule A Appointment Authority, September 2001.pdf# 40 Exhibit Exhibit 23 - Dr. Mann Excel chart comparing Hispanic representation for GS-13 found by Customs' experts.pdf# 41 Exhibit 24 - Declaration of Special Agent Arturo A. Renteria.pdf# 42 Exhibit 25 - Commissioner?s Message, November 17, 1994, submitted as part of Customs 1994 Annual Affirmative Employment Program Accomplishment Report (AEP).pdf# 43 Exhibit 26 -Selected excerpts of 1997 Annual Affirmative Employment Program Accomplishment Report.pdf# 44 Exhibit 27 - Office of Training and Development Memorandum regarding Customs Managers? Leadership Course, Fiscal Year 2003.pdf# 45 Exhibit 28 Selected excerpts of Paul Kilcoyne 30(b)(6) deposition.pdf# 46 Exhibit 29 Selected excerpts of deposition of Miguel Contreras.pdf# 47 Errata 30 Declaration of Special Agent John Yera.pdf# 48 Exhibit 31 - Selected excerpts of deposition of Stephan Mercardo.pdf# 49 Exhibit 32 - Relevant excerpts of John Magaw Testimony, Transcript of Senate Judiciary Committee Hearings on Federal Law Enforcement and the GOBR, July 21, 1995.pdf# 50 Exhibit 33 Declaration of Special Agent E. William Velasco pdf# 51 Exhibit 34 - Internal Affairs Report of Investigation of SAIC Leonard Lindheim April 5 2000.pdf# 52 Exhibit 35 - Selected excerpts deposition of SAIC Joseph Webber.pdf# 53 Exhibit 36 - Walter Biondi Trial Testimony (Salinas v. O?Neill-June 2000).pdf# 54 Exhibit 37 - Walter Biondi Deposition in Haran v. Summers, October 27, 1999.pdf# 55 Exhibit Exhibit 38 - Study of Reprisals in the US Customs Service.pdf# 56 Exhibit 38 Cont'd - Study of Reprisals in the US Customs Service.2 - cont'd.pdf# 57 Exhibit 38 Cont'd - Study of Reprisals in the US Customs Service-3 cont'd.pdf# 58 Exhibit 39 - Rudman, William N. The Costs of Complaints.pdf# 59 Exhibit 40 - June 1, 1999 E-mail from Thomas Albert Smith and response from Wayne C. Hamilton Re forwarded article The Cost of Complaints by William N. Rudman.pdf# 60 Exhibit 41 - Declaration of David J

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Shaffer.pdf# 61 Exhibit 42 - March 28, 2005 Memorandum from Dr. Mann.pdf# 62 Exhibit Exhibit 5 - GAO Study on Performance Management.1.pdf# 63 Exhibit Exhibit 5 Cont'd - GAO Study on Performance Management.2.pdf# 64 Exhibit Index of Exhibits.pdf# 65 Memorandum in Opposition to Defendants' Motion for Summary Judgment on the Pattern and Practice Claims.pdf)(Schmidt, Ronald) (Entered: 04/05/2005)
MINUTE ORDER: Court grants plaintiffs' motion for leave to file excess pages 102 . Signed by Judge James Robertson on April 11, 2005. (MT) (Entered: 04/11/2005)
104 MOTION for Extension of Time to File Response/Reply as to 103 Memorandum in Opposition,,,,,,,,,,,,,,,,,,,,, to Defendants' Motion for Summary Judgment on Plaintiffs' Pattern or Practice Claims by THOMAS RIDGE. (Attachments: # 1 Text of Proposed Order)(Richardson, Karen) (Entered: 04/13/2005)
MINUTE ORDER: Court grants defendant's motion for extension of time 104 to July 1, 2005 . Signed by Judge James Robertson on April 13, 2005. (MT) (Entered: 04/13/2005)
105 Unopposed MOTION for Leave to File Excess Pages For Reply Memorandum by THOMAS RIDGE. (Attachments: # 1)(Schwartz, James) (Entered: 06/27/2005)
MINUTE ORDER: Court grants defendant's motion for leave to file excess pages 105 . Signed by Judge James Robertson on June 30, 2005. (MT) (Entered: 06/30/2005)
106 REPLY to opposition to motion re 97 to Defendant's Motion for Summary Judgment on Pattern or Practice Claims filed by THOMAS RIDGE. (Attachments: # 1 Exhibit Response to 56(f)# 2 Exhibit Weinberger Decl.# 3 Exhibit Data Chart# 4 Exhibit Suppl Siskin Decl# 5 Exhibit Byrd Decl.# 6 Exhibit 1993 AAEPAR# 7 Exhibit Pitt Decl# 8 Exhibit White Report# 9 Exhibit Haworth Report# 10 Exhibit 2nd Supp Zaner Decl# 11 Exhibit Mantle Letter# 12 Exhibit Landy Report# 13 Exhibit Velasco Depo Excerpt# 14 Exhibit List of Exhibits)(Schwartz, James) (Entered: 07/01/2005)
107 MOTION for Extension of Time to File Response/Reply /Permission to File a Sur-Reply to Defendants Reply by MIGUEL A. CONTRERAS. (Attachments: # 1 Memorandum in Support of Plaintiffs Motion for Permission to File a SurReply to Defendants Reply# 2 Text of Proposed Order Propsed Order)(Schmidt, Ronald) (Entered: 07/20/2005)
108 ERRATA re Plaintiffs Motion for Permission to File a Sur-Reply to Defendants Reply by MIGUEL A. CONTRERAS. (Shaffer, David) (Entered: 07/21/2005)
VACATED pursuant to Order entered 8/2/2005.....ORDER granting 107 motion for extension of time to file surreply. Signed by James Robertson on 7/26/05. (Robertson, James) Modified on 8/3/2005 (lc, ). (Entered: 07/26/2005)
109 ORDER vacating leave to file surreply and setting date for oral argument.

