Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



May 31, 1996

JANET RENO, Attorney General of the United States; DORIS MEISSNER, Commissioner of the Immigration and Naturalization Service, Defendants.

The opinion of the court was delivered by: HURD



 The plaintiff, Kathleen Kahmann, filed her complaint on March 2, 1994. Plaintiff alleges that defendants discriminated against her in employment because of her sex, in violation of 42 U.S.C. § 2000e. *fn1" More specifically, plaintiff alleges that defendants failed to comply with a final Equal Employment Opportunity Commission ("EEOC") directive issued on August 29, 1989, and retaliated against her for her EEO activity, that is, filing the EEOC complaint and attempting to achieve compliance with the EEOC directive. Defendants timely answered, denying the allegations of the complaint.


 A two-day bench trial was conducted on November 21-22, 1995, in Utica, New York. The court reserved decision on all claims.

 The plaintiff, pro se, was the sole witness in her case. Witnesses for the defendants were Miriam Griego ("Griego"), EEO Program Manager for the Eastern Region of the INS; Richard McCabe ("McCabe"), Port Director at the Port of Champlain; John Bulger, Assistant District Director; and John J. Ingham, District Director. In addition to the exhibits received in evidence, the parties filed a Stipulation of Material Facts (Court's Exhibit 1).

 Based upon all the evidence and the credibility of the witnesses, the court makes the following Findings of Fact and Conclusions of Law pursuant to Rule 52, Federal Rules of Civil Procedure.


 Plaintiff Kathleen Kahmann began working for the federal government in 1979 as a co-op student while she attended Bemidji State University in Duluth, Minnesota. At that time she worked as a trainee inspector for the U.S. Customs Service. After graduating with a Bachelor of Science degree in criminal justice, the U.S. Customs Service hired her as a full-time customs inspector at Grand Portage, Minnesota. While so employed plaintiff completed the officer U.S. Customs inspector training in Glynco, Georgia. She resigned when she relocated to New York State. In 1983 plaintiff was hired by the U.S. Immigration and Naturalization Service ("INS") at the port of Champlain, New York, as an intermittent immigration inspector. For the next few years plaintiff applied several times for a permanent, full-time position. During those years eight male intermittent inspectors were promoted to permanent, full-time positions. At the time of their hiring each of the eight males had less inspection time and less federal training than plaintiff had. In May 1985 plaintiff was turned down for promotion to a permanent, full-time position, while three less-qualified males were promoted from intermittent to permanent positions.

 On July 1, 1985, plaintiff filed a complaint with the EEOC alleging that the INS discriminated against her based upon her sex in the May 1985 hiring of three less-qualified males. Plaintiff continued to work as an intermittent inspector until September 1986, after which she was not recalled to work by the INS.

 The EEOC issued a final decision on August 29, 1989, finding that the INS had discriminated against the plaintiff because of her sex. That decision ordered the INS to provide a "make whole" remedy, including but not limited to offering plaintiff a position equivalent to that which she would have held but for the discriminatory conduct four years earlier. The EEOC ordered the INS to provide plaintiff with back pay plus interest, and any benefits, such as sick pay, which would have accrued but for the discrimination. Finally, the EEOC ordered the INS to submit a report of its corrective action within sixty days of receipt of the final decision. The INS did not appeal this order.

 Meanwhile, prior to the EEOC final decision, plaintiff and her family had relocated to Jekyll Island, Georgia. The INS was aware of plaintiff's move.

 As a result of the EEOC decision, on September 26, 1989, Griego sent plaintiff a letter offering her a position at GS-7, Step 1, the same grade plaintiff held when she was discriminated against in 1985. The next day Griego offered plaintiff a GS-9, Step 4 position at the Port of Champlain, by letter and telephone call. Griego advised plaintiff to ignore the September 26 letter. The September 27th letter provided a number at which plaintiff could reach Griego should she have any questions about her remedial relief. *fn2" Plaintiff was given 15 days to accept or reject the employment offer. In anticipation of a grant of maternity leave, plaintiff accepted the employment offer. Plaintiff requested a calculation of overtime, which would be included in her award of back pay, and her leave accrual. Plaintiff's maternity leave commenced immediately, and was comprised of sick leave, annual leave, and then Leave without Pay ("LWOP") after plaintiff's paid leave time was exhausted. It should be noted that plaintiff, in estimating her leave accrual, subtracted sick leave which she would have used for the births of her first and second children, which occurred during the time of her back pay award.

