DHS-ICE: a fitness for duty psychiatric examination that failed and in the porcess a Customs SAC got demoted, an associate legal counsel resigned and a RAC retired. Why my son is embarrassed to say his daddy is a retired Customs-ICE special agent.
After I gave rookie group supervisor Kevin J. Evans, a detailed report containing Customs internal affairs information on May 13, 2002, two days later this writer was sent home on a suspension with pay. On May 20, 2002, he was told in certain terms that he was being subjected to a fitness for duty medical and mental examination. The following is one of several affidavits I submitted to the U.S. Office of Special Counsel (OSC), and U.S. Merits Systems Protection Board (MSPB). A fitness for duty examination is the weapon and tool of choice by all government agencies who try to remove an employee who is "causing problems" - the truth is, an employee or employees who are reporting gross misconduct and gross mamanagement by their employers.
I sincerely hope that any federal, state, county or city law enforcement who is facing a fitness for duty physical and mental examination (FFD) reads this real life story. It is not my intention to create a novel based on fiction. What you are about to read is the truth. My best advise to any federal law enforcement officer facing the same such FFD to immediately file a complaint with the OSC. The affidavit has been edited and updated for publication.
I, Miguel Angel Contreras, under oath and under the penalty of perjury, make the following statement based on my own personal experiences and eyewitness account. I am employed by the U.S. Customs Service’s Office of Investigation, 3911 Pico Street, Yuma, Arizona 85364, and tel. 928-344-0088. I am a career civil service GS-1811-13 criminal investigator (senior special agent). My home mailing Address XXXXXX, Tel. XXXXX e-mail:XXXXXXX.
I have filed prior whistleblower retaliation complaints against some of the Customs officials mentioned in this instant complaint. This is the first time I have filed a complaint regarding the issues involved in this matter. Currently, MSPB Administrative Judge XXXXX is presiding over an IRA Appeal under MSPB Case No. XXXXXX, a whistleblower reprisal appeal filed pursuant to 5 U.S.C 2302 (b) (8). Since MSPB case No. XXXXXX is still active, and the alleged retaliators are the same who were listed under this case as well as in this Motion to Request an Order of Stay, I believe MSPB Administrative Judge XXXX has jurisdiction and the authority to review this affidavit and stay request.
The responsible party officials in this matter are: Steven D. Arizaga, retired Resident Agent in Charge, Michael J. Strom, acting Resident Agent in Charge, Kevin J. Evans, Group Supervisor, retired SAC Steve Minas, Wanda M. Edwards, Labor Employment Relations (LER) Specialist and former Legal Counsel Dyann Medina, now allegedly employed by the U.S. Social Security Administration. They all are civil service career status employees of the U.S. Customs Service. NOTE: as soon as I was placed on a fitness for duty and my series of complaints were filed, Minas got demoted in place to an Associate or Deputy SAC, and Medina resigned, later Minas retired. Ironically, Steve Minas always wanted badly the SAC Tucson job position and then when he got it, he allowed his bias and hate for this writer blinded him to the point of becoming a “bully” administrator and listen to a group of rogue Customs supervisors . Often this is the same problem with LERs and agency’s legal counsel. They all take for granted whatever local management asks for. The current ICE SAC (OI) for Arizona Matthew Allen soon will find-out.
Since the filing of a whistleblower reprisal complaint with the Office of Special Counsel, Steven D. Arizaga, Kevin Evans, Michael Strom and other Customs officials continued committing personnel prohibited practices. Because their unlawful personnel actions and conspiracies to further violate my Constitutional Civil Rights continue and it is an ongoing process, I am submitting this affidavit in support of a Stay Order Request from MSPB Administrative Judge xxxx.
The US Customs Service through Steve D. Arizaga, Michael Strom, Kevin J. Evans, Wanda M. Edwards, Steve Minas, and Dyann Medina and others yet unknown, committed several procedural errors and violated its own agency’s domestic workplace violence when the agency failed to address my complaints of harassment, retaliation and hostile workplace environment. Further, the above referenced offenders, engaged in the following questionable personnel practices:
On May 15, 2002, I was put on administrative leave. Ironically, on May 10, 2002, the Hispanic Customs agents, including myself, filed their class-action discrimination lawsuit against the agency in federal court. The suspension came in the wake of informing my supervisors that I was taking the anti-depressant medication Xxxxxxl. I returned to work after my physician, a neurologist and psychiatrist, provided a letter indicating I was fit for duty. At that point, I filed a workers’ compensation claim against Customs, alleging that the agency had caused my depression. Later on and after I filed my worker’s compensation written report dated May 13, 2002, I was put on administrative leave again. This time my gun, government car, office keys and credentials were taken away from me. I was then ordered to undergo a series of psychiatric examinations. (NOTE: I still remember “rookie” Group Supervisor (GS) Kevin J. Evans, who was still on his first-year supervisor probationary status) coming to my house later one several times and standing on a draw a gun ready position, as if I was going to pull a gun on them. GS Michael Strom always with his sarcastic smile)
Before I was served with the fitness for duty letter ordering me to submit myself for further psychiatric examinations, my supervisors asked my co-workers, peers, associates and friends to submit to their supervisors, written statements describing incidents when my mental capacity was questioned. My supervisors in their futile attempt to “build a file” on me in order to substantiate their request to the agency’s legal counsel and labor employment relations specialists, defamed my name, character, and reputation and violated my privacy when they met and spoke with their subordinates and disclosed that I was suffering from an alleged “mental illness.”
The employees, upon the request of their supervisors, subsequently submitted written statements describing what some of them considered bizarre behavior. If in fact I acted strange, and/or if my behavior was bizarre, if I showed mental deficiencies, and/ or if committed an infraction, a violation of agency’s policy or regulation, my supervisors had a mandatory requirement to take some type of personnel action, i.e., counseling, disciplinary or adverse action, when the action took place. Further, if my supervisors or employees felt that I was possibly suffering from a mental condition, they failed to do something to assist my alleged medical condition. Instead, my supervisors decided to build a fitness for duty case to remove me from my position, once and for all.
On January 15, 2003, I received a letter from Customs indicating that I was no longer fit for full duty as a Customs agent and that I would be reassigned to an appropriate position. The letter also encouraged me to explore early retirement options. In my view, I was being railroaded by Customs as part of an effort to undermine my credibility in the class-action lawsuit.
Since the filing of my class action complaint of discrimination I have suffered acts of reprisal and retaliation from agency officials. However, it was not until I was laterally transferred to the Yuma, AZ office in 1999 when I became the victim of intense aggression, hostility, harassment, retaliation and hostile work environment, because I had to file several complaints of harassment and retaliation through the EEOC, as well as appeals to the MSPB process. Also, I reported allegations of criminal and administrative misconduct by Arizaga, Strom and some of their supervisors. If further mental examinations indeed demonstrate that I suffer from a mental disorder, i.e., cognitive etc., I was holding Arizaga, Strom, Evans, and others yet unknown, as well as the agency solely responsible for having caused my mental and physical condition. The agency had an obligation to provide me with a safe and healthy working environment. Instead the agency chooses not to do anything and allowed my supervisors to continue with their “beating.” NOTE: this systematic “bullying” and “mobbing” are terms that originated in Europe when employees were being harassed, retaliated and placed in intense hostile working environment offices.
Systematic retaliation, reprisal and persecution have permeated in the US Customs Service for years. On May 15, 1999, Assistant Commissioner William Keefer while testifying before a Senate congressional committee stated:
“Retaliation and the fear of retaliation have been persistent allegations at Customs. Some employees have expressed fear of retaliation by their managers if they report misconduct to Internal Affairs for investigation. We are taking measures to address this issue. First, specific training about retaliation and the Whistleblower Protection Act will be made a part of the Internal Affairs Basic Course beginning June 21, 1999. Second, in appropriate investigations, Internal Affairs agents will specifically advise managers whom they interview about the rules prohibiting retaliation against their employees. Third, I will work with my fellow Assistant Commissioners to make sure that retaliation allegations are aggressively and effectively investigated and resolved through the disciplinary process....“ (NOTE: all “lip-service” and false statements and lying before the U.S. Senate by Keefer).
Perhaps the best characterization of Customs’ long standing on retaliating whistleblowers was given by Michael C. Tarr, on May 25, 1999:
Testimony Before the
Committee on Finance
United States Senate
May 25, 1999
Hearing on the U.S. Customs Service:
Ensuring Effectiveness, Integrity, and
Accountability in Customs Operations
Statement by Michael C. Tarr
Acting Assistant Inspector General
For Investigations
Department of the Treasury
Office of Inspector General
“Chairman Roth, Members of the Committee, I appreciate the opportunity to discuss with you today the results of our recent investigation at the U.S. Customs Service. On Sunday, December 13, 1998, The Miami Herald published a Special Report entitled "U.S. CUSTOMS: A CULTURE OF FAVORITISM." On December 17, 1998, the Chairman of this Committee, Senator Roth, requested that our office conduct an independent review of the allegations outlined in The Miami Herald article concerning the Customs Service’s "ability to effectively assess allegations of mismanagement within the agency, and impose appropriate discipline where warranted." (NOTE: the most notable miscarriage of justice was when Customs promoted several of the people mentioned in such articles, such as Jay Ahearn, the current top boss, at the U.S. Customs and Border Protection (CBP).
Since this request related directly to the allegations of agency mismanagement and inappropriate disciplinary practices dating back to 1986, the Office of the Inspector General (OIG) concentrated its initial phase of the review on files relevant to the allegations in the article. The purpose of the review was to determine the effectiveness of investigations conducted by the U. S. Customs Office of Internal Affairs; review the basis for the claims of management failure; and assess the application of penalties based upon established policies within the Customs Service.
In further discussions with this Committee, it was requested that we expand the scope of our review to include additional Internal Affairs investigations and address additional concerns regarding employee perceptions of Customs Internal Affairs. We visited Internal Affairs offices in 13 cities and reviewed 395 closed investigations for fiscal years 1997 and 1998. These reviews were conducted to determine if similar deficiencies, as those addressed by The Miami
Herald, were also present in other offices. We conducted over 500 interviews of Customs employees concerning the role of Internal Affairs, the application of discipline within Customs, and the fear, if any, of retaliation from management for reporting wrongdoing.
During our review of 50 Internal Affairs files relating to individuals named in The Miami Herald article, we found evidence that Customs Internal Affairs investigators did not exhaust all relevant leads or interview all knowledgeable
witnesses that may have substantiated or refuted an allegation. The inadequacies identified during our review suggest that the lack of supervisory review at both the field office and headquarters level contributed to an inferior quality of investigation. We found a number of instances in which Internal Affairs investigations failed to comply with proper reporting requirements stated in the Customs Internal Affairs Handbook. (NOTE: this practice is still ongoing under DHS, ICE, CBP, etc.)
