RUTH JENNINGS V. JANET NAPOLITANO, EEOC APPEAL NO. 0120120772 : Race Discrimination and Perjury, A Case for the "Beer Summit"

Los Angeles, California


April 18, 2018
(Today's date)

**UPDATE (Denotes NEW information added after the original publication of the blog)

*Denotes new information added or deleted from original blog itself

January 31, 2012
(original date)

Ruth Jennings v. Janet Napolitano, EEOC Appeal NO. 0120120772, is an appeal now pending before the Equal Employment Opportunity Commission in Washington, D.C..

*Martina S.  V.  Dept. of Homeland Sec., E.E.O.C. Petition, EEOC Petition NO. 0420160016 (E.E.O.C. Nov. 3, 2016 (fake name of case, as published)

The case of Ruth Jennings v. Janet Napolitano, EEOC No. 480-2009-00481X, is an employment discrimination case about a Black female federal employee who was denied a position (not selected) with the Citizenship and Immigration Services (CIS) unit of the Department of Homeland Security(DHS) after temporarily coming out of retirement, at the request of CIS to all retirees, to assist the unit in meeting an unexpected and unmet need.

The purpose of this writing is to demontrate why the Jennings case was ripe for an Obama Administration "beer summit" (see the blog, "Employment Discrimination and the Obama Administration: In the Administrative Stage for Federal Employees, There are Few "Beer Summits", January 21, 2012), both prior to the hearing on the matter and, especially, after the hearing. I believe the case could have and should have been settled (but for what I believe is an Administration--unwritten--policy of non-settlement during the administrative stage of proceedings), but, was not, and was not seriously attempted, which presents a contradiction of President Barack Obama's "beer summit" action and/or philosophy evolving from the Henry Gates affair. A further purpose is to provide a reporting of the events and status of the case, as it awaits decision.

The brief and instrumental facts of the Jennings case are : Ms. Jennings is a 67 year old, Black American retired U.S. Department of Homeland Security (DHS) and Citizenship and Immigration Service (CIS) employee. At the time of her retirement, and including her service with the former Immigration and Naturalization Service, Ms. Jennings had worked for DHS for over 32 years, with the last 18 years before retirement working for CIS. And, her last 10 years of work with CIS was as an Adjudicator .

Prior to Ms. Jennings' retirement, she had occasion to file an EEO Complaint against the agency involving the Responsible Management Official (RMO) Jane Arellano, who is white-Hispanic, for race discrimination and retaliation involving several matters, one of which was intentionally placing her(Jennings) in a hostile work environment. This Complaint resulted in a no finding determination by the administrative judge at the hearing because Ms. Jennings' attorney at the time, a different attorney from this writer, failed to bring and present any evidence at the hearing to support Ms. Jennings' claims. The most important point about this matter is the fact that the Complaint was filed and adjudicated, and is, therefore, a prior EEO activity.

In 2008, while retired, Ms. Jennings received a letter-announcement from the Department and CIS requesting and urging retired workers to come out of retirement for a short time to aid the agency in meeting unexpected and unmet needs. More specifically, the letter stated "This past year, USCIS experienced an unprecedented increase in the number of applications and petitions filed by individuals seeking immigration benefits. This increased workload has created an urgent need to hire new adjudicators and related support staff. USCIS has already initiated important measures to hire an additional 1,500 USCIS employees. Realizing that you have already given a great deal to serve your country, I am writing to ask you to consider serving again to help address this increased workload." Attached to the letter was a listing of 26 positions that the Agency desired, which were available. The first six positions listed were adjudicatory positions, i.e., Adjudications Officer, Senior Adjudications Officer, Adjudications Officer (Policy), Supervisory Adjudications Officer, Applications Adjudicator, and Supervisory Applications Adjudicator. Ms. Jennings retired as a District Adjudications officer. And, over the years, prior to retirement, she had obtained at least two outstanding performance appraisals and several letters of compliment, based on her assistance to others. Therefore, she responded to the letter and submitted an application for an adjudicatory position to CIS Headquarters (HQS) in Washington, D.C..