 Plaintiff also continued to request discussions to determine her career placement and development, training requirements, ratings, and other benefits which would comprise a make whole remedy. Despite plaintiffs' continued questions, Griego did not hold any discussions with plaintiff on any of these issues. Nor did Griego contact other INS employees who she identified as being responsible for certain areas. *fn3"

 In the fall of 1989, still not having received a back pay award, plaintiff called the EEOC. The EEOC representative was told by an INS official that the INS did not want to pay plaintiff the back pay. The EEOC representative then made a phone call. That afternoon Griego contacted plaintiff, telling her that the award was forthcoming within a few weeks. However, it was not until seven months after the EEOC decision that INS tendered its back pay award to plaintiff. The same day that plaintiff received the award she contacted Griego, notifying her that the award was approximately $ 40,000.00 less than it should have been. *fn4" This underpayment necessitated further efforts by plaintiff and her attorney to obtain the full award ordered by the EEOC. Finally, six months later (thirteen months after the EEOC decision), the INS paid plaintiff $ 39,443.00 in additional back pay. The INS, however, still refused to pay interest on the back pay award as ordered by the EEOC.

 During this time plaintiff and her attorney continued to attempt to resolve the still-open issues regarding the make-whole remedy, such as career placement, calculation of accrued leave time, insurance benefits, ratings, and training. Absolutely no correspondence from the INS addressed these additional issues which required resolution. No discussions took place which would lead to resolution of these issues despite repeated requests from plaintiff and her attorney. *fn5"

 In July 1990 the INS wrote to plaintiff asking about her employment plans. Plaintiff requested additional LWOP to attempt to transfer. Plaintiff also continued to request Immigration Inspector Training at Glynco, Georgia, as part of her make whole remedy. In August 1990 the INS ordered plaintiff to report for duty on August 27, 1990, at the port of Champlain. Plaintiff again requested training in response to the August letter. By letter of November 7, 1990, McCabe refused to send plaintiff to training in Glynco, and ordered plaintiff to report for duty at the port of Champlain on December 3, 1990. McCabe refused training at Glynco, stating that all appropriate training would be completed at the port, despite the fact that other newly-hired full time immigration inspectors were sent to Glynco for the training shortly after entering duty. The November letter also included a "balance sheet" showing plaintiff's leave accrual and usage. On November 30, 1990, plaintiff's attorney again requested training for plaintiff at Glynco and made a Freedom of Information Act request for training records of the three males hired as immigration inspectors in May 1985. On January 11, 1991, the INS notified plaintiff that she was to attend training in Glynco. Plaintiff was returned to paid status at the start of that course.

 The INS required that plaintiff reside in a dormitory at the training center during the course despite the fact that plaintiff resided within commuting distance. Authorities at the training center threatened plaintiff with enforcement of the dormitory requirement at the direction of the Eastern Region, of which the port of Champlain was a part. The training center had not enforced its dormitory residence requirement on other trainees living within commuting distance and had not threatened other trainees with bed checks for enforcement.

 On April 16, 1991, plaintiff graduated from the immigration inspector training. She finished the eleven-week course with an 87.48 average. Plaintiff then began the Spanish language training which was given in conjunction with the inspector training.

 On April 26, 1991, plaintiff notified responsible individuals at the training facility in Glynco that she was suffering from an extended illness and would not be able to complete the Spanish language training. Plaintiff attempted to see a doctor at the training facility but was unsuccessful. She returned to her home to seek medical care. Sometime later plaintiff returned, by mail, the key to her dormitory room at the training center. On April 29, 1991, INS placed plaintiff on Absent without Leave ("AWOL") status. On May 6, 1991, plaintiff requested a six-month LWOP in order to secure a transfer to a port other than Champlain. Plaintiff further requested that INS remove a reference in her Appraisal cover sheet, dated 1991, stating that plaintiff had not worked at the Port of Champlain since 1986.

