IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

 

Civil Action No. 01-4835-CIV-HUCK/TURNOFF

 

__________________________________________

           

RICARDO RAMIREZ,                                                        

 

Plaintiff,                                             

           

v.                                                                    

           

JOHN ASHCROFT, et al.,                                                             

 

Defendants.                           

__________________________________________

 

 

PLAINTIFF’S OPPOSITION TO DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

 

Plaintiff, Ricardo Ramirez, by counsel, and pursuant to Federal Rule of Civil Procedure (“F.R.Civ.P.”) 56(c), respectfully submits this opposition to Defendants’ motion for summary judgment.

MEMORANDUM OF LAW

1.                  Introduction.

This action arises out of retaliatory conduct and race discrimination against Plaintiff by his employer the United States Department of Justice, Immigration and Naturalization Service (hereinafter “Defendants”), an executive agency of the U.S. Government, through Plaintiff’s supervisors and co-workers.  Plaintiff has presented evidence proving the elements of his discrimination claim and his retaliation claim under Title VII of the Civil rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.  Plaintiff’s evidence, at a minimum, is sufficient to create disputes of material fact that cannot be resolved on summary judgment and must be decided by a jury.  Thus, Defendants’ motion for summary judgment must be denied.

2.                  Factual Background.[1]

Plaintiff began his career with the INS in the Border Patrol after successfully completing training at the federal law enforcement training center in Glynco, Georgia.  See Exhibit (“Exh.”) A, ¶ 2.  After serving with the Border Patrol in Texas for 14 years, Plaintiff transferred to the Miami District Office on January 17, 1999 and promoted to Criminal Investigator (Special Agent).  Id. at ¶ 3.  Plaintiff’s work in the Miami District required him to identify, locate and arrest immigrants who have been convicted of felonies, among other duties and responsibilities.  Id.  Plaintiff’s performance over the course of his career with the INS has always been exemplary.  Id. at ¶ 4.

After having been transferred to the Miami Division, Plaintiff observed and experienced a widespread, open hostility and prejudice against Hispanics, a hostility and bias that was exhibited by many co-workers and officers as well as managerial and supervisory personnel in a variety of ways such as comments, threats, and offensive paraphernalia and permeated the Elian Gonzalez seizure, named by officials as “Operation Reunion.”  Exh. A, ¶¶ 5, 16, 31.  Believing that this conduct violated his and his Hispanic colleagues’ civil rights, Plaintiff complained of this conduct to a union attorney, a union steward, the U.S. Attorney General, the INS Office of Inspector General, the Office of Special Counsel, and the media.  Exh. A, ¶¶ 7, 8, 10, 11, 19-21, 23, 28, 29.  Plaintiff’s supervisors, all of whom were implicated in Plaintiff’s complaints, were aware that he made these complaints and thus began a long and continuous campaign of concerted, unlawful threats, reprisals and retaliation against him that included, inter alia, a sham performance evaluation and being placed on a Performance Improvement Period (“PIP”) as a result, a denial of a within grade increase, a negative Officer Corps Rating (“OCOR Rating”), and a bogus AWOL charge and subsequent disciplinary action.  Exh. A, ¶¶ 11-18, 24-27, 30-32, 34, 36-39, 41-46, 49-52, 56.

As a result, Plaintiff filed a complaint of prohibited personnel practices with the Office of Special Counsel and initiated an action before the Merit Systems Protection Board (“MSPB”).  In his May 24, 2002 Initial Decision, the MSPB judge stated that “To be sure, the appellant’s disclosures and the persuasive evidence he presented to demonstrate his reasonable belief in their truth are highly troubling.  At best, they evidence a serious problem within the INS’s Miami District Office.  At worst, they evidence a hostile work environment for employees of Cuban-American and Hispanic national origin.”  Ramirez v. Dep’t. of Justice, No. AT-1221-02-0114-W-1, slip op. at 6 (May 24, 2002).  The judge, however, found that the MSPB did not have jurisdiction over Plaintiff’s disclosures about the anti-Hispanic discrimination at the Miami District Office, but instead jurisdiction over Plaintiff’s claims was vested in the Equal Employment Opportunity Commission (“EEOC”).  Id.  Plaintiff filed a complaint with the EEOC alleging race discrimination and retaliation for protected activity.  Exh. A, ¶ 57.  Because the EEOC did not take action on Plaintiff’s complaint within 180 days of the filing of his complaint, Plaintiff initiated this action pursuant to statute.  Id.

3.                  Discussion.

A.        Standards Governing Summary Judgment.

Summary judgment is proper only if the pleadings, depositions, and affidavits show there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.  Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir. 1999).  In ruling on a motion for summary judgment, the Court must “view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party.”  Maniccia, 171 F.3d at 1367.

B.        Defendants Are Not Entitled to Summary Judgment on

Plaintiff’s Hostile Environment Claim.

 

“Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating ‘against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.’  42 U.S.C. §§ 2000e-2(a)(1).  A hostile work environment claim under Title VII is established upon proof that ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002), quoting, Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).  The U.S. Court of Appeals for the Eleventh Circuit “has repeatedly instructed that a plaintiff wishing to establish a hostile work environment claim show: (1) that he belongs to a protected group; (2) that he has been subject to unwelcome harassment; (3) that the harassment must have been based on a protected characteristic of the employee, such as national origin; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability. Id.  Plaintiff has adduced sufficient evidence to satisfy each of these elements or, at a minimum, to create a genuine dispute of material fact that must be decided by a jury.

First, Defendants do not dispute that Plaintiff is Hispanic and, therefore, is a member of a protected class under Title VII.  See Defendant’s Motion for Summary Judgment And Supporting Memorandum of Law (“Defs. Mem.”) at 19.  Thus, the first element of Plaintiff’s race discrimination claim has been met.

Regarding the second and third element of Plaintiff’s prima facie case, he has presented more than sufficient evidence that he has been subjected to unwelcome harassment and the harassment was based on a protected characteristic, that is, his race.  As set forth in his sworn affidavit, Plaintiff was subjected to hostility and bias because of his race by many co-workers and officers as well as managerial and supervisory personnel in a variety of ways.  For example, INS agents of Cuban and Hispanic ancestry, such as Plaintiff, were initially excluded from the team that seized Elian Gonzalez from the home of his Miami relatives.  Exh. A, ¶ 5(a).; see also Exh. 8 (Transcript of Proceedings in Ramirez v. Dep’t. of Justice, Docket No. AT-1221-02-0114-W-1 (MSPB))[2] (“TR”), attached to Exh. A, at 65-66 (Ramirez testimony) (“Hispanic Agents were put on at the last minute”); TR (Appignani[3] testimony) at 205:17-20; and TR (Hernandez[4] testimony) at 293-94 (“Nobody said anything to me till the day before”); see also Exh. B (July 10, 2002 Deposition of David Wallace[5]) at 36:13-25 (“the Hispanics who were involved in that played the most secondary roles, guarding airports and such.  They were not – they were not trusted”); Exh. C (July 10, 2002 Deposition of Ana Cruz[6]) at 40: 19-24 (“That they [INS officials] would exclude them from some of the meetings because they were Cuban – of Cuban descendents.  You know, they were Cubans.”); and Exh. D (June 19, 2002 Deposition of Diana Alvarez[7]) at 15:10-15 (A:  “Yeah, It just got that progressively worse to the point that the alienation was pretty much complete and – and then the raid happened.  Q: Did you take it he [Alvarez’ supervisor] wasn’t talking to you because you were Cuban American?  A: I did, yes.”).  Even more, the Hispanic agents in Plaintiff’s unit were excluded from the planning and preparation of this operation, although the non-Hispanic agents in Plaintiff’s unit were fully briefed and prepared.  Id.  Indeed, three to four weeks before the operation Special Agent Mike Compitello, who is a non-Hispanic agent in Plaintiff’s unit, came to Plaintiff and stated that he needed to swap government vehicles with him for an upcoming operation.  Id.  Plaintiff asked, “what operation?” and Special Agent Compitello responded that he could not tell Plaintiff.  Id.  It is customary and crucially important that the agents who will be involved in any operation be briefed and prepared not only for their safety and security, but for the safety and security of the subjects of the operation.  Id.  In this case, because the Hispanic agents were put on “Operation Reunion” at the last moment before it commenced, they did not know what to expect and their safety was compromised.  Id.; see also Exh. B (July 10, 2002 Deposition of David Wallace) at 42:2-18 (“Q: . . . the distrust towards the Hispanics, did that create a high risk that a mishap could have occurred killing somebody?  A: Yes . . . My opinion that that did increase the likelihood of a problem, a life threatening problem or an injury.  It could have been far worse.  Surprisingly, all we had was bruises and people suffering from pepper spray and busted heads, but there could have been bullets fired.”).  Indeed, Defendants did not inform the Hispanic agents about the operation because they believed that the Hispanic agents would disclose the plans to the Hispanic community, who was vehemently opposed to the removal of Elian Gonzalez from his Miami home.  In other words, Plaintiff and his Hispanic colleagues were singled out because of their race.