We identified serious misconduct allegations that were initially referred to Internal Affairs for investigation that were subsequently referred to Customs management for inquiry. We found there are no published directives for conducting management inquiries within the Customs Service and there is no oversight review by Internal Affairs to ensure thoroughness. We also found the use of management inquiries exposed the sources of the allegations, which may tend to erode employee confidence of the Internal Affairs process. We determined that disciplinary penalties were inconsistently applied. Customs inability to equitably administer discipline fosters the perception of favoritism. (NOTE by Narco News writer: this practice is pervasive at ICE; refer to my reports on the ICE (OI) office, Yuma, AZ)
We found that awards and promotions were issued to employees who were subjects of Internal Affairs investigations. This is a direct violation of Customs policy. In expanding the scope of our review, we requested Internal Affairs provide a comprehensive and complete report from their automated Case Management System listing all closed internal investigations for fiscal years 1997 and 1998. We determined the Case Management System report did not conform with field office files and, in many instances was inaccurate and incomplete.
NOTE by Narco News writer: recently ICE ASAC, Roger Applegate, a GS-1811-15 and former ICE’s OPR Director Traci Lembke were presented with awards by U.S. Attorney Eric Holder Jr. Lembke and Applegate are from Arizona. Applegate had been arrested for domestic assault on his wife after he physically assaulted her. Under the Lautenberg Amendment if convicted even under a misdemeanor offense, any federal, state, or local law enforcement officer would automatically be fired. In fact, after this ATF gun law was passed, all U.S. Customs job announcements for any law enforcement position, had the Lautenberg Amendment clause posted with the descriptive warning that if the applicant had such misdemeanor conviction, they were not qualified to apply.) In Arizona we had to notable cases that made the national news, the Customs SAC for Arizona, Robert Gattison who got arrested and charged with gross domestic abuse when in a fight with his young under-age daughter, Gattison broke her collar bone. The Oro Valley Police Department arrested Gattison. I tried to get copies of his police arrest and related documentation but I felt it is was not worth it. I learned from sources that he was transferred from Arizona and later retired.
We reviewed 395 closed Internal Affairs files and found many of the same problems that we identified in our Miami Herald review. Investigations failed to comply with proper reporting requirements, lacked thoroughness, timeliness, and did not receive quality management review.
During our interviews with over 500 Customs employees, many expressed their lack of confidence in the Internal Affairs program. Concerns were raised regarding impartiality, confidentiality, and investigative quality. Some employees were fearful of retaliation from management for reporting alleged wrongdoing to Internal Affairs and were concerned that Internal Affairs forwarded too many allegations to management for inquiry.
Our review disclosed that there was no standard policy on the issue of special agent rotation between the Office of Investigations (OI) and the Office of Internal Affairs. However, Customs is currently proposing rotating special agents between OI and Internal Affairs by reassigning the agents within the same geographic area. The OIG believes that this proposal may call into question the objectivity of Internal Affairs agents. In addition, it may give the impression of agents investigating themselves. Objectivity is critical to overall employee confidence and the Customs integrity program.
The problems we found in our review of Customs are issues which the OIG should have identified over the years. Had a thorough oversight process occurred, some of the problems would have been identified sooner, and others less likely to have occurred as a result. We have made some organization and staffing changes during the past year, and we are undertaking other initiatives to re-establish a firm understanding of the oversight role of the OIG with Customs.
The OIG believes that the challenge of any substantial and long-lasting change in Customs must be management led and policy driven. We look forward to assisting Customs and sharing the responsibility to bring about the changes necessary.
Chairman and members of the Committee, this concludes my testimony. I would be pleased to answer any questions that you may have.”
The same problems mentioned by Michael C. Tarr persist today under the current DHS administration. The Reader is directed to query the DHS’ Office of Inspector General (DHS-OIG) and the U.S. Government Accountability Office (GAO) and you will notice that after the creation of DHS, ICE, CBP, USCIS and others, when DHS-OIG and GAO finds severe problems at ICE top HQ management officials disagree, even if caught with their hands in the cookie jar. The reports are rejected by ICE period. In conclusion, this writer believes these two watchdogs’ federal organizations have no tooth or fangs. What is worst is the fact that the U.S. President, U.S. Attorney General, DHS’ Secretary and the U.S. Congress are failing to correct the problems.)
The only reason Customs initiated this fitness for duty process was after sought medical relief for my illness, because my medical doctor prescribed an antidepressant drug and I took leave of absence. This was the first time ever, in my entire law enforcement career that I sought medical help. My supervisors used my annual leave to substantiate the first fitness for duty request. Customs violated a number of Federal personnel laws and regulations. I have become the victim of severe hostile working environment, by Agency’s management officials Steven D. Arizaga, Michael Strom, Kevin Evans and others yet unknown. Hostile work environment and workplace violence has other names, namely bullying and mobbing:
Bullying: Whistleblowing - The Definition of Mobbing at Workplaces - Heinz Leymann - 12100e
“Psychological terror or mobbing in working life involves hostile and unethical communication which is directed in a systematic manner by one or more individuals, mainly toward one individual, who, due to mobbing, is pushed into a helpless and defenseless position and held there by means of continuing. These actions occur on a very frequent basis (statistical definition: at least once a week) and over a long period of time (statistical definition: at least six months´ duration). Because of the high frequency and long duration of hostile behavior, this maltreatment results in considerable mental, psychosomatic and social misery.
Thus, the definition does not focus too much on the activities themselves, but rather on the heavy mental strain. The origin of this focus on psychological situations in the workplace is found in medical stress research: The researcher attempts to reveal, when a workplace stressor is likely to injure the individual, causing him or her to go on sick leave. The empirical research on mobbing in the workplace has revealed psychosocial stressors that cause extreme impact on the health of the victim. (Emphasis mine)
The definition excludes temporary conflicts and focuses on the breaking point where the psychosocial situation begins to result in psychiatrically or psychosomatically pathological conditions. In other words, the distinction between "conflict" and "mobbing" to emphasize the concept again, does not focus on what is done or how it is done, but rather on the frequency and duration of whatever is done. This also underlines the fact that basic research carried out in Sweden (Leymann, 1990b, or 1992a, or 1992b; but also Leymann & Tallgren, 1989) has medical research concepts to lean on. Basically, it is a line of research focusing on somatic or mental stress: how intense does mobbing have to be in order to result in mental or psychosomatic illness? The research pursued has mainly focused on the mental and physical stress. The reader must keep in mind, that I do not deal primarily with psychological behavioral research but rather with research concerning mental and psychosomatic stress of a certain type in the workplace, its results, its pathological conditions and the sick leave that it causes. The scientific definition of the term mobbing thus refers to a social interaction, through which one individual (seldom more than one) is attacked by one or more (seldom more than four) individuals on almost a daily basis and for periods of many months, forcing the person into an almost helpless position with a potentially high risk of expulsion. See also the LIPT-questionnaire (LIPT = Leymann Inventory of Psychological Terrorization) and information about the LIPT-manual.”
During my MSPB appeals, I intend to show that the agency has been persecuting me because of my whistleblower status and my protected disclosures. Further, I will bring the issue of disparate treatment to show, that the agency very selectively decided to punish me for incidents, such as taking Xxxxxx and taking leave on the orders of my medical doctor, while other employees engaged in criminal activity or other misconduct and were not punished, disciplined or subjected to fitness for duty psychiatric examinations or transferred to a non-law enforcement position.
The following employees allegedly were involved in incidents whereby their mental capacity was questioned by their co-workers and peers, but nevertheless, they remained in their jobs or left the agency in lieu of facing prosecution (NOTE: in my case, the only time ever in my entire law enforcement career I sought medical help for my depression and was given a mild dose of an antidepressant)
This list of course is not conclusive because there are numerous cases unknown to me where employees have been involved in criminal and gross misconduct, and whose mental stability has been questioned. Yet, they, for the most part, were not subjected to the same treatment, like I have been. I have the statutory claims of whistleblower retaliation as well as unlawful discrimination. Unfair Treatment in the Investigation, - when an employee complains of unlawful conduct in the workplace, the claim may involve more than the initial misconduct as: it may detail discrimination in the handling of the grievance. If an employee can show that an employer failed to adequately and fairly investigate claims of discrimination, that employee may have a disparate treatment claim based upon evidence of a discriminatory investigation.
During all these years of being the target of harassment and retaliation because of my EEO and whistleblower activities I filed complaint after complaint with the Agency - yet, my pleas for help went unheard, instead I became the target of more harassment and reprisal. After an employee complains about discrimination in the workplace, if his or her employer fails to investigate or conducts an improper investigation of him them, and instead fires, disciplines or deliberately seeks to isolate the employee, that employee may have a claim for retaliation under the anti-discrimination statutes. NOTE: later I learned that a Customs rookie agent Richard J. Sabatini had complained about not having trust on me, after so many integrity investigations I had gone through and listening to rumors and innuendos. Sabatini’s real concern in my opinion was making port duty calls and being surrounded by too many Hispanics. In short, he was another racist.
Failure to take prompt action is a form of discriminatory harassment. State and federal law provide that when an employee adequately reports discriminatory harassment, he or she may have a claim for further discriminatory treatment if the employer fails to take adequate steps to end the harassment. NOTE: Customs’ internal affairs at HQ, National Harassment Coordinator Laureen A. Cremin related to me that she personally met with Customs’ Assistant Commissioner for internal affairs, William A. Keefer about my unique case of constant and intense harassment, retaliation, and hostile working environment but that he just ignored. She also mentioned the liability involved. Still Keefer did not care and seemed not interested at all in handling my complaints, which contradicts to what he told the U.S. Congress.
A failure to respond may also have consequences for an individual supervisor. Employees have a right to immediate seek appropriate corrective action on the part of the employer, even where there is no evidence that the harassment is on-going. NOTE: the reader is kindly directed to read this writer prior Narco News report about when Customs special agent Eric Peterson called HQ to report the posting of the dead informant’s picture and how fast Laureen Cremin called Thomas Rybczyk to tell him if the picture was still hanging on the door because Peterson felt threatened. As a result of Peterson’s “fears” Customs transferred him to Grand Rapids, MI at the American taxpayers’ dollar expense. Peterson who had a family and children, it is estimated that an average relocation of an employee cost around $100,000 per relocation. On July 28, 2009, a source who worked with Peterson and Loraine Brown related that Peterson when he was assigned to Customs' Office of Investigations, Las Vegas, CA, that he was the subject of an investigation by internal affairs for making an unauthorized disclosure to the target of a criminal investigation. The Customs IA investigation took two weeks, Peterson received some discipline but allegedly Loraine Brown got involved and he received few days off.
The Agency also failed to accommodate my needs and failed to protect my safety at work, when I asked to be removed from the workplace violence, to transfer me to another office. Instead, the Agency kept me under Arizaga, Strom and Evans’ supervision, as if the Agency was using them as tools to inflict more harm.