Briefly, the process worked this way : the applications submitted to HQs were reviewed and screened by HQs and a list of qualified candidates was developed. The list of qualified candidates was then submitted or presented to the District Directors (DDs) of the various Regional Offices where adjudicators and others were needed for the DDs selection of hirees (although the DDs presented their selections to Regional Directors for final approval or selection, the Directors invariably approved of all the DDs selections--therefore, and especially in this case, the DDs selections were the final selections).

Ms. Jennings made HQs list of qualified candidates.

Ms. Jennings applied from and requested an assignment at the Los Angeles, California District.

The DD for the Los Angeles District was, guess who? Jane Arellano, the RMO that Ms. Jennings filed an EEO discrimination Complaint against, charging race discrimination and retaliation, prior to her (Jennings) retirement from DHS.

Rather than select or hire Ms. Jennings, who was on HQs list of qualified candidates, Arellano hired some white or non-black individuals who were not on the qualified list, who were not otherwise qualified, who were not adjudicators, who were not on the list of 26 positions that CIS were recruiting, and who had not worked for CIS before (although CIS later was "persuaded" to allow non-CIS employees into the recruitment, CIS still required the non-CIS applicants to be "qualified",i.e., meeting the qualifications for one of the 26 positions being sought). To the best of my knowledge, there were 12 people finally hired by Arellano for the Los Angeles District Office. Ms. Jennings was not one of them.

When Ms. Jennings finally discovered that she was not selected for a position and who had been in charge of making the selections, she filed an EEO discrimination Complaint charging the Department or agency (and Arellano) with racial discrimination and retaliation.

Subsequently, a hearing was held with the principal witnesses being Ms. Jennings and Ms. Arellano. After requesting proposed findings and conclusions, the Administrative Judge, Kathleen Mulligan, entered a decision for the Agency.

WHY THERE SHOULD HAVE BEEN A BEER SUMMIT PRIOR TO THE HEARING :

Some of the Evidence:

Complainant's evidence: After discovery, the Agency was in possession of evidence of Ms. Jennings years of experience with DHS, CIS, and as an Adjudicator. The Agency also knew that the primary position it was seeking was an adjudicator, i.e., as contained in the letter-announcement. There also was the HQs list of qualified candidates, of which Ms. Jennings was a designee. There was the background or qualification information of the persons chosen for the positions, showing that several persons were not qualified for the announced positions.

Defendant's evidence: The crux of Defendant's evidence supporting the Agency's position before the hearing, from my perspective, was affidavit testimony of Arellano stating that other individuals were more qualified than Ms. Jennings because they had experience in other areas that she did not have; and this other experience was the type of experience that she (Arellano) was looking for. For example, former ICE (Immigration and Custom Enforcement) employees.


A case for the beer summit prior to the hearing: There should at least have been a serious settlement conference prior to the hearing (there was a passing writing to the AJ submitted by Agency counsel suggesting that the matter would not be settled --I was not a part of the case at that time--I entered the case when the case had been set for hearing) because on the face of the available evidence that both sides were aware of, Ms. Jennings had clearly demonstrated a prima facie case of race discrimination and retaliation, and even if the Agency's reasons were accepted as legitimate, non-discriminatory ones, there was a serious question as to whether the reasons were pretexual.

The overriding reason or call for the beer summit was that regardless of what Arellano wanted or sought for her district needs, DHS and CIS Headquarters specifically identified its needs and desires in the letter-announcement submitted to Ms. Jennings and other retirees, and some of the qualities, experiences, and/or qualifications that Arellano stated that she was seeking and that some of her selectees possessed were not included in that letter.

After the settlement conference was convened, a discussion could be had regarding all other matters.

AT THE HEARING:

Some of Complainant's Evidence: In addition to the above-identified evidence, we produced evidence that demonstrated that Ms. Jennings, because of her background and experience, would not have needed any training for the Adjudicator position. Simultaneously, we produced evidence that several of the hirees needed and received training in order to work in the adjudicator position. We also produced evidence that the hired Adjudicators were needed as mentors for other staff members(and in order to operate as mentors, the hirees would have to have been experienced--and some of them were not; while Ms. Jennings was). We also produced complimentary letters written to or on behalf of Ms. Jennings, including one from Ms. Arellano's office.

