By Debbie Schlussel
A couple of weeks ago, I learned of a victorious lawsuit, in which a highly-qualified Black applicant to become an agent of Immigration and Customs Enforcement (ICE) in Houston was victorious. I heard that ICE Director of Investigations, Marcy Forman-Friedman a/k/a “Peppermint Patty” told the applicant that his “Black ass” was never going to get a job in the agency.
Late last week, I was finally sent a copy of the decision on the case, and, in fact, the allegations are all true. Ms. Forman-Friedman did, in fact, make the “Black ass” comment, and orchestrated the non-hiring of this qualified Black applicant, Norman Green. (The full text of the decision is below–Forman-Friedman is “A1”–and resourceful investigative reporter Bill Conroy of Narco News has also written a good piece on it.)
Marcy Forman-Friedman, Julie Myers & ICE Racism:
Fish Rots From Head Down
(Julie Myers Diet Coke Artwork by David Lunde/Lundesigns)
As I’ve made clear on this site, I’m against race-based quotas. But I’m also against racism. This is racism. This man was very qualified and wanted to become an agent. He should have been hired. That racist comments were made by this woman who is now essentially third in command at the helm of ICE is an outrage. And racism is expensive. Green was awarded a lot of taxpayer money, as he should have been, in this case. (Contrast that with her affirmative action program for
recruiting extremist Muslims as agents–more on that below.)
If you or I made those comments, we’d be cleaning out our desks before the end of the day. But we don’t work for the government. A real business can’t afford to have racist employees. But ICE is not run like a business. In fact, it’s run as an anti-business, meant to perpetuate its aimless ship and gain ever larger budgets, while immigration enforcement is a sham. As I noted last year, Forman-Friedman
got a $45,000 bonus (in U.S. tax dollars)–for what I’m not sure.
And the racism at ICE is not just owned by Forman-Friedman. Sources allege that her Chief of Staff was suspended for telling a Black agent that the only reason he got a promotion is because he is Black.
And as I noted, ICE Chieftess
Julie L. Myers a/k/a “The ICE Princess,”
worked on Martin Luther King, Jr. Day–a federal holiday–and made agents chauffeur her around Detroit and get her Diet Cokes on the holiday. Again, as I’ve said, I’m against quotas. But I know that there are plenty of good Black agents in ICE. Contrast that with the fact that Myers has
promoted ZERO Black agents to leadership positions in ICE. There is one Black woman who–surprise, surprise–heads up the Equal Employment Opportunity part of ICE, but I’m told she is not an agent. And there are not Black agents running anything else.
Contrast that with the fact that, under Myers and Forman-Friedman, ICE has been actively recruiting extremist Muslims to become agents. As I’ve written, in Michigan and Ohio, Special Agent in Charge
Brian Moskowitz a/k/a “Abu Moskowitz” enlisted his good friend, “former” Islamic terrorist
Imad Hamad, to
recruit Muslim, Arabic-speaking agents–even though none of them had the qualifications or experience to become ICE agents.
And even though Hamad and these recruitees openly support HAMAS, Hezbollah, Islamic Jihad, etc. One of those applicants, for whom Abu Moskowitz secured an interview (and personally accompanied the guy to the interview) was reportedly
Hamad’s nephew. This was all done with the full sanction, knowledge and encouragement of “Black Ass” lady, Forman-Friedman. And it continues with the “leadership” of The ICE Princess, Myers.
Yes, no “Black Ass” agents; But Jihadists please come join us. If you share the religion of the 19 hijackers, cool. But if your ancestors help build the U.S. Capitol, screw you.
Then, there are the promotions Myers has made to ICE leadership. While she has
no Black agents in those positions, she does have a record of going out of her way to promote unqualified White and other applicants to jobs and relax job conditions for them. As I’ve noted, she
relaxed job hours and conditions so her Grrl Power buddy,
Traci Lembke, could head the Office of Professional Responsibility with flex time and work from home.
As I’ve also noted, she made
John Torres–the man who wasted thousands of our tax dollars on a week-long party in Kansas City with a speech by immigration expert (at least, on the El Duque issue) Tommy Lasorda–the permanent Director of Detention and Removal Operations (DRO) for illegal aliens. Torres has zero experience in detention and removal and isn’t qualified. And she did this after Torres tried to give a cushy DRO job to his extramarital girlfriend, a no-no in federal rules and regs regarding hiring. And Myers cancelled the suspension with no pay that OPR recommended for Torres.
