Report on the Federal Courts by John Cavicchi, Esq

John Cavicchi Attorney at Law 25 Barnes Ave. E. Boston, MA 02128 Tel. 617-567-4697 Email: [email protected]

July 11, 2008 Andy Ramirez, Chairman Friends of the Border Patrol PO Box 2685 Covina, CA 91722 Re: Request for congressional investigation Eugene Cavicchi case, Miami CBP and Federal Judiciary National Conference in Houston, June 8, 2008

Dear Mr. Ramirez:

As you requested, attached hereto are supporting documents in support of my statement at the National Conference—Exhibits 1-7, wherein I discussed my brother’s case.

Exhibit 8 contains a backdated, fabricated letter and Mark Conrad’s declaration—the letter was unsigned, typed in perfect English, and dated January 30, 2004. The letter was attributed to Rafael Moya, an immigrant who does not speak or write literate English, and writes his name Rafael Moya, not Ralph Moya, as indicated on the typed letter. I have enclosed Moya’s handwritten statement on November 25, 2003.

According to Agency attorney, Tara Barry, the letter was discovered in former Agency attorney Francesca Alvaro’s files. CBP proferred the letter and later tried to claim that Moya gave the letter to Wilfredo Lopez. However, Lopez admitted that he was unaware of the letter until shortly after I noticed his deposition on November 20, 2007. When I asked Lopez whether he discussed the letter with anyone, AUSA Fernandez cited the attorney client privilege. Lopez admitted that he discussed the letter with Agency attorney Claire Lemme several days before his deposition. I have Lopez’s deposition on CD, which I shall provide separately.

I did not include records of Miami-Dade’s prosecution of an individual who assaulted and battered Gene. Moya, who restrained the assailant and another civilian, Igor Sandoval, witnessed the assault and battery and provided statements. However, AUSA Fernandez and CBP continue to represent that it was an “alleged assault.”

According to Sandoval’s testimony:

[C]ustoms officer was handing out invoices, walked to the table. Lady was on garbage can sitting down. Customs officer in full uniform asked lady to move off garbage can. She started to use profanity towards him.... He asked three or more times, then said he wanted to see her I.D. badge for who she worked for... And asked her again and again. He saw her badge and went to reach for it and she grabbed his hand, pushed him, jumped off the garbage can, punched him on the chest and broke his glasses.

There is a medical examiner’s report of a homicide at the Miami Free Trade Zone. Despite a struggle over a gun between two inspectors, legacy Customs determined the incident a suicide within a few hours. Retired CBPO Barbara Evans and Scott Bober will cooperate with investigators. Supervisor Myra Quirk’s husband, a Miami-Dade officer, participated in the investigation. Quirk and Georges were in the chain of command for legacy Customs.

Attached is a Washington Post article regarding continuing ethical lapses of judges, including Eleventh Circuit Judge Gerald Bard Tjoflat—he was a deciding judge in Gene’s case. I do not have in Boston the files of the judicial complaints my brother filed; however, I know Judge Tjoflat is on the Judicial Council because he was a deciding judge in those complaints. I believe he is the chairman.

Congress should subpoena the judicial misconduct complaints. These documents will show that the courts cannot be trusted to police themselves. Also included are my comments to the proposed amended rules of judicial conduct and the committee’s perfunctory and disingenuous response thereto.

Finally, my comments on the judiciary were my words, based on thirty-five years of experience as an attorney. I was unaware of Thomas Jefferson’s views on the judiciary, that the Constitution is flawed, and that he left it to future generations to correct:

[T]he great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step, and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them. To Judge Spencer Roane, March 9, 1821.1

* * *

[B]ut you will have a more difficult task in curbing the Judiciary in their enterprises on the Constitution ....A better remedy I think, and indeed the best I can devise would be to give future commissions to judges for six years (the Senatorial term) with a re-appointmentability by the president with the approbation of both houses. That of the H. of Repr. imports a majority of citizens, that of the Senate a majority of states and that of both a majority of the three

1 Thomas Jefferson, The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol 12, Chapter: TO JUDGE SPENCER ROANE

Accessed from http://oll.libertyfund.org/title/808/88417 on 2008-07-04

2 sovereign departments of the existing government, to wit, of it’s [sic] Executive & legislative branches. If this would not be independence enough, I know not what would be such, short of the total irresponsibility under which we are acting and sinning now....

[F]or the judiciary perversions of the constitution will forever be protected under the pretext of errors of judgment, which by principle are exempt from punishment. Impeachment therefore, is a bugbear which they fear not at all. But they would be under some awe of the canvas of their conduct which would be open to both houses regularly every 6th year. It is a misnomer to call a government republican, in which a branch of the supreme power is independent of the nation....

....

[T]he machine, as it is, will, I believe, last my time, and those coming after will know how to repair it to their own minds. To James Pleasants, Dec. 26, 1821.2

* * *

[B]ut it is not from this branch of government [Congress] we have most to fear. Taxes and short elections will keep them right. The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet.... Having found, from experience, that impeachment is an impracticable thing, a mere scare-crow, they consider themselves secure for life; To Thomas Ritchie, December 25, 1820.3

We look forward to meeting with congressional investigators and ultimately testifying before Congress.

Sincerely, /s/ John Cavicchi

2 Thomas Jefferson, The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol 12, Chapter: TO JAMES PLEASANTS

Accessed from http://oll.libertyfund.org/title/808/88424 on 2008-07-04

3 Thomas Jefferson, The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol 12, Chapter: TO THOMAS RITCHIE

Accessed from http://oll.libertyfund.org/title/808/88407 on 2008-07-04

3 JOHN CAVICCHI TO FRIENDS OF BORDER PATROL

Mr. Ramirez, distinguished panel, Friends of the Border Patrol.

America needs more people like Andy Ramirez who has given us the opportunity to voice our concerns.

The problems in Customs and Border Protection run much deeper than the agency. I believe that the root of the problem is dishonest government lawyers who protect corrupt management officials and the judges who protect them and each other.

The most serious threat to our democracy is the trend towards an unequal application and enforcement of the law and the lack of the appearance of impartiality and appearance of impropriety by those sworn to uphold, enforce and adjudicate the law.

In 1947, Einstein said, “[E]ven the most perfectly planned democratic institutions are no better than the people whose instruments they are.”1

Nearly sixty years later, Judge Edith Jones of the United States Court of

Appeals for the Fifth Circuit stated that, “The American legal system has been corrupted almost beyond recognition.”2

1 ROBERT P. WEEKS, COMMONWEALTH VS. SACCO AND VANZETTI, 273 (Prentice-Hall, Inc.) (1958). “Everything should be done to keep alive the tragic affair of Sacco and Vanzetti in the conscience of mankind. They remind us of the fact that even the most perfectly planned democratic institutions are no better than the people whose instruments they are....”

Referring to lawyers, the judge said:

[O]thers seem uninhibited about making misstatements to the court or their opponents or destroying or falsifying evidence. When lawyers cannot be trusted to observe the fair processes essential to maintaining the rule of law, how can we expect the public to respect the process?

How can a system founded on law survive if the administrators of the law daily display their contempt for it?

In 2005, the American Bar Association found that “More than half of

Americans are angry and disappointed with the nation’s judiciary....Nearly half agreed with a congressman who said judges are ‘arrogant, out-of-control and unaccountable.’”3

According to Founding Father Alexander Hamilton,4 judges are given permanency in office because they are above politics and are immune to outside interference. Article III, Section 1 of the Constitution states that

“[J]udges ... shall hold their offices during good Behavior...” However, there is no definition of “good Behavior.”