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Signed by Judge James Robertson on 8/2/05. (Robertson, James) (Entered: 08/02/2005)
110 Minute Entry for proceedings held before Judge James Robertson : Oral Argument held on 8/19/2005 re 97 MOTION for Summary Judgment on Plaintiffs' Pattern or Practice Claims filed by THOMAS RIDGE; motion and arguments taken under consideration. (Court Reporter William McAllister.) (ldc, ) (Entered: 08/19/2005)
111 TRANSCRIPT of Oral Argument held on Augusst 19, 2005 before Judge James Robertson. Court Reporter: William D. McAllister. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (lc, ) (Entered: 08/29/2005)
112 MEMORANDUM ORDER denying without prejudice defendant's motion for summary judgment 97 . Counsel are to meet and confer upon a discovery program consistent with this memorandum and submit an agreed upon order no later than October 5, 2005. If they cannot agree, a discovery conference will be held on October 6, 2005 at 3:00 p.m. Signed by Judge James Robertson on September 21, 2005. (MT) (Entered: 09/21/2005)
113 NOTICE of Appearance by Benjamin J. Lambiotte on behalf of all plaintiffs (Lambiotte, Benjamin) (Entered: 09/29/2005)
114 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Roger L. Hillman. :Address- 1191 Second Avenue, 18th Floor, Seattle, Washington 98101. Phone No. - 206-464-3939. Fax No. - 206-464-0125 by MIGUEL A. CONTRERAS. (Attachments: # 1 Affidavit of Roger Hillman in Support of Application# 2 Text of Proposed Order)(Lambiotte, Benjamin) (Entered: 09/29/2005)
115 NOTICE OF WITHDRAWAL OF APPEARANCE as to JOHN YERA, RICARDO SANDOVAL, STEPHEN MERCADO-CRUZ, FRANK ALMONTE, RAMON MARTINEZ, THOMAS RIDGE, MIGUEL A. CONTRERAS, RUBEN E. GONZALEZ, E. WILLIAM VELASCO. Attorney Ronald A. Schmidt terminated. (Schmidt, Ronald) (Entered: 10/01/2005)
116 NOTICE OF WITHDRAWAL OF APPEARANCE as to JOHN YERA, RICARDO SANDOVAL, STEPHEN MERCADO-CRUZ, FRANK ALMONTE, RAMON MARTINEZ, THOMAS RIDGE, MIGUEL A. CONTRERAS, RUBEN E. GONZALEZ, E. WILLIAM VELASCO. Attorney David J. Shaffer terminated. (Shaffer, David) (Entered: 10/01/2005)
117 NOTICE of Appearance by Benjamin J. Lambiotte on behalf of E. WILLIAM VELASCO (Lambiotte, Benjamin) (Entered: 10/04/2005)
118 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Roger L. Hillman. :Address- Garvey Schubert Barer, 18th Floor, Second & Seneca Building, 1191 Second Avenue, Seattle, Washington 98101-2939. Phone No. 206-464-3939. Fax No. - 206-464-0125 by E. WILLIAM VELASCO. (Attachments: # 1 Affidavit of Roger Hillman in Support of Application# 2 Text