 The Appraisal cover sheet was required to accompany any request for promotion or transfer. Plaintiff requested the Appraisal for a position opening for which she wished to apply. Plaintiff later learned that McCabe, Port Director at Champlain, had refused to provide an officer corps rating which was also required for any transfer or promotion. Further, although McCabe deleted the reference to plaintiff not working there since 1986, as plaintiff requested, he also changed "highly recommended" to the next lower ranking and removed all other positive comments which were on the cover sheet. INS also informed at least one of plaintiff's potential new supervisors that plaintiff had engaged in protected activity, i.e., pursuit of a sex discrimination claim. These actions by INS employees effectively prevented plaintiff from receiving a transfer.

 The three male employees hired in 1985 at the time of the discrimination against plaintiff all attended training at Glynco, Georgia. At least one of them, Scott Leahy, received a transfer approximately one year after being hired as a full time employee. After almost two years in the private sector, Mr. Leahy applied for and received a position as immigration inspector in June 1990, at a different duty station. Fourteen months later he was promoted to a GS-11, and 20 months after that he was promoted to a supervisory position at GS-12.

 In August 1991 Mr. Bulger, Deputy District Director of INS, proposed the termination of plaintiff's employment due to excessive unauthorized absenteeism and noncompliance with policies and instructions issued by the service. Plaintiff responded in September 1991, complaining about the lack of an Annual Performance Rating and the changes to plaintiff's Appraisal cover sheet, among other things, and requesting that she not be terminated. On December 2, 1991, INS notified plaintiff that she would be terminated from employment effective December 13, 1991.

 From the time of the original favorable EEOC determination until her termination on December 13, 1991, plaintiff repeatedly notified the INS of the ways in which their mere offer of reinstatement to a GS-9 position at Champlain did not comply with the EEOC make whole remedy, particularly in the area of promotion and transfer opportunity. Other than to send plaintiff, at her request, to the training program at Glynco, Georgia, the INS did not respond to plaintiff's complaints except with "orders" for her to report to duty at the port of Champlain.

 In February 1992 plaintiff again relocated with her family, to Boston, Massachusetts. In July 1992 plaintiff filed suit in the United States District Court for the Northern District of New York, seeking interest on her back pay award, which the INS had refused to pay. On October 15, 1993, the Honorable Con G. Cholakis granted plaintiff's motion for summary judgment and ordered the INS to pay the interest on the back pay award as previously directed by the EEOC. In December 1993 the EEOC rendered an adverse decision on plaintiff's petition for enforcement of the EEOC order, finding that the INS had fulfilled its requirement to offer plaintiff a full time Immigration Inspector position. On March 2, 1994, plaintiff filed the instant action. INS never filed the completion report required by the EEOC order of August 1989.


 A. Compliance with August 1989 EEOC Order

 The remedy ordered by the EEOC in August 1989 was to make the plaintiff whole *fn6" ; that is, to put her in the position she would have been in but for the discrimination. *fn7" Remedial actions by a federal agency, such as INS, necessitated by a make whole remedy may include Nondiscriminatory Placement to a position that the discriminatee would have occupied but for the discrimination; back pay awards; retroactive promotions; expunction of unwarranted disciplinary action from personnel records; and opportunities to participate in any denied benefits, such as training, preferential work assignments and overtime scheduling. 20 C.F.R. § 1613.271 (1995). "The Nondiscriminatory Placement may take place by initial employment, reinstatement, promotion, transfer or reassignment and must occur without any prejudice to, or loss of, any employment-related rights or privileges the discriminatee would have otherwise acquired had the discrimination not occurred." 29 C.F.R. Pt. 1613, App. A. When determining what the proper placement of the discriminatee should be, uncertainties must be resolved in favor of the discriminatee and against the discriminator. Claiborne v. Illinois Central R.R., 583 F.2d 143, 153 (5th Cir. 1978), cert. denied, 442 U.S. 934, 61 L. Ed. 2d 303, 99 S. Ct. 2869 (1979). Furthermore, although the discriminatee cannot dictate the conditions of the placement, comparison to the terms of employment of an employee outside the protected class provide an appropriate guide. See Cross v. National Trust Life Ins. Co., 553 F.2d 1026, 1030 (6th Cir. 1977). In addition to lost earnings, a back pay award must include other lost benefits such as insurance and pension. 29 C.F.R. Pt. 1613, App. A. *fn8"