Congress has abdicated its authority by allowing judges to create judicial councils and to define “good Behavior.” It is naïve to believe that

2 Speech before the Federalist Society of Harvard Law School on February 28, 2003. Geraldine Hawkins, American Legal System is Corrupt Beyond Recognition, Judge Tells Harvard Law School. www.massnews.com. Click archives, search Judge Edith Jones. 3 Martha Neill, Half of U.S. Sees ‘Judicial Activism Crisis,’ ABA Network Journal, October 3, 2005. www.abanet.org/journal/ereport/s30survey. 4 THE FEDERALIST NO. 78.

2 judges can be trusted to police themselves. Elected officials are accountable to the voters. Judges are burdened with the same shortcomings as the rest of us, but are accountable only to other judges. It is un-American, undemocratic and possibly unconstitutional to allow the judiciary to secretly police itself. Judicial independence does not mean freedom to depart from the facts, logic, reason and the rules of court. Judicial independence does not mean judicial tyranny. The judiciary is no longer a co-equal branch of government. It has surpassed the other two branches and governs according to the rule of judges. It has become a nation within a nation.

The Constitution must be amended to require term limits for judges and to require that judges be American born.

Is it good behavior to feign lack of understanding of basic English, to disregard facts, to create facts and arguments, to ignore Supreme Court precedent, to openly associate with a representative of a litigant while the opposing litigant has a case pending before the same judge, and to protect a judge who publicly invited only one counsel into the privacy of his chambers? When a judge signs a decision, does he do so under the pains and penalties of perjury? Can a judge be criminally prosecuted or impeached for writing fiction, or is the only remedy an appeal alleging an “abuse of discretion.”?

3 I submit that the aforesaid conduct constitutes judicial perjury and obstruction of justice. They are impeachable offenses.

Congressman Tom Tancredo’s description of Miami as a Third World country is an understatement. Only in Miami would six federal judges and fifty-eight state judges commit to attend the criminal defense bar’s headline event—a post-indictment, lifetime award ceremony for a lawyer federally indicted for Columbian drug money-laundering and wire fraud.5 Where else would Customs and Border Protection continually promote an individual who tampered with evidence and “placed” marijuana in a black cruise ship passenger’s luggage? Only in Miami would CBP promote an official who was caught in a sex act with another CBP official on government time, in a government car and in a government garage.

Since I became involved in Title VII cases several years ago in Miami

Federal District Court, I have monitored the Eleventh Circuit Court of

Appeals and its repeated attempts to explain away discrimination. Consider the following telephone call to an African-American woman regarding a pizza delivery. Judge Martinez threw out the woman’s case, which was explained-away and affirmed on appeal:

[S]o funny ... [a] nigger trying to sound important. When

5 Julie Kay, Miami criminal defense group rallies to embattled attorney’s cause. 2008 National Law Journal Online, May 17, 2008.

4 I’m finished with you, you’re not gonna look like yourself. We can’t even resell the pizzas because your pathetic people, the people you work with, touched the food. I can’t wait to find you. You don’t know who you’re dealing with. We’re like the old fashioned kind of Italian restaurant people. It’s gonna be beautiful. Can’t wait to find you, you piece of shit nigger. Nigger bitch. 6

I began representing my brother Eugene in federal court in 2002. A supervisor, Myra Quirk, without authority to do so, had called our 86 year old mother’s doctor in 2000. Our mother had suffered from an incurable form of heart disease. When challenged, Quirk falsely accused my brother of filing falsified medical documents in support of an FMLA request. My brother reported her to Internal Affairs for making the false criminal allegation. IA did nothing.

Instead, it disregarded that it had provided my brother with a high risk public trust reinvestigation in 1999. IA resurrected 1998 false allegations of misconduct by Helen Calvit, his former supervisor and a friend of Quirk.

The allegations had been found to be “unsubstantiated” in 1999.

In defense of my brother’s age and gender discrimination case wherein the agency hired two entry level females in their twenties for a position for which he applied, IA “un” concluded its investigation and

6 Kinnon v. Arcoub, Gopman & Associates, 490 F.3d 886, 889 (11th Cir. 2007)

5 coordinated its new investigatory activity with the timing of his litigation in

2001 and 2002.

In defense of the discrimination case, CBP lawyers falsely claimed that Gene was subject to a “lengthy and ongoing Internal Affairs investigation,” and that the selecting official was unaware of his age and gender. My brother’s first and middle names appeared on the application—

Eugene Alfred. The application showed that he graduated from college in

1972.

The Eleventh Circuit Court of Appeals ignored our brief, adopted the agency’s false arguments and went to impermissible extremes. Prior to litigation, my brother had received numerous awards and commendations, including one from former President Bush for his efforts on the war on drugs. Although my brother’s ethnicity was never raised as an issue in any pleading, and although our grandparents were born in America in the 1870s, the court took judicial notice of our ethnic heritage and engaged in offensive ethnic stereotyping. It stated that Gene is an “Italian-American male over

40.... suspected of ... associating with persons connected to criminal activity.” In truth, there were no such persons connected to any criminal activity. The court ignored that five days after the IA investigation had

6 concluded in 1999, the same office of Internal Affairs had provided him with his favorable “high risk public trust” reinvestigation.

Jose Martinez was one federal district court judge who decided our case. Born in the Dominican Republic, Judge Martinez broadcasts baseball, football and basketball games for the University of Miami. Judge Martinez did not disclose to labor union lawyers suing Coca-Cola that Coke sponsors the University of Miami sports website. Neither did he disclose his former law firm’s association with Coke. While Columbian Coke workers were tortured, kidnapped or illegally detained, the judge sat in the broadcast booth for nearly four years before finally deciding in Coke’s favor.7

Judge Martinez is the federal judiciary’s “pastor problem.” A

Eucharistic minister, he threw out a jury verdict against the Catholic archdiocese in a child abuse case, but did not disclose his association to lawyers suing the archdiocese.8

In 2006, we won a petition for a writ of certiorari in the Supreme

Court. On remand from the court of appeals, although both parties had consented to have the case decided by a United States magistrate judge,

Judge Martinez reached out, assigned the case to himself and ignored the

Supreme Court. Although Panelist Mark Conrad filed a declaration stating

7 Report by Campaign to Stop Killer Coke, Judge Jose Martinez and Coca-Cola: Conflict- of- Interest Pattern Emerges, December 1, 2007. 8 Trevor Aaronson, Religious Conviction, Miami New Times. October 12, 2006.

7 that the assistant United States attorney admitted that she had nothing to support her allegations and that she had, in effect, fabricated the case, Judge

Martinez ruled that the declaration, written in plain English by a seasoned criminal investigator, was “vague and conclusory.” A first year high school student could have understood what Mark Conrad wrote.

In another case, Judge Martinez allowed the same assistant United

States attorney to manipulate the random judge assignment procedure by falsely stating that the Supreme Court had remanded our case to the district court. In truth, the case had been pending in the court of appeals. Judge

Martinez took no action against the assistant United States attorney for her mendacity, and appeared at Miami DHS Headquarters to receive an award.

He also appeared at a Miami DHS sponsored event, gave the keynote address, and openly associated with a named hostile witness, District Field

Officer Winkowski—the agency’s retaliator-in-chief.

The display of patriotism by wearing the American flag on one’s lapel has become an issue in this year’s presidential campaign. Consider DHS’s publicly distributed flyer—the American flag is displayed at the bottom of the page and below the flags of nineteen other nations. Judge Martinez’s picture appears on the opposite page.

8 Chief Judge Federico Antonio Moreno, born in Venezuela, gives new meaning to the term “judicial activism.” In one case, he allowed his clerk to write his decision and sign his name—without apparently reviewing what the clerk wrote and signed. As a result, Judge Moreno’s clerk adversely impacted the economy and stopped the trade of certain goods to Latin

America for three months.9

In our case, Judge Moreno protected Judge Martinez from publicly responding to allegations regarding his appearance of impropriety and lack of impartiality. Judge Moreno subverted the rules of court, gave himself a

“Christmas present,” as he stated in court, assigned the cases to himself and denied motions to recuse Judge Martinez as moot.