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of Proposed Order)(Lambiotte, Benjamin) Modified on 10/5/2005 (lc, ). (Entered: 10/04/2005)
119 NOTICE Notice of Filing by THOMAS RIDGE re 112 Order on Motion for Summary Judgment, (Attachments: # 1 Text of Proposed Order)(Schwartz, James) (Entered: 10/05/2005)
MINUTE ORDER Approving and so ordering the parties jointly proposed discovery order [#119-2]. Signed by Judge James Robertson on 10/6/2005. (alr, ) Modified on 10/11/2005 (alr, ). (Entered: 10/11/2005)
120 ORDER granting upon condition plaintiffs' motion for pro hac vice appearance of Roger Hill 118 . Signed by Judge James Robertson on October 7, 2005. (MT) (Entered: 10/07/2005)
121 NOTICE of Appearance by Adam D. Kirschner on behalf of all defendants (Kirschner, Adam) (Entered: 05/05/2006)
122 Unopposed MOTION to Seal by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 05/05/2006)
123 NOTICE of Filing Under Seal by MICHAEL CHERTOFF re 122 Unopposed MOTION to Seal (Kirschner, Adam) (Entered: 05/05/2006)
124 MOTION for Summary Judgment Defendant's Renewed Motion for Summary Judgment On Plaintiffs' Pattern or Practice Claims by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Exhibit List# 3 Exhibit Dr. Landy's Report# 4 Attachment A to Landy Report# 5 Attachment B to Landy Report# 6 Attachment C to Landy Report# 7 Attachment D to Landy Report# 8 Attachment E to Landy Report# 9 Attachment F to Landy Report# 10 Attachment G to Landy Report# 11 Attachment H to Landy Report# 12 Exhibit EEOC Complaint- 1995# 13 Exhibit Dr. Siskin's Report)(Kirschner, Adam) (Entered: 05/05/2006)
MINUTE ORDER granting defendant's unopposed motion for leave to file under seal 122 . Signed by Judge James Robertson on May 5, 2006. (MT) (Entered: 05/05/2006)
125 NOTICE Notice of Filing Defendant's Amended Statement of Material Facts as to Which There Is No Genuine Issue (filed herein) by MICHAEL CHERTOFF re 124 MOTION for Summary Judgment Defendant's Renewed Motion for Summary Judgment On Plaintiffs' Pattern or Practice Claims (Schwartz, James) (Entered: 05/10/2006)
Set Hearing: Status Conference set for 5/25/2006 03:00 PM in Courtroom 23A before Judge James Robertson. (alr, ) (Entered: 05/15/2006)
126 Consent MOTION for Extension of Time to File Opposition To 124 Defendant's Renewed Motion For Summary Judgment on Plaintiff's Pattern or Practice Claims by MIGUEL A. CONTRERAS. (Attachments: # 1 Text of Proposed Order Proposed Order)(Lambiotte, Benjamin) Modified on 5/22/2006 (zlc, ).