 The INS has paid the plaintiff lost earnings back pay. However, initially the payment was almost $ 40,000.00 less than it should have been. This initial payment was not made until seven months after receipt of the EEOC decision. The additional payment was not made until thirteen months after the EEOC decision. The delayed payment of plaintiff's lost earnings occurred despite the EEOC order of completion9 of corrective action within 60 days. *fn10" Furthermore, plaintiff was forced to file suit in federal court in order to receive the interest on the back pay which the EEOC ordered. Thus, the INS is now in compliance, albeit grudgingly, with the EEOC order as to back pay of lost earnings, with interest. However, no other lost benefits, such as insurance and pension, were included in the back pay award.

 As to nondiscriminatory placement, the INS falls short of compliance with the make whole remedy ordered by the EEOC. The INS offered plaintiff a GS-9 immigration inspector position. Although the employment offer was to be unconditional, the INS placed the condition of plaintiff's return to the port of Champlain. Although plaintiff accepted the offer, she did so with the understanding that she would be placed on maternity leave status. Plaintiff believed that during her maternity leave issues regarding her career development and placement within the INS would be resolved. However, despite repeated requests by plaintiff, Griego held no meetings with the plaintiff or her attorney in order to discuss these details and determine the terms and conditions of plaintiff's employment. Griego accomplished only the bare minimum corrective action by offering plaintiff the GS-9 immigration inspector position at Champlain. This offer failed to take into consideration any transfer or promotion plaintiff would have applied for in the absence of the discrimination. *fn11" It is difficult to understand how Griego could have determined the appropriate nondiscriminatory placement in the complete absence of dialog with the plaintiff. Furthermore, had plaintiff rejected this non-complying offer, any remedy she had would have been terminated and the favorable decision of the EEOC would have been negated. Thus, it was necessary for plaintiff to accept the noncomplying offer in order to preserve her remedy under the EEOC decision, and she appropriately did so. In any event, the plaintiff never made an unconditional acceptance of the offer as being in full satisfaction of the EEOC directive to the INS. In fact, plaintiff then endeavored to exact compliance from the INS, albeit without success.

 Furthermore, plaintiff was in a position to apply for openings at four ports near her new residence. plaintiff's attempts to secure a transfer were thwarted by INS employees. The INS refused to provide an officer corps rating for plaintiff and provided an annual appraisal in 1991 which mentioned that plaintiff had not worked at the Port of Champlain since 1986. Additionally, INS improperly disclosed plaintiff's EEO activity on at least three occasions. *fn12" These actions by the INS effectively prohibited plaintiff from transferring to a port other than the one at which the discrimination occurred. Any other immigration inspector with plaintiff's ratings and experience would have been eligible for transfer, and promotion, and the INS would have encouraged and assisted that inspector in obtaining the sought-after transfer. Thus, the INS failed to comply with the EEOC order by failing to provide plaintiff with transfer and promotion opportunities, which is the position she would have been in but for the discrimination.

 The INS refused to send plaintiff to the immigration inspector training school to which the three male inspectors who were hired in 1985 were sent shortly after their permanent appointments. This failure was in direct contravention of the EEOC order and the regulations pertaining to remedial actions for discrimination at federal agencies. See 29 C.F.R. § 1613.271(c)(5). The INS finally capitulated and provided for plaintiff to attend the training. Defendants argue that plaintiff was absent without leave when she failed to complete the Spanish language portion of the inspector training program in which she was enrolled. However, based upon the INS's previous grants of leave, both paid and unpaid, the assurances of the authorities at the program that plaintiff would be able to complete the Spanish language training at another time, and the INS policy of returning ill employees to their duty stations, the AWOL argument must fail. It is apparent that placing plaintiff in this AWOL status was yet another attempt by INS to avoid compliance with the EEOC directive by failing to provide benefits to which plaintiff was entitled and to prevent plaintiff from returning to work for the INS.