Prior to the seizure, Plaintiff heard a non-Hispanic agent in his unit named Rick Bendel, who was a member of the seizure team, urge his non-Hispanic co-workers, in a loud voice so as the entire office could hear, not to speak with their colleagues of Cuban and Hispanic ancestry about “Operation Reunion” because “they are spies.”  Exh. A, ¶ 5(b); see also Exh. 8, TR (Ramirez testimony) at 59-60; and TR (Cabrera[8] testimony) at 314-15, attached to Exh. A.  This comment reflects the general working environment for Hispanic agents in the Miami District office, but even more so, it reflects the distrust that INS management instilled in the non-Hispanic agents for their Hispanic colleagues.  Plaintiff also heard the same agent who made the previous comment conspicuously ask “Who was going to be the first one up in a tree to shoot Elian?”  Exh. A, ¶ 5(b); see also Exh. 8, TR (Ramirez testimony) at 59-60; and TR (Cabrera testimony) at 314-15, attached to Exh. A; see also Exh. B (July 10, 2002 Deposition of David Wallace) at 14:18-24.  This comment was the result of the anti-Hispanic working environment fostered and condoned by INS management, considering that Elian Gonzalez is Hispanic.  See Exh. 1 at pages 1-3 of Exh. B (July 10, 2002 Deposition of David Wallace) (“Racism and intolerance, towards the foreign born, Hispanics, and particularly Cubans in Miami District persists within the INS.  While some intolerance could be found at any INS office, I have never worked in any office or been in any work environment where the discrimination and hatred of Hispanics has been so blatant.”) (“In the period before the Elian Gonzalez raid, many of my coworkers became more vocal about their general dislike of Hispanics, particularly Cubans.”) (“co-workers began to joke and make fun of Hispanics and Cubans”).[9]

Another example of distrust and prejudice toward Hispanics, after Plaintiff disclosed the anti-Hispanic discrimination to the public, Special Agent Ray Cabrera, told Plaintiff that he was prohibited from entering the INS technical room because agents were scrutinizing tapes of Plaintiff’s interviews to the media.  Exh. A., ¶ 30.  SA Cabrera, who is of Hispanic ancestry, told Plaintiff that the agents stated to him, “you cannot come into this room.  You’re one of them.”  Id.

Around the time of the seizure, Section Chief of Investigations for the Miami District, John Woods, kept a cardboard box outside of his office for several weeks that had a hand drawn picture of Elian Gonzalez with the words “Kick Me” next to the picture.  Exh. A, ¶ 5(c); see Exh. 9 (Photographs of box with hand drawn picture of Elian Gonzalez with the words “Kick Me”), attached to Exh. A; see also Exh. 8, TR (Ramirez testimony) at 60-63; and TR (Cabrera testimony) at 315-16, attached to Exh. A; see also Exh. B (July 10, 2002 Deposition of David Wallace) at 14:9-11 and Exh. C (July 10, 2002 Deposition of Ana Cruz) at 41:11-15.  Again, considering that Elian Gonzalez is Hispanic, these disturbing actions were the result of the anti-Hispanic working environment fostered and condoned by INS management of which John Woods belonged.  See Exh. 1 at pages 1-3 of Exh. B (July 10, 2002 Deposition of David Wallace).

Indeed, management at the highest levels at the Miami District Office were involved in creating a hostile working environment for the Hispanic employees.  For example, Plaintiff heard Robert Wallis, then District Director of the Miami District Office, state to a gathering of approximately 50 INS agents at the American Legion Hall after the Elian Gonzalez seizure that one of his happiest moments during the Elian Gonzalez controversy came when he saw a photograph taken during the seizure of a shotgun pointed at the head of a Mario Miranda, a prominent Hispanic activist in South Florida.  Exh. A, ¶ 5(d); see also Exh. 10 (Photograph of Gwenn Reed[10] holding a gun at Mario Miranda’s head), attached to Exh. A; see also Exh. 8, TR (Ramirez testimony) at 39-44; TR (Cabrera testimony) at 311-13 (“And my answer to you is yes, I’ve heard people talking about that”); TR (Cavallo[11] testimony) at 535-36 (“I’ve heard of that statement”); and TR (Reed testimony) at 362:16-17 (“There was some mention of that by some of the personnel in the office”) and 364:4-6 (“I do remember someone saying something, or a group of people talking about him saying something along those lines”); and TR (Hernandez testimony) at 295 (“there was something kind of like that said”), attached to Exh. A; see also Exh. E (July 9, 2002 Deposition of Bridgette Rodriguez[12]) at 76:4-14 and 77:24-78:5 (at least three agents confirmed to her that Mr. Wallis made the statement); Exh. C (July 10, 2002 Deposition of Ana Cruz) at 42:1-15, and Exh. D (June 19, 2002 Deposition of Diana Alvarez) at 18:22-19:1 (heard of comment).  Many of the non-Hispanic agents reacted to Mr. Wallis’ statement with approval and many of the Hispanic agents left in disgust.  Exh. A, ¶ 5(d); see also Exh. D (June 19, 2002 Deposition of Diana Alvarez) at 19:10-12.

The anti-Hispanic sentiment was maintained and fostered in the Miami District Office at all levels and was widespread.  For example, besides Miami District Counsel Daniel Vara, Jr. telling Plaintiff not to worry about having to testify regarding the evidence Plaintiff had of the anti-Hispanic discrimination in the Miami District Office because the DOJ attorney will make sure Plaintiff doesn’t take the stand, Exh. A, ¶ 6, Mr. Vara was heard to say that the Elian Gonzalez matter “was the event that would break the stranglehold that the exiled Cuban community had on local and national politics.”  Exh. 8 at 263:19-21, attached to Exh. A; see also Exh. D (June 19, 2002 Deposition of Diana Alvarez) at 6:22-8:20.