Judge Moreno promptly repeated the same errors which caused the

Supreme Court to vacate and remand the case, and became the third judge to deny an outstanding discovery motion as moot. The motion would have collapsed CBP’s house of cards. It had been pending since 2004.

In 1994, Jose Ramirez, a GS-14, tampered with evidence and admitted to “placing” marijuana in a black couple’s luggage. CBP denied his request for a downgrade to a GS-12, stating that he could not fulfill duties in a

“credible and effective manner.”

9 John Pacenti, The Judiciary, Unauthorized court order halts PlayStation shipments. Daily Business Review, February 15, 2008

9 In 2003, Judge Moreno approved a decision against Ramirez, which condemned both Ramirez and the agency stating:

Without question, Defendant [Customs] could have relied on Plaintiff’s [Ramirez’s] actions related to the 1994 cruise ship incident not only to deny Plaintiff’s reassignment request, but also to terminate Plaintiff’s employment… [T]he parties have produced disturbing evidence, including the fact that in spite of Plaintiff’s conduct, Defendant has not only continued to employ him, but has repeatedly promoted him. 10

After the court’s scathing decision, CBP promoted Ramirez to Port

Director, a GS-15.

We filed the agency’s findings and Judge Moreno’s decision in court.

However, Judge Moreno refuted them and claimed that they were

“bombastic insinuations and accusations.”

On September 12, 2006, I called and questioned CBP Commissioner

Ralph Basham on C-Span. I asked Mr. Basham the following question:

[H]ow an individual who admitted to placing marijuana in a black couple’s luggage in a cruise ship in 1994 would receive three promotions up until the point where he is presently the port-director for the Port of Miami, and what does that say about the integrity of the individuals who are chosen to ensure the security of our ports?

Commissioner Basham responded:

[W]e take every allegation of integrity, violation of integrity,

10 Ramirez v. Snow, at 22 n.9, No. 01-0173-CIV-MORENO/GARBER (S.D. Fla. June 11, 2003).

10 corruption very, very seriously ... If you are aware of one ... an issue that someone has, in fact, done what you’ve said they’ve done, I suggest that you report it ...to ICE or the Inspector General of Homeland Security.

Judge Martinez would state that Commissioner Basham’s answer was

“vague and conclusory.” Judge Moreno would call it “bombastic insinuations and accusations.”

In May 2008, however, Commissioner Basham posed for a group photo op with the same Jose Ramirez.

Finally, how would Congress define an impeachable offense?

Congress should summon these judges and order them to explain their conduct and their decisions. To define an impeachable offense, Congress could allude to former Supreme Court Justice Potter Stewart’s attempt to define hard core pornography, “I know it when I see it.”11

Congress will know an impeachable offense when it sees it.

Thank you,

John Cavicchi Houston, June 8, 2008

11 Jacobellis v. Ohio, 378 U.S. 184, 196-97, 84 S.Ct. 1676 (1964) (Stewart, J. concurring) “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

Page 2 of 4

Judge Federico Moreno

Judge Moreno threw out a case that would help protect South Florida foster children. This ruling was extremely questionable:

U.S. judge rejects class-action lawsuit on behalf of foster children in Florida

December 5, 2001

Florida 's rate of abuse in foster care - about one in every 11 children is 15 times higher than the national standard. The rate of abuse has gotten worse in the last three years according to an analysis the government documents by the Florida Times-Union.

Tallahassee attorney Karen Gievers described the foster-care system as the worst ``abuser, neglecter and exploiter of children in Florida ." She and other child advocates hoped to force sweeping change in the state's foster-care system by filing a class-action lawsuit on behalf of about 20,000 children in state care in Florida .

U.S. District Judge Federico Moreno dismissed the suit ruling that that federal oversight of Florid 's child-welfare system was unnecessary because individual state court judges had the power to protect and order services for children under their jurisdiction. "The relevant question is not whether the state courts can do all that [advocates] wish they could, but whether the available remedies are sufficient" to protect children in state care. "This court declines to hold that the allowable remedi are inadequate."

Carolyn Salisbury, associate director of the University of Miami Law School's Children and Youth

Saturday, March 29, 2008 America Online: Jecavicchi

EXHIBIT 1

POST-INDICTMENT AWARD CEREMONY FOR LAWYER INDICTED FOR COLOMBIAN DRUG MONEY LAUNDERING AND WIRE FRAUD Page 1 of 1

Select 'Print' in your browser menu to print this document.

Back to Article

Miami criminal defense group rallies to embattled attorney's cause Julie Kay / Staff reporter May 16, 2008

MIAMI — Ben Kuehne, the prominent Miami defense attorney who is facing federal charges of money laundering in connection with his vetting of legal fees, will receive the highest honor from a Miami criminal defense organization Saturday night.

Also to be honored is the defense team for convicted terrorist Jose Padilla and his co-defendants.

More than 400 lawyers, judges and guests — including six federal judges, two appellate judges, 37 circuit judges and 19 county court judges — are planning on attending the annual installation and awards banquet of the Miami chapter of the Florida Association of Criminal Defense Lawyers.

Kuehne will receive the Daniel S. Pearson-Harry W. Prebish Founder's Award, the group's highest honor, which is given "in recognition of a lifetime commitment to preserve the constitutional rights of all citizens and for manifesting the very best principles for which FACDL-Miami stands — an openhearted devotion to justice, civility, discretion, courage, respect for human dignity and mercy." Also being honored: the eight lawyers that made up the defense team for Jose Padilla and his four co-defendants, convicted of conspiracy to commit terrorism. Miami attorneys Jeanne Baker, Michael Caruso, Orlando do Campo, Marshall Dore Louis, Anthony Natale, Marjorie Russell and Kenneth Swartz along with Detriot lawyer William Swor will receive the Rodney Thaxton "Against All Odds Award." That award is named after the late Rodney Thaxton and given to a criminal defense lawyer who "having taken on a particularly difficult or unpopular client or cause, represents the heart and spirit of criminal defense, and who epitomizes the courage of the criminal defense lawyer to stand apart (and often alone) as Liberty's Last Champion," according to a statement from the FACL.

The defense lawyers for Padilla and his co-defendants — several of them assistant federal public defenders — spent three months in trial and many months preparing for the trial. Some even flew to the Middle East for research.

Rick Freedman, incoming president of the FACDL's Miami chapter, said chapter leaders decided to give Kuehne the top award before his indictment.

Kuehne, a member of the Florida Bar Board of Governors and former president of the Dade County Bar Association, was indicted by a federal grand jury Feb. 7 in connection with his vetting of legal fees for Miami attorney Roy Black. Black received $5 million in fees to represent Colombian drug kingpin Fabio Ochoa after Kuehne declared the legal fees clean.

Kuehne's indictment on money laundering and wire fraud charges, although rumored for years, stunned criminal defense lawyers in Miami and throughout the country. The Miami chapter of the FACDL issued a statement in support of Kuehne, who plead not guilty.

http://www.law.com/jsp/nlj/PubArticlePrinterFriendlyNLJ.jsp?id=1202421427631 5/17/2008

EXHIBIT 2

“[S]o funny ... [a] nigger trying to sound important. When I’m finished with you, you’re not gonna look like yourself. We can’t even resell the pizzas because your pathetic people, the people you work with, touched the food. I can’t wait to find you. You don’t know who you’re dealing with. We’re like the old fashioned kind of Italian restaurant people. It’s gonna be beautiful. Can’t wait to find you, you piece of shit nigger. Nigger bitch.” Page 1 of 8

Subj: (no subject) Date: 6/25/2008 8:08:06 P.M. Eastern Daylight Time From: Jecavicchi To: Jecavicchi

490 F.3d 886, 20 Fla. L. Weekly Fed. C 789

Briefs and Other Related Documents

United States Court of Appeals, Eleventh Circuit. Valerie KINNON, Plaintiff-Appellant, v. ARCOUB, GOPMAN & ASSOCIATES, INC., a Florida Corporation, d.b.a. Flora's Pizzaria of Miami, Florida, Defendant-Appellee. No. 06-14020. June 29, 2007.