 The INS also failed to comply by restoring benefits to which plaintiff was entitled. Although plaintiff's accrued sick leave and annual leave was reinstated, the INS did not provide an accounting to plaintiff until November 1990, more than one year after she requested it and after this accumulated leave was exhausted during her maternity leave. Further, the INS failed to provide plaintiff with other benefits such as the thrift savings plan, health insurance, and life insurance, which are available to other permanent immigration inspectors. Defendants point to a form which plaintiff signed in 1986 declining these benefits. However, plaintiff signed this form while she was still an intermittent employee, and before the favorable EEOC ruling. The circumstances of an intermittent employee and a permanent employee are sufficiently different that in order to place plaintiff, as nearly as possible, in the position she would have been in but for the discrimination, it was necessary to offer participation in the insurance and savings benefit plans at the time of the offer of reinstatement, in September 1989. Moreover, plaintiff's back pay award should have included amounts to compensate her for losses due to not having life and health insurance plans, and for benefits she would have received through participation in the Federal Employees Retirement System ("FERS") and the Thrift Savings Plan ("TSP").

 Finally, although technical in nature, the INS failed to comply with the timing requirements in cases of discrimination by a federal agency. First, the INS failed to complete its investigation and determination of the EEO complaint within the 180 day limit. See 29 C.F.R. § 1613.220(a). Rather, the agency evaluation process consumed two and one half years. Second, the agency regulations require completion of corrective action within sixty days after the final EEOC decision. § 1613.237(c); supra note 6. In this case, the corrective action is still not completed almost seven years after the EEOC decision was rendered, and eleven years after the discrimination occurred. Third, the EEOC order requires that a report detailing the corrective action completed be provided to the EEOC within sixty days of the decision. This completion report still had not been filed as of the date of trial. *fn13"

 Based upon the foregoing, the court concludes that the INS did not take the remedial actions required by the EEOC order; therefore, the INS failed to Comply with the EEOC order.

 B. Retaliatory Discharge

 A prima facie case of retaliation may be established by showing "participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action." Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991). Once plaintiff establishes a prima facie case, the defendant has the burden of producing evidence of a legitimate, nondiscriminatory reason for the employment action. Id. If defendant meets this burden, then plaintiff must establish that the proffered legitimate reason was pretextual. Id.

 First, the INS certainly knew of plaintiff's protected EEO activity. Second, the INS termination of plaintiff's employment was disadvantaging to plaintiff. Third, plaintiff has established a causal connection between her EEO activity and her termination from INS employment. Plaintiff pressed the INS continuously from the time of the EEOC favorable decision in August 1989 until this suit was filed to fully comply with the EEOC make whole remedy. INS's reluctance and refusals to take the appropriate remedial actions forced plaintiff to insist upon what was her due. Some portions of the make whole remedy which plaintiff's persistence led INS to provide include a full back pay award, *fn14" interest on back pay, *fn15" and immigration officer training. Other components of appropriate remedial action remain unprovided, such as insurance benefits, participation in the thrift savings plan, and opportunity for transfer and promotion. The INS has, from the beginning, fought compliance with the EEOC order. *fn16" Thus, plaintiff's termination was concurrent with her attempts to obtain compliance, and the termination theoretically cut off INS's need to comply with the order. Plaintiff has established each element of a prima facie case.

 The INS proffers two legitimate reasons for the termination. First, INS claims that plaintiff had excessive unauthorized absences. Second, INS cites noncompliance with its policies and instructions. The INS therefore argues that terminating plaintiff was necessary for work scheduling and planning.