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(Entered: 05/19/2006)
HEARING CANCELLATION: Status Conference set for 5/25/2006 03:00 PM in Courtroom 23A before Judge James Robertson CANCELLED. Parties will be informed once the hearing is rescheduled. (alr, ) (Entered: 05/22/2006)
MINUTE ORDER granting plaintiffs' motion for extension of time 126 to June 1, 2006. Signed by Judge James Robertson on May 24, 2006. (MT) (Entered: 05/24/2006)
127 Second MOTION for Extension of Time to File Opposition To 124 Defendant's Renewed Motion For Summary Judgment on Plaintiff's Pattern or Practice Claims by MIGUEL A. CONTRERAS. (Attachments: # 1 Proposed Order)(Lambiotte, Benjamin) Modified on 6/2/2006 (lc, ). (Entered: 06/01/2006)
MINUTE ORDER granting plaintiffs' motion for extension of time 127 to June 16, 2006. No further extensions will be granted. Signed by Judge James Robertson on June 2, 2006. (MT) (Entered: 06/02/2006)
128 Memorandum in opposition to re 124 MOTION for Summary Judgment Defendant's Renewed Motion for Summary Judgment On Plaintiffs' Pattern or Practice Claims filed by MIGUEL A. CONTRERAS. (Attachments: # 1 Exhibit Declaration of Richard Startz# 2 Attachment to Exhibit 1 CV of Richard Startz# 3 Exhibit Memorandum from James Cottos, Assistant Inspector General for Investigations, to Assistant Commissioner, Office of Internal Affairs# 4 Plaintiffs' Response to Defendant's Amended Statement of Material Facts as to Which There is no Genuine Issue# 5 Text of Proposed Order Proposed Order)(Lambiotte, Benjamin) (Entered: 06/16/2006)
129 MOTION To "Opt-Out" of the Lawsuit by JUAN MARTINEZ. (Attachments: # 1 Exhibit s# 2 Text of Proposed Order)(lc, ) (Entered: 06/22/2006)
MINUTE ORDER granting motion to "opt-out" of the lawsuit by Juan Martinez 129 . Signed by Judge James Robertson on June 23, 2006. (MT) (Entered: 06/23/2006)
130 REPLY to opposition to motion re 124 MOTION for Summary Judgment Defendant's Renewed Motion for Summary Judgment On Plaintiffs' Pattern or Practice Claims filed by MICHAEL CHERTOFF. (Attachments: # 1 exhibit list# 2 Exhibit 1 -- Declaration of Tanya Bennett# 3 Exhibit 2-- Declaration of Dr. Siskin# 4 Exhibit 3-- Declaration of Dr. Landy# 5 Exhibit 4 -- Transcript of Oral Argument)(Richardson, Karen) (Entered: 06/27/2006)
131 Unopposed MOTION to use Microsoft Exchange 2003 re 54 Order on Motion to Compel by MICHAEL CHERTOFF. (Attachments: # 1 Order, Docket No. 54# 2 Appendix McCormack Declaration# 3 Text of Proposed Order Proposed Order)(Kirschner, Adam) (Entered: 09/18/2006)
MINUTE ORDER granting defendant's unopposed motion 131 to use Microsoft Exchange 2003 re 54 . Signed by Judge James Robertson on September 21, 2006. (MT) (Entered: 09/21/2006)

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132 MEMORANDUM. Signed by Judge James Robertson on March 20, 2007. (MT) (Entered: 03/20/2007)
133 ORDER granting defendant's motion for summary judgment 124 . Signed by Judge James Robertson on March 20, 2007. (MT) (Entered: 03/20/2007)
134 CLERK'S JUDGMENT in favor of Defendant against Plaintiff. Signed by Alpheas Richburg on 4/5/2007. (alr, ) (Entered: 04/05/2007)
136 MOTION For Clarification re 133 Order on Motion for Summary Judgment, 132 Memorandum & Opinion by RUBEN E. GONZALEZ (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(lc, ) (Entered: 09/10/2007)
135 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiff's Request for Clarification of the Courts Decision of March 20, 2007 by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 09/07/2007)

PACER Service Center
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04/01/2008 01:00:48

PACER Login: wu0079

Client Code: Kuznick

Description: Docket Report Search Criteria: 1:02-cv-00923-JR

Billable Pages: 14

Cost:

