Customs and Border Protection Trampled Agents’ Rights - BROWNSVILLE

An administrative judge has ruled that supervisors with the U.S. Department of Homeland Security discriminated against their Hispanic agents who use dogs to search vehicles for contraband at the Gateway International Bridge in Brownsville.

According to court hearing transcripts obtained by The Paper of South Texas, the four Hispanic agents, employed by Homeland Security’s Customs and Border Protection, filed complaints claiming they were passed over for promotion in favor of an Anglo agent who wasn’t qualified to fill the position.

The four agents have been identified as Jaime Gonzales, Anastacio Armijo, Eliut Torres and Armando Davalos. The Anglo agent is Lonnie Turnbough.
After hearing testimony from both sides, Katye Duderstadt, an administrative judge with the Equal Employment Opportunity Commission in San Antonio, ruled last summer in favor of the Hispanic agents and their attorney, Bobby Garcia of McAllen.

The agents claimed that supervisors manipulated the selection process to ensure that an Anglo was selected for the position.

And while the agents may have won their case, they each testified that they fear their careers will forever be in jeopardy for having filed the complaints.

From the Beginning

A total of five Hispanics and one Anglo agent applied. The five Hispanic agents, whose jobs are classified as 1895 series, are certified to handle firearms, and with the help of trained dogs interdict narcotics, currency, explosives and human cargo.

The one Anglo who applied, Lonnie Turnbough, was classified as an 0401 agent whose job primarily consisted of using canines to detect agricultural products.

Turnbough and other 0401 agents are not trained or certified to carry firearms, make arrests, take possession of narcotics or many of the other more dangerous duties assigned to 1895 agents.

But according to court hearing testimony, Johnston manipulated the selection process to ensure that the sole Anglo applicant got the job.

“In a previous job opening for a temporary dog trainer, the applicants’ qualifications, experience, education, and records of achievement were used to select the successful candidate, who was Anglo.” said Garcia. “But in this case, when the Hispanic applicants were more highly qualified than the Anglo applicant, Johnston decided the criteria for selecting the successful candidate should be length of service, which assured him that Turnbough, the Anglo, would get the job.”

Johnston testified that no one applicant “outshined others,” and therefore decided length of service should be the tie-breaker. Turnbough, he said, had the longer service record and was given the job.

When they saw him performing his new duties, the Hispanic agents testified they were shocked to learn Turnbough had been selected, knowing that he lacked the qualifications for the job. All testified that Turnbough’s selection bothered and angered them.

Soon after, the National Treasury Employees Union questioned Turnbough’s qualifications because the position was an 1895 series job and Turnbough was an 0401 series employee.

Margie Gutierrez, the then-Port Director at Brownsville, who agents claim rubber-stamped Johnston’s selection of Turnbough and appointed him to the job, claimed in her testimony that prior to the union’s inquiry, she tried contacting Human Resources specialist Isella Arechiga in Laredo to verify that Turnbough did indeed qualify for the job. Arechiga, Gutierrez claimed, never returned her phone call.

Arrechiga, however, denied ever getting a call from Gutierrez. Others testified that before applying for the job, Turnbough had received a letter from the federal government’s Office of Personnel Management (OPM) advising him that he was not qualified to apply for any temporary dog trainer positions that came up. One of the Hispanic agents testified that he’d helped Turnbough apply for an 1895 series job but that Turnbough was denied.

“He applied anyway for the temporary job because he likely thought he had an inside track to get the job,” Garcia said. “And he did, in Johnston.”

The four Hispanic agents then testified that when they realized that an unqualified Anglo had been hired over them, they contacted the Equal Employment Opportunity (EEO) officer in Brownsville, Alicia Davila. Each testified that they had great difficulty filing their complaints with an uncooperative Davila who on at least two occasions hung up the phone on the agents. One agent testified he called his Congressman to complain.

Another agent testified that once their EEO complaints were filed, the Agency made no effort to resolve the issue.

Another agent testified of Turnbough that, “He was probably the only one on the list who wasn’t qualified for the position. The only thing that made him qualify was his race.”

All the agents testified about the stress the situation has caused them and their families and the fact that they are now stigmatized and seen as trouble-makers who will likely never promote.

Now What?

In her ruling, Judge Duderstadt ordered Customs and Border Protection to re-conduct the selection process “free of discrimination,” have Johnston and Gutierrez take four hours of EEO training on the current laws against discrimination based on race and national origin, place EEO compliance posters at all CBP facilities, pay $3,000 to each claimant for pain and suffering, and pay attorney fees.

“Look at the slap on the wrist in this case,” the 30-year veteran said. “Minorities are treated like dirt because this abusive attitude starts at the top. This is Homeland Security, for God’s sake. You’d think with all the civil rights advances this country has made in the past 50 years the federal government would be the first to comply, but they are the worst of the offenders. It took a lot of guts for those four Hispanic agents to file complaints because the system is stacked against discrimination victims. But the federal government will see to it that these agents pay the price. But somebody’s got to hold their feet to the fire.” Garcia said two other discrimination cases against CBP were denied by EEOC, but a lawsuit for one has since been filed in federal court and the second will be filed soon.•