Failure to accommodate the disabled and aggrieved employee; where an employee suffers harm from workplace discrimination; such as depression or other psychiatric troubles. The employee may be entitled to a reasonable accommodation of her or his injury – even with the context of his or her participation in an internal investigation. Failure to provide such accommodation, under certain circumstances, may violate the American With Disabilities Act, 42 U.S.C. Section 1201, et seq. ("ADA")
The accommodation may require, for instance, that the employer permit the aggrieved employee some time off before being interviewed, or that the employee come assisted by an advocate or counselor. The employer’s duty to find a reasonable accommodation is not without limit. The obligation only arises if an aggrieved/disabled employee, with or without the disability, is "otherwise qualified" to perform the essential functions of her or his job It is not my intention to cause any problems to any employee involved. These cases have been reported before to Customs, and for the most part, these cases have been investigated. However, the employees, to the best of my knowledge, were not subjected to mental evaluations. A review of the following cases would support my argument that Customs has indeed retaliated against me because of my whistleblower status - the way Customs has been persecuting me throughout all these years and the way it handled the following cases only proves one thing that Customs will never be able to refute and dispute: that I have been the victim of pervasive and systematic harassment, reprisal and retaliation because of all of my protected disclosures.
During the upcoming MSPB hearings, I will demonstrate with clear and convincing evidence that the Agency through its Office of Chief Counsel, Labor Employment Relations, Office of Investigations and Internal Affairs engaged in a conspiracy to violate my Constitutional civil rights. The Office of Special Counsel had a perfunctory duty and an obligation to review any allegations of misconduct or any other legal affair, such as the request to subject me for the fitness for duty evaluation, and to advise management if their actions may have been influenced by my whistleblowing and EEO activity. Such was the case of another agent when in 1998, Special Agent in Charge Joseph Webber, Office of Investigations, El Paso, TX provided false statements to Customs internal affairs agents under oath during an internal investigation of agent Sean Mulkearns. Later, SAIC Webber was promoted to a senior executive position.
Webber condoned the questionable and unlawful discriminative behavior of Mulkearns when Mulkearns called a group of Hispanic Senior Special Agents assigned to the Office of Internal Affairs, El Paso, TX, the derogatory term of "MEXICAN MAFIA."
Further, Webber supported and condoned agent Mulkearn’s misconduct when he (Mulkearns) obstructed an internal affairs investigation and lied to IA investigators under oath. Also, Karla Matthews an associate chief counsel, and the actual chief counsel, Alfonso Robles became involved in the Mulkearns case, when William Keefer, assistant Commissioner for Internal Affairs recommended that Mulkearns be suspended for 30 days because of his false statements to Internal Affairs agents. Karla Matthews and Alfonso Robles advised Keefer not to discipline Mulkearns because of his whistleblowing status. In essence, Robles and Matthew protected Mulkearns and gave him the status of a whistleblower to shield him from adverse actions when he reported false information to Internal Affairs. NOTE: compare how convenient and easy Customs’ legal counsel gives “a free pass” to a White and racist employee.
Mulkearns, allegedly made a non-protected disclosure because what he disclosed was false, yet he is protected not by just a little associate chief counsel but by the chief counsel, AND A HISPANIC himself. This only demonstrates the evil intent by the Agency to ignore reality and actual facts - and opts for following ill advice to further inflict retaliation. The Tucson Office of the Associate Chief Counsel (another Hispanic) has been fully aware of all of my protected disclosures and status as a whistleblower and the principal representative on the Hispanic class action lawsuit against Customs, yet they continue to condone, support and promote more prohibited personnel actions.
These Customs lawyers should be disciplined, sanctioned and punished for having been derelicts and unethical when failed to prevent Agency officials from committing further prohibited personnel actions. As Treasury legal advisors, their job and duty is to provide professional and competent legal advice to their customers: employees of the Agency. In the Mulkearns’ case, the Customs’ legal counsel, Matthew’s questionable conduct was finally called to the carpet when she became the subject of a criminal investigation. She resigned in lieu of prosecution.
Michael J. Strom wears a hearing aid device - per OPM and Customs policy and regulation, the wearing of a hearing device is ground for removing an employee from a law enforcement position, due to safety issues regarding the carrying and use of firearms. If Customs is applying its safety policy with regards with my fitness for duty psychiatric examination dealing with my memory, and Customs is taking steps to remove from my law enforcement position, why is it that this policy does not apply to Strom’s physical handicap, when OPM and Customs calls for the removal of these employees having such physical impairment?
Sometime during 1994 to 1995, Assistant Commissioner for Field Operations Charles Winwood was seen by former Customs Commissioner Carol Hallett having sexual intercourse with a subordinate employee by the stairs at Customs HQ. Winwood was subsequently promoted to Deputy Commissioner. Winwood went unpunished.
On December 13, 1998, the Miami Herald reported that in the 1980s Jay Ahern, then a mid-level Customs manager in Florida, dropped his pants before female subordinates. Ahearn along with other supervisors were accused of being involved in sexual harassment. In June, 2002, Commissioner of Customs Robert Bonner announced the selection of Jayson P. Ahern as the new Assistant Commissioner for the Office of Field Operations, the biggest division within Customs. Ahearn went unpunished.
In 1997, Executive Director of Financial Operations Connie Fenchel and Associate Special Agent in Charge Paul Kilcoyne, while celebrating Kilcoyne's promotion party at Harry's Pub in Washington, D.C., he (Kilcoyne) pulled his pants down to his ankles and got on top of a table with Ms. Fenchel. They were both visible drunk and dancing on the table. Fenchel and Kilcoyne went unpunished.
Kilcoyne has admitted to be on Prozac for his mental condition. He has never been subjected to a fitness for duty psychiatric evaluation. He is being considered for an SES position. He is a supervisory criminal investigator and also authorized to carry firearms. NOTE: I believe Kilcoyne is retired now collecting his federal hefty pension.
In the 1990s - Assistant Special Agent in Charge Patricia Kramer, Office of Investigations, El Paso, TX. Allegedly ASAIC Kramer, while a special agent in Miami, FL, was arrested twice for DUI and had tested positive for drugs while she was a GS-13 Special Agent in Miami. Kramer went unpunished. NOTE: Patricia Kramer is the same top level ICE official who got involved in the House of Death series by Bill Conroy of Narco News.
In 1997, Resident Agent in Charge Robert Tine, Office of Investigations, San Ysidro, CA and a subordinate employee drank alcohol for several hours while on duty, and drove his government-owned vehicle (GOV) home while intoxicated. The subordinate employee subsequently was arrested for urinating in public by the San Diego Police Department. Shortly after the incident, Tine got promoted to the positions of Associate Special Agent in Charge and later became a Customs Attaché in a foreign office. Tine went unpunished.
In the 1990s, Assistant Commissioner for the Office of Field Operations Bonnie Tischler attempted to have her DUI records falsified when she was the Special Agent in Charge in Florida by using her then Sheriff boyfriend. Tischler also interfered with an internal affairs investigation of an employee when she was the Special Agent in Charge in Tampa, FL. She was also arrested for DUI while she was the Assistant Commissioner for the Office of Investigations. Further, Tischler misused her GOV during a Christmas party by allowing her boyfriend to ride with her in her GOV. Later on, Tischler was caught misusing her GOV when she drove approximately 600 miles to meet with her boyfriend, a target of a DEA drug investigation. She was investigated and received a 30-day suspension, which she took in installments. NOTE: Bonnie Tischler had more than two DUI convictions.
In the 1990s - Senior Executive Service/Supervisor Criminal Investigator Thomas McDermott was found to have lied to a U. S. Congressional Committee when testifying under oath regarding Customs matters. Years later McDermott was transferred to a foreign office as a Customs Attaché. McDermott went unpunished. McDermott was also found to having been suffering from Post Traumatic Stress Disorders and depression. To my knowledge, he never lost his neither gun or badge, nor he was transferred to a non-law enforcement position. However, he wrote an article about depression on the U.S. Customs Today magazine touched on the subject that perhaps, Customs should be more understanding and deal with employees suffering with this illness. He subsequently retired as the San Francisco, CA special agent in charge.
In 1997, Assistant Commissioner for Human Resources Management Robert Smith was caught by a security guard having sexual relations with his paramour, also a Customs employee in the stairway of the Customs Building at HQ.
In the 1990s, Quentin Docks, a Resident Agent in Charge for Internal Affairs, Detroit Michigan was arrested in Canada for soliciting a prostitute. NOTE: I was already with Customs internal affairs, and remember receiving a warning to all IA employees not to browse the Docks case because it was an illegal use of TECS. I knew personally Docks, he was a very nice and professional man. He was also an African-American. Once, a SAC (OI) agent gave the security combination of Docks’ subordinate special agent of the OI’ office back-door, SAC Richard J. Hoglund. He ordered all of the lock’s combination to be changed. Either Hoglund was very stupid or naive, but by U.S. Treasury and agency’s policy, Customs internal affairs had total access to all Customs’ offices unannounced to conduct security spot check inspections. Another Hoglund’s personality trait: he hated the two Customs legal counsel attorneys who shared an office space with us and the U.S. Attorney’s Office.
During 1993 and 1995, Regional Assistant Commissioner for Investigation Don Watson, Office of Investigations, Chicago, IL was investigated for recruiting young boys to become special agents and engaging in homosexual acts with them. He allegedly misused his GOV in numerous occasions and the Detroit SAC, Richard Huglund, who never reported his boss’ illegal activities, apparently condoned these acts. At least one agent filed a rape complaint alleging that Watson got him drunk while in Canada and when he passed out, Watson raped him. Watson was allowed to retire; kept his pension and was not prosecuted. Watson never lost his gun, nor was transferred to a non-law enforcement position. He should have been prosecuted and/or fired on the spot. What is worst, the Detroit’s Customs managers under Hoglund allegedly allowed the tape recording of the interview of the male victim being interviewed regarding is rape complaint where he described his recollection of events, when Watson raped him. I never saw the tape, nor was I interested in listening to such degrading behavior and misconduct by Watson.
In the 1980s, Customs Commissioner William VonRobb was arrested in London for soliciting a prostitute. Allegedly the Assistant Commissioner for internal affairs flew to London to bail him out, all at the American taxpayers’ dollars.
Brian Simon a White supervisory criminal investigator assigned to the Tucson, AZ Customs Office of Investigations attempted to run over (murder) one of his subordinate employees, this supervisor has been known to be on anti-depressants (for years). He carries firearms. He should have been disciplined for trying to run over with his GOV his subordinate employee. He was never subjected to a fitness for duty psychiatric examination. I heard that the subordinate is the one who got disciplined.