After the seizure, several high-ranking INS officials, including a high ranking official named Ben Bell from the Justice Department in Washington, DC, conceived of, ordered, and circulated insulated cup holders throughout the Miami District Office depicting a Cuban flag with the international “no” symbol surrounding the flag.  Exh. A, ¶ 5(e); see also  See Exh. 11 (Photograph of cup holder), attached to Exh. A; see also Exh. 12 (February 21, 2002 Agency Responses to Appellant’s First Set of Interrogatories at Interrogatory 21) (Defendants’ admission), attached to Exh. A; see also Exh. 8, TR (Ramirez testimony) at 68-74; TR (Appignani testimony) at 205, 227-28; TR (Alvarez testimony) at 246; TR (Hernandez testimony) at 298-99; TR (Cabrera testimony) at 316-17; TR (Reed testimony) at 367-68; TR (Wallis testimony) at 654; and TR (Goldman[13] testimony) at 701-02, attached to Exh. A; see also Exh. B (July 10, 2002 Deposition of David Wallace) at 14:12-13, 28-29 and Exh. D (June 19, 2002 Deposition of Diana Alvarez) at 18:14-15, 22:5-23, 23:3-5, 25:2-26:1; see also June 20, 2002 Deposition of Patricia Campbell[14] at 14:1-17:1, attached to Defs. Mem. as Exh. 5.  Plaintiff was subjected to the sight of several of these cup holders with the anti-Hispanic markings in the Miami District Office for at least eight months, from approximately June 2000 to January 2001.  Exh. A, ¶ 5(e).  Even more, Plaintiff  was subjected to the sight of Special Assistant to the District Director of the Miami District Office, George Waldrup, displaying such a cup holder on his desk in his office for at least eight months, June 2000 to January 2001.  Exh. A, ¶ 5(e); see also Exh. B (July 10, 2002 Deposition of David Wallace) at 17-18 (“Q:  Did you see the back of the cup holder with the Cuban flag and the slash through it on Waldroup’s desk?  A: Yes, I saw both sides.”) and Exh. E (July 9, 2002 Deposition of Bridgette Rodriguez) at 45-46.

In addition, Mr. Waldrup displayed a banner on his office wall proclaiming “Banana Republic-Miami Florida” with a picture of the seal of Miami and bunches of bananas.  Exh. A, ¶ 5(f); see also Exh. 13 (Photograph of “Banana Republic-Miami Florida” banner), attached to Exh. A; see also Exh. 14 (E-mail from Rosa Suarez[15] to Bridgette Rodriguez regarding banners) and Exh. 15 (E-mail from Bridgette Rodriguez to Jack Bulger,[16] Robert Wallis, Jose Cruz[17] regarding banners), attached to Exh. A; see also Exh. 12 (February 21, 2002 Agency Responses to Appellant’s First Set of Interrogatories at Interrogatory 21) (Defendants’ admission), attached to Exh. A; see also Exh. 8, TR (Ramirez testimony) at 46-51; TR (Appignani testimony) at 227-28; TR (Alvarez testimony) at 246; TR (Cabrera testimony) at  313; TR (Reed testimony) at 365-66; and TR (Wallis testimony) at 654-55, attached to Exh. A; see also Exh. B (July 10, 2002 Deposition of David Wallace) at 14:7-9, 15:18-16:18, 22:14-17; Exh. C (July 10, 2002 Deposition of Ana Cruz) at 22:5-7, 24:6-9; Exh. F (July 9, 2002 Deposition of Rosa Suarez) at 10:12-12:24; Exh. D (June 19, 2002 Deposition of Diana Alvarez) at 22:5-11, 26:2-27:25, 29:24-25; and Exh. E (July 9, 2002 Deposition of Bridgette Rodriguez) at 44:6-45:1, 46:14-21, 49:20-24.  This banner is offensive to persons of Hispanic ancestry.  See Exh. 8, attached to Exh. A, TR (Wallis testimony) at 655:7 (“I know it’s a derogatory term, sir.”); Exh. C (July 10, 2002 Deposition of Ana Cruz) at 23:20-24:6; Exh. E (July 9, 2002 Deposition of Bridgette Rodriguez) at 95:5-11; Exh. B (July 10, 2002 Deposition of David Wallace) at 21:16-22:7.  Because Plaintiff’s duties required that he be in the vicinity of Mr. Waldrup’s office, he was subjected to the sight of this banner several times a week for at least eleven months, from approximately March 2000 to January 2001.  Id.  Indeed, this banner was displayed openly on the wall for all to see.  See Exh. E (July 9, 2002 Deposition of Bridgette Rodriguez) at 46:19-21 (“Again, you couldn’t miss the Banana Republic flag.  It was sticking right up there . . . .”).  Plaintiff was also subjected to the sight of a similar banner everyday for twelve months, from approximately May 2000 to April 2001, in the office of Immigration Agent James Wolynetz, who worked in Plaintiff’s unit on his floor.  Id.  Similar banners were also displayed in the office of Personnel Supervisor Susan Burg, Security Specialist Steven Burg and Security Specialist George Zalofsky.  Id.

Also in the Personnel Office, Personnel Supervisor Susan Burg displayed for several months a flyer in which the headline stated, “CUBAN COWARDS: Instead of abusing the hard working men and women of Miami, why don’t you go and abuse Castro.  Take a boat to Cuba and block the streets of Havana and if you don’t like this great Democracy - Delta leaves everyday.”  Exh. A, ¶ 5(g); see also Exh. 1 (copy of flyer) and Exh. 3 (Cruz’ written complaint to supervisor), attached to Exh. B; see also Exh. 14 (E-mail from Rosa Suarez to Bridgette Rodriguez regarding banners), attached to Exh. A; Exh. 8, TR (Ramirez testimony) at 51; and TR (Appignani testimony) at 227-28, attached to Exh. A; see also Exh. C (July 10, 2002 Deposition of Ana Cruz) at 10:13-21:14; Exh. F (July 9, 2002 Deposition of Rosa Suarez) at 9:18-10:9; and Exh. E (July 9, 2002 Deposition of Bridgette Rodriguez) at 49:22-50:25.  This flyer was clearly visible to anyone on the 10th floor.  See Exh. C (July 10, 2002 Deposition of Ana Cruz) at 16:4-20 and Exh. F (July 9, 2002 Deposition of Rosa Suarez) at 9:11-10:1.  Even worse, Ms. Burg highlighted several portions of this flyer for all to see.  Exh. C (July 10, 2002 Deposition of Ana Cruz) at 12:2-13.  Some of the highlighted portions included, “The Cuban Mentality:  The same mentality that raises the American Flag in corrupt election ballots or use it [sic] as an excuse to block roads and abuse hard working men and women of Miami; The same mentality that raises and hides behind the American Flag but cannot even speak english and don’t know the name of the First American President; The same mentality that greedily benefits from the civil right struggles of American Americans and then steals what little is set aside for them; The same mentality that calls themselves White or Jewish, except when they want government money (then they call themselves Hispanic); The same mentality that comes to America, refuses to learn English, impose their language and discriminate against American Citizens.”  Id.  As if the fact that this flyer was posted in the office of a supervisor in the Miami District Office’s personnel office, where employees are supposed to be trained and counseled on matters of discrimination, was not bad enough, it appears that this flyer originated from inside the INS, specifically, the Office of Internal Affairs, Humanitarian Affairs branch, as is evidenced by the fax tag line.  Id.  Even worse, additional copies of this flyer were posted throughout the office, including in Susan Burg’s husband’s office, Steven Burg, who worked as a security specialist for the INS.  Id.

Lastly, when Plaintiff’s supervisors discovered that he made the disclosures regarding the anti-Hispanic discrimination in the Miami District Office, they become increasingly hostile and antagonistic towards Plaintiff.  Exh. A, ¶ 31.  For example, Deputy Assistant District Director for Investigation James Spearman, Plaintiff’s third line supervisor, and others have taken to addressing Plaintiff in a snide and derisive tone as “Ricardo,” his Spanish surname. Id.  While Ricardo is Plaintiff’s full first name, he has always been called “Rick” by his co-workers and supervisors at the Miami District Office.  Id.

Regarding the fourth element of Plaintiff’s prima facie case, Plaintiff has produced sufficient evidence that the harassment was sufficiently severe or pervasive to alter the terms and conditions of his employment and created a discriminatorily abusive working environment.  “This requirement, as defined by the Supreme Court, contains both an objective and a subjective component.”  Miller, 277 F.3d at 1276, citing, Harris, 510 U.S. at 21-22.  “Thus, to be actionable, this behavior must result in both an environment ‘that a reasonable person would find hostile or abusive’ and an environment that the victim ‘subjectively perceives . . . to be abusive.’” Id.