Some of the Agency's Evidence: The Agency produced testimonial evidence from Arellano that she had sought certain types of qualities from the hirees and that certain of the hirees possessed those qualities and that was the reason she selected the hirees over Ms. Jennings(Jennings did not have that type of experience). Arellano also stated that Jennings did not submit a resume to her, and that was another reason why she did not hire Ms. Jennings.

WHY THERE SHOULD HAVE BEEN A BEER SUMMIT AFTER THE HEARING, AND PRIOR TO DECISION:

The most important reason why there should have been a beer summit after the hearing is because during the hearing Arellano made two false statements under oath which I believe were acts of perjury. One purpose the beer summit would have served would have been to create a dialogue directed to whether action should be taken that would preclude the perjurous statements from being identified as such in any future pleadings or decisions in the case. The administrative judge(AJ), coincidentally, provided the Agency with an opportunity to end the case with a beer summit by ordering findings and conclusions be submitted prior to her decision. Because in our findings and conclusions, I pointed out the false statements to the Agency, and emphasized at least one time that they were made under oath. Yet, the Agency chose to allow the case to proceed, without a beer summit, to decision (I believe because of the non-settlement policy I discussed previously). So now, the AJ has decided in the Agency's favor, without commenting specifically about the perjurous statements.

WHY THERE SHOULD BE A BEER SUMMIT PRIOR TO THE COMMISSION'S DECISION:

There should be a beer summit prior to the Commission's decision for two principal reasons: (1) Although the Agency, during the hearing, propounded the defense of "better qualified" as its legitimate, non-discriminatory reason for hiring the selectees over Ms. Jennings, its counsel failed to introduce any evidence of the qualifications of the selectees to demonstrate or prove that they were better qualified than Ms. Jennings; while Ms. Jennings testified and asserted that she had superior qualifications to several selectees, especially the ICE selectees; and (2) the perjurous statements made by Jane Arellano--the statements at least warranted a beer summit to discuss their impact on the case and whether the Agency needed or wanted to have the statements considered in the appellate opinion. Perhaps after the beer summit, it wouldn't matter to the Agency, but I believe the gravity of the statements, in addition to reason (1), warrants at least a beer summit prior to a decision; regardless of the ultimate outcome of the decision.


THE PUBLIC RECORD AND EVENTS LEADING UP TO THE COMMISSION'S DECISION

In an attempt to allow the public, especially my readers, to peer into the proceedings of this matter (which is seldom done--most of these proceedings, although supposedly open to the public, are held secretly, meaning, generally, out of public view, whether purposely or not) I will describe some of the events leading up to a decision.

After filing our appeal in this case, we subsequently served and filed our brief, on both the Agency and the Office of Federal Operations(OFO). We served the brief by mail. What makes the service interesting is that the service was made by postal priority mail with confirmation; and when I checked about the confirmation, the confirmation message was that there was an "attempt" to deliver(by the postal service to a postal facility, i.e., EEOC post office box)and a slip was left to pick it up. How can the postal service just make an "attempt" at one of its own facilities ( and the package was merely an envelope)? When I inquired, I was never given an adequate explanation, and in fact had a telephone call cut-off. In any event, to protect my client's rights, I served the brief again in two separate ways.

After the time had passed for the Agency to respond or to request an extension of time to file a responsive brief, and not having received a copy of an Agency brief, I contacted the OFO to determine whether the Agency had filed a brief. I learned through a follow-up telephone call from the OFO that it had not. Interestingly enough, the Agency on that same said day, made an e-mail request for an extension of time to respond . What prompted that extension request immediately after the OFO informed me that a brief had not been filed, on the same day? Could there be a wire-tap?, which would be illegal of course. Anyway, I opposed the extension for two reasons: (1)the extension request was in violation of EEOC policy or rule which dictates that an extension request must be made within the 30 days that the brief is due; it wasn't. It was made clearly beyond the time the brief was due. (2)Ordinarily, I would not oppose an initial request for an extension of time, even if the request was made slightly late; but, in this instance, involving this counsel, I did oppose it; because in another case in which this counsel is opposing counsel, he has acted in bad faith.

