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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.

 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 ...

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