“In evaluating the objective severity of the harassment, [the U.S. Court of Appeals for the Eleventh Circuit] consider[s], among other factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.”  Miller, 277 F.3d at 1276 (citations omitted).  The Court has adopted a totality of the circumstances approach and thus failure to prove one factor is not fatal to Plaintiff’s case.  Id.  In this case, the harassing conduct was frequent.  Plaintiff has demonstrated that the Miami District Office was permeated with hostility toward Hispanics and that this conduct spanned from his arrival  in 1999 and escalated during the years of 2000-2001.  See, generally, Exh. A.  For example, not only considering the day to day verbal harassment from his co-workers and management, Plaintiff was subjected to various anti-Hispanic paraphernalia everyday in excess of eight months to a year.  Exh. A, ¶ 5.  Clearly, this constitutes frequent conduct.  See Miller, 277 F.3d at 1276 (conduct was frequent to be sufficient to constitute an objectively hostile work environment that only occurred everyday for a month).

The harassing conduct was also severe.  Plaintiff has demonstrated that the Miami District Office was “permeated with discriminatory intimidation, ridicule and insult.”  Exh. A, ¶ 5.  Indeed, Plaintiff has shown how INS employees of Hispanic ancestry were distrusted and excluded from an operation based on their race, intimidated, ridiculed and insulted by their non-Hispanic colleagues and supervisors because of their race, endured hearing prejudiced comments made against other Hispanics as a result of the anti-Hispanic atmosphere created by management, and was forced to view anti-Hispanic paraphernalia over an extended period of time.  Exh. A, ¶ 5.  Also, as a result of the conduct, Plaintiff suffered substantial emotional distress and stress-related physical conditions that required Plaintiff to take sick leave on numerous occasions.  Exh. A, ¶ 58.  Indeed, several employees at the Miami District Office suffered from physical conditions as a result of this hostile conduct.  See, e.g., Exh. C (July 11, 2002 Deposition of Ana Cruz) at 29:23 (“I couldn’t function,  I didn’t even eat.”) and Exh. D (June 19, 2002 Deposition of Diana Alvarez) at 14:8 (rushed to hospital with crushing chest pains due to hostile conduct).

The harassing conduct was also physically threatening and humiliating.  First, Plaintiff has shown how his safety was compromised by being put on an operation at the last moment, which was not the customary practice at the INS, because Defendants did not trust that the Hispanic agents would keep the operation a secret from the Hispanic community.  Exh. A, ¶ 5(a).  Second, Plaintiff’s physical safety was threatened as is evidenced by the writing on his car window by an INS employee, “We know its you.  Watch out traitor.”[18]  Exh. A, ¶ 16.  Third, the conduct was humiliating and degrading to Plaintiff.  The very nature of the comments made and paraphernalia displayed, and the fact that they were directed at him or towards individuals on account of their Hispanic ancestry establishes this factor.  Exh. A, ¶ 5; see also Miller, 277 F.3d at 1277.

The conduct unreasonably interfered with Plaintiff’s job performance.  As noted, Plaintiff was prevented from participating in the planning and preparation for “Operation Reunion” based on his Hispanic ancestry.  Exh. A, ¶ 5(a).  In addition, because of Plaintiff’s race, he was prevented from participating in the actual seizure and was given a secondary role.  Id.  Plaintiff was also prevented from performing his duties when an individual at the Miami District Office wrote on his car window and Plaintiff’s government vehicle was taken away and he was given desk duty and then forced to ride with another agent.  Id. at ¶¶ 16-18.  Lastly, as a result of the conduct, Plaintiff suffered substantial emotional distress and stress-related physical conditions that required Plaintiff to take sick leave on numerous occasions, which interfered with  the performance of his duties.  Exh. A, ¶ 58.  Thus, Plaintiff has shown that the conduct unreasonably interfered with his job performance. [19]

Even further, Plaintiff will produce at trial corroborating testimony of the pervasiveness and severity of the harassing conduct in the Miami District Office.  See, e.g., Exh. B (July 10, 2002 Deposition of David Wallace) at 10:8-9 (“It’s a culture inside the INS of hostility towards Hispanics”), 12:19-13-1 (“And I believe in the days leading up to Elian Gonzalez seizure, the office became extremely hostile towards Hispanics, particularly Cubans, but all Hispanics in general; and I think that many Hispanics in our office were intimidated by that and just didn’t say anything, or maybe said something to each other, but I’m sure they could sense the feeling.”), 13:14-18 (Q: In your view, was it a hostile workplace environment towards Hispanics and – Cuban Americans in particular?  A: Yes.”), 20:17 (It was offensive to me as a Hispanic.”), 25:16-19 (“Q: So is it your opinion, based on your experience, that Janet Reno, as Attorney General, fostered a hostile work environment towards Hispanics and Cuban Americans?  A: Yes, I agree with that statement.”), 34:19-21 (“ . . .but it was at least a year of just like it was very difficult for the Hispanics in that office.”), and Exh. 1, attached there to, at page 1 (“Racism and intolerance, towards the foreign born, Hispanics, and particularly Cubans in Miami District persists within the INS.  While some intolerance could be found at any INS office, I have never worked in any office or been in any work environment where the discrimination and hatred of Hispanics has been so blatant.”), page 2 (Therefore, I had no reason to think that Hispanics can be systematically subjected to discrimination prior to working at Miami District.  I did not imagine that such widespread discrimination would be able to exist in Miami District . . . .”), (“I sometimes have felt that many of my coworkers would be happier if all the Hispanics in this country wore some type of symbol on their clothing to make it easier to identify them, since they refer to Hispanics like we are subhuman.”), (“In the period before the Elian Gonzalez raid, many of my coworkers became more vocal about their general dislike of Hispanics, particularly Cubans.”) and page 3 (“co-workers began to joke and make fun of Hispanics and Cubans”).

See also Exh. C (July 11, 2002 Deposition of Ana Cruz) at 13:1 ( “. . . I got very, like, upset and offended and I said, what’s going on?”), 29:17 (“Q: You felt that there was a hostile workplace environment towards Cubans and Hispanics?  A: Yes, very much so.”), 32:21-25 (“Again, I am very insulted, upset, and at the same time very sad to see that this kind of information is being displayed and promoted in an INS personnel office, especially in the office of an acting supervisor . . . .”), 67:1-5 (Q: Did other Cuban Americans tell you that they were feeling sick and they were having difficulty working, too?  A: They felt like we were working in a hostile environment as well.”); see also Exh. D (June 19, 2002 Deposition of Diana Alvarez) at 6:1-4 (experienced anti-Hispanic prejudice at Miami District Office), 7:12-13 (atmosphere was very hostile), 11:13 (“but it was such an atmosphere of hostility”), 14:13-15 (“I felt completely alienated, discriminated against, marginalized.”); 16:4-6 (whole organization involved in the discrimination); 21:8-14 (found Wallis’ comment regarding the gun at Mario Miranda’s head to be ethnically biased considering what was going on); 39:5-9 (“Q: Would you describe the atmosphere in the Miami District office up till the time you left throughout Elian Period as a hostile workplace environment for Cuban Americans?”  A: Absolutely.  Absolutely.”), 39:16-19 (considered quitting her job because of harassing conduct); see also Exh. E (July 9, 2002 Deposition of Bridgette Rodriguez) at 18:1-4 (employee reported to her that working atmosphere was hostile), 27:6-8 (another employee reported to her that working atmosphere was hostile), 59:23-60:1 (“Such signs in a Federal facility are never allowed because it motivates hate, prolongs stereotyping and increasingly negativity.”), 71:10-24 (Miami District Office has discrimination problems, especially the investigations unit, which was brought to her attention on numerous occasions), 74:12-20 (investigations unit is a hostile working environment); (banana republic signs were “derogatory, racially ethnic, offensive thing”); see also Exh. F (July 9, 2002 Deposition of Rosa Suarez) at 5:2-6 (felt she experienced anti-Hispanic prejudice at Miami District Office); see also Exh. 8, TR (Cabrera testimony) at 330-31 (“the other exhibit regarding the Cuban flag and the banner bothered me, it offended me, yes, it did”), attached to Exh. A.

