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February 26, 2004.

MIGUEL A. CONTRERAS, et al., Plaintiffs,
TOM RIDGE, Secretary, Department of Homeland Security, Defendant

The opinion of the court was delivered by: JAMES ROBERTSON, District Judge


The eight named plaintiffs in this case are or were special agents of the United States Customs Service ("Customs Service"), a bureau of the defendant, the Department of Homeland Security.*fn1 They seek to represent a class of current and former Customs Service agents bringing allegations of pattern and practice discrimination on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The Department of Homeland Security moves for summary judgment. Page 2


  The named plaintiffs are (1) Miguel A. Contreras, a GS-13 Senior Special Agent in the Office of Investigations in Yuma Arizona; (2) Ruben E. Gonzalez, a GS-15 Associate Special Agent in Charge in the Office of Investigations in Houston, Texas; (3) E. William Velasco, a retired GS-15 Special Agent; (4) John Yera, a GS-14 Special Agent with the Cybersmuggling Center in Fairfax, Virginia; (5) Ricardo Sandavol, a GS-14 Special Agent and Resident Agent in Charge in the Office of Investigations in El Centre, California; (6) Stephan Mercado-Cruz, a GS-14 Special Agent and Group Supervisor in the Office of Investigations in El Centre, California; (7) Frank Almonte, a GS-13 Special Agent in the Office of the Special Agent in Charge at John F. Kennedy Airport; and (8) Ramon Martinez, a GS-13 Special Agent in the Baltimore-Washington Office of Investigations.

  Only Miguel Contreras pursued a class action complaint at the administrative level. He first contacted an EEOC counselor about class claims on January 9, 1995, and subsequently filed a formal class action administrative charge raising claims "on behalf of himself and all similarly situated past, present and future Hispanic special agents at [the Customs Service]," Compl. of Class Discrimination, dated March 23, 1995 ["Class Administrative Charge"], at 2, and seeking to represent "254 employees of Hispanic national origin assigned to the position of Page 3 GS-1811 Special Agent . . ., Grades 12-15, in the [Customs Service's] Office of Internal Affairs and the Office of Investigation." Contreras v. Rubin, Appeal No. 01961671 (E.E.O.C. May 11, 1998) ["May 11, 1998 EEOC Decision"], at 1. Contreras alleged that the Department discriminated against Hispanic special agents on the basis of national origin when it:
• denied them promotions for which they had applied and "continued to seek applicants or filled the positions with persons from a different class," despite the fact that "members of the class [were] qualified to seek such promotions";
• carried out "policies and programs . . . [that] limit[ed], segregate[d] and classif[ied]" Hispanic special agents in a manner that adversely affected their status as employees;
• applied merit promotion policies and programs that had an adverse impact on Hispanic special agents in "areas of recruitment of applicants, hiring, initial job assignments, transfers, promotions, retention and training," and disparately impacted them;
• gave Hispanic special agents who are fluent in Spanish "a disproportionately large share of unfavorable work assignments including Spanish-English translation, wiretap monitoring, temporary duty, undercover work, geographical transfers and assignment to dangerous and otherwise undesirable posts";
• "failed and refused to assign Hispanics to positions and locations which provide promotional opportunities";
  • precluded Hispanic special agents "from obtaining the training and diverse work experience which constitute the basis upon which applicants for promotion are evaluated"; Page 4
• "failed to accord proper recognition and weight to the expertise and experience that Hispanic agents have obtained[, causing] Hispanic agents [to be] underrepresented within [the Customs Service's] Offices of Investigation and Internal Affairs, particularly at the higher grades," and to have to "spend more time in grade before being promoted to the next higher grade than . . . non-Hispanic agents";
• paid Hispanic special agents "less than similarly situated non-Hispanic agents";
• did not compensate Hispanic special agents "for their use of a foreign language"; and
• subjected Hispanic agents "to discrimination with respect to the terms and condition of employment, including awards, training and imposition of discipline."
Class Administrative Charge, at 4-5.

  The Department asked the EEOC to assign an administrative judge to handle Contreras's complaint on April 12, 1995. On November 20, 1995, the administrative judge issued an opinion finding that the complaint was not subject to dismissal under any of the provisions of 29 C.F.R. § 1614.107 and that it met the prerequisites of 29 C.F.R. § 1614.204 (a)(2), which governs class complaints. On December 21, 1995, the Department issued a final agency decision rejecting the administrative judge's recommendation to process Contreras's administrative complaint on behalf of a class, determining that the class complaint was untimely and that it did not meet the prerequisites of a class complaint. Page 5

  On May 11, 1998, the EEOC vacated the agency decision and certified the class complaint. The EEOC found the class

  allegations to be timely, explaining:
The agency dismissed all allegations, with the exception of training, promotions and lateral transfers, as untimely on the grounds that appellant "did not timely raise any allegations of his own experiences with respect to hiring, job assignments, retention, or the use of language skills which occurred within forty-five (45) days of [the date he contacted an EEO counselor]." The agency reads our regulations with regard to the certification of a class complaint too narrowly. The record shows that appellant addressed agency practices with regard to awards, discipline, and language skills during EEO counseling and that appellant had individual EEO complaints concerning discipline and performance evaluations. The AJ ordered that appellant's individual complaints be held in abeyance pending a decision as to certification of the class complaint. . . . Also, we note that discriminatory practices that assign work duties based on language skills are ongoing actions. For these reasons, therefore, we find that allegations concerning promotions, training, assignments, awards, discipline, and work assignments based on language skills were timely raised.
Id., at 3. On October 22, 1999, the EEOC denied the Department of Homeland Security's request for reconsideration and ordered the Department to process the complaint as a class action. On June 22, 2000, the administrative judge issued an order defining the class as: "All Special Agents (Criminal Investigators), job series 1811, grades 12 through 15, of Hispanic national origin, employed in the Office of Investigations and the Office of Page 6 Internal Affairs of the United States Customs Service."*fn2 The parties then proceeded with the case until Contreras withdrew his administrative complaint and filed the instant class action complaint on May 10, 2002.

  In this Court, the plaintiffs seek class relief for eight allegations of national origin discrimination, including discrimination in connection with: (1) competitive positions and promotions; (2) transfers, assignments and other career-enhancing opportunities; (3) undercover and other undesirable work; (4) discipline; (5) awards and bonuses; (6) foreign language proficiency awards; (7) training; and (8) harassment and hostile work environment. Class relief is also sought for allegations of retaliation, allegedly arising from plaintiffs' reporting of discrimination.


  Defendant's motion rests on two theories, either one of which defendant asserts would be dispositive if successful: (1) Page 7 failure to exhaust administrative remedies; and (2) failure to make out a prima facie case of discrimination.

 1. Exhaustion of Administrative Remedies

  a. Is the question to be ...

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