The Spokane Resident Agent, a supervisory criminal investigator was investigated by the Office of Internal Affairs for having accessed the agency’s Internet for personal reasons while visiting and viewing pornographic sites for a period of five years. The agency was told that this supervisor suffered from a mental condition and needed medical help. The supervisor received a two week suspension and was not subjected to a fitness for duty psychiatric evaluation. He carries a firearm. A special agent with the Treasury’s OIG related to me that an Assistant Special Agent in Charge with the U.S. Secret Service was fired for using his office for the same purpose but with considerable less frequency. I personally knew the case IA special agent who conducted the investigation and I trust that he issued a neutral report of his findings. Whether Rodney C. Tureaud was the Seattle Customs SAC (OI) it doesn’t matter. Like Homer Williams would tell his girl friend, “a little bird (Thomas Rybczyk) told me that…..” I was told also that Tureaud’s own top managers hated him not because he was Black but for being incompetent. Sorry, I must stay on track…..
Steven D. Arizaga in 1995 physically assaulted and severely beated a co-worker after this co-worker called him “Goofy” in the Calexico, CA area. I believe the retired Customs’ criminal investigator’s name is Howard Sullivan and he gave permission to this writer to use his name and negative experience with Arizaga for any court, MSPB or EEO hearings. According to Sullivan, Arizaga “lost it” when he was called “Goofy.” Arizaga hit Sullivan on the face and put him on the ground beating him up until the police arrived. The victim was later transferred to another office, after recuperating from the severe beating. According to Sullivan, Arizaga was known during this time to be a very violent individual who engaged in domestic violence at home as well. Arizaga, to the best of my knowledge has never received any medical help for his violent behavior. The victim, Sullivan who was 20 years older than Arizaga, was a small subject who was not able to defend himself. He nevertheless will testify in any court proceeding with regards to the beating incident by Arizaga. In his opinion, Sullivan felet that Arizaga needed mental help in 1995 and believe that his mental condition did not change throughout the years. NOTE: I agree with Sullivan, Arizaga is a GOOFY character.
Regarding Arizaga frame of mind, a former subordinate of Arizaga, retired ICE special agent Manuel Rascon, related that when Arizaga was a Customs Group Supervisor in El Centro, CA, one day, in 1989 circa, Arizaga asked Rascon to get a six-pack of beers, during working hours, and to go to Arizaga’s residence to watch her dog having sexual intercourse with another dog. This subordinate confided that Arizaga’s request was very bizarre (Arizaga’s female dog had been mating with another dog for a few days). To my knowledge, Arizaga was never subjected to a fitness for duty examination. NOTE: regarding having relatives with criminal ties, one of Arizaga’s brother-in-law was sentenced to the Arizona State Prison for at least 20 years for sexually child molestation and abuse; also, it was alleged that former Assistant Commissioner for Investigations, John Hensley had a brother in prison for murder. The Hensley's allegation came from Newton Phillips and the brother-in-law’s prison sentence, came from Arizaga. Michael Strom through his wife has relatives with drug smuggling and trafficking activities. Unfortunately we can pick our friends but not our family.
Sorry readers but I must bring this guys name again and hope I don't offend the gay community. His sexual orientation has nothing to do with his unbecoming an agent conduct: Miguel Unzueta, the ICE SAC for San Diego, CA who twice has been caught having sexual acts with male partners. The first time, the act took place in Washington, D.C. Inside a car parked on the street. He used his badge to get out of the arrest. His partner, a DEA agent allegedly got fired. The second time, he was caught in his office building having sex with a male subordinate manager. No action was taken against Unzueta. In fact, after the first act, he got promoted to a Senior Service Executive. When the second act took place, he was already the ICE SAC San Diego, CA. Others allegations against Unzueta is that he fails to take personnel action against managers in his district who are found guilty of discrimination.
PROTECTIVE DISCLOSURES AFTER OCTOBER 2000
10/4/2000 - Reported to Loraine Cremin, National harassment Coordinator, Office of Internal Affairs, U.S. Customs Service Headquarters. Assistant Commissioner William Keefer, and several other subordinates and Office of Investigation HQ officials became privy to these allegations. No one contacted me regarding these allegations.
In one of my complaints I wrote:
"Dear Lori (Cremmin) and Bill (Gimmler): I am submitting the following complaint under my protected status and under the Whistleblower Protection Act and EEO statutes, as well as under Customs policy regarding the filing of allegations under the above referenced statutes. On October 3, 2000, I spoke with both of you whereby I reported certain allegations of misconduct by SAIC (OI) Tucson and RAIC (OI) Yuma officials. As I indicated to you, I tried very hard to look the other way and to just close my eyes, hoping that what I was experiencing in Yuma, AZ was just in my imagination and that perhaps, I was becoming paranoid due to my participation in the EEO process, the filing of my EEO class action complaint, and complaints filed with the Office of Special Counsel and the Treasury's OIG.
However, the activities that occurred on October 2 and 3 only confirmed my concerns and worries: that indeed I was being the subject of a very strong hostile working environment due to a pattern of harassment and retaliatory actions at the RAIC (OI) Yuma; I realize that with the submission of this document, the Customs Service undoubtedly will once again, initiate whatever adverse actions they may have in storage for me. I will take my chances once again.
Lori, I should have filed back when you, David Coppage and I went to our basic IA school. Remember when I related to you that after I forgot to flush the urinal in the restroom that Coppage who was next in line after me, got upset and shouted: "you damn Mexican, flush it!" I should have done something back then, but I decided not to. Now, I must do something. Now, the Commissioner must do something; things cannot get better without the involvement of the Commissioner (Raymond W. Kelly) and his Assistant Commissioner for Investigations (Bonnie Tischler) and Internal Affairs (Wlliam A. Keefer); as well as the others who are part of his senior management team.
In June 1999, I reported to the Office of Investigations, Yuma, AZ as a Group Supervisor GS-1811-14. I was assigned to drive a 1996 Ford Crown Victoria as a GOV. In late 1999, the office received newly pick-up trucks as GOVs. I asked RAIC Steven D. Arizaga ("Arizaga") if I would be getting a new car as my assigned GOV. Arizaga advised me that per SAIC district policy, "supervisors" were not authorized to drive 4X4s and pick-up trucks. I asked him why then Group Supervisor Mike Strom ("Strom") was driving a 4X4 Chevrolet Blazer as his GOV? Arizaga stated that Strom got this vehicle before he became a group supervisor. Later, under oath when Arizaga was interviewed by an EEO investigator, he lied and committed perjury.
On December 22, 2000, I faxed a letter to the Chief Counsel for Customs, Alfonso Robles, United States Customs Service, 1300 Pennsylvania Avenue NW, Room 4.4B, Washington, D.C. 20229.
I wrote: " Robles: I am writing this letter as a Customs employee and to request that your office issue a legal opinion and guidance regarding defamatory statements made by Customs supervisors and employees during civil service merit promotion employment opportunities in and outside of Customs. Recently, I was considered for a GS-1811-15, supervisory criminal investigator (special agent in charge) with an outside agency.
However, for unexplained reasons, I was informed that the selection (hiring) processes for that particular office had been put on "hold." No other explanation was given. I served an FOIA request on this agency and hopefully, I will learn exactly what took place. However, I suspect that calls were made to my employer, the U. S. Customs Service and job references were obtained.
Further, I believe that certain Customs officials defamed my reputation by disclosing certain privileged information. I intend to pursue and legally challenge any and all acts of defamation, slander and Privacy Act violations by Customs. Customs officials found to have violated my constitutional rights will be held personally accountable for their actions. I have applied for promotions at grades GS-1811-14, 15 and Senior Executive Service positions with other federal law enforcement agencies. I urge you to provide legal advice to your clients at the Office of Investigations, Office of Internal Affairs and other Customs entities as to what can legally be disclosed pursuant to a request for information regarding employment opportunities with outside agencies. Also, you should review the recent settlement agreement rendered in my individual MSPB case for further clarification regarding disclosures of information pertaining to my employment with the Offices of Investigations and Internal Affairs. As you know, the Customs Service has been attempting to get me wrongfully fired/terminated from employment. Please advise your clients that perhaps this is a good time to reflect and let me go to start fresh somewhere else. However, considering your client's old systematic retaliatory history and malicious intent, I doubt they will want to see me getting ahead with a promotion and especially as the Special Agent in Charge with another federal law enforcement agency. The decision will be theirs. I am enclosing an article written by Christopher H. Whelan dealing with defamation in employment. This is a very informative article dealing with the issues in question. During my experience as the RAIC for internal affairs, I successfully applied the concepts enumerated in Whelan's article when I had to deal with disclosures of my subordinates' job performance and employment history in Customs.
Signed: MIGUEL ANGEL CONTRERAS" (NOTE: Robles or any of his assistants never answered my letter. By Agency’s policy, rules, and regulations, employees of the agency’s Chief Counsel Office must answer and assist employees, especially supervisors and managers with any question. Robles, is still the Chief Legal Counsel for CBP.
On March 1, 2000, Associate Special Agent in Charge Kyle E. “Bully” Barnette, who at the time was the Nogales’ Resident Agent in Charge, wrote and submitted a Facsimile Transmittal Sheet to our Yuma office. The document was addressed to Arizaga, Strom and the writer. Next to my name, Barnette wrote: “If not fired yet.” NOTE: Customs and now ICE disciplines any employee who is not courteous or cooperative with co-workers, and members of the public. Barnette as RAC of Nogales had a verbal and almost physical confrontation with Terry Kilkpatrick, the Customs Senior Representative (CSR) Hermosillo, Sonora, Mexico. Barnette, allegedly got hostile and abusive with Terry who subsequently evicted him from his office. According to the Customs' disciplinary policy, Barnette should have been investigated and disciplined. To my knowledge, Barnette went undisciplined. BARNETTE was or is a heavy set man. Terry is the opposite, plus is cordial and professional on his demeanor.
I told Arizaga that Barnette had acted unprofessional when he wrote this comment. Arizaga along with supervisor Strom laughed as if this incident was a joke. This incident, like numerous other incidents of reprisal and harassment was reported to the National Harassment Center, Office of Internal Affairs, U.S. Customs Service, Washington, D.C. I conlcuded that I will never receive justice at Customs.
On March 17, 2000, I sent a memorandum to Bill Keefer, Assistant Commissioner for Internal Affairs via Ms. Awilda Villafane, Special Agent in Charge and Steven D. Arizaga, Resident Agent in Charge, the Department of the Treasury's Office of Inspector General, the Office of Special Counsel and the Customs Office of EEO. This was a complaint of abuse of authority, and gross mismanagement.