Indeed, even Plaintiff’s supervisors have previously testified that they found the conduct at issue here hostile and discriminatory.  See Exh. 8, attached to Exh. A, TR (Cavallo testimony) at 551:10-15 (“I Would find that extremely offensive, yes sir.  * * * Yes sir, I would find that kind of material offensive.”) and 551:18-19 (“yes, it could be perceived as being discriminatory, yes sir”); TR (Reed testimony) at 373:12-13 (“If I had seen something as derogatory as that, more than likely, [I would have asked for it to be removed])” and 373:17-19 (“I would have most certainly brought it to the attention of my superiors that I thought it would be inappropriate”); and TR (Wallis testimony) at 651-58 (acknowledged that the paraphernalia was discriminatory, offensive, unacceptable and unprofessional); and TR (Goldman testimony) at 701-03 (referring to paraphernalia as discriminatory).

Lastly, even if Plaintiff has not met his burden as to any one of the particular factors above – which is not the case – the harassing conduct when taken as a whole is clearly sufficient to constitute an objectively hostile work environment.  See Miller, 277 F.3d at 1276.

Plaintiff has also demonstrated that he subjectively perceived this harassing conduct to be abusive.  Specifically, Plaintiff was shocked, disgusted, and offended by the above harassing conduct and believed that this behavior of non-Hispanic officials and employees created an abusive and hostile working environment in violation of his civil rights.  Exh. A, ¶7.  As a result, Plaintiff felt compelled to report this harassing conduct, which he did to a union attorney, a union steward, the U.S. Attorney General, the INS Office of Inspector General, the Office of Special Counsel, and the media.  Exh. A, ¶¶ 7, 8, 10, 11, 19-21, 23, 28, 29.  Thus, it is clear that the harassing conduct bothered Plaintiff and Plaintiff subjectively believed the conduct to be abusive.  See Miller, 277 F.3d at 1277 (fact that conduct “bothered” plaintiff enough to consult attorney established subjective element).

Finally, regarding the fifth element of Plaintiff’s prima facie case, he has presented sufficient evidence that his employer is responsible for the hostile work environment.  “An employer ‘is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.’” Miller, 277 F.3d at 1278, quoting, Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).  “However, when an employee has established a claim for vicarious liability but where no tangible employment action was taken, a defending employer may raise as an affirmative defense to liability or damages: ‘(a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’” Id.  “Where the perpetrator of the harassment is merely a co-employee of the victim, the employer will be held directly liable if it knew or should have known of the harassing conduct but failed to take prompt remedial action.”  Miller, 277 F.3d at 1278 (citations omitted). “Thus, a victim of coworker harassment must show either actual knowledge on the part of the employer or conduct sufficiently severe and pervasive as to constitute constructive knowledge to the employer.”  Id.  “Actual notice is established by proof that management knew of the harassment, whereas constructive notice will be found where the harassment was so severe and pervasive that management should have known of it.”  Id.

In this case, Plaintiff has presented evidence that Defendants are both vicariously liable as a result of the hostile environment created by his supervisors and directly liable as a result of Defendants actual and constructive knowledge of the harassing behavior with no remedial action.  First, Plaintiff has shown that INS management, including Plaintiff’s supervisors, excluded Hispanic agents from the planning, preparation and meaningful involvement in the Elian Gonzalez seizure.  Exh. A, ¶ 5(a).  Obviously, INS management took no remedial action to cure this harassing behavior.  Indeed, the raid occurred as planned.  Second, the comment made regarding the gun pointed at the head of Mario Miranda was made by the District Director himself, Plaintiff’s supervisor.  No remedial action was taken regarding this comment.  Exh. 8, TR (Wallis testimony) at 671:24-672:4 (Q:Has anyone from Attorney General John Ashcroft’s Office of Main Justice ever contacted you about the allegations in the article in the Miami New Times, the “Elian Plus One,” or any other aspect of this whole affair?  A:  No sir.  Not to my recollection, no.”), attached to Exh. A. 

Plaintiff has also shown that the harassment by his co-workers and other members of management occurred with the actual, or at the least constructive, knowledge of INS management.  First, Plaintiff has shown that INS management had actual knowledge of the anti-Hispanic flags and flyer because they were boldly displayed by members of INS management, specifically, Assistant to the District Director George Waldrup and Office of Personnel Supervisor Susan Burg.  Exh. A, ¶ 5(f) and (g). 


In addition, other members of INS management had actual knowledge of the existence of this anti-Hispanic paraphernalia as early as January 24, 2000.  Specifically, on that date, Ana Cruz reported to her supervisor Yolanda Sheehy the existence of these items.  See Exh. C (July 11, 2002 Deposition of Ana Cruz) at 28:4-33:25; see also Exh. 3 (Cruz’ written complaint to supervisor), attached to Exh. C.  Ms. Cruz informed Ms. Sheehy that she wanted her memorandum of complaint to go through channels, which means that Mr. Wallis, the District Director, was notified.  See Exh. C (July 11, 2002 Deposition of Ana Cruz) at 50:11-17.  Five months later in May 2000, Ms. Cruz observed that the anti-Hispanic paraphernalia was still being displayed and complained to union steward Bridgette Rodriguez.  Id. at 53:24-54:9; see also Exh. E (July 9, 2002 Deposition of Bridgette Rodriguez) at 54:20-55:10.  Ms. Rodriguez advised Ms. Cruz to submit another written complaint to her new supervisor Ms. Betty Reider, which Ms. Cruz did.  Exh. C (July 11, 2002 Deposition of Ana Cruz) at 53:24-54:9; see also Exh. E (July 9, 2002 Deposition of Bridgette Rodriguez) at 57:7-11.  Likewise, Mr. Wallis would have received a copy of this complaint.[20]  Ms. Rodriguez called Special Assistant to the District Director John Schewairy and informed him of the existence of the anti-Hispanic paraphernalia and suggested that management do a “walk through” of the entire Miami District Office.[21]  Exh. E (July 9, 2002 Deposition of Bridgette Rodriguez) at 57:7-11.  Management never did.  Indeed, since March of the same year, Special Assistant to the District Director George Waldrup and Immigration Agent James Wolynetz were displaying a similar flag in their offices.  Exh. A, ¶ 5(f). 


In addition, at this same time, the anti-Hispanic cup holders were being displayed in the Miami District Office.  Exh. A, ¶ 5(e).  Indeed, at this time, INS management had actual knowledge also of the cup holders.  Plaintiff has shown that the cup holders with the anti-Hispanic markings were conceived of by an individual from the Justice Department in Washington, DC and were ordered by INS personnel on Agency time.  Exh. A, ¶ 5(e); see also June 20, 2002 Deposition of Patricia Campbell at 14:1-17:1, attached to Defs. Mem. as Exh. 5.  In addition, Plaintiff has shown that the Special Assistant to the District Director – which is a management position – George Waldrup had one of the anti-Hispanic cup holders on his desk for at least eight months.  Exh. A, ¶ 5(e).