Background: African-American customer who requested delivery from pizza restaurant for her employer's staff meeting brought § 1981 action against restaurant's manager, alleging racially motivated discrimination in connection with late delivery and delivery surcharge. Restaurant manager moved for summary judgment. The United States District Court for the Southern District of Florida, No. 05-21074-CV-JEM, Jose E. Martinez, J., granted motion. Customer appealed.

Holdings: The Court of Appeals, Birch, Circuit Judge, held that: (1) customer was not precluded by agency status from bringing § 1981 action, as she was either not acting as an agent or was acting as an agent for an undisclosed principal; (2) restaurant manager's alleged discriminatory telephone calls containing racial slurs, made after customer terminated contract by refusing to pay, were insufficient to establish elements of § 1981 claim; and (3) restaurant had legitimate, nondiscriminatory reasons for late delivery and delivery surcharge.

Affirmed.

West Headnotes

[1] KeyCite Citing References for this Headnote

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1041 k. Contracts, Trade, and Commercial Activity. Most Cited Cases

To state a claim under § 1981, a plaintiff must identify an impaired contractual relationship under which the plaintiff has rights. 42 U.S.C.A. § 1981.

[2] KeyCite Citing References for this Headnote

78 Civil Rights 78III Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k1331 Persons Aggrieved, and Standing in General 78k1331(6) k. Other Particular Cases and Contexts. Most Cited Cases

78 Civil Rights KeyCite Citing References for this Headnote 78III Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue

Wednesday, June 25, 2008 America Online: Jecavicchi Page 2 of 8

78k1332 Third Party Rights; Decedents 78k1332(6) k. Other Particular Cases and Contexts. Most Cited Cases

African-American customer who requested delivery from pizza restaurant for her employer's staff meeting was either not acting as the employer's agent when she ordered the food or acting as an agent on behalf of an undisclosed principal, and therefore, under Florida law, customer was a party to the contract and could sue restaurant manager under § 1981; customer did not indicate to restaurant that she was acting on behalf of a principal, and did not identify any principal. 42 U.S.C.A. § 1981.

[3] KeyCite Citing References for this Headnote

308 Principal and Agent 308III Rights and Liabilities as to Third Persons 308III(B) Undisclosed Agency 308k139 Acting in Agent's Name 308k141 k. Execution of Written Instruments. Most Cited Cases

Under Florida law, an agent who makes a contract on behalf of an undisclosed principal is a party to the contract.

[4] KeyCite Citing References for this Headnote

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1007 Bases of Discrimination and Classes Protected 78k1009 k. Race, Color, Ethnicity, or National Origin. Most Cited Cases

78 Civil Rights KeyCite Citing References for this Headnote 78I Rights Protected and Discrimination Prohibited in General 78k1030 Acts or Conduct Causing Deprivation 78k1033 Discrimination in General 78k1033(1) k. In General. Most Cited Cases

The elements of a cause of action under § 1981 are (1) that the plaintiff is a member of a racial minority; (2) that the defendant intended to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute. 42 U.S.C.A. § 1981.

[5] KeyCite Citing References for this Headnote

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1043 Public Accommodations 78k1046 k. Inns and Restaurants; Bars and Taverns. Most Cited Cases

Pizza restaurant manager's alleged discriminatory telephone calls containing racial slurs, which were made to African-American customer who refused to pay for pizza after it was delivered late, were insufficient to establish elements of § 1981 claim; calls took place only after customer successfully terminated verbal contract for delivery by refusing to pay. 42 U.S.C.A. § 1981.

[6] KeyCite Citing References for this Headnote

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1041 k. Contracts, Trade, and Commercial Activity. Most Cited Cases

Section 1981 does not provide a general cause of action for all racial harassment that occurs during the

Wednesday, June 25, 2008 America Online: Jecavicchi Page 3 of 8

contracting process; rather, in the retail context, the plaintiff must demonstrate the loss of an actual contract interest. 42 U.S.C.A. § 1981.

[7] KeyCite Citing References for this Headnote

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1043 Public Accommodations 78k1046 k. Inns and Restaurants; Bars and Taverns. Most Cited Cases

Even if African-American customer who ordered pizza delivered to her employer's staff meeting could establish prima facie case that restaurant's delivery surcharge and late delivery violated § 1981, customer's failure to rebut restaurant's legitimate, nondiscriminatory reasons for such conduct, specifically that delivery address was outside restaurant's usual delivery range and that delivery was late because restaurant was busy, precluded customer's § 1981 claim. 42 U.S.C.A. § 1981.

*888 Robert E. Weisberg, Law Offices of Robert E. Weisberg, Coral Gables, FL, Kimberly Ann McCoy, Florida Intern. University College of Law, Miami, FL, for Kinnon.

Ainslee R. Ferdie, Ferdie & Gouz, Coral Gables, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BIRCH, FAY and CUDAHY,FN* Circuit Judges.

FN* Honorable Richard D. Cudahy, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation.

BIRCH, Circuit Judge: At issue before us is the application of 42 U.S.C. § 1981 to a claim for discrimination arising out of a verbal contract for the delivery of food. Plaintiff-appellant Valerie Kinnon appeals from the district court's grant of summary judgment in favor of Defendant-appellee Judith Gopman. Kinnon contends that she was subject to racially motivated discrimination at the hands of Gopman, in the form of excessive delivery changes and tardy delivery, and racist, threatening telephone calls from Gopman after Kinnon refused delivery of the food. The district court granted summary judgment in favor of the defendant. We AFFIRM.

I. BACKGROUND

The relevant record evidence, viewed in the light most favorable to Kinnon, is as follows. Kinnon is an African-American female who works as a project director at a non-profit organization in Miami. On the morning of 21 January 2005, Kinnon's supervisor asked Kinnon to order lunch for a staff meeting. Kinnon decided to order pizza from Flora's Pizzaria, and at approximately 11:45 a.m., Kinnon called Flora's and placed an order for delivery. Kinnon spoke with Flora's manager, Judith Gopman, and explained that she was ordering food for a staff meeting that was to begin at 12:00 p.m. Gopman told Kinnon that Flora's did not usually deliver to the address given by Kinnon, but she offered to do so for an additional charge of $5.00, to which Kinnon agreed. Kinnon gave her personal mobile telephone number to Gopman, for use in the event Flora's needed to contact Kinnon.

At 1:30 p.m., approximately one hour and forty five minutes after Kinnon placed the order, Kinnon still had not received the food. She called Flora's to inquire about the delivery, and was told that it would arrive within five minutes. At approximately 2:00 p.m., the food still had not arrived, and Kinnon and her coworkers left the office to eat lunch at a restaurant. Kinnon did not call Flora's to cancel the order, and the delivery driver arrived shortly after Kinnon and her coworkers left the office to eat elsewhere. An employee who had stayed behind called Kinnon and told her the pizza had arrived, and Kinnon responded that the pizza was no longer needed. The employee told the driver the pizza was not needed, and sent the driver away without paying for the food.