1.12

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 225 F.Supp.2d 16 (2002)
Larry D. STEWART, et al. Plaintiffs, v.
Paul H. O'NEILL, Secretary, U.S. Department of the Treasury Defendant. Reginald G. Moore, et al. Plaintiffs, v.
Paul H. O'Neill, Secretary, U.S. Department of the Treasury Defendant. Miguel A. Contreras, et al. Plaintiffs, v.
Paul H. O'Neill, Secretary, U.S. Department of the Treasury, Defendant.
No. CIV.A. 90-2841(RCL), CIV.A. 00-953(RWR), CIV.A. 02-923(RCL).
United States District Court, District of Columbia.
September 3, 2002.
17 *17 James William Morrison, Holland & Knight, L.L.P., Washington, DC, John D. Maddox, Jerome A. Hochberg, Michael J. Pollack, Arter & Hadden, L.L.P., Washington, DC, Richard T. Sampson, Semmes, Bowen & Semmes,
18 Baltimore, MD, Karen Rapaport Esser, Pension Benefit Guar. Corp., Washington, DC, Jerusa Carl Wilson, *18 Jr., MCI Telecommunications Corp., Washington, DC, David James Shaffer, Ronald A. Schmidt, Shaffer, Rapaport & Schmidt, Washington, DC, for Larry D. Stewart, Mark Jones, Dondi O. Albritton, John C. Ross, William E. Newberry, Vanessa L. McLemore, Wendell B. Roberts, Joe E. Barnes, Jr., Kimberly R. Morton, Wendy L. Carter, Curtis Cooper, Charles Stephen Parris, Sim B. Moore, Jr., Kenneth V. Featherstone, Arthur L. Jones.
Sally M. Rider, U.S. Attorney's Office, Civ. Div., Washington, DC, for Nicholas F. Brady.
Laurie J. Weinstein, U.S. Attorney's Office, Washington, DC, for Paul O'Neill.
Mark D. Laponsky, Washington, DC, for Semmes, Bowen & Semmes.
Prather Randle, Memphis, TN, John Wesley Davis, Washington, DC, for Prather G. Randle.
Jose M. Herrerra, A.T.F. Hispanic Agents' Ass'n, Miami, FL, for A.T.F. Hispanic Agents' Ass'n.
Robert Ernest Sanders, Punta Gorda, FL, for National Ass'n of Treasury Agents (NATA).
Robert Ernest Sanders, Punta Gorda, FL, for Vincent C. Noble, Leonora Magaletta, Michael S. Russell, Richard Issa, Frank Napoli, James L. Jorgensen.
MEMORANDUM OPINION AND ORDER
LAMBERTH, District Judge.
Now before the Court is plaintiffs' Notice of Case Relation [filed as Docket Entry Number ("DE# ") 2 in Contreras], defendant's Objection to Plaintiffs' Notice of Related Cases [filed as DE# 554 in Stewart], plaintiffs' Response to Defendant's Objection to Related Case Designation [filed as DE# 559 in Stewart], plaintiffs' Joint Motion to Consolidate [filed as DE# 556 in Stewart; filed as DE# 91 in Moore; filed as DE# 3 in Contreras], defendant's Opposition to Plaintiffs' Motion to Consolidate [filed as DE# 562 in Stewart; filed as DE# 93 in Moore; filed as DE# 6 in Contreras], and plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion to Consolidate [filed as DE# 566 in Stewart; filed as DE# 95 in Moore; filed as DE# 9 in Contreras]. Upon consideration of the pleadings, relevant decisions of prior federal courts and record of this case, the Court hereby DENIES plaintiffs' Joint Motions to Consolidate [filed as 556 in Stewart; filed as 91 in Moore; filed as 3 in Contreras], finds that the