I wrote: "On March 16, 2000, I was contacted by an agent with the Treasury's Office of Inspector General (OIG) San Diego, CA who requested that I appear and be interviewed on March 21, 2000 in El Centro, CA in connection with an administrative investigation where I am the target. The allegations in essence involve the following two allegations: 1) that I told a federal prisoner Joseph Bambino CALANDRA not to trust OI; and 2) that I met with a Special Assistant US Attorney in El Centro, CA and obtained the release of CALANDRA on his own recognizance. CALANDRA subsequently absconded prompting the issuance of a federal warrant for his arrest for drug related offenses. The above incident and initial complaint was filed in 1997/1998 by an employee of the Office of Investigations, El Centro, CA with the Office of Inspector General, (OIG) El Segundo, CA. During the initial filing of this complaint, I was notified by an OIG agent that a complaint had been filed against me for the above referenced allegations. However, I had no further contact with the OIG regarding this matter. See my prior Narco News report. This time I am identifying the convicted felon after learning that OIG agents interviewed him at the Lompoc Federal Prison. Thus, unless ICE is stupid enough to use a convicted felon and liar. I am almost positive, I “black-balled” this crook; meaning he cannot be used as an agency’s informant. My concern that the RACs who took over my IA office were of questionable character themselves
I assumed the case had been closed because it had no merit. On March 16, and 17, 2000, I learned that the OIG had closed their preliminary investigation in 1998. According to the OIG/San Diego agent, Veronica Quinn, the above referenced investigation was recently reopened by headquarters. For more information regarding the CALANDRA arrest of August 8, 1997 and my experience and the involvement of my former IA El Centro, CA office with CALANDRA, refer to OI Case # XXXXXXX and the related IA File maintained by the Office of Internal Affairs, unknown file number. It appears that the reason (s) this investigation has been reopened by the OIG it is because of a request by the Office of Internal Affairs to investigate the above referenced allegations where again, I am the central figure and target.
I will not go into the details surrounding my actions and the actions of my former IA office at this point. However, I would like you to know that I am very disappointed by the fact that the Customs Service continues to discriminate, retaliate, and harass me due to my national origin and because I have filed complaints of discrimination and
retaliation against the Customs Service. As you know, I am the representative of an EEOC certified class action complaint of discrimination whereby I represent all Customs Hispanic Special Agents grades' GS-1811-12 through 15. Signed: Miguel Angel Contreras."
Early in 2000 I wrote a letter to U.S. Congressman Jim Kolbe reporting abuse of authority, mismanagement, discrimination and corruption in Customs. On March 7, 2000, U.S. Congressman Kolbe responded with a letter advising that he had received my letter and request for assistance. On the letter, I reported misconduct; abuse of authority and other allegations of activities prohibited by civil service law, rule, or regulation, and prohibited personnel practices by Customs Commissioner Ray Kelly, Assistant Commissioner for Investigations, and Bonnie Tischler, Assistant Commissioner for Internal Affairs William Keefer. However, because I was not part of his constituent; my letter was subsequently referred to U.S. Congressman Ed Pastor, where it died. Pastor’s staff never answered my letter.
On March 23, 2000, I faxed a copy of an affidavit (previously given to OIG agent Veronica Queen) to Deputy Inspector General Richard Callahan, Office of the Inspector General (OIG), Department of the Treasury, Washington, D.C. The affidavit in question was prepared pursuant to an investigation by the OIG where I was the target of an administrative investigation. Further, on the same day, I spoke with Callahan regarding what I considered a frivolous investigation by his San Diego and El Segundo, CA offices. I expressed my concerns that his office was being used by Customs to further retaliate against me for having previously reported violations of law and misconduct by certain Customs officials. Callahan informed that he would look into my allegations and requested a copy of my affidavit.
This was another negligent and malicious investigation referred to the OIG where I was the target of more trumpeted investigations. The Agency (U.S. Customs Service) engaged in unlawful discrimination when I was treated unfair during the course of said internal investigations.
Where an employee stands accused of misconduct in the workplace, he or she may have a claim of discrimination, if that employee can prove that the investigations of the allegations against him or her were tainted by discriminatory animus.
Between 2001 and 2002, I reported to William Keefer, Assistant Commissioner, Office of Internal Affairs, US Customs Service, and to subordinate employees assigned to his office the following incidents involving Steven D. Arizaga, Michael J. Strom, and Kevin Evans:
I reported a felony trespass incident involving Michael Strom when he admitted to me that he looked inside my residence through a garage door window which was 7 feet high. He is a former Yuma Police officer and knew that his actions were of criminal in nature, although no sign was posted in my property. I reported this crime to the Yuma Police Department but I was told that this incident would be better addressed by Customs. Subsequently I reported Arizaga and Strom’s criminal trespass to Keefer. Later I was told by Ms. Linda Anderson, Director, Internal Investigations that no action was to be taken in this matter.
I also reported the misuse of a government-owned aircraft by Arizaga, and Strom, when they authorized agents Phil Coffeen and Russell Bash to fly to the Safford, AZ Federal Institution to interview an inmate. Keefer advised he had forwarded my allegation to the OIG because agent Coffeen was in internal affairs.
I also reported Steven D. Arizaga and Michael J. Strom for stealing plants from Bureau of Land Management property. A US Border Patrol agent intercepted the two when they were loading up their government-owned pick-up truck with the plants. The Border patrol agent wrote and submitted a memorandum through channels to Customs. Allegedly this event took place in 1995. Because allegedly no action was taken against Arizaga and Strom, I reported the same incident to William Keefer.
I also reported to Secretary of the Treasury and the OIG an incident involving Steven D. Arizaga for mail fraud when he obtained and rented a mail box in Winterhaven, CA for his son, Steve Jr. when he applied for admission as a student at the University of California at San Bernardino, CA. I believe Steve Jr. claimed California state residency to pay lower tuition - his actual state of residency at the time was Arizona.
In 2002, I reported to William Keefer, Assistant Commissioner, Office of Internal Affairs, Kyle Barnett, associate special agent in charge with committing prohibited personnel actions when he defamed my name and obstructed my promotion job opportunities when I applied for a supervisory position with an Office of Inspector General. Barnette admitted to her supervisor Awilda Villafane to “taking care” of my chances of getting hired when he was contacted by an OIG management official conducting employment reference inquiries. Keefer through his staff referred my complaint back to the Office of Investigation as a “management referral” and for an investigation. A supervisory criminal investigator from Texas came to Yuma, AZ to conduct interviews. I was interviewed and provided an affidavit under oath regarding my complaint. Arizaga, Strom, Evans and Barnette became aware of this internal investigation. Barnette is in charge of managing Arizaga’s office and all decisions made by Arizaga and his supervisors must be approved and endorsed by Barnette. As such, Barnette without any question, became involved in the decision to subject me to the fitness for duty psychiatric examination.
On March 11, 2002, I filed a worker’s compensation claim with my immediate supervisor Kevin Evans. Steve D. Arizaga was the Resident Agent in Charge. In this claim, I alleged that Arizaga, Strom, Evans and other Customs officials had caused me the depression, stress, and alleged alcoholism. In order to support my claim, I reported all incidents of retaliation, harassment, and hostile working environment by Arizaga, Strom, and Evans. In addition, I reported criminal misconduct by Arizaga and Strom. These allegations were referred to the Office of Internal Affairs in Tucson, AZ. I assume Kevin Evans disclosed my worker’s compensation claim to Arizaga - thus, Arizaga knew that I had in-deed “blow the whistle” on him and on Strom.
The plaintiff presents the following article to further explain the phenomenon of workplace violence, also known as Mobbing and Bullying. I read this article over and over in an attempt to understand why Arizaga and the others acted the way they did and to further understand why I developed certain physical and mental conditions:
In 1994 Tim Field was bullied out of his job as a Customer Services Manager which resulted in a stress breakdown. Turning his experience to good use he set up the UK National Workplace Bullying Advice Line in 1996 and his web site Bully Online in 1997 since which time he has worked on over 5000 cases worldwide. He now lectures widely as well as writing and publishing books on bullying and psychiatric injury. He holds two honorary doctorates for his work on identifying and dealing with bullying. He is the Webmaster of Bully Online. NOTE: this writer obtained the definition of bullying according to the English Thesaurus used in the United States: harassment; maltreatment; singling out; hounding; harrying; and discrimination. Also, the Encarta dictionary defines bullying as the “process of intimidating or mistreating somebody weaker or in a more vulnerable situation.”
The following Q&A was obtained from Webmaster of Bully Online:
Q: What is workplace bullying?
A: Workplace bullying is persistent, unwelcome, intrusive behavior of one or more individuals whose actions prevent others from fulfilling their duties.
Q: How is it different to adopting disciplinarian measures, maintaining strict supervision, or oversight?
A: The purpose of bullying is to hide the inadequacy of the bully and has nothing to do with "management" or the achievement of tasks. Bullies project their inadequacies onto others to distract and divert attention away from the inadequacies. In most cases of workplace bullying reported to the United Kingdom (UK) National Workplace Bullying Advice Line, the bully is a serial bully who has a history of conflict with staff. The bullying that one sees is often also the tip of an iceberg of wrongdoing which may include misappropriation of budgets, harassment, discrimination, as well as breaches of rules, regulations, professional codes of conduct and health and safety practices.
Q: Should it be distinguished from harassment (including sexual harassment), or stalking?
A: Bullying is, I believe, the underlying behavior and thus the common denominator of harassment, discrimination, stalking and abuse. What varies is the focus for expression of the behavior. For instance, a harasser or discriminator focuses on race or gender or disability.
Bullies focus on competence and popularity which at present are not covered by employment legislation.
Bullies see them with resentment and anger and the conduits for release of this inner anger are jealousy and envy which explains why bullies pick on employees who are good at their job and popular with people. Being emotionally immature, bullies crave attention and become resentful when others get more attention for their competence and achievements than themselves.
Q: What is the profile of the typical bully?
A: Over 90% of the cases reported to the UK National Workplace Bullying Advice Line involve a serial bully who can be recognized by their behavior profile which includes compulsive lying, a Jekyll and Hyde nature, and unusually high verbal facility, charm and a considerable capacity to deceive, an arrested level of emotional development, and a compulsive need to control. The serial bully rarely commits a physical assault or an arrest-able offence, preferring instead to remain within the realms of psychological violence and non-arrest-able offences.
Q: What are bullying typical outcomes?
A: In the majority of cases, the target of bullying is eliminated through forced resignation, unfair dismissal, or early or ill-health retirement whilst the bully is promoted. After a short interval of between 2-14 days, the bully selects another target and the cycle restarts. Sometimes another target is selected before the current target is eliminated.
Q: Can you provide us with some statistics? How often does bullying occur? How many people are affected?
A: Surveys of bullying in the UK indicate that between 12-50% of the workforce experience bullying. Statistics from the UK National Workplace Bullying Advice Line reveal that around 20% of cases are from the education sector, 12% are from healthcare, 10% are from social services, and around 6% from the voluntary / charity / not-for-profit sector.
After that, calls come from all sectors both public and private, with finance, media, police, postal workers and other government employees featuring prominently. Enquiries from outside the UK (notably USA, Canada, Australia and Ireland) show similar patterns with the caring professions topping the list of bullied workers.
Q: Could you estimate the economic effects of workplace bullying - costs to employers (firms), employees, law enforcement agencies, the courts, the government, etc.?