Almost immediately after the driver was sent away without payment, and while *889 Kinnon was eating lunch

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out of the office at a restaurant, Gopman began calling Kinnon in an attempt to obtain payment for the food. At 2:09 p.m., Gopman called Kinnon and left a voice message stating “Here's a real blessed voice message for you, Valerie. This is Ju ....”FN1 R2-68, Exh. 7 at 1. Shortly thereafter, Gopman called Kinnon again and told Kinnon that she did “not know who [she was] dealing with,” that Gopman was a member of “one of the most important families in Dade County,” and that she would “get [Kinnon] fired” and “make [her] lose [her] benefits.” R2-69 at 9. After Kinnon ended the conversation, Gopman called back, and this time spoke to Kinnon's supervisor. Kinnon's supervisor recounted that Gopman stated “you don't know who you are messing with, you people think you can get away with this, by the end of the day you are going to lose your jobs, you are going to lose your benefits, you have messed with the wrong person.” R2-68, Exh. 13 at 11. At approximately 2:32 p.m., Gopman called again, this time leaving a voice message stating:

FN1. Kinnon contends that Gopman's message was a reference to Kinnon's voice mail greeting, which tells callers to have a “blessed day.” Appellant's Br. at 11.

[S]o funny ... [a] nigger trying to sound important. When I'm finished with you, you're not gonna look like yourself. We can't even resell the pizzas because your pathetic people, the people you work with, touched the food. I can't wait to find you. You don't know who you're dealing with. We're like the old fashioned kind of Italian restaurant people. It's gonna be beautiful. Can't wait to find you, you piece of shit nigger. Nigger bitch.

R2-68, Exh. 7 at 1. After leaving this message, Gopman continued to call Kinnon, leaving additional messages of similar character.

Kinnon brought suit under 42 U.S.C. § 1981 against Gopman, and the district court granted summary judgment in favor of the defendant. Relying on Domino's Pizza, Inc. v. McDonald, the court first found that Kinnon was acting as an agent for either her employer or her supervisor when she placed the delivery order with Flora's, and that as an agent she had no contractual rights under the food order and therefore could not maintain an action under § 1981. 546 U.S. 470, 126 S.Ct. 1246, 1249, 163 L.Ed.2d 1069 (2006) (agent could not maintain § 1981 action on basis of contract under which he had no rights).

The court also found that, even if Kinnon had contractual rights, she had failed to state a claim under § 1981. The court did not address the calls Gopman made to Kinnon in an attempt to collect payment after the delivery was refused, explaining that, because they occurred after the delivery was refused, the calls constituted post- contractual activity and were therefore outside the purview of § 1981. Rather, the court analyzed only whether Kinnon's allegations regarding the delayed delivery and the $5.00 surcharge were sufficient to state a claim under § 1981. Finding no direct evidence of discrimination, the court turned to the issue of circumstantial evidence of discrimination.

The court acknowledged that our circuit has not articulated a prima facie test to apply in § 1981 cases involving commercial establishments, as opposed to employment cases, and, after reviewing several prima facie tests applied by district courts in our circuit, the court selected the test applied in Jackson v. Waffle House, Inc., 413 F.Supp.2d 1338, 1361 (N.D.Ga.2006). That test requires that plaintiffs identify similarly situated white customers who received more favorable treatment *890 than the plaintiffs. See id. Because Kinnon could not identify any such comparators, the district court held she could not make out a prima facie case of discrimination, and granted Gopman's motion for summary judgment. The court also stated that Kinnon could not prevail even if she had established a prima facie case of discrimination, as the defendant had offered a nondiscriminatory reason for their actions, and Kinnon had not demonstrated that the reason was pretextual. Kinnon appeals.

II. DISCUSSION

A. Standard of Review “We review the district court's grant of summary judgment de novo, applying the same legal standards that bound the district court, and viewing all facts and reasonable inferences in the light most favorable to the nonmoving party.” Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir.2005) (citation and internal quotation omitted). “Summary judgment is appropriate when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(c)).

B. Whether Kinnon Had Rights Under the Contract at Issue

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[1] To state a claim under § 1981, a plaintiff must identify “an impaired ‘contractual relationship’ ... under which the plaintiff has rights.” Domino's Pizza, 126 S.Ct. at 1249 (quoting 42 U.S.C. § 1981(b)) (footnote omitted). In Domino's Pizza, the president of a corporation brought suit under § 1981 against Domino's, arguing that Domino's had breached a contract with his company because of his race. Id. at 1248. The plaintiff alleged that in doing so, Domino's interfered with his right to make contracts on behalf of his principal, citing § 1981's protection of the right to “make and enforce” contracts. Id. The Supreme Court held that § 1981 does not protect an agent's right to negotiate a contract on behalf of a principal, but rather applies only where the plaintiff has rights under the contract at issue. Id. at 1249.

In the present case, the district court held that, because Kinnon acted at the request of her supervisor when she placed the delivery order with Flora's, Kinnon acted only as an agent, and therefore did not have rights under the contract. The court found that, therefore, under Domino's Pizza, Kinnon could not state a claim under § 1981.

[2] [3] This case is readily distinguishable from Domino's Pizza. Here, unlike the plaintiff in Domino's Pizza, Kinnon did not indicate to Flora's that she was acting on behalf of a principal, and did not identify any principal. Accordingly, Kinnon was at the very least acting as an agent for an undisclosed principal. See Robinson & St. John Adver. & Pub. Relations, Inc. v. Lane, 557 So.2d 908, 909-10 (Fla. 1st DCA 1990); Van D. Costas, Inc. v. Rosenberg, 432 So.2d 656, 658 (Fla. 2d DCA 1983). Under Florida law, an agent who makes a contract on behalf of an undisclosed principal is a party to the contract. Lane, 557 So.2d at 910 (“In order for an agent to avoid personal liability on a contract negotiated [on] his principal's behalf, he must disclose not only that he is an agent but also the identity of his principal, regardless of whether the third person might have known that the agent was acting in a representative capacity.”); Van D. Costas, 432 So.2d at 658 (“Unless otherwise agreed, a person purporting to make a contract with another for a partially disclosed principal is a party to the contract.”). See also *891 RESTATEMENT (THIRD) OF *891 AGENCY § 6.02 (“When an agent acting with actual or apparent authority makes a contract on behalf of an unidentified principal ... the agent is a party to the contract unless the agent and the third party agree otherwise.”) Because Kinnon was either not acting as an agent, or acting as an agent on behalf of an undisclosed principal when she ordered food from Flora's, Kinnon was a party to the contract, and is not barred by Domino's Pizza from proceeding under § 1981. See id.

C. Whether Kinnon has Created a Genuine Issue of Material Fact as to Each Element of a Cause of Action Under 42 U.S.C. § 1981 [4] The elements of a cause of action under § 1981 are “(1) that the plaintiff is a member of a racial minority; (2) that the defendant intended to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute.”FN2 Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1270 (11th Cir.2004) (citation omitted). Thus, to survive summary judgment, Kinnon must identify a genuine issue of material fact as to each element. There is no dispute that Kinnon is a member of a racial minority. Moreover, Kinnon has presented evidence that Gopman referred to her using the highly offensive racial slur “nigger,” which, if true, constitutes direct evidence of discriminatory intent. See, e.g., Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189-90 (11th Cir.1997) (collecting Eleventh Circuit cases in which racial slurs were held to constitute direct evidence of discriminatory intent); Green v. Dillard's, Inc., 483 F.3d 533, 540 (8th Cir.2007) (stating, in § 1981 commercial establishment context, that “calling customers ‘niggers' is direct evidence of discrimination”); Brooks v. Collis Foods, Inc., 365 F.Supp.2d 1342, 1359 (N.D.Ga.2005) (recognizing, in § 1981 commercial establishment context, “the level of racial animus” present when individuals are “subjected to racial slurs, expletives or name-calling”). Accordingly, Kinnon has created a genuine issue of material fact as to the second element of her § 1981 claim, and only the third element, which requires that the discrimination concern an activity enumerated in § 1981, is at issue.