In December of 2000, Plaintiff likewise complained about the existence of the anti-Hispanic paraphernalia in the Miami District Office to union attorney Donald Appignani, who then disclosed the information in a deposition in which Defendants had counsel present, who then relayed the information to INS management.  Exh. A, ¶¶ 8, 10, 11; see also Exh. 12 at response 21, attached to Exh. A.  Plaintiff also complained to union steward Bridgette Rodriguez in mid-December 2000.  Exh. A, ¶ 8.  Then on January 6, 2001, Plaintiff’s complaint hit the news media, to which INS management was aware.  Exh. A, ¶¶ 11, 12, 14, 15.  Indeed, INS management responded with a press release to the news articles, denying the existence of the anti-Hispanic paraphernalia about which Plaintiff complained.  See Exh. G (January 14, 2001 Miami Herald article), attached hereto.


Incredibly, at the same time INS management was denying publically the existence of this paraphernalia, it still permeated the Miami District Office and was in no way remedied.  Indeed, on January 16, 2001, Plaintiff again approached Ms. Rodriguez to report that the anti-Hispanic paraphernalia was still being displayed, even a month after he made the disclosures.  Exh. A, ¶ 8.  On that same day, Rosa Suarez, an INS employee who was assigned to the Miami District Office in the year 2000, wrote Ms. Rodriguez an e-mail stating that she had seen the INS denials in the media and was outraged because she had witnessed the anti-Hispanic paraphernalia.  Exh. 14 (E-mail from Rosa Suarez to Bridgette Rodriguez), attached to Exh. A.  Also on that day, Ms. Rodriguez contacted District Director Robert Wallis’ secretary to again inform INS management of the anti-Hispanic paraphernalia.  See Exh. 15 (E-mail from Bridgette Rodriguez to Jack Bulger, Robert Wallis, Jose Cruz).  In addition, on that date, Ms. Rodriguez wrote an e-mail to District Director Robert Wallis, Deputy District Director Jack Bulger and EEO manager Jose Cruz and informed them again of the anti-Hispanic paraphernalia.  Id.  Despite all of these complaints, INS management still refused to do a walk through of the Miami District Office and remedy this situation.  Indeed, Plaintiff again complained about the anti-Hispanic paraphernalia on February 6, 2001 to the Attorney General, March 15, 2001 to the Office of Inspector General, April 16, 2001 to the Office of Special Counsel,  and April 19, 2001 to the Miami New Times.  Exh. A, ¶¶ 19-21, 23, 28, 29.  It was not until the April 19, 2001 Miami New Times article was published that INS management did a walk through of the office and made Immigration Agent James Wolynetz remove the “Banana Republic” banner from his office, more than a year after the first complaint was made regarding these banners.  Exh. A, ¶ 5(f).

Even more, Plaintiff has also provided evidence that Defendants had constructive knowledge of the anti-Hispanic paraphernalia’s existence and the anti-Hispanic comments.  Indeed, Plaintiff has presented evidence that this conduct was severe and pervasive, that is, it was blatant and conducted out in the open, continuous for over a year, committed by full time employees, and was more than a few isolated incidents.  See Miller, 277 F.3d at 1278-79; see also attached Exhibits; see also Exh. D (June 19, 2002 Deposition of Diana Alvarez) at 13:7-17 (“Q:  But the people that are in the office, would it have been apparent, based on your experience, that the supervisors in the office would have known of this anti-Cuban atmosphere?  A: As far as the people that were in the district – from operations, absolutely, absolutely, as far as the operational managers, and everybody knew.  It was prevalent.  It was all over the place.”); Exh. E (July 9, 2002 Deposition of Bridgette Rodriguez) at 55:1-3 (“yes, I was totally convinced that management saw that and didn’t do anything about it.”).

Lastly, Defendants cannot seriously argue that they enforce any kind of meaningful anti-discrimination policy considering that the very personnel office that is supposed to implement and train employees on any alleged policy was committing some of the very acts of discrimination alleged herein.  See Exh. A, ¶ 5; see also Exh. C (July 11, 2002 Deposition of Ana Cruz) at 27:7-15.  Indeed, as shown above, the discrimination complained of herein was widespread and prevalent at the highest levels; thus, any alleged written policy was of no effect and meaningless.

C.        Defendants Are Not Entitled to Summary Judgment on

Plaintiff’s Retaliation Claim.

 

1.         Plaintiff Has Met His Burden.

 

“In order to prevail, the plaintiff must first establish a prima facie case by showing (1) statutorily protected expression, (2) adverse employment action, and (3) a causal link between the protected expression and the adverse action.”  Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993) (citations omitted).  “At the summary judgment stage, the prima facie case need not be proved by a preponderance of the evidence.”  Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987).


“The first element of the prima facie case statutorily protected expression requires conduct by the plaintiff that is in opposition to an unlawful employment practice of the defendant.”  Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1136 (5th Cir. 1981), reh. denied, 660 F.2d 497, cert. denied, 455 U.S. 1000 (1982).  The conduct protected under Title VII is not limited to the filing of formal complaints or lawsuits, but also extends to informal conduct as long as it opposes the unlawful employment practices.  See  Goldsmith, 996 F.2d at 1163 n.11, citing, Rollins v. State of Fla. Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989) (“informal complaints of discrimination are protected expression under Title VII”); see also Payne, 654 F.2d at 1139-40, citing, Doe v. AFL-CIO, 405 F. Supp. 389 (N.D.Ga. 1975), aff'd, 537 F.2d 1141 (5th Cir. 1976), cert. denied, 429 U.S. 1102 (1977) (Plaintiff expressing his beliefs to co-workers protected opposition under Title VII); Robinson v Southeastern Pennsylvania Transp. Authority, Red Arrow Div., 982 F2d 892 (3rd Cir. 1993) (letter to congressman protected opposition under Title VII); EEOC v Crown Zellerbach Corp., 720 F2d 1008 (9th Cir. 1983) (letter to school board protected opposition under Title VII). 

In addition, “[t]o recover for retaliation, the plaintiff need not prove the underlying claim of discrimination which led to her protest, so long as she had a reasonable good faith belief that the discrimination existed.”  Meeks v. Computer Assocs. Int'l., 15 F.3d 1013, 1021 (11th Cir.1994).  “A plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented.”  Little United Technologies Carrier Transicold Division, 103 F.3d 956, 960 (11 Cir. 1997).

Regarding the second element of a prima facie case, a liberal reading of what constitutes an adverse impact is crucial to achieve the statute’s purposes.  See Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998) (reading the statute too narrowly “could stifle employees’ willingness to file charges of discrimination”).  “An adverse employment action is an ultimate employment decision, such as discharge or failure to hire, or other conduct that alters the employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee.”  Bass v. Board of County Commissioners, 256 F.3d 1095, 1118 (11th Cir. 2001) (citation and quotation marks omitted) (emphasis added).  “Title VII's protection against retaliatory discrimination extends to adverse actions which fall short of  ultimate employment decisions.”  Wideman, 141 F.3d at 1456.  In addition, Defendants actions collectively may be sufficient to constitute prohibited retaliatory discrimination, regardless of whether anything less than the totality of the alleged reprisals would be sufficient to constitute an adverse employment action.  Id.

Regarding the third element of a prima facie case, “[i]n order to establish the requisite causal link required as part of a prima facie case, a plaintiff need only establish that the protected activity and the adverse action were not wholly unrelated.”  Goldsmith, 996 F.2d at 1163 (citations and quotation marks omitted).  “At a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action.”  Id.  “The defendant’s awareness of the protected statement, however, may be established by circumstantial evidence.”  Id.  “For purposes of a prima facie case, close temporal proximity may be sufficient to show that the protected activity and the adverse action were not wholly unrelated.”  Gupta v. Florida Board of Regents, 212 F.3d 571, 590 (11th Cir. 2000) (citations and quotation marks omitted).