A: Bullying is one of the major causes of stress, and the cost of stress to UK plc is thought to be between £5-12 billion (US$7-17 billion). When all the direct, indirect and consequential costs of bullying are taken into account, the cost to UK plc (taxpayers and shareholders) could be in excess of £30 billion (US$44 billion), equivalent to around £1,000 hidden tax per working adult per year. Employers do not account for the cost of bullying and its consequences, therefore the figures never appear on balance sheets.
Employees have to work twice as hard to overcome the serial bully's inefficiency and dysfunction which can spread through an organization like a cancer.
Because of its subtle nature, bullying can be difficult to recognize, but the consequences are easy to spot: excessive workloads, lack of support, a climate of fear, and high levels of insecurity.
The effects on health include, amongst other things, chronic fatigue, damage to the immune system, reactive depression, and suicide.
The indirect costs of bullying include higher-than average staff turnover and sickness absence. Each of these incur consequential costs of staff cover, administration, loss of production and reduced productivity which are rarely recognized and even more rarely attributed to their cause. Absenteeism alone costs UK plc over £10 billion a year and stress is now officially the number one cause of sickness absence having taken over from the common cold.
However, surveys suggest that at least 20% of employers still do not regard stress as a health and safety issue, instead preferring to see it as skiving and malingering.
The Bristol Stress and Health at Work Study published by the HSE in June 2000 revealed that 1 in 5 UK workers (around 5.5m) reported feeling extremely stressed at work. The main stress factors were having too much work and not being supported by managers. In November 2001 a study by Proud foot Consulting revealed the cost of bad management, low employee morale and poorly-trained staff to British business at 117 lost working days a year. At 65%, bad management (often a euphemism for bullying) accounted for the biggest slice of unproductive days with low morale accounting for 17%. The study also suggested that in the UK 52% of all working time is spent productively compared to the European average of 43%.
The results of a three-year survey of British workers by the Gallup Organization published in October 2001 revealed that many employers are not getting the best from their employees. The most common response to questions such as "how engaged are your employees?" and "how effective is your leadership and management style?" and "how well are you capitalizing on the talents, skills and knowledge of your people?" was an overwhelming "not very much." The survey also found that the longer an employee stayed, the less engaged they became. The cost to UK plc of lost work days due to lack of engagement was estimated to be between £39-48 billion a year.
Q: What can be done to reduce workplace bullying? Are firms, the government, law enforcement agencies, the courts - aware of the problem and its magnitude? Are educational campaign effective? Did anti-bullying laws prove effective?
A: Most bullying is hierarchical and can be traced to the top or near the top. As bullying is often the visible tip of an iceberg of wrongdoing, denial is the most common strategy employed by toxic managements. Only Sweden has a law which specifically addresses bullying. Where no law exists, bullies feel free to bully. Whilst the law is not volitions, the presence of a law is an indication that society has made a judgment that the behavior is no longer acceptable.
Awareness of bullying, and especially its seriousness, is still low throughout society. Bullying is not just "something children do in the playground", it's a lifetime behavior on the same level as domestic violence, sexual harassment, and rape.
Bullying is a form of psychological and emotional rape because of its intrusive and violation nature.
NOTE: from the time I reported to the Yuma, AZ Office of Investigations under the supervision of Steve D. Arizaga and Michael Strom, I became the subject of discriminatory retaliation and harassment, said incidents were reported to the U.S. Customs Service and management officials via EEO channels. The whistleblower retaliation of the fitness for duty has not been reported - the other allegations reported in this letter are only listed as background information.
Again, the only issue involved in this complaint is the fitness for duty medical examination. To the best of my knowledge, Arizaga was never disciplined and retired in January 2003.
NOTE: Unfortunately as of this date of July 28, 2009, this writer has never been compensated in any way nor he has been able to take his EEO complaints before any administrative or judicial judge. The cases this writer has been able to take to the MSPB is when Customs has initiated a series of adverse actions in its futile attempt to have him removed, demoted, suspended and subjected to years of discrimination, harassment, retaliation, abused by the U.S. Treasury’s OIG, Customs’ internal affairs, Treasury’s OIG for Tax Administration, IRS auditors, received suspension for frivolous allegations and humiliation by the U.S. Customs Service and U.S. Immigration and Customs Enforcement.
Kevin J. Evans who was my last immediate supervisor considered me the worst agent in his group; that I was not performing at my grade level. Evans told the one-sided mental doctors Customs contracted that I was not making any cases and that I was the lowest case producer in the office.
I assure Evans that if we ever see each other in court, I will be asking for any and all cases he initiated and worked, as a civil service career criminal investigator and especially after becoming a GS-18113 with Customs. For Evans’ information, feel free to copy this story and put it in your silly diary you kept or still keep on me (an illegal federal personnel action; unless the supervisor is keeping diaries on all of his subordinates). For Kevin J. Evans’s information, in 1998, I made the Best Qualified list twice for a GS-1811-15, Special Agent in Charge position with the Customs Office of Internal Affairs (based on merit and after submitting a list of cases I initiated, on the the first list I was at the very top – I doubt you will be able to ever match the type of conspiracy cases I developed at grade GS-1811-9, 11, 12 and 13). In 1998, I was already a RAC GS-1811-14 with internal affairs. Were where you, Evans and Kevin Jeter in 1998 or 1999? I tell you were you were: in the El Paso, TX working for internal affairs as merely special agents, GS-1811-13s. In fact I got my GS-1811-14 in 1995. What grade level were you two were in 1995? In case you wonder, I recently had a phone conversation with my old friend of mine, Allan Trujillo and before I communicated with Walter Biondi, former Assistant Commissioner for the Offices of Internal Affairs and Investigations.
This writer will provide an update of certain gross misconduct and possible criminal allegations that were filed against Strom, Arizaga, and Barnette, but as usual they went undisciplined or prosecuted:
A U.S. Border Patrol (USBP) agent witnessed then RAC Customs Steven D. Arizaga, GS-1811-14, and Senior Special Agent Michael J. Strom stealing plants from BLM land. In addition, the same U.S. Border Patrol Agent saw Strom driving his GOV transporting his son. The USBP agent sent a memorandum to the Customs’ Office of Internal Affairs in Tucson, AZ for follow-up. I assume that James “Breck” Ellis was the RAC of internal affairs and decided to refer the case to Customs’ Office of Investigations as “management referral inquiry” – What follows next is hard to believe: An Assistant Special Agent in Charge, Tucson, AZ after receiving the allegation of theft of protected plants from BLM by Arizaga and Strom, their managers merely asking for memorandums explaining their actions. Strom and Arizaga, of course wrote whatever they made up plus both of them negatively spoke bad about the USBP agent, who since then has been relocated to another state.
This writer filed a complaint against Kyle Bully Barnette, Steven D, Arizaga, and Michael J. Strom for misuse of a Customs aircraft to transport two subordinate special agents Phillip Coffeen and Russell Bash from Yyuma, AZ to Sanford, AZ’s federal corrections institution to debrief an inmate. The use of a Customs aircraft was merely for the convenience of the two special agents rather than driving their GOV’s. The complaint was filed with Customs’s HQ-IA who in return referred the complaint back to management, the Office of Investigation (OI). An OI management official’s only action in this matter was to contact the Customs air branch and verify that the Yuma, AZ OI managers made a request to deploy a Customs aircraft on an “official mission” – The Customs aircraft I believe was either in at the Tucson, AZ or Riverside, CA Customs Air Branch. This flight cost the American taxpayers thousands of dollars in wasted funds. Guess by the Customs’ air branch manager stating the flight was for “official purpose” was sufficient to close this matter without any formal investigation.
This writer filed a complaint against Kyle “Bully Barnette for defaming his name. Again, HQ-IA referred the allegation back to management as a “management referral inquiry.” A RAC (OI) from another state came to Yuma, AZ to conduct the investigation. This writer later learned that the RAC who interviewed Barnette was a friend of his. After the RAC interviewed Barnette, the writer was told that they went out to have lunch together. NOTE: this writer was considered for two GS-1811-15s positions as Special Agent in Charge with the U.S. Department of Agriculture (USDA) and the U.S. House of Urban Development (HUD) Offices of Inspector General. HUD flew this writer for his oral interview and to meet the HUD’s staff at HQ in Washington, D.C. The Barnette’s investigation over this allegation was the responsibility of the U.S. Office of Special Counsel (OSC) but as usual, the OSC never ever opened an investigation filed by this writer. Yet when Bruce Durbin, a former subordinate agent filed a whistleblower complaint with the OSC claiming that I sent him to Hawaii for almost a week to merely witness an interview, the OSC immediately opened an investigation and sent an agent from the OSC’s Investigations Unit, Los Angeles, CA to interview this writer.
On or about May 15, 2002, I sent a list of gross misconduct by Arizaga, Strom, Barnette and other Arizona (OI) managers to Richard Bailey, RAC for Internal Affairs, Tucson, AZ. Bailey failed to take any action. Bailey committed a serious violation which I referred it to the U.S. Treasury’s OIG. Since I was never contacted, I believe that no action was taken against the above referenced questionable employees.
From January 15 through January 28, 2002, I went to the People’s Republic of China for vacation and personal pleasure. I returned to the USA and on February 4 through February 5, 2002, I went on sick leave. Then again,
From February 6, 2002 through February 13, 2002, I went on annual leave. On February 14, 2002, I went to see a neurologist for complaints of skin infection, depression, drinking in excess and lack of sleep. The medical doctor asked me to stay home on sick leave status for a week. Later, he requested that I take an additional week from work.
My neurologist prescribed me Xxxxxxl and Xxxxxx. He also referred me to see another medical doctor to check my skin infection showing in my legs. The doctor ran a series of tests, including. All test results were negative. Apparently when taking hot jacuzzi and hot saunas in China. They don’t use the same anti-bacterial chemicals. The doctor determined that my skin got some type of bacteria and prescribed me with the proper medication.
On February 26, 2002, Strom and possibly Arizaga conducted an illegal Fourth Amendment search and seizure of my residence, when Strom admitted to looking through my garage door window which is 7 feet high and looking inside. He admitted to a criminal act. This was considered a state law violation, a felony class 6 trespassing violation. I reported this incident to the Yuma Police Department and I was told that I was better off contacting my own federal agency’s internal affairs. I called the Office of Internal Affairs, Customs-HQ, and spoke directly with acting Assistant Commissioner Linda Anderson. No action was ever taken against the two common criminals and crooks; Arizaga and Strom.
On February 27, 2002, I advised Strom that my doctor had requested that I take an additional week off from work. Again, he provided a written sick leave note.
On February 27, 2002, I was ordered to drive my GOV to the office's annex for a radio check while I was on leave sick leave status. I was also ordered to fill up the monthly vehicle report after I had already given the car mileage to agent Belia Lopez whom I assumed was doing my monthly vehicle report. Agent Belia Lopez conducted an internal investigation for Arizga and Strom, whether she knew what she was doing, I don’t know.