FN2. The relevant provisions of 42 U.S.C. § 1981 state:(a) Statement of equal rightsAll persons ... shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.(b) “Make and enforce contracts” definedFor purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

Though we have previously addressed § 1981 claims in the employment context, see, e.g., BellSouth

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Telecomms., 372 F.3d 1250; Hall v. Ala. Ass'n of Sch. Bds., 326 F.3d 1157 (11th Cir.2003) ( per curiam), there exists scant authority in our circuit applying § 1981 to claims brought by customers against commercial establishments. We are persuaded, however, by the Fifth Circuit's approach in Arguello v. Conoco, Inc., which involved a § 1981 claim brought by a customer of a convenience store alleging discrimination arising out of a retail transaction. 330 F.3d 355 (5th Cir.2003). We agree with the Fifth Circuit that “[t]here is a significant distinction ... between employment agreements and retail transactions” for the purposes of § 1981. Id. at 360.

*892 In Arguello, the plaintiff and her father, both of whom were Hispanic, entered a gas station to pay for gasoline and purchase beer. Id. at 356-57. When Arguello approached the counter, the clerk treated her rudely, but eventually Arguello completed the purchase. Id. Arguello's father was upset at the way Arguello had been treated, however, and left without making his purchase. Id. at 357. At that point, the clerk began to shout obscenities at Arguello and made racially derogatory comments. Id. After Arguello and her father left the store, the clerk began shouting racist remarks over the intercom system, and when Arguello's father attempted to enter the store to determine the clerk's name, the clerk locked him out of the store. Id. The Fifth Circuit recognized that the first two elements of a § 1981 claim, the plaintiff's minority status and the defendant's discriminatory intent, were present. Id. at 358. As to the third element, however, the court found that Arguello successfully completed her transaction and was not actually denied the ability to engage in any contractual activity, and therefore could not establish a § 1981 claim. Id. at 358-60. The court also stated that discriminatory conduct that occurred after the transaction at issue was completed could not support a § 1981 claim. Id. at 360-61.

[5] [6] Here, Kinnon argues that she has adduced sufficient evidence to establish a § 1981 claim, because Gopman's discriminatory conduct arose from Gopman's efforts to enforce contractual rights, which is within the scope of § 1981's language protecting the right to “make and enforce” contracts. We disagree with this analysis. Section 1981 does not provide a general cause of action for all racial harassment that occurs during the contracting process. Rather, “in the retail context, the plaintiff must demonstrate the loss of an actual ... contract interest.” Id. at 358 (quotation omitted). Kinnon has not introduced evidence showing that “[she] was actually denied the ability either to make, perform, enforce, modify, or terminate a contract” on account of Gopman's conduct. See id. at 359 n. 5. Kinnon successfully entered into a verbal contract with Flora's for the delivery of pizza, and when the delivery was late, Kinnon successfully took steps to terminate the contract and ate out of the office at a restaurant. See Sinclair Refining Co. v. Butler, 172 So.2d 499, 502 (Fla. 3d DCA 1965) ( per curiam) (discussing termination of contract by abandonment); Kuharske v. Lake County Citrus Sales, 44 So.2d 641, 643 (Fla. 1950) (same). That Gopman sought to enforce putative contractual rights against Kinnon at the time the discrimination occurred is insufficient to support a § 1981 claim if Kinnon herself was not denied any of the rights enumerated in the statute. See Arguello, 330 F.3d at 359 n. 5; see also Hampton v. Dillard Dept. Stores, Inc., 247 F.3d 1091, 1118 (10th Cir.2001) (“We are aligned with all the courts that have addressed the issue that there must have been interference with a contract beyond the mere expectation of being treated without discrimination while shopping.” (citation omitted)). Because Kinnon's exercise of her contractual rights was not “in some way thwarted” by Gopman, she cannot succeed on her § 1981 claim. See Arguello, 330 F.3d at 359.

Moreover, here, as in Arguello, the discriminatory conduct occurred after the contract at issue had been terminated. See id. at 360. In the retail context, unlike the employment context, “the [contractual] relationship is based on a single, discrete transaction.” Id. As a result, “there is no continuing contractual relationship” after that transaction has been terminated. Id. As the district court correctly observed, the contract at issue here was terminated *893 before Gopman began her campaign of discriminatory telephone calls. As such, those telephone calls constituted post-contractual activity, and cannot form the basis of a § 1981 claim by Kinnon.FN3

FN3. In Arguello, the court observed that in cases arising from discriminatory service in restaurants, some courts have permitted § 1981 actions based on activity that occurred after the completion of a transaction. 330 F.3d at 360-61 (citing McCaleb v. Pizza Hut of Am., Inc., 28 F.Supp.2d 1043 (N.D.Ill.1998); Charity v. Denny's, Inc., No. CIV A 98-0554, slip op. at 3, 1999 WL 544687 (E.D.La. July 26, 1999)). Yet unlike the restaurant cases discussed in Arguello, Kinnon's contract involved the delivery of food, rather than the consumption of food in a restaurant. As the Arguello court noted, “dining at a restaurant generally involves a contractual relationship that continues over the course of the meal and entitles the customer to benefits in addition to the meal purchased.” Id. We find that a contract for food delivery is analogous to a retail transaction for the purchase of any other good.

Kinnon also argues that the late delivery of the food and the $5 delivery surcharge were acts of racially

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motivated discrimination that occurred during the contractual relationship, and that she was thereby denied the ability “to enjoy the fruits of [the] contractual relationship” on the same terms as a white person. See id. at 359, n. 5. To succeed on this claim, Kinnon must establish that the delivery charge and tardy delivery were motivated by racial animus. See BellSouth Telecomms., 372 F.3d at 1270. The district court found that Kinnon could not demonstrate that the late delivery and surcharge were the result of discriminatory intent. The court held that, setting aside the telephone calls, which occurred after the termination of the contract, there was no direct evidence of discrimination, and Kinnon could not succeed in establishing circumstantial evidence of discrimination by making out a prima facie case.

To determine whether Kinnon could establish discriminatory intent via circumstantial evidence, the court attempted to apply the burden-shifting framework set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Because our circuit has not articulated a prima facie test to apply in § 1981 claims arising out of retail transactions, the district court applied the test used by the court in Jackson v. Waffle House, 413 F.Supp.2d 1338. That test required Kinnon, in order to make out a prima facie case, to identify non-minority customers of Flora's who received more favorable treatment. See id. at 1355 (requiring showing that “the defendant treated the plaintiff less favorably with regard to the allegedly discriminatory act than it treated other similarly-situated persons outside of the individual's protected class”). The court found that because Kinnon could not identify any similarly situated non-minority comparators, she could not make out a prima facie case.

[7] We need not decide whether the particular formulation of the prima facie test applied by the district court was the appropriate test under the circumstances, however, because even if Kinnon did make out her prima facie case, she has not rebutted the legitimate, non-discriminatory reason offered by Gopman for the delivery surcharge and late delivery. See Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir.1983). Specifically, Gopman argued that the $5 delivery charge was requested because the delivery address was outside Flora's usual delivery range, and that the food was late because the restaurant was busy at the time of the events in question. Because Kinnon has not introduced evidence to show that those reasons are pretextual, she cannot establish*894 a presumption that the late delivery and surcharge were based on discriminatory intent. Id. Accordingly, she cannot make out a § 1981 claim on the basis of the delivery charge and delay.

III. CONCLUSION

Because Kinnon was either not acting as an agent, or acting as an agent on behalf of an undisclosed principal when she ordered food from Flora's, the district court erred in holding that she had no contractual rights and was therefore barred from proceeding on her § 1981 claim. Yet because Kinnon has not created a genuine issue of material fact as to each element of a cause of action under § 1981, we nonetheless AFFIRM the district court's entry of summary judgment in favor of Gopman.