In this case, Plaintiff has presented sufficient evidence satisfying each of the elements of his retaliation claim and this evidence is sufficient to defeat Defendants’ motion for summary judgment.  First, Plaintiff engaged in statutorily protected activity by opposing Defendants’ unlawful employment practices.  Specifically, on or about December 12, 2000, Plaintiff opposed Defendants’ unlawful employment practices by informing his union counsel, Mr. Donald Appignani, of the anti-Hispanic discrimination in the Miami District Office and Mr. Appignani in turn relayed the information to the attorneys in a pending lawsuit regarding Elian Gonzalez on Plaintiff’s behalf.  Exh. A, ¶¶ 8, 10, 11.  On February 6, 2001, Plaintiff also opposed Defendants’ unlawful employment practices by informing Attorney General John Ashcroft and various Congressional members by letter of the anti-Hispanic discrimination at the Miami District Office, and the threats, reprisals and retaliation that he was suffering for disclosing the information.  Exh. A, ¶ 19.  On March 15, 2001, Plaintiff also opposed Defendants’ unlawful employment practices by informing the Department of Justice’s Fort Lauderdale Office of the Inspector General of the anti-Hispanic discrimination at the Miami District Office, and the threats, reprisals and retaliation that he was suffering for disclosing the information.  Exh. A, ¶ 23.  On April 16, 2001, Plaintiff also opposed Defendants’ unlawful employment practices by informing the Office of Special Counsel of the anti-Hispanic discrimination at the Miami District Office, and the threats, reprisals and retaliation that he was suffering for disclosing the information.  Lastly, on or about April 19, 2001, Plaintiff also opposed Defendants’ unlawful employment practices by informing the Miami New Times of the anti-Hispanic discrimination at the Miami District Office, and the threats, reprisals and retaliation that he was suffering for disclosing the information.  Exh. A, ¶ 29.  Thus, Plaintiff engaged in statutorily protected activity when he opposed Defendants’ unlawful employment practices.  In addition, Plaintiff has demonstrated that he subjectively believed that Defendants were engaged in unlawful employment practices.  Exh. A, ¶ 7; see also section III B, supra.  Plaintiff has also demonstrated that his belief was objectively reasonable in light of the facts and record presented.  Exh. A, generally; see also section III B, supra.

Regarding the second prong of Plaintiff’s prima facie case, Plaintiff has demonstrated that he has suffered four “adverse employment actions.”  First, on March 19, 2001, Plaintiff was put on a Performance Improvement Period.  Exh. A, ¶¶ 24, 26.  Defendants argue that negative performance evaluations are not “adverse employment actions” and therefore the PIP fails to satisfy the second prong of the test.  See Defs. Mem. at 17.  Defendants err because a PIP is more than a negative performance evaluation.  See generally, 5 U.S.C. § 4303 (“Actions based on Unacceptable Performance”).  Indeed, a PIP is a corrective action that has many adverse effects on the recipient as is evident in this case.  For example, as a result of the PIP, not only is Plaintiff on probation for a year and can be downgraded or removed if Defendants so decide, but Plaintiff was denied a Within Grade Pay Increase while on the PIP.  Exh. A, ¶ 27.[22]  Defendants concede Plaintiff was denied a pay increase and that it was due to the PIP.  See Defs. Mem. at 17, and n. 13; see also Exh. A, ¶ 27 and Exh. 8, attached thereto, at pages 446:18-24; 447:10-13 and 593:7-10.  The U.S. Court of Appeals for the Eleventh Circuit has unequivocally stated that a loss of pay or economic injury is an “adverse employment action.”  See Bass, 256 F.3d at 1118 (“We conclude that the [defendant’s] actions which deprived [plaintiff] of compensation which he otherwise would have earned clearly constitute adverse employment actions for purposes of Title VII.”); see also Davis v. Town of Lake Park, Florida, 245 F.3d 1232, 1240-41 (11th Cir. 2001) (court noted that actions were not “adverse employment actions”because employee had not suffered, for example, a loss of pay or economic injury).

In addition, as a result of the PIP, Plaintiff was given a negative Officer Corps Rating of 70, or “don’t recommend,” that resulted in the denial of several promotions.  Exh. A, ¶¶ 36, 37 and Exh. 32, attached thereto.  Defendants concede Plaintiff was given a negative Officer Corps Rating and that it was due to the PIP.  Exh. 8 at pages 518:16-23, attached to Exh. A.  The U.S. Court of Appeals for the Eleventh Circuit has also unequivocally stated that a performance memoranda that has the effect of triggering the denial of a promotion is an “adverse employment action.”  Davis, 245 F.3d at 1241 (“First, Courts are wisely reluctant to treat job performance memoranda as actionable under Title VII where they do not trigger any more tangible form of adverse action such as a loss of benefits, ineligibility for promotional opportunities, or more formal discipline.”) (emphasis added) and 1243 (finding that performance memo was not sufficiently adverse because “[t]here is no testimony, for example, suggesting that Davis was denied a promotion in the Town or passed over for a job elsewhere due to the presence of that memo in his file.”).  Thus, the PIP is an “adverse employment action.”

Second, Defendants took an adverse employment action against Plaintiff by denying him his scheduled Within Grade Increase.  Exh. A, ¶ 27.  As noted above, Plaintiff lost pay, which clearly constitutes an adverse employment action.  Bass, 256 F.3d at 1118; see also Davis, 245 F.3d 1240-41.  In addition, the delay in Plaintiff’s Within Grade Increase will also delay future increases, which will now be based on the new increase date.

Third, Defendants took an adverse employment action against Plaintiff by giving him a negative Officer Corps Rating.  Exh. A, ¶¶ 36, 37 and Exh. 32, attached thereto.  As noted above, Plaintiff was denied several promotions as a result of this rating, which clearly constitutes an adverse employment action.  Davis, 245 F.3d at 1241, 1243.

Lastly, Defendants took an adverse employment action against Plaintiff by documenting him as AWOL and disciplining him with a formal letter of reprimand.  Exh. A, ¶¶ 45-46, 56.  Although Defendants acknowledge that Plaintiff alleges that the AWOL charge is an adverse employment action, Defendants curiously neglect to address the AWOL charge in their brief.  Indeed, they cannot.  The U.S. Court of Appeals for the Eleventh Circuit has unequivocally stated that a disciplinary action such as a letter of reprimand is an “adverse employment action.”  See Davis, 245 F.3d 1240-41 (finding that performance memo was not sufficiently adverse because, for example, it was not a formal reprimand or punitive).  Clearly then, the AWOL charge and the resulting disciplinary action constitute an “adverse employment action.”

Nonetheless, drawing all inferences in a manner favorable to Plaintiff, the repeated acts of retaliation that he alleges, when taken as a whole, at a minimum raise material issues of fact as to whether he suffered an “adverse employment action.”  See Wideman, 141 F.3d at 1456.

Regarding the third prong of Plaintiff’s prima facie case, Plaintiff’s evidence also establishes  the necessary causal link between Plaintiff’s protected activity and Defendants’ retaliatory action against him.  Indeed, the causal link is established by Defendants’ knowledge of Plaintiff’s protected activity and the close temporal proximity between Plaintiff’s protected activity and Defendants’ adverse employment actions.  Regarding Plaintiff’s disclosures of race discrimination, Defendants admit that Plaintiff’s supervisors Mr. Reed, Mr. Cavallo, Mr. Goldman, Mr. Bulger, and Mr. Wallis were aware in mid-December 2000 of the disclosures made by Plaintiff.  Exh. 12 at response 21, attached to Exh. A; see also Exh. 8 at 541:10, attached to Exh. A.  Plaintiff’s supervisors were also very interested in finding out who made the disclosures.  Mr. Cavallo testified that he “wanted to know where it [the disclosures] was coming from so [he] could address it.”  Exh. 8 at 583:1-2, attached to Exh. A.  He stated further that he “picked [his] brains to death to figure out why this was coming and where this was coming from.”  Id. at 585:1-3.

