Customs Accused of Shredding Records
Agency official says employees are getting their due process
American City Business Journals Inc.
November 17, 2000
The League of United Latin American Citizens (LULAC) has accused the U.S. Customs Service of destroying documents that could be of critical importance to Hispanic employees bringing legal actions against the federal agency.
An attorney who is handling a major class-action complaint filed against the federal agency by Hispanic Customs agents describes the charge as being a serious, serious problem, if it is proven to be true.
If they (Customs officials) have gone out and destroyed records, then we cant prove what we set out to prove, says Thomas Allison of the Washington, D.C.-based law firm of Hughes & Bentzen. By destroying documents, they are violating rights of due process. If we can show it was done intentionally, or in bad faith, we can probably get a finding from the judge against Customs.
Allison is one of the lead attorneys for a class-action discrimination complaint that encompasses more than 250 former and current Hispanic Customs agents employed in both the Office of Investigations and Internal Affairs. The complaint, which is pending a hearing before a judge with the Equal Employment Opportunity Commission (EEOC), alleges that the Customs Services policies and practices toward Spanish-speaking agents, specifically regarding how they are assigned, have a negative impact with respect to training, promotion and discipline.
Dennis Murphy, assistant commissioner of Customs Office of Public Affairs, declined to comment on the document-destruction allegation because it is related to matters involving pending litigation. He did say, however, that it appears that some people do not want the (legal) process to go forward as it should, and instead are trying to do things publicly through a newspaper.
We dont operate that way, Murphy adds. They (Customs employees) are getting their due process. Thats how we operate.
The charge that Customs officials are destroying records related to disciplinary cases against employees was made in a letter dated Oct. 26 and sent by LULAC to Customs Chief Counsel Alfonso Robles. The letter, which the Business Journal obtained, states the following:
... You should know that your clients (Customs) are shredding documents after subjects of adverse actions have appeared and/or have come before the (Disciplinary Review) Board. You need to put a stop to this activity as I have now made you aware that it is being done and, as you well know, those documents are subject to Discovery by the attorneys handling the class action filed on behalf of Hispanic agents.... I am forwarding a copy of this letter to the attorneys for the class (action complaint) so they, too, can be made aware of the actions that have been undertaken by the Service to circumvent the Discovery process and which border on being an obstruction of justice or even worse.
Allison says he plans to seek a hearing before the judge handling his clients EEOC complaint to address the LULAC allegation. If its true, we want to know why they are destroying evidence in cases? Allison adds.
The repercussions of the shredding allegation go beyond the class-action complaint being handled by Allison. At least four other attorneys around the country are handling cases involving Hispanic Customs employees who have filed discrimination and retaliation complaints against the agency.
In Laredo, a jury in a federal court case recently awarded Customs agent Romeo Salinas $1 million in actual damages after finding the agency failed to promote Salinas in retaliation for prior Equal Employment Opportunity (EEO) complaints filed by the agent. Customs is currently challenging the jury award as well as payment of the attorney fees in the case, according to Salinas attorney, Ronald Tonkin of Houston.
An attorney in New Orleans, Miguel Elias, is currently handling EEO actions for five Hispanic employees of Customs who work for the Intelligence and Communication Division of the agencys Office of Investigations. He says one of those employees is a high-ranking intelligence officer with Customs. The EEO claims involve charges of discrimination and retaliation, Elias adds,I filed a brief in August for one of these EEO complaints and Customs still has not responded, he says. The problem for my clients now is that they are being targeted even more.
Ricardo Sandoval, the resident agent in charge of the Customs Office of Investigations in Calexico, Calif., recently won a U.S. Court of Appeals case in which Customs was challenging a lower courts finding that he had been the victim of discrimination and retaliation. In that lower-court case, Sandoval raised allegations that a neo-Nazi ring was operating inside the Customs Service in San Diego. The case stemmed from an incident in 1992 in which Sandovals first-line supervisor ordered him to investigate a complaint that involved a white supervisor assaulting a black officer, court records state.
One of the witnesses for Customs in the Sandoval case, Homer J. Williams, the former assistant commissioner of Internal Affairs at Customs, was indicted this past June on perjury charges in relation to a separate federal case not involving Sandoval.
Sandoval now has a second case pending against Customs in U.S. District Court for the Southern District of California in which he alleges that he has been subjected to further retaliation and discrimination in the wake of his first case.
He (Sandoval) has been under investigation for frivolous things for years, says Sandovals attorney, David Spivak. Its all retaliation.
Spivak adds that Customs also is fighting the award of attorney fees in relation to Sandovals first case. In addition, Spivak says Customs also has yet to make good on the damages awarded to Sandoval in that case -- despite the favorable appeals court ruling in July. The jury awarded Sandoval $200,000.