Nevertheless, the OFO has granted the Agency an extension, without mentioning our opposition. The Agency now has until February 17, 2012 to file a brief (it was due by January 22, 2012). And the beat goes on.

The Agency has now filed an appeal brief (at least I am in receipt of a copy of one).
The agency's brief mirrors its prior arguments, with no substantial differences.

We now await a decision by the Commission.


More on the matter later.

UPDATE --August 13, 2012

Still awaiting a decision

UPDATE--September 14, 2012

Still awaiting a decision


UPDATE--January 9, 2013

Still awaiting a decision


UPDATE--February 25, 2016

On September 4, 2014, the EEOC issued a decision reversing the Agency's final order, finding that Ms. Jennings was subject to discrimination based on reprisal.

The Commission also ordered relief in terms of backpay, compensatory damages, and attorney fees.

The Agency did not comply with any of the Commission's Orders within the time established by the Commission within which to comply (basically within 120 days). However, one section of the Agency, which deals with the compensatory damages and attorney fees, did belatedly comply (and an appeal to the Commission was filed pursuant to its determination of damages and attorney fees); but, the other Section of the Agency delayed any attempts at compliance until Jennings filed a Petition for Enforcement of the Commission's Order with the Commission.

Since the enforcement petition has been filed, the *backpay section has made piecemeal moves purporting to get at paying Ms. Jennings the actual pay that they owe her, but I look upon the tactics as intentional delay. Some matters and/or positions that the Agency continued to assert was made abundantly clear by the Commissions' decision, e.g., the period of time for which backpay was owed. Yet, the Agency expressed a misunderstanding. This has taken months for the Agency to concede what was already clear. Then there was the issue of an "offset". This has taken additional time for a concession from the government. Now, Ms. Jennings awaits a final and due payment from the Agency regarding her backpay. It will be nearly a year and a half since the Commission ordered relief and relief to be paid, yet, the Agency has delayed expedited compliance, and continue to do so now, even after factual concessions, which causes further discrimination against Jennings.

More next time.


UPDATE--October 19, 2016

The backpay section of the Agency has continued to display bad faith in paying Ms. Jennings her full backpay due. We have had to threaten the Agency with a fraud action after it issued a W-2 form purportedly paying Ms. Jennings around $45,000.00, when in fact and truth, it had not paid her that amount at all (it had only paid her around $8,000.00)(through "piecemeal" payments). And, because Ms. Jennings had to file income taxes, it was a false assertion and fraud for the Agency to claim that it had paid her that amount when in fact it had not. So, she had to put off paying her taxes until she received the actual amount of money identified in her W-2 form. We informed the Commissioner's negotiator that the Agency was perpetrating fraud, and that in order to avoid the fraudulent action, the Agency had to pay Ms. Jennings the actual amount of money identified in the W-2 form before she could or would file her income taxes. Otherwise, the first action she would take would be to inform the IRS of the fraud.

The negotiator successfully convinced the Agency to pay the remaining fees to make the W-2 amount identified correct or true. So Ms. Jennings was able to file her income tax (after delaying filing it) with a true and/or correct W-2 form.

However, the Agency still owes Ms. Jennings at least $50,000.00 and it knows it, but, it has refused to pay her the money due. So now we have had to request a "formal" enforcement of the Commission's order (with the assignment of a new number for the action). The Commission's negotiator has said that it could take up to a year, with no guarantee of the outcome (and we have not heard from the "attorney" negotiator since the "formal" enforcement was to have begun. That's the only difference between the informal negotiator and the formal negotiator (the formal negotiator is an attorney). So the Agency is simply refusing to pay Ms. Jennings money that they "know" is due (because it has already paid a great deal of it), but is refusing to pay, in bad faith.

It is nothing more than a second stage of racial discrimination, refusing to pay a black elderly lady her money because she is black, and because a certain person or persons in the Agency (over the backpay payments) believe that a black woman should not receive the amount of funds that she has "earned" (by responding to a call by the Agency for retired personnel to come out of retirement to assist the Agency in carrying out its responsibilities or overcoming a burden).

