Customs Accused of Shredding Records Agency
official says employees are getting their due process
American City Business Journals Inc.
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
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
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
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
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
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
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
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
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
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