Would a Black agent get this kind of treatment? No way. Like “Animal Farm,” everyone at ICE is “equal,” but some are more equal than others. (Yes, Torres is Hispanic, but there are plenty of Hispanic ICE Agents who, unlike Torres, actually have DRO experience . . . and ethics. And they don’t like or respect him–for good reason.)
The agency is dysfunctional. There is incompetent cronyist Julie Myers at the top (and by the way, we’ve heard a lot of stories about why her crony
Wayne L. Baker–for whom she created a job–had to leave); there’s her
second-in-command about whom allegations have been made regarding an inappropriate “relationship”; and now, a racist is running the Office of Investigations (which along with DRO is one of the two most important parts of ICE).
Add to that, the absolute lack of resolve to actually enforce immigration laws on behalf of this administration, and you have an absolute disaster in action.
Here is the full text of the decision in the case, Marcy Forman-Friedman is “A1”:
Norman Green, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security
Agency
Hearing No. 330-2004-00026X
Appeal No. 0720060058 n1n1 Due to a new data system, the Commission has redesignated the instant case with the above referenced appeal number.
Agency No. HS 00-ICE-000142
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
2007 EEOPUB LEXIS 146
January 19, 2007
ISSUED BY: For the Commission by Carlton M. Hadden, Director, Office of Federal Operations
OPINION: DECISION
Following its April 19, 2006 final order, the agency filed an appeal. On appeal, the agency requests that the Commission affirm its rejection of an EEOC Administrative Judge’s (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. Section 2000e et seq. For the following reasons, the Commission REVERSES the agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as a Customs Inspector at the agency’s U.S. Customs Service facility in Houston , Texas . Complainant submitted an application for the position of Criminal Investigator (Special Agent) in early 1998. Complainant was not selected. Complainant filed an individual complaint, dated July 29, 2001, alleging that he was discriminated against on the bases of race (African American) and color (black) n2 when:
Complainant was not selected for the position of Criminal Investigator (Special Agent), GS-1811-7/9 under Vacancy Announcement Numbers INVSC/98-015GWH and INVSC/98-052GWH. n3
n2 Complainant also initially alleged discrimination on the basis of sex (male). This basis was apparently withdrawn before the commencement of the hearing on June 15, 2004.n3 Vacancy Announcement Number INVSC/98-015GWH was cancelled and complainant’s application under that vacancy announcement was considered under INVSC/98-052GWH, which closed in April 1998. The candidates chosen from INVSC/98-052GWH were selected in November 1998.
Complainant requested a hearing and the AJ held a hearing on June 15, 2004. The AJ conducted a separate hearing regarding the issue of damages on October 28, 2005. The AJ issued a decision on February 27, 2006.
In his decision, the AJ found that complainant established a prima facie case of discrimination based on race (African American) and color (black). Specifically, complainant applied for the subject position. Complainant was found qualified for the position and was not selected. Two candidates who were not in complainant’s protected race and color classes were selected. The AJ further found that the agency articulated legitimate, non-discriminatory reasons for its selections. Namely, the recommending official (RO) stated in a justification memorandum n4 that he recommended S1 based on his degree in accounting, his accounting background, his internship with the Federal Bureau of Investigation (FBI) and his experience with U.S. Customs. The RO further stated that he recommended S2 because of his past awards while working with U.S. Customs, his public affairs background and his ability to speak Spanish. The RO stated that he had to make a decision quickly. No interviews were conducted and though the RO does not recall doing so, the RO stated that he would have sought input from others, including another Acting Special Agent in Charge (ASAC) (A2) who knew the candidates since he was not familiar with any of them. The AJ noted that the selecting official (SO) chose the two candidates recommended by the RO.
n4 At the hearing, the RO denied that he was the author of a justification memorandum, bearing his name, describing the recommended candidates, and providing the reasons each was recommended for selection. Nevertheless, the AJ found that the SO made the selection determination based upon the contents of the justification memorandum.
The AJ found that complainant presented evidence that proved the agency’s reasons for selecting S2 were a pretext for discrimination. Specifically, the AJ found that the RO and, in turn, the SO, were indirectly influenced by the recommendations of, A2, the preceding ASAC. n5 Complainant and witnesses stated that the Assistant Special Agent in Charge (A1) met with and encouraged Customs Inspectors to apply for Criminal Investigator positions and had in fact met with complainant. However, complainant described his meeting with A1 as brief, cold and noted that A1 did not make eye contact with him and seemed uninterested in his qualifications for the position.
n5 The AJ noted that the position of Special Agent in Charge (SAC) for the Houston Office was vacant for a time, during which supervisors were rotated into the position. The selection process at issue occurred during the time the position was vacant and two individuals (RO and A2) served as ASAC.