Stewart v. O'Neill, Civil No. 90-2841(RCL), is UNRELATED to Contreras v. O'Neill, Civil No. 02-923(RCL), and orders that Contreras shall be RETURNED to the Calendar Committee for random reassignment.
I. Background
These three cases all concern allegations of discrimination and retaliation against agents employed by law enforcement agencies administered by the Department of the Treasury. Stewart and Contreras are now before this judge, and Moore is before Judge Roberts of this Court. Plaintiffs have filed a Notice of Related-Case status as to Stewart and Contreras, and have also filed motions to consolidate Stewart, Moore, and Contreras; defendant objects to the Notice of Related-Case status, and opposes the motions to consolidate. Pursuant to Local Civil Rule 40.5(d), motions to consolidate cases assigned to different judges of the Court are heard and determined by the judge to whom the earliest-numbered case is assigned. The earliest-numbered case included in these motions to consolidate is Stewart, and so the motions to consolidate shall be decided by this judge.
19 *19 Stewart v. O'Neill was filed in 1990, alleging discrimination and retaliation against African-American agents by the Bureau of Alcohol, Tobacco, and Firearms (ATF). The parties ultimately settled the case, and this Court approved that settlement in 1996. See Stewart v. Rubin, 948 F.Supp. 1077 (D.D.C.1996). The settlement included many forms of relief, ranging from individual monetary relief to classwide equitable relief. Plaintiffs have now returned before the Court, moving for an Order for defendant to show cause why he should not be held in contempt for alleged failures to comply with the settlement agreement. Defendant opposes the motion, asserting that the fault for the alleged failures lies with plaintiffs and with the contractor hired to design and implement certain promotions systems that were required by the settlement. Although the terms of the settlement agreement decree that the Court's jurisdiction over the bulk of plaintiffs' claims has lapsed, defendant does concede that the Court has continuing jurisdiction over one small part of the settlement related to the design and implementation of a "promotions assessment system" and the production of reports by an expert statistician, assessing the impact of the personnel reforms on the class members of Stewart.
Moore v. O'Neill was filed in 2000, alleging discrimination and retaliation against African-American agents by the Secret Service. Moore is now before Judge Roberts; the Court notes that Moore was not filed as a case related to Stewart, and the plaintiffs do not now seek to have the Court designate Moore as a case related to Stewart or to Contreras. The parties in Moore have undertaken significant discovery and pretrial proceedings, Judge Roberts has ruled on a motion for preliminary injunction, and there is a motion to dismiss and a motion for class certification now pending.
Contreras v. O'Neill was filed in 1992 as a case related to Stewart, and so it was assigned to this judge. Contreras alleges discrimination and retaliation against Hispanic agents by the U.S. Customs Service; no answer has been filed, and the only issues pending before the Court are the defendant's objection to the plaintiffs' Notice of Related-Case Status and the motion to consolidate.
II. Analysis
A. Plaintiffs' Notice of Relation as to Stewart and Contreras
Local Civil Rule 40.5 provides that
[civil] cases are deemed related when the earliest is still pending on the merits in the District Court and they (i) relate to common property, or (ii) involve common issues of fact, or (iii) grow out of the same event or transaction or (iv) involve the validity or infringement of the same patent.
Local Civ. R. 40.5(a)(3). Defendant first asserts that Stewart is no longer "pending on the merits," and the notice of relation must therefore be rejected. Although there are few cases interpreting that clause of Rule 40.5(a)(3), the general rule is that a case which has settled is no longer pending on the merits. See Burt Lake Band of Ottawa v. Norton, 2001 WL 1701669 (D.D.C. June 15, 2001); Keepseagle v. Glickman, 194 F.R.D. 1, 2 (D.D.C. 2000) ("Except in unusual circumstances, once a lawsuit is settled and a consent decree is entered, it is no