Finally, a group of Hispanic Customs agents who were the targets of a disparaging letter that LULAC describes as a racist manifesto also have retained an attorney and filed EEO complaints. The complaints allege that the Hispanic agents are victims of a hostile work environment and retaliation.
The letter was mailed in spring 1998 to Customs Commissioner Raymond W. Kelly by an anonymous agent from the federal agencys El Paso field office.
The letter sent to Kelly described the Hispanic agents, who at the time were working in Customs Internal Affairs unit in El Paso, as Mexican Mafia and as low lifes. The letter also charges that the Hispanic agents were pursuing what can only be called `vendettas against a number of agents and that they have significant ties and dealings with smugglers.
A subsequent investigation of the letters allegations determined that the charges were unfounded. The agent who wrote the letter also admitted under oath that he embellished and included false information in the correspondence sent to Kelly.
Despite those facts, the agent who penned the letter received a plum duty assignment in the wake of the investigation, according to LULAC as well as sources within Customs. The Hispanic agents, though, were relieved of their duties in El Paso and dispersed to different posts within the Customs Service -- as was requested by the writer of the anonymous letter.
Joe Silva, the El Paso attorney who is handling the EEO actions for the displaced Hispanic agents, says he is reluctant to comment on the cases because he fears Customs management will retaliate against his clients.
Were concerned about retaliation and the typical barriers and stonewalling that Customs sets up in these cases, Silva says. The Service (Customs) has not shown any desire to resolve the underlying issues in these cases. The higher-ups have dug in their heels and are using the taxpayers resources to brow beat Hispanics.
Julie Marquez, the LULAC spokesperson who penned the letter to Customs Chief Counsel Robles, says the board of the national Latino civil rights organization met in October and adopted a resolution calling on Congress to initiate an investigation into the racial profiling being conducted within the Customs Service.
In a letter sent to both congressmen Henry Hyde and John Conyers of the House Judiciary Committee, Marquez states:
Because of the racial hatred that permeates the U.S. Customs Service, all people of color are in danger. This is true whether they employ us or whether we are the subjects of investigation by the Service. ... How can Commissioner Kelly properly police our borders from drugs and other contraband when he cannot properly police his own staff to stop racial profiling?
Some members of Congress have already raised concerns with the attitude displayed by senior Customs officials toward the agencys Hispanic employees. In July 1999, a report from the House Appropriations Committee took issue with a portion of a U.S. Treasury Department report that stated the following:
Most serious, however, is the belief that (Customs) inspectors who are hired locally, particularly along the Southwest border and assigned to the local ports of entry, could be at greater risk of being compromised by family members and friends who may exploit their relationships to facilitate criminal activities. Although they could not offer any solid evidence, Customs officials express a real apprehension over the possibility that individuals are attempting to infiltrate Customs by seeking jobs as inspectors for the sole purpose of engaging in corrupt and criminal behavior.
The members of the House Appropriations Committee blasted that passage, stating for the record that the committee takes strong exception to any implication that individuals of Hispanic background are particularly susceptible to corruption and expects the Customs Service to address unsubstantiated bias by senior Customs officials ....
Customs Murphy stresses that the report in question was drafted by Treasury, not Customs. The Customs Service, which is charged with protecting the nations border integrity, is an agency under the jurisdictional umbrella of the U.S. Treasury Department.
Although Murphy could not provide any specific details on how Customs has dealt with the request by the Appropriations Committee to address unsubstantiated bias, he did say Customs has formed some high-level committees to address recruitment and retention, particularly of minorities.
Murphy also added, I know there were briefings provided for members (of Congress) who were interested in this issue with regard to what the facts are and what we are doing.
Apparently, though, those briefings failed to satisfy the concerns of all members of the Appropriations Committee. This past summer, the House committee again revisited the issue, expressing continued concern with Customs efforts to address the implication that Hispanic Customs employees were somehow more prone to corruption.
In a July 2000 report to the entire House, the Appropriations Committee stated the following:
Customs offered but failed to provide the committee evidence supporting these views, and statistics provided by Customs did not support the allegation described in the (Treasury) report. In addition, written responses from ATF, DEA, FBI and the Secret Service indicated that these agencies did not agree with the concern that such local hiring (along the Southwest border) posed a greater risk of individuals being compromised.
Although Treasury and Customs now agree that the passage from the report did not reflect accurately their beliefs or practices, the committee is concerned that Treasury has been slow in taking steps to communicate this to senior managers and others involved with Customs integrity issues. The committee continues to take strong exception to any implication that individuals of Hispanic background are particularly susceptible to corruption and directs Treasury and Customs to contest any such unsubstantiated bias by senior Customs officials....
Copyright 2000 American City Business Journals Inc.