The AJ noted that in her testimony, A1 stated that she recommended S1, because of his degree in accounting, which she stated was a definite asset to the agency. A1 stated that she recommended S2 because of his experience in public affairs, inspection experience, awards and commendations, and the impression she had of him after minimal contact with him. The AJ found that A1 essentially ignored complainant’s qualifications in recommending S2 to A2, over complainant. Complainant’s application package included information about his many awards and commendations, his master’s degree in public administration, his extensive experience in criminal investigations while in the military and his experience with the agency. The AJ found that complainant showed that his qualifications were superior to those possessed by S2, which the agency would also have found, had the agency actually reviewed complainant’s application materials.
The AJ considered the testimony of W1, a retired agency inspector supervisor, who stated that during his tenure with the agency (of some 30 years), he could not recall any African American males promoted from within to the position of special agent. He stated that many were qualified, but they were not considered, while Caucasian inspectors were quickly promoted. Additionally, the AJ considered the testimony of W2, who, as complainant did, applied for the Criminal Investigator position and was not selected. W2 stated that A1 told him at one point that his “black ass would never become a special agent” when A1 was unhappy with W2’s actions in connection with his performance on a particular case. The AJ found the evidence showed that A1 was motivated by discrimination when she recommended S2 over complainant for the position of Criminal Investigator (Special Agent).
The agency subsequently issued a final order on April 19, 2006, rejecting the AJ’s finding that complainant proved that he was subjected to discrimination as alleged.
On appeal, the agency argues that the AJ’s decision is not supported by the record in the instant case and that the AJ’s decision is unduly influenced and based upon evidence presented in a prior EEO matter, namely the complaint filed by W2, which matter was also heard by the AJ several years earlier, in which no discrimination was found. n6 The AJ did not admit the decision and other exhibits from that case into the record that complainant attempted to introduce at the hearing and later relied upon in post-hearing submissions.
n6 The Commission notes several references in the transcript of the hearing on June 15, 2004, to the evidence produced in the case of Wilson v. Department of the Treasury, EEOC Appeal No. 01A23236 (May 23, 2003). We find that the AJ’s findings regarding the testimony of W2 are consistent with the record in the instant matter.
On appeal, complainant argues that the AJ’s finding that RO and SO were essentially the “cat’s paw” for A1’s discriminatory recommendations is supported by the evidence and that the AJ properly admitted for purposes of impeachment, the affidavits, exhibits and testimony of witnesses appearing in both the instant case and in the Wilson cases where agency officials offered inconsistent recollections of the events surrounding the recruitment, mentoring and selection process. n7
n7 We note that the entire transcript of SO’s testimony from the Wilson case was entered into evidence because SO was unavailable to testify in the instant matter.
On appeal, neither party challenges the remedies ordered by the AJ, and accordingly we will limit our discussion to consideration of the AJ’s finding of discrimination.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission notes that at least one witness testified by telephone in the instant matter. No objection by either party was raised at the time of the hearing, nor on appeal. The Commission has held that testimony may not be taken by telephone in the absence of exigent circumstances, unless at the joint request of the parties and provided specified conditions have been met. See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006). n2 However, since the facts of this case pre-date Louthen, we will assess the propriety of conducting the hearing telephonically by considering the totality of the circumstances. Here, it is unclear whether exigent circumstances existed. On the other hand, it is clear that there were no issues of witness credibility that might have been impacted by the taking of testimony telephonically. The AJ made no credibility determination based upon witness demeanor. Under these circumstances, even if it is assumed that the AJ abused his discretion in this case by taking testimony telephonically, the Commission finds that his action constituted harmless error. See Garcia v. United States Postal Serv., EEOC Appeal No. 01A45437 (July 19, 2006).
n2 “In Louthen, the Commission has promulgated its policy regarding the taking of telephonic testimony in the future by setting forth explicit standards and obligations on its Administrative Judges and the parties. Louthen requires either a finding of exigent circumstances or a joint and voluntary request by the parties with their informed consent. When assessing prior instances of telephonic testimony, the Commission will determine whether an abuse of discretion has occurred by considering the totality of the circumstances. In particular, the Commission will consider factors such as whether there were exigent circumstances, whether a party objected to the taking of telephonic testimony, whether the credibility of any witnesses testifying telephonically is at issue, and the importance of the testimony given telephonically. Further, where telephonic testimony was improperly taken, the Commission will scrutinize the evidence of record to determine whether the error was harmless, as is found in this case.” Sotomayor v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).