longer `pending on the merits.'"). One unusual circumstance where a case might be considered "pending on the merits" after a settlement would be where the possibility remained that the parties would be required to litigate 20 the merits of the case at some point. *20 Collins v. Pension Benefit Guaranty Corp., 126 F.R.D. 3 (D.D.C.1989).
It is extremely unlikely that there will be any future litigation on the merits of the claims asserted in Stewart. The only issue where it is agreed that the Court has continuing jurisdiction is a small portion of the settlement agreement concerning the design and implementation of a "promotions assessment system" and concerning the product of statistical reports assessing the impact of the personnel reforms on the class members. Plaintiffs' pending Motion for an Order to Show Cause in Stewart asserts that defendant is at fault for the failure of ATF to design and implement such a system, and also that ATF is at fault for the failure of the independent contractor to produce the statistical reports. As described above, defendant asserts that fault lies with plaintiffs and with the independent contractor hired to complete those tasks. The issues that may arise in this dispute are narrowly circumscribed and are far removed from the race discrimination and retaliation claims alleged in the original complaint. Therefore, Stewart may not be considered "pending on the merits," and the Court finds that Stewart is not related to Contreras.[1]
Furthermore, even if the Court were to consider Stewart as "pending on the merits," plaintiffs have not shown that these cases "involve common issues of fact" or "grow out of the same events or transactions." The Stewart plaintiffs alleged discrimination against African-American agents at ATF. Contreras alleges discrimination against Hispanic agents at the U.S. Customs Service. Plaintiffs assert that both ATF and the Customs Service are bureaus of the Department of Treasury, that both are supervised by the Treasury Department's Undersecretary for Enforcement, that both are governed by the management policies issued by "Main Treasury," that plaintiffs in both cases have been "cross-trained" for positions in different Treasury agencies, and that all plaintiffs allege the same types of discriminatory and retaliatory practices, procedures, and policies. These attenuated and superficial similarities are insufficient. The Department of the Treasury is a massive government bureaucracy, housing hundreds of divisions, bureaus, offices, departments, and agencies. Plaintiffs fail to allege that any of the actual supervisors in these case are the same-the most that they are able to proffer is that both ATF and Customs are "governed and supervised by the Treasury Department's Undersecretary for Enforcement." Neither is plaintiff able to show that the discrimination even occurred in the same geographical area-except insofar as the plaintiff finds a nexus between the two cases because the headquarters for the Department of the Treasury are in Washington, D.C. Clearly, there is very little linking these two cases other than the tenuous relationship through the Department of the Treasury, and the Court therefore finds that Stewart v. O'Neill, Civil No. 90-2841(RCL), is UNRELATED to Contreras v. O'Neill, Civil No. 02-923(RCL). Contreras shall therefore be returned to the Calendar Committee for random reassignment.
B. Plaintiffs' Motion to Consolidate
Plaintiffs move for all three cases captioned above to be consolidated pursuant to Federal Rule of Civil Procedure 21 42(a) *21 and Local Rule 40.5(d) for the purposes of pretrial and discovery proceedings. Defendant opposes the
motions to consolidate. As noted above, pursuant to Local Civil Rule 40.5(d), motions to consolidate cases assigned to different judges of the Court are heard and determined by the judge to whom the earliest-numbered case is assigned. The earliest-numbered case included in these motions to consolidate is Stewart, and so the motions to consolidate shall be decided by this judge.
The decision whether to consolidate cases under Rule 42(a) is within the broad discretion of the trial court. See, e.g., Biochem Pharma, Inc. v. Emory Univ., 148 F.Supp.2d 11, 13 (D.D.C.2001). Rule 42(a) provides that "[w]hen actions involving a common question of law or fact are pending before the court, it may ... order all the actions consolidated." Fed. R.Civ.P. 42(a). Plaintiffs assert that these cases involve common issues of fact, common issues of law, and that consolidation would promote both judicial efficiency and the public interest. As described above, Stewart alleges discrimination against African-American agents in ATF, Contreras alleges discrimination against Hispanic agents in the U.S. Customs Service, and Moore alleges discrimination against African-American agents in the Secret Service. The "common issues" of fact and law in these cases are insufficient to support a motion to consolidate.

First, the agency at issue in each case is different. ATF is responsible for enforcing and administering firearms, explosives, alcohol, and tobacco laws. The Secret Service is responsible for the protection of officials within the Executive Branch and their families, as well as foreign heads of state and their spouses when visiting the United States. The U.S. Customs Service is the primary enforcement agency charged with protecting and enforcing border security. Although all three may be loosely connected because they fall under the bureaucratic umbrella of the Department of the Treasury, such a tenuous affiliation is insufficient to consolidate cases involving three agencies with disparate purposes, agents, and institutional structures.
Second, the cases are in vastly different procedural postures. In Stewart, a class settlement was reached and approved by the Court in 1996; the parties are now before the Court disputing the implementation of the settlement. In Moore, it appears that substantial discovery has already taken place, Judge Roberts has ruled on a motion for a preliminary injunction and various discovery disputes, and there are currently pending motions to dismiss and for class certification. Contreras, the most recently filed case, is in a third posture-no answer has yet been filed, and the only issues currently pending before the Court are the Notice of Related-Case Status and the Motion to Consolidate. Clearly, the three cases are in very different stages of litigation, and judicial efficiency would not be served by their consolidation.
Third, the allegations of discrimination are different. Stewart alleges discrimination against African-Americans agents at ATF, Moore alleges discrimination against African-American agents in the Secret Service, and Contreras alleges discrimination against Hispanic agents in the Customs Service. Although all three fall within the vast bureaucratic network of the Department of the Treasury, each agency has its own personnel structure, institutional mission, and personnel policies.
Accordingly, plaintiffs' Motions to Consolidate are hereby DENIED.
SO ORDERED.
[1] A case may still be related to one that is no longer pending on the merits. In order for those cases to be related, however, plaintiff must show that the second case involves the same parties and relates to the same subject matter. See Local Civ. R. 40.5(a)(4). That provision is clearly not met in this case.
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