Although Mr. Appignani did not expressly name Plaintiff as the individual who made the disclosures, Mr. Appignani gave enough information in his deposition that any reasonable person, especially a group of experienced investigators such as Plaintiff’s supervisors, could determine that Plaintiff made the disclosures.  Specifically, Mr. Appignani stated that the individual who made the disclosure was his client and that he had recently filed an EEOC action on the client’s behalf not related to the Elian Gonzalez raid.  Exh. 16 at page 23, line 8-14, attached to Exh. A.  Plaintiff was Mr. Appignani’s client and Mr. Appignani had recently filed an EEOC action on Plaintiff’s behalf not related to the Elian Gonzalez raid.  Exh. 8 at 202, attached to Exh. A.  Mr. Cavallo testified that he was told by his supervisors that the individual who made the disclosures was a client of Mr. Appignani.  Id. at 541:13-14.  Mr. Reed testified that he knew that Plaintiff had recently filed this EEOC action.  Id. at 437:17-18.  Indeed, Mr Cavallo knew Plaintiff had filed an EEO action because he was interviewed in that matter.  Id. at 535:15-17 and 610:23-25.

In addition, because some of the information disclosed was specific to the Elian Gonzalez raid, the individual who made the disclosures must have worked in the investigations unit and participated in the raid.  Plaintiff indeed worked in the investigations division and participated in the raid.  Exh. 8 at 35-36, attached to Exh. A.

Indeed, the evidence clearly shows that Plaintiff’s supervisors did discover that Plaintiff made the disclosures.  Exh. A, ¶¶ 12, 14, 15, 25.  For example, on January 29, 2001, someone wrote on Plaintiff’s car window “We know its you.  Watch out traitor.”  Exh. A, ¶¶ 16-18.  Obviously, the writing was in response to Plaintiff’s disclosures and evidences that he was known at the Miami District Office to be the individual who disclosed the information.  In addition, it is likely that one of Plaintiff’s supervisors who was specifically named in his disclosures wrote the message on his window.  Defendants admit that Plaintiff’s supervisors, including acting Supervisory Special Agent Annette Rivera, Mr. Reed, Mr. Cavallo, Mr. Spearman, Mr. Goldman and Mr. Bulger were aware of this writing on Plaintiff’s window.  Exh. 12 at response 3, attached to Exh. A; see also Exh. 8 at 681:9, attached to Exh. A.  Mr. Cavallo testified that he, Mr. Goldman, Mr. Spearman, Ms. Rivera and the Plaintiff had a meeting regarding the writing on the window.  Exh. 8 at 575, attached to Exh. A.  Mr. Cavallo stated further that at this meeting Plaintiff said that he felt the writing was perpetrated by someone within the Miami District Office and that maybe the person believes that Plaintiff made the disclosures.  Id. at 576-77, 598.  Mr. Cavallo further testified that around this date he suspected that Plaintiff had made the disclosures.  Id. at 598:23-25.  Indeed, surely Mr Cavallo knew that Plaintiff had made the disclosures because he had been in contact with Mr. Hazen’s Inspector General’s office, id. at 597-98, and Mr. Hazen told Mr. Appignani that he had put “two and two together”and figured out that Plaintiff made the disclosures because of the January 29, 2001 writing on the window incident.  Id. at 124:9-18.  Even further, Mr. Cavallo testified that, indeed, Nina Pelletier, the Department of Justice attorney who attended the December 12, 2000 Appignani deposition on behalf of Defendants, and who was involved in discussions in December with Plaintiff’s supervisors after the disclosures were made, confirmed in March of 2001 that Plaintiff was the individual who made the disclosures.  Id. at 596:13-17.

In April of 2001, Plaintiff made the disclosures to the Miami New Times.  Exh. A, ¶ 29.  Plaintiff’s name and photograph was published with the article regarding his disclosures.  Id..  Defendants stipulated at the MSPB hearing that it had knowledge that Plaintiff made the disclosures to the Miami New Times.  Exh. 8 at 144:20-23, attached to Exh. A.  Indeed, Mr. Reed, Mr. Cavallo, and Mr. Wallis confirmed that they had seen the article and knew that Plaintiff had made the disclosures.  Id. at 467, 560, 665-66.  Thus, plaintiff has established his supervisors knew that he made the disclosures, or at least has created a genuine dispute of material fact for trial.

In addition, the timing of these retaliatory acts in relation to Plaintiff’s protected activity is more than suspicious.  Specifically, Plaintiff made his initial disclosure on or about December 12, 2000 through his union attorney Mr. Appignani.  Exh. A, ¶¶ 8, 10, 11.  As noted above, Plaintiff’s supervisors became aware of this disclosure in December of 2000.  On January 6, 2001, reports about Plaintiff’s disclosures began to emerge in the media.  Exh. 8 at 91-92 , 206-07, attached to Exh. A.  On January 9, 2001, barely a month after Plaintiff made his disclosure, Mr. Reed began to counsel Plaintiff on his performance.  Id. at 422-23.  Mr. Reed testified that less than a month later he and Mr. Cavallo were having discussions regarding placing Plaintiff on a PIP.  Id. at 362.  Mr. Cavallo testified that he directed Mr. Reed to contact Labor Relations Management regarding placing Plaintiff on a PIP.  Id. at 571:10-11.  Mr. Reed could not remember the exact date that he contacted Labor Relations Management, but he stated that it was in February.  Id. at 513:25.  Not coincidentally, Plaintiff made a disclosure to Attorney General Ashcroft in February.  Exh. A, ¶ 19.  On March 15, 2001, Plaintiff and Mr. Appignani met with Mr. Hazen, at which time Plaintiff made a disclosure to Mr. Hazen.  Id. at ¶ 23.  The very next day, on March 16, 2001, Plaintiff was informed by Mr. Reed that he will be placed on a PIP.  Id. at ¶¶ 24, 25.  On March 19, 2001, Plaintiff was served with the PIP.  Id. at ¶ 26.  It is thus obvious to any reasonable person that the timing of the PIP in relation to Plaintiff’s disclosures is more than suspicious. 


Plaintiff continued to engage in protected activity throughout the year 2001.  On April 16, 2001, Plaintiff filed a Complaint with the OSC, alleging that the INS retaliated against him for making protected whistleblower disclosures.  Exh. A, ¶ 28.  In April 2001, Plaintiff made a disclosure to the Miami New Times, who published an article naming Plaintiff as the source of the disclosures.  Id. at ¶ 29.  Not coincidentally, on June 8, 2001, Plaintiff received an adverse Officer Corps Rating, prepared by Mr. Reed and Mr. Cavallo.  Id. at ¶ 36.  Between the summer and fall months of 2001, Defendants sought to create a reason to discipline Plaintiff; however, their attempts were unsuccessful.  Id. at ¶¶ 34, 38, 39, 41-44, 49-52.  Finally, in September of 2001, Plaintiff was charged with AWOL and disciplined with a letter of reprimand.  Id. at ¶¶ 45-46, 56.  Indeed, the timing of these retaliatory actions in relation to Plaintiff’s protected activity, coupled by the fact that Plaintiff’s supervisors knew he made the disclosures, clearly shows a casual connection between Plaintiff’s protected activity and Defendants’ retaliatory actions.  See Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir.1986) (“The short period of time [ (one month) ] between the filing of the discrimination complaint and the . . . [adverse employment action] belies any assertion by the defendant that the plaintiff failed to prove causation.”) (emphasis added).

2.         Defendants Have Not Met Their Burden.

 

“Once a prima facie case has been established, the defendant may come forward with legitimate reasons for the employment action to negate the inference of retaliation.”  Goldsmith, 996 F.2d at 1163 (citations omitted).  “If the defendant offers legitimate reasons for the employment action, the plaintiff then bears the burden of proving by a preponderance of the evidence that the reasons offered by the defendant are pretextual.”  Id.