Pursuant to 29 C.F.R. ¬ß 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, ¬ß VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case we find that substantial evidence supports the AJ’s determination that discrimination on the bases of race and color occurred when complainant was not selected for the position of Criminal Investigator and S2 was selected instead. Specifically, we find the record supports the AJ’s finding that A1’s recommendations were communicated to the recommending and selection officials. We find that the AJ properly noted the shift in RO’s explanation for his recommendations of S1 and S2 at the hearing from the other evidence and specifically from the justification memorandum that bears his name. We further note that complainant’s qualifications are plainly superior to those possessed by S2. Specifically, complainant possessed a master’s degree in public administration, was awarded numerous commendations in the military, and was ranked number one on the GS-7 best qualified list from which the RO made his recommendations. Complainant’s application shows that he had the same number of years of service to the agency as S2 and had more overall work experience than S2. We find that substantial evidence supports the AJ’s finding of race and color discrimination with respect to the selection of S2.
Accordingly, we REVERSE the agency’s final order finding no discrimination. We REMAND the matter to the agency to take the remedial action ordered by the AJ as slightly modified herein.
ORDER
We order the agency to take the following actions:
1. Within 30 days of the date this decision becomes final, the agency shall promote complainant to the position of Special Agent (Criminal Investigator), GS-7, retroactive to November 11, 1998. The agency shall promote complainant to the GS-9 level retroactive to the date the selectee (identified as S2 herein) was promoted to the GS-9 level.
2. Within 60 days of the date this decision becomes final, the agency shall pay complainant $ 139,957.00 in back pay and other benefits for the period of time between November 11, 1998 and November 16, 2005. Pursuant to 29 C.F.R. ¬ß 1614.501 the agency shall determine and pay within 60 days of the date this decision becomes final, the additional appropriate amount of back pay with interest, if applicable, for the period of time between November 16, 2005, to the date this decision becomes final. The back pay award shall be computed in the manner prescribed by 5 C.F.R. ¬ß 550.805. The complainant shall cooperate in the agency’s efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to complainant for the undisputed amount within 60 calendar days of the date the agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.”
3. Within 60 days of the date this decision becomes final, the agency shall pay complainant the sum of $ 75,000 for non-pecuniary, compensatory damages;
4. Within 60 days of the date this decision becomes final, the agency shall pay complainant the sum of $ 32,377.56 for attorney’s fees and costs;
5. Within 60 days of the date this decision becomes final, the agency shall consider taking appropriate disciplinary action against the responsible management official. M Forman The agency shall report its decision to the Compliance Officer referenced herein. If the agency decides to take disciplinary action it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
6. Within 180 days of the date this decision becomes final, the agency shall train all responsible agency employees in the agency’s facility in Houston, Texas, concerning the prevention of race and color discrimination and the agency’s duties to ensure that similar violations do not occur.
The agency shall send evidence that they have complied with provisions 1 – 6 of this Order to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Houston, Texas facility copies of the attached notice. Copies of the notice, after being signed by the agency’s duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled “Implementation of the Commission’s Decision,” within ten (10) calendar days of the expiration of the posting period.
Time for all of the ICE “leadership,” including the cantakerous Forman-Friedman to go. But it doesn’t appear that there will be any discipline.
Bill Conroy writes that he asked ICE about this and there was nothing in response:
Has any disciplinary action been taken against Marcy Forman in this matter, or is it being considered?
What specific actions are being taken in the Houston ICE office to address this issue of discrimination?
How does ICE plan to address the concern that Forman is now in a position of far more power (as head of OI) to affect far more people through continued acts of discrimination?
How many other discrimination complaints have been filed against Forman besides the Green case?
ICE spokesman Marc Raimondi, replied via e-mail to Narco News’ inquiry as follows:
Greetings:
Mr. Rusnok [another ICE spokesman] forwarded me your request. I appreciate your email and interest, however at this time we don’t have anything for you.
Narco News sources indicate the reason that Raimondi has nothing to say is that ICE headquarters is having a hard time figuring out how to handle this problem.
Par for the course.