Would Ms. Jennings be going through all of this if she was white? No. Did any of the white retirees face any of this nonsense or discrimination in order to get paid ? I doubt it.

So, now, before being forced to pursue a remedy by going to U.S. District Court, we have written a letter to Secretary Jeh Johnson requesting that he review the action or behavior of the Agency. So, it cannot be said that he didn't know what's going on in and with the Agency regarding Ms. Jennings case. We have given the Agency until October 20th to respond before Ms. Jennings is forced to take other actions to try and obtain her full backpay fees.

More later.


UPDATE--November 15, 2016

In the interim, the Commission has now granted our Petition for enforcement and has ordered the Agency to take several steps toward paying Ms. Jennings her full backpay, which causes us not to have to take further steps at this time. This time the Agency has begun to act in good faith and has paid a required portion of the backpay which was ordered by the Commission. There is still a remaining portion to be paid, as well as statements to be submitted, as part of the relief ordered by the Commission. We hope the Agency continue to act in good faith so that this matter can finally be resolved.

NOTE: There is still an appeal pending before the Commission, and it seems to me in terms of practicality, that the pending appeal would have been decided along with the Petition, so that Ms. Jennings' entire case can be resolved. Now, she must still await a decision in her appeal. But, we appreciate the Commission's efforts regarding the backpay.

Until later.


UPDATE--February 14, 2018

Presently, there is a second Petition for enforcement pending. Through the efforts of the Commission's Compliance Officer, most of the funds due Ms. Jennings have been paid, but, nonetheless, the entire amount has not been, therefore, a second Petition was required. Additionally, the Agency did not fully comply with the directives of the Commission in its follow-up decision, although it did comply with a major payment.

Again, the major non-compliance is attributed to the backpay section of the Agency, not the compensatory damages/attorney fee section. That section has proceeded in good faith from the outset, and had that section been responsible for this entire matter, this case likely would have been closed by now. But, for now, we await the Commission's decision.


QUICK NOTE : I also have a Black male client *(John Doe) whose case against ICE has been pending for years now, which itself is a form of discrimination, notwithstanding any discrimination that might ultimately be found when the case is decided on the merits. He has gone from undue delay in addressing his case at all, to unresolved settlement negotiations, to another delay in having his case addressed at all, to having his case assigned to a supervisory ALJ, to having it next assigned to an AJ, to another delay in that judge initiating proceedings.

With a retaliation claim that should be amended to his Complaint, which I discovered after entering his case (he brought his own Complaint initially), his case likely could benefit from a "beer summit" as well.

More next time.


**UPDATE--April 18, 2018

We still await a decision from the Commission regarding the pending Petition. In the meantime, the CIS/ICE has caused Ms. Jennings problems with her tax filings and the IRS, claiming to have paid her money that she disputes, and causing her pain and suffering, as she has been required to reach back to 2015-2016. And, part of the Petition raises the issue of CIS claiming to have paid her a certain amount of money when, in fact, they didn't (and as a result, having to pay her the money in a subsequent year). All of this for an elderly Black lady who came out of retirement to provide aid to the Agency in its time of need. Remember, the Agency reached out to retirees, not the other way around. And, this is what she gets for her loyalty. And, in my case, I will reserve comment at this time on a transaction affecting me, *CIS/ICE, and claimed attorney fees *paid.

*RE : JOHN DOE

We have now had a telephonic conference, and a ruling on the motion to amend to add a retaliation claim. The motion was denied by the AJ. In my view, it should have been granted. So, it will have to be appealed if the retaliation claim is to stand. But, GET THIS: I requested the AJ provide a date for the hearing. She indicated that a date could not be provided because there is an issue of whether the federal budget will allow her to be paid to make the trip from San Francisco to Los Angeles to hold the hearing. John Doe has a right to a hearing. At the same time, there is time allotted for the filing of "dispositive" motions, e.g., motions for summary judgment (i.e., a decision on the case without a hearing). So, what does that mean? That means if the government's motion for summary judgment (if one is filed, and I believe it will be) is granted, it will eliminate any decision regarding the budget and a trip to Los Angeles, and the need for a hearing. Interesting!

More next time.