C.A.11 (Fla.),2007. Kinnon v. Arcoub, Gopman & Associates, Inc. 490 F.3d 886, 20 Fla. L. Weekly Fed. C 789

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EXHIBIT 3

ELEVENTH CIRCUIT COURT OF APPEALS DECISION IN CAVICCHI I-ethnic stereotyping

“Eugene Cavicchi, an Italian-American male over 40 who ... had been suspected [of] ... associating with persons connected to criminal activity.” [emphasis added]

The selecting official “had no knowledge of his age, gender, race of alleged disability.” [emphasis added]

Page 1 of 7

Subj: Cavicchi 1 decision Date: 6/25/2008 7:56:31 P.M. Eastern Daylight Time From: Jecavicchi To: Jecavicchi

Not Reported in F.3d, 2004 WL 4917357 (C.A.11 (Fla.))

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Only the Westlaw citation is currently available. United States Court of Appeals, Eleventh Circuit. Eugene CAVICCHI, Plaintiff-Appellant, v. SECRETARY OF TREASURY of the United States of America, Paul H. O'Neil, United States Customs Service, Defendants-Appellees. No. 04-10451 Non-Argument Calendar. D.C. Docket No. 01-03406-CV-JEM. Oct. 15, 2004.

Appeal from the United States District Court for the Southern District of Florida. John Cavicchi, Miami Beach, FL, for Plaintiff-Appellant.

Emily Smachetti, Anne R. Schultz, Kathleen M. Salyer, Maria Beguiristain, U.S. Attorney's Office, Miami, FL, for Defendants-Appellees.

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM: *1 Eugene Cavicchi, an Italian-American male over 40 years of age who suffers from a kidney malfunction, appeals the district court's grant of summary judgment in favor of his employer, the United States Customs Service (“USCS”) in his suit raising various employment law claims. After review, we affirm.

I. BACKGROUND

In 1983, Cavicchi began working for the USCS as a data transcriber, a GS-2 position.FN1 In 1990, after a series of promotions, Cavicchi obtained a GS-11 position as senior inspector. In 1997, Cavicchi switched to a reduced-hours schedule due to a kidney disorder.

FN1. The USCS previously was part of the Department of Treasury. During the course of this litigation, the USCS became the Bureau of Immigration and Customs Enforcement, part of the newly created Department of Homeland Security. For the sake of simplicity, we refer to the defendant as the USCS.

A. Cavicchi's FMLA Requests and Interactions with Myra Quirk In the summer of 1999, Cavicchi requested, and received, unpaid leave under the Family and Medical Leave Act (“FMLA”) to care for his mother, who suffered from cardiomyopathy, a degenerative heart condition.

On May 9, 2000, Cavicchi filed an additional request for three months of unpaid leave to care for his mother. In support of this request, Cavicchi attached an unsigned letter from his mother's cardiologist, Dr. Stafford Cohen, dated May 5, 1999. Myra Quirk, Cavicchi's second-level supervisor at USCS, asked Cavicchi to provide more current documentation of his mother's medical condition. Cavicchi then submitted a facsimile copy of a

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second letter from Dr. Cohen. The body of the second letter was identical to the body of the first letter, except the date read “May 17, 2000” and included a signature.

In an affidavit, Quirk stated that because the second letter contained identical text to the first letter and was not original, she did not believe that the letter was sufficient to support Cavicchi's FMLA request. Quirk then called Dr. Cohen's office “to verify that someone from the office had signed and dated the doctor's letter.” An employee at Dr. Cohen's office indicated that she had indeed changed the date and signed Dr. Cohen's name. Dr. Cohen also personally verified that Cavicchi's request for three months of leave was appropriate. Quirk then granted Cavicchi's FMLA leave request.

In a letter dated June 6, 2000, John Cavicchi, plaintiff Cavicchi's brother, complained to Commissioner of Customs Raymond Kelly about Quirk's phone call to Dr. Cohen. Assistant Commissioner William Keefer responded in writing to John Cavicchi stating that, “[t]he concerns noted in your letter have been taken seriously, and have been provided to the appropriate office within the Office of Internal Affairs for appropriate action.”

In November 2000, another incident occurred between Quirk and plaintiff Cavicchi. In his deposition, Cavicchi testified that Quirk instructed him to answer the phone, but he refused, explaining that he was on his lunch break. Quirk then asked Cavicchi to report to her office, but Cavicchi refused to speak to Quirk alone, indicating that he had an FMLA complaint pending against her.

In January of 2001, a third incident occurred. At that time, Quirk assigned an inspector other than Cavicchi to “process inboards for two weeks.” Cavicchi testified that, when Quirk was asked about this decision by the inspector who was assigned to the task, Quirk explained that Cavicchi “did not get along with the importing public.”

B. Port Canaveral Inspector Position *2 On May 24, 2000, a position opened for a GS-5/7 part-time customs inspector in Port Canaveral, Florida, and Cavicchi applied for the position. In October 2000, Cavicchi sent a letter to Raymond Kelly, Commissioner of Customs, expressing concern that he had not been awarded the position and transferred to Port Canaveral. Cavicchi's letter stated, in relevant part:

I have learned that two rookie inspectors from Montana are already on site. I called the Cape Canaveral Port Director with whom I've worked for thirteen years in Miami. Both he and the Tampa CMC told me I was their first choice. I called Washington and had difficulties ascertaining that I was on the “approval list.” I do not understand why I am not yet assigned to Port Canaveral. To my knowledge there is nothing derogatory in my background. I believe I am a conscientious and loyal employee of the government.

In a letter dated December 8, 2000, Assistant Commissioner Bonni Tischler responded to Cavicchi, stating that Cavicchi's name was “included on the recommendation list for the Port Canaveral position.”

Ultimately, Cavicchi was not selected for the position. Jeffrey Baldwin, Director of Field Operations for the North Florida Customs Management Center, stated in an affidavit that he was the recommending official for the Port Canaveral position. Baldwin recommended three applicants for the position, Nicole La Mora, Marty Jo Zeis, and Cavicchi. John Heinrich, Acting Assistant Commissioner for the Office of Field Operations, was the selecting official for the position. In an affidavit, Heinrich stated that, at the time of the selection, he “did not know Mr. Cavicchi and had no knowledge of his age, gender, race or alleged disability.” Heinrich's affidavit further indicated that he selected La Mora and Zeis as the most qualified applicants because they “possessed the best knowledge, skills, and experience for these positions.” FN2 Additionally, Heinrich stated that he selected them because they “cleared an expanded background check.” Cavicchi, on the other hand, was not selected “because he did not clear the expanded background check since he was the subject of an ongoing Internal Affairs ... investigation.”

FN2. La Mora's application indicated that she graduated from Ohio State University with a degree in Animal Science and that she spent approximately two years as a customs inspector in Sweetgrass, Montana. Zeis's application is not in the record. Both La Mora and Zeis are white females.

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Internal Affairs (“IA”) initiated an investigation into allegations against Cavicchi. An IA investigation report dated October 1, 2002, indicated that Cavicchi had been suspected of participating in an official capacity in matters in which he had a conflicting financial interest and in associating with persons connected to criminal activity. The report also indicated that the investigation was “long term” and that “[s]everal employees became subjects of the investigation.” Further, the IA report indicated that agents interviewed Cavicchi on March 31, 2001, and again on August 30, 2002, but it did not indicate that any steps had been taken in the investigation between November of 1998 and March of 2001. The report also indicated that the allegations against Cavicchi were found to be unsubstantiated.

C. Cavicchi's EEO Complaint and Lawsuit *3 On February 25, 2001, Cavicchi filed an EEO complaint alleging that he was denied the the part-time Port Canaveral position based on age, sex, and disability discrimination. Additionally, he stated that he was subjected to “harassment from Chief Inspector.”

On July 12, 2002, Cavicchi filed a second amended complaint alleging (1) race and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq.; (2) age discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq.; (3) disability discrimination in violation of the Rehabilitation Act, 29 U.S.C. §§ 701 et seq.; (4) a violation of the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. as a result of Quirk's inquiry to Dr. Cohen about Cavicchi's leave request; and (5) retaliation.