 Plaintiff has shown that these reasons for her termination were merely pretext for retaliating against her EEO activity. From October 1989 until the time of her termination in December 1991 plaintiff repeatedly requested leaves of absence--first a maternity leave, then leaves without pay. The INS intermittently approved these leaves of absence, or denied them and ordered plaintiff to report for duty at the port of Champlain. After acquiescence to plaintiff's failure to report for duty as "ordered" for more than two years, the INS is now estopped from claiming that this failure is a legitimate ground for terminating plaintiff. Nor can INS claim that after two years of leaves of absence and plaintiff not following orders to report for work, that her failure to report for work in August 1991 was so significant that termination was necessary for work scheduling and planning. *fn17"

 Additionally, the INS was well aware of plaintiff's relocation, and would have helped effect a transfer for any other employee in the position plaintiff would have been in but for the discrimination. *fn18" The foot-dragging that INS exhibited in the areas of the EEOC order with which it did comply also indicates that the proffered reasons for plaintiff's termination were pretextual, and that the true reasons were plaintiff's EEO activity and a method of avoiding compliance with the EEOC order. *fn19" Finally, the INS's failure to fully comply with the August 1989 EEOC order justifies plaintiff's failure to report to the port of Champlain. The INS simply cannot claim that while it continued to refuse plaintiff's requests for compliance with the EEOC make whole remedy, *fn20" plaintiff was required to report for duty in accordance with a non-complying job offer. See Claiborne, 583 F.2d at 153. Plaintiff was not required to accept a conditional job offer or forfeit the remedy ordered by the EEOC. Failure to report for the GS-9 position in Champlain may reflect a failure of plaintiff to mitigate her damages, but it does not bear on the merits of her claim. See Babrocky v. Jewel Food Co., 773 F.2d 857, 868 (7th Cir. 1985); Claiborne, 583 F.2d at 153. Moreover, it was appropriate for plaintiff to accept the non-complying offer to preserve her position with the INS, and then attempt to work out compliance, particularly in light of the immediate commencement of her leave status and her knowledge of other employees' transfers.

 In sum, while plaintiff was attempting to obtain the full remedy ordered by EEOC, the INS did its utmost to avoid compliance. Finally, the INS retaliated against the plaintiff for her protected activity and terminated her on December 13, 1991.

 V. Remedy

 The court may order back pay, reinstatement, and "any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g). Any order for back pay must be reduced by "interim earnings or amounts earnable with reasonable diligence." Id. The burden is upon the defendant to prove that the discriminatee failed to mitigate damages. Clarke v. Frank, 960 F.2d 1146, 1152 (2d Cir. 1992); Bonura v. Chase Manhattan Bank, N.A., 629 F. Supp. 353, 356 (S.D.N.Y. 1986). A defendant "'must show that the course of conduct plaintiff actually followed was so deficient as to constitute an unreasonable failure to seek employment'" in order to meet its "extremely high" burden of proving failure to mitigate. Bonura, 629 F. Supp. at 356 (quoting EEOC v. Kallir, Philips, Ross, Inc., 420 F. Supp. 919, 925 (S.D.N.Y. 1976), aff'd, 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 54 L. Ed. 2d 277, 98 S. Ct. 395 (1977)). A back pay award must include lost fringe benefits, such as insurance and pension, in addition to lost earnings. 28 C.F.R. Pt. 1613, App. A. *fn21" In this case the defendants failed to put forth any evidence which might show that plaintiff failed to mitigate her damages after her termination on December 13, 1991. Thus, the defendants failed to meet their burden and the court will award back pay. Because plaintiff was paid for certain periods prior to her termination on December 13, 1991, and during the other periods she was on leave without pay status at her request, n22 the court finds that the award of back pay will begin on the date of plaintiff's official termination, December 13, 1991, and continue up to the time of reinstatement. The court finds that but for the discrimination the plaintiff would have received a transfer to Georgia prior to 1991, and a transfer to Boston, Massachusetts in 1992. The court further finds that the plaintiff would have earned the salaries listed in the chart below but for the discrimination. *fn23" Time Period Lost Earnings 12/13/91 to 12/31/91 $ 1,178.67 1/1/92 to 12/31/92 30,109.54 1/1/93 to 12/31/93 31,493.00 1/1/94 to 12/31/94 33,907.33 1/1/95 to 12/31/95 35,375.00 1/1/96 to 6/30/96 21,973.00 Total 154,036.54


© 1992-2004 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.