On March 6, 2002, Arizaga served me with the first letter requesting medical reports from my doctor regarding a fitness for duty medical examination. I was given copies of OPM regulations regarding the position of a GS-1811 criminal investigator’s job description. Subsequently, my neurologist reviewed the job description and examined me. He concluded that he no longer needed to see me and to return back to work. Wanting to make sure that I was totally fit, I asked him to run scan tests of my brain. He objected and determined that I was fit and had no mental deficiencies. My neurologist also was a licensed medical doctor with additional specialty psychiatry.
I returned to work on or about March 11, 2002 after my doctor certified that I was NOT mentally unfit to be a Customs special agent and to carry firearms.
On March 11, 2002, I received an adverse action: a Letter of Caution regarding my interview and picture taken by a news reporter. My picture and professional story was to serve as a role model and community leader profile in Yuma,
Arizona. I was accused of not obtaining prior agency authorization before I was interviewed. The only mentioning of the agency was when I was asked what my tile was and where I was employed.
On March 13, 2002, I sent a letter to the acting special agent in charge, Vincent Iglio. With this letter, I reported abuse of authority by Arizaga and requested under the authority of FOIA, 5 USC 552, and the Privacy Act, 5 USC 552a certain records and advised Iglio that I was also reporting Whistleblower Act violations. I never received a response concerning my FOIA/PA request. Iglio by ignoring my complaint and my FOIA request committed a series of administrative violations. But in Customs and now with ICE, standards of conduct and ethics are selectively enforced. Unfortunately this is the problem now with DHS, ICE, CBP, USCIS and almost every federal agency. Unless U.S. President Barack Obama takes a strong stance on racial profiling and the use of double standards when administering discipline, many Blacks, Hispanics, Asians, Middle Easterners and other minorities will suffer systematic discrimination and retaliation on the federal workforce. However, any employee (s) mentioned in this report who is still working for ICE or any other federal agency, you still can be held responsbile and do your "time on the beach" or worst be fired.
On April 16 and 1, 2002, I underwent a deposition by Customs officials in Washington, D.C. during an EEOC administrative hearing regarding my class action complaint where I gave damaging testimony against Customs.
On April 19, 2002, I was interrogated by two Customs Internal Affairs investigators; Shawn Bray and Lenore Granato regarding misconduct allegations filed against me for misuse of my assigned government-owned vehicle (GOV) and for making false statements. I was accused of driving my GOV more than 300 miles while I was on leave and for lying to my supervisor when on February 26, 2002, he asked me where my GOV was. Strom told me he came to my house and looked through the windows of my garage (A class 6 felony under Arizona Criminal Statutes) and did not see my car. The allegations of misuse of the GOV and false statements were predicated upon Strom illegally criminally trespassing into my private property. Under the "poison of food doctrine" All actions resulting after this unlawful intrusion become "poisoned" I filed EEO complaints of retaliations and reprisal resulting from Customs' invasion of my privacy.
From 10:23 A.M. till 2:30 p.m., I underwent severely questioningly by the two IA agents concerning the above referenced allegations. No breaks were allowed, nor did the agents ask me if I were under medication before the interview. I did not know that I had to be interviewed until my supervisor ordered me to go to the office.
Before reporting for duty at 8:30 am, I took two medically prescribed drugs: Xxxxxx and Xxxxxxl. I think the agents were "fishing" when they asked if I had misused the GOV while I was on leave. I asked Shawn and Lenore to ask me specific questions such as when and where I was seen driving the GOV. They did not respond. I told them that may be somebody else drove the car since there are two sets of keys for this car. Rather than asking specific questions about the misuse of the GOV, they asked broad questions. I asked them to narrow their questioning to specific dates and locations. Instead they kept asking me if I misuse the GOV while I was on leave. I remember telling Strom that the GOV had been in my garage before taking it to the airport to get a rental car to run personal errands. He asked if my girlfriend rode with me in the GOV. I told him no. He is accusing me of telling him that the GOV was in the garage. I intended to drop off the rental cat before five p.m. and to stop at my office, which is approximately 1 mile from the airport, to meet with my supervisor and pick up official documents etc. However, I did not return from my out of town trip until seven p.m. I conducted an official business when I drove the GOV to the airport because I intended to go to the office. When I had the telephone conversation in question with Strom I was under the influence of two medically prescribed drugs for my depression. (NOTE: Strom was/is a known alcoholic who wears a hearing device. Under Customs and now ICE physical minimal standard requirements, Strom cannot justify being a law enforcement officer authorized to carry firearms because if his hearing problems.)
The above referenced negligent investigation is one of many other internal investigations where I was the target of malicious prosecutions by the Agency in an attempt to get me fired or constructively discharged. While I underwent these investigations, the Agency inflicted on me severe emotional distress, time after time. An employee who witnesses unlawful conduct, or who is subjected to abusive questioning or other improper investigative methods, and suffers emotional distress as a result may be permitted to recover for such damages by bringing a claim under the Workers’ Compensation Act. Furthermore, it is well known among legal and medical scholars that when an employee is subjected to negligent internal investigations he experiences emotional distress. An internal investigation, improperly conducted, may well inflict additional emotional distress.
Through the MSPB discovery process, I obtained a copy of Shawn’s ROI. It is incredible how much man-hours, taxpayers’ dollars, and resources Customs spent in trying to make a case. Shawn and his co-workers violated a number of federal laws when collecting their documentary evidence, such as the Bank Secrecy Act, and my Privacy Act of 1974 to name a few. These agents reviewed video tapes from the airport and spent days and nights in Yuma, AZ investigating this writer for nothing. NOTE: now Shawn is a high top level management ICE official at HQ with the Office of Investigations.
I reported that Strom used a hearing device. In accordance with the requirements for being a GS-1811 law enforcement officer authorized to carry firearms, Strom should have been re-assigned to a non-law enforcement position. I brought up this issue at the MSPB when explaining a telephone conversation I had with him. Strom was a well known alcoholic and I don’t believe he was carrying his hearing device when he asked me some questions by phone regarding my GOV. As usual my complaints went nowhere. Strom was and is a liability when conducting executions of federal search warrants and these search warrants turn out to involve a shoot-out. It is one reason all of the applicants for ICE GS-1811 positions requires that they must have healthy hearing. Once again, Customs and ICE used and still uses double standards when administering discipline.
I will also ask Administrative Judge XXXXX to order the Agency to comply with a previous Freedom of Information Act and Privacy Act (FOIA/PA) request I served on the Agency on March 13, 2002. This request was served on the then acting special agent in charge Vincent Iglio. I requested information concerning letters of caution I received and the fitness for duty medical requests I was receiving by Arizaga and Strom. Regarding the issue of FOIA and PA requests, recently I was informed that Agency’s FOIA/PA officials have stated that the Agency maintains well over 25,000 documents on this writer!
On April 24, 2002, I was given a letter of caution (adverse action) by my supervisor Kevin Evans and Resident Agent in Charge Steven D. Arizaga for having reported an abuse of authority incident involving Associate Special Agent in Charge Kyle Barnette (BARNETTE). This letter of caution was a violation of the Whistleblower Protection Act. However, for Customs, this writer believes that they (Customs’ management officials) consider themselves to be above and beyond any federal law. What precipitated this incident was a conversation I had with former SAIC Awilda Villafane whereby she cited an incident when BARNETTE told her that he had "taken care of" an opportunity I had to be hired and promoted with a Federal Office of Inspector General. Allegedly BARNETTE slandered and defamed my reputation, character and integrity during an employment inquiry. In fact BARNETTE volunteered for contacting the OIG prospective employer. Villafane told me that BARNETTE called me a “joke.” She referred to him as a "bully." Subsequently I wrote a letter to BARNETTE expressing my concerns that he had defamed and slandered my reputation, character and integrity when he gave me a negative job reference. I have never worked directly under BARNETTE. I sent copies of my letter to a number of Customs management officials to include the Commissioner of Customs. On the letter of caution, signed by ARIZAGA and believed drafted by Dyann Medina of the Office of Chief Counsel, Tucson, AZ, I allegedly committed misconduct and affected the efficiency of the Service for having sent a copy of my letter to the Commissioner of Customs? It is apparent that everything I raised on the letter I sent to BARNETTE and reviewed by all of the listed Customs officials was ignored and apparently condoned their illegal actions because at the end I was the one who was penalized.
On May 10, 2002, I filed a civil lawsuit against US Customs in United States District Court in Washington, D.C.
On May 15, 2002, I sent Mark Head, a Claims Examiner, ESA-OWCP. US Department of Labor, information he had previously requested from me regarding my worker's compensation claim (CA-2). Head specifically requested detailed information supporting my claim that the hostile working environment had caused me my medical condition. I claimed among other things that my depression was caused by the hostile working environment of which I had been subjected. The claim contained names of current and former Customs employees and other individuals who have or may have witnessed some of the allegations mentioned in this claim. I was asked if I was taking medication concerning my illness, I answered that I had been prescribed antidepressants. Subsequently, my worker’s compensation claim was denied. I did not appeal the denial because I already had two legal matters pending, the class action and the instant MSPB appeal. I believed that in due time, I was to receive justice. How dead wrong I was.
On May 20, 2002, Arizaga and Evans served me with another letter, the second fitness for duty medical examination. Arizaga also placed me on administrative leave pending further fitness for duty medical examinations. He took my GOV, gun and credentials.
On June 6, 2002, I had my last medical examination with Dr. Xxxxxx, MD. I informed Dr. Xxxxxx that I had stopped taking all prescribed medications to include Xxxxxx and Xxxxxx because I felt better. On this date Dr. Xxxxxx discharged me from his medical care. I was on sick leave status when at approximately 3:00 P.M. Evans called me in the phone and told me that he was placing me on administrative leave status that I was not to work at all and not to report to work until further notice. He indicated to me that he was doing this because I reported in my workers’ compensation report on May 15, 2002 that I was taking antidepressants. I told him that when I returned back to work, that Arizaga and Strom knew that I had been prescribed antidepressants, and that my doctor had cleared me. Evans did not answer and avoided making any further comments (NOTE: after May 15, 2002, Arizaga, Strom, and Evans went memo hunting in the office; asking any employees to write memorandums regarding anything they considered “strange” about my conduct and behavior in the office – As usual the first one to volunteer to write a memo was JAY CREDE. Another memo written by agent Melanie Seidman, who wrote a one or two line memo stating something like, “I think Miguel is crazy” or something to that effect. All of the documentation that Arizaga, Strom and Evans submitted to LER, legal counsel, and the U.S. Department of Human Services, were documentations the above employees solicited from their subordinates.
On June 12, 2002, Linda M. Anderson, Director, Internal Investigations Division, Office of Internal Affairs, US Customs HQ sent me a letter of acknowledgement indicating she had received my complaint of hostile working environment, harassment and criminal trespass by Strom. She advised that I contact the local police department because “Arizona law enforcement authorities exercise jurisdiction over the alleged trespassing matters. “ I described in my complaint. Customs failed to address my fourth amendment violation complaint. As a former Customs IA manager myself, I knew Customs IA had jurisdiction over this administrative and criminal matter. I wanted Customs to address my complaint not as a criminal case but as an administrative, which required less investigative work, man-hours, and resources. Regardless, the issues involved in this complaint were not addressed and if they were, I don’t know what the outcome was. What I do know is that Arizaga and Strom retaliated against me because of my whistleblower disclosures. Since I was never contacted about any of my complaints to the Treasury’s OIG or Customs’ internal affairs besides the ones I made where the complaint was a “management referral.”
Prior to receiving my written orders to appear in the Washington DC area for my fitness for duty psychiatric examination, Arizaga, Evans, and Strom questioned my co-workers regarding my mental condition and obtained written statements which later on were used to substantiate their request for further mental evaluations.
Federal law and regulations limits on an employer’s questioning during an investigation: invasion of privacy.
Arizaga, Strom and Evans while conducting interviews with my co-workers and while attempting to gather incriminating statements to support their unlawful fitness for duty psychiatric examination request to the Agency’s
Associate chief counsel and Labor Employment Relations, they violated my employee’s rights against publication of false statements. Although often thought of as a wrong against the accused, in the course of an investigation, if an employer publishes false information about an aggrieved employee, that employer may be liable in tort for defamation.
The Agency (Customs) would not be able to justify and support their defense of business necessity when engaged in their futile attempts to “build their files.” In my case an impartial fact finder, such as MSPB Administrative Judge xxxxxxx, after reviewing my argument and examining all physical and material evidence submitted, would rule in my favor and will find the Agency’s management officials guilty as charged NOTE: this writer went through several MSPB cases and proceedings when I consented to a settlement agreement in 2006.
On June 19, 2002, I hired an independent and neutral psychologist, a PhD who had over 30 years of practice who conducted a complete psychological evaluation report after he conducted a thorough mental examination to determine my mental condition. Before he started his examination, I asked this doctor to conduct an unbiased examination; that regardless what he found, that I wanted to know if I was fit. His response was that many area local law enforcement agencies hire his services and he is familiar with the process. He assured me that it would be unethical to report a false examination finding. He reviewed the OPM psychical and mental health requirements for individuals working as law enforcement officers. In his opinion, he certified that I was mentally competent and fit to perform at an acceptable level as a federal law enforcement officer, to include the carrying of firearms. He wrote: “This diagnosis would not prevent Miguel from continuing gainful employment in his chosen field. No signs of severe pathology necessitating removal from his position were identified. Thus it is recommended he continue his employment with U.S. Customs.”
Like Dr. Neil Hibler, PhD, the Agency’s contracted psychologist, my doctor found that indeed suffered from a minor mental condition dealing with my memory. However, this sign of a minor loss of memory could be contributed to age, or others factors. In my doctor’s professional opinion, I was fit to be a federal criminal investigator with the right to carry firearms.
What my own psychologist and Dr. Hibler found was that I had signs of a loss of memory. They both found that it was decaying....one of the mental conditions associated with employees who are victims of bullying (harassment and hostile working environment found by Doctors Gary and Ruth Namie, who haves conducted extensive research in the area of workplace violence, and hostile working environments in Europe and in the United States. They refer to the retaliator as a Bully. Terms such as Bullying and Mobbing have been referred to such cases. Some of the typologies found in victims of mobbing and bullying are as follow:
“Depression first manifests itself as an inability to sleep or to fall asleep. Next comes changes in appetite causing a loss or gain of 10-20 pounds. Forgetfulness and a lack of concentration happen. She will have mood swings; crying one minute and angry the next. Hyper-vigilance will make her seem paranoid as she constantly looks over her shoulder as if to avoid an attack by her bully. Additionally, the biological health impact of stress includes: Panic attacks, heart palpitations, raised heart rate (48%); Headaches, from mild to migraine headaches (23%); Chronic Fatigue Syndrome or Connective Tissue/Joint pain (43%); Irritable Bowel (colitis) (23%); Weight swings (40%); Chest pains (21%); Exhaustion, taking to bed (45%); Hypertension (16%); Stress-related skin changes (shingles, eczema, etc., 28%). Memory and sleeping disorders, plus alcoholism are symptoms frequently associated with victims of hostile working environment and workplace violence. Sleeping disorder, stress, anxiety and drinking to an excess is what prompted me to seek medical help."
Again, if I developed a mental condition, this was because for years I was subjected to severe and intense hostility, and mental duress in the hands of my supervisors. Through more specialized mental evaluations from impartial and neutral medical professionals, I intended to prove that the Agency was solely vicariously responsibly and liable for my mental condition. The Agency was negligent in ignoring my complaints against Arizaga, Strom, and Evans and the failure to take corrective action
On July 1, 2002, I was served with a letter by Arizaga and Michael Strom ordering me to submit to another, the third fitness for duty medical (physical) examination on July 8, 2002 in Yuma, AZ.
On July 8, 2002, I complied and submitted myself to the medical examination.
On September 4, 2002, and September 5, 2002, I was ordered to report to the Washington, DC area to submit myself to further fitness for duty medical evaluations.
On September 4, 2002, Dr. Neil Hibler, PhD in psychology examined me and found that my memory was deficient - apparently I failed two tests where I had to connect words. I told him that English was my second language and did not understand the meaning of some words. He stated “the jury is out.” He told me that it was up to Dr. Martin Allen to administer a different test to see if I was OK.
On September 5, 2002, Dr. Martin Allen, MD in psychiatry examined me. I told him about my psychological test results from the day before. He told me that he would perform a different test to evaluate my memory. He asked me to count in seven’s and backwards from 100. I tried and stopped almost halfway because I needed a calculator. He then asked me to name all presidents after John F. Kennedy. I named all but missed L. B. Johnson. Dr. Allen related that almost all of his patients, when taking this test, always forget L.B. Johnson. He performed different tests. This was a very brief examination.... before leaving his office, I asked Dr. Allen how I did, he responded, you are OK....don’t worry, “just keep your nose clean, and you will be fine.” I took Dr. Allen’s words as if he had found that I was fit for duty. I personally felt that Dr. Allen’s findings and conclusions were that I was fit to be a law enforcement officer.
On January 15, 2003, Strom, always with his sarcastic smile and Evans with his “ready position to draw his gun” served me with a letter, this one was to notify me that the Agency directed psychiatric fitness for duty examination resulted with the finding that I was not fit for duty as a US Customs criminal investigator, to include carrying firearms.
Further, that Customs is conducting a job search to determine if there is an appropriate position available within the scope of my medical restrictions. Strom and Evans advised the Agency is looking for a non-law enforcement position in Arizona first, and then if there are none, they will look nation-wide. Thus it was imminent that the Agency more likely than not would attempt to transfer and re-locate me from Yuma, Arizona. I believe that Strom, Evans and the entire Arizona’s Customs office were under the impression that this time they had me. Unknown to them, I already had in my possession the letter from the OSC which was my key to file with the MSPB.
For some obvious reasons, Agency-contracted Dr. Allen decided not to give me a satisfactory medical opinion and instead went along with the Agency in find me unfit. NOTE: I still have the option of filing a complaint with the various professional boards on the Washington, D.C area regarding Dr. Allen unprofessional conduct and or filing a lawsuit for medical malpractice. Further, I can file a fraud complaint against Dr. Allen because he conducted what I consider a “sloppy” examination which took him less than 20 minutes to conduct.
In brief, because Doctor Allen had already determined that I was fit, the two mental doctors, the federal medical doctor (Dr. Haviva) and several Customs key personnel, including my former supervisors had a conference call meeting. My fate was sealed. This was nothing but a kangaroo court where only one side is heard. What the above medical professionals conducted when asked more questions regarding my mental condition was the equivalent of medical doctors asking Ted Bundy, after having been found guilty of being a mass murderer if he was innocent and Bundy stating that he was innocent and did not commit the murders. Of course, the Customs managers and supervisors answered negatively about this writer’s actions.
The U.S. Customs Service is responsible for allowing its managers and supervisors to retaliate and inflict emotional and physical duress. I reported acts of harassment and retaliation time after time but my claims were ignored. The Agency allowed the assaults to continue. If an employer fails adequately to investigate a threat of violence or assault from an employee’s co-worker and that employee is later assaulted by the co-worker, the aggrieved employee would have a claim against the co-worker, but only if the co-worker acted outside the scope of his or her employment and not in furtherance of the employer’s interest.
If an employer, despites all allegations of harassment and hostile work environment fail to investigate the allegations and opt for not getting involved, the employer then is liable. Generally, where an employer engages in a deficient investigation and retains a dangerous, discriminating or harassing employee, an aggrieved employee’s recourse lies in state or federal anti-discrimination law, contract or in seeking compensation through the Workers’ Compensation Act.
I have alleged and complained not only to my employer, but to certain members of Congress, Office of Inspector Generals, Office of Special Counsel, and others, that Agency’s management officials have conspired to violate my civil rights.
It is possible that, in the course of an investigation, certain employees might band together by agreeing to a false version of the relevant facts, intending to cause an aggrieved employee to be disciplined or terminated. To prove a civil conspiracy, the employee must prove that defendants, acting in unison, had some peculiar power of coercion over the employee that they would not have had if acting independently.
Finally, I allege that the Agency violated its own policies when it failed to address my working conditions and conducted a breach of contract. If one can prove that an employer's procedures regarding investigations are included in the terms of employment, the failure to comply with those procedures might gives rise to a breach of contract claim.
I requested that the MSPB in furtherance of justice, order the OSC to conduct a complete investigation into the alleged prohibited personnel action incidents listed in this complaint by Steven D. Arizaga, Michael J. Strom, and Kevin Evans.
I am also requesting that MSPB Administrative Judge xxxxxx issue an indefinite Order of Stay. In accordance with MSPB and OSC regulations, “If there are reasonable grounds to believe that a prohibited personnel practice occurred, a complainant may seek a stay of the personnel action involved until the investigation is done or a determination can be made on whether a violation of law occurred. It is imminent that Customs intends to re-locate me from Yuma, Arizona. Also, I intend to submit myself to more mental examinations from independent and neutral medical professionals. It is well known that the medical doctors used by Customs are biased and more likely than not would render a fitness for duty psychiatric examination report to the satisfaction of Customs since they are getting pay by Customs. A stay may be agreed to by an agency, or ordered by the MSPB. As a general rule, a complainant will only seek a stay of a personnel action that would cause substantial harm, such as removal from your position, a geographical reassignment, or a long suspension.
Epiloge
The MSPB never asked the OSC to conduct any such investigations.
Links:
www.dhs.gov; www.ice.gov; www.cbp.gov; www.uscis.gov; www.osc.gov; www.mspv.gov; www.eeoc.gov; www.compliance.gov
www.usdoj.gov; www.fbi.gov
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