On September 3, 2003, the district court entered summary judgment in favor of the USCS on all of Cavicchi's claims. On September 10, 2003, Cavicchi filed a motion to alter or amend the judgment, alleging that there was newly discovered evidence that suggested that the USCS obtained summary judgment by the perpetration of a fraud upon the district court. In support of his allegation, Cavicchi attached his IA investigation report and a declaration by David Mark Conrad, a former supervisor within IA.

II. DISCUSSION

A. Age and Gender Discrimination Claims A plaintiff may establish employment discrimination by presenting either direct or circumstantial evidence of discrimination. See, e.g., Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.2004).FN3 In cases where there is no direct evidence of discrimination, this Court applies the McDonnell Douglas framework to age discrimination and gender discrimination cases. See Pennington v. City of Huntsville, 261 F.3d 1262, 1269 (11th Cir.2001).

FN3. Cavicchi's claim that the district court required him to produce direct evidence of discrimination is meritless. The district court properly applied the McDonnell Douglas burden- shifting framework, which allows a plaintiff to prove discrimination through indirect evidence. Further, Cavicchi's claim that he presented direct evidence is meritless, and we do not discuss it further.

To establish a prima facie case of gender discrimination under Title VII, a plaintiff must show that: (1) he is a member of the protected class, (2) he was subject to an adverse employment action, (3) his employer treated similarly situated employees outside his classification more favorably, and (4) he was qualified to do the job. See Hinson v. Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 828 (11th Cir.2000). To establish a prima facie case under the ADEA, a plaintiff must show that; (1) he was a member of the protected class; (2) he was subject to an adverse employment action; (3) a substantially younger person filled the position from which he was discharged; and (4) he was qualified to do the job for which he was rejected. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir.1999).

Once the plaintiff establishes a prima facie case, the employer must proffer a legitimate, non-discriminatory reason for the adverse employment action. See Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.1990) (age discrimination); Hinson, 231 F.3d at 830 (gender discrimination). If the employer does so, the plaintiff must demonstrate that the employer's proffered reason is a pretext for discrimination. See Watkins v. Syerdrup Tech., Inc., 153 F.3d 1308, 1314 (11th Cir.1998) (age discrimination); Hinson, 231 F.3d at 830

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(gender discrimination).

*4 Even assuming, as the district court did, that Cavicchi presented a prima face case for age and gender discrimination, he did not show that the USCS's proferred reason for his non-selection-that he failed to pass an expanded background investigation-was a pretext for discrimination.

To show pretext, Cavicchi points to a the National Treasury Employee Union (“NTEU”) contract with the USCS. The contract states in relevant part:

The fact that an employee is the subject of a conduct investigation will not prevent or delay a promotion that otherwise would be made except that the Employer may postpone the promotion where the allegations under investigation bear a direct relationship to employee performance.

(Emphasis added).

Cavicchi appears to argue that this provision proves that the USCS's legitimate non-discriminatory reason is false because it violates the NTEU contract. However, the part-time, Port Canaveral position that Cavicchi sought was not a promotion. If Cavicchi had received the assignment, he would have moved from a GS-11 to a GS-5/7 grade. Thus, this contractual provision is inapplicable to Cavicchi's situation, and does not make the USCS's legitimate non-discriminatory reason false or pretextual.

Cavicchi also presented evidence that the duration of the IA investigation-the pendency of which cost him the Port Canaveral position-was unusually long. In his affidavit, former supervisor Conrad stated that he was “particularly concerned with the apparent length of time it took for IA to deal with the claimed allegations against [Cavicchi].” However, Cavicchi failed to present any evidence that the length of the IA investigation was motivated by his gender or his age, and not some permissible, non-discriminatory factor. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984) (“Although WLCY's decision to fire Nix, and its refusal to reconsider that decision might seem unfair or even ‘incredible’ to outside observers, Nix cannot prevail in his Title VII action for he has not established discriminatory intent.”). Thus, the district court properly granted summary judgment to the USCS on Cavicchi's claims for age and gender discrimination. FN4

FN4. Cavicchi's hostile work environment claim is based on allegations that Quirk (1) questioned his request for FMLA leave, (2) told him to answer the phone during his lunch break, and (3) told a third party that she believed Cavicchi did not get along well with the public. Even assuming these allegations are true, they do not rise to the level of a hostile work environment. See, e.g., Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir.1999) ( en banc ). Thus, the district court properly granted summary judgment in favor of the USCS on this claim.

B. Disability Discrimination Claim “The Rehabilitation Act (the Act) prohibits federal agencies from discriminating in employment against otherwise qualified individuals with a disability.” Sutton v. Lader, 185 F.3d 1203, 1207 (11th Cir.1999) (citation omitted). “To establish a prima facie case of discrimination under the Act, an individual must show that (1) he has a disability; (2) he is otherwise qualified for the position; and (3) he was subjected to unlawful discrimination as the result of his disability.” Id.

We conclude that even if Cavicchi could show that he had a disability and that he was otherwise qualified for the position, he is unable to show that he was subjected to unlawful discrimination as a result of his disability.FN5 As discussed above, the USCS proferred a legitimate non-discriminatory reason for denying Cavicchi the Port Canaveral position and Cavicchi has failed to show that the reason was a pretext for discrimination. Moreover, in his affidavit, Heinrich stated that he did not know about Cavicchi's kidney disorder when he made his selections for the Port Canaveral position.

FN5. The district court expressed doubt that Cavicchi's kidney disease rose to the level of a “disability” under the Rehabilitation Act. We need not decide that issue, and assume for the purposes of this opinion that he was able to meet that element of a claim for disability discrimination.

Wednesday, June 25, 2008 America Online: Jecavicchi Page 5 of 7

C. Retaliation Claim Under Title VII *5 Title VII makes it unlawful for an employer to retaliate against an employee because the employee “has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under” Title VII. 42 U.S.C. § 2000e-3(a). “To establish a prima facie case of retaliation, a plaintiff must show that (1)[he] engaged in protected activity, (2)[he] suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action.” Stavropoulos v. Firestone, 361 F.3d 610, 616 (11th Cir.2004).

“To be considered an adverse employment action for purposes of Title VII's anti-retaliation provision, the action must either be an ultimate employment decision or else must ‘meet some threshold level of substantiality.” ’ Stavropoulos, 361 F.3d at 616-17. Ultimate employment decisions include decisions such as termination, failure to hire, or demotion. Id. at 617. The reprimand of an employee does not constitute an adverse employment action when the employee suffers no tangible harm as a result. See Pennington, 261 F.3d at 1267; see also Davis v. Town Lake Park, Fla., 245 F.3d 1232, 1241-42 (11th Cir.2001).

To establish the causal connection required by the third prong, the plaintiff must show that: (a) “the decision makers were aware of the protected conduct”; and (b) “the protected activity and the adverse action were not wholly unrelated.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir.2000) (internal quotations and brackets omitted). Close temporal proximity may be sufficient to show the protected activity and the adverse action were not wholly unrelated. Id.

In this case, there is no evidence that plaintiff Cavicchi engaged in activity protected by Title VII until February 25, 2001, the date on which he filed his EEO complaint. Thus, because Cavicchi did not engage in protected activity until after his non-selection for the Port Canaveral position, there can be no causal connection between protected activity and his non-selection for that position.

Further, while Cavicchi did present evidence that he was interviewed by IA officers shortly after filing his EEO complaint, he has not shown that this interview constituted an “adverse employment action” within the meaning of Title VII. The IA interview did not constitute an “ultimate employment decision” because it did not result in termination, loss of pay or reduction in benefits. See Stavropoulos, 361 F.3d at 617. Moreover, even if the interview was tantamount to reprimand, a reprimand that does not result in tangible harm to an employee does not constitute an “adverse employment action” within the meaning of Title VII. See Pennington, 261 F.3d at 1267; Davis, 245 F.3d at 1241-42. Thus, because Cavicchi did not present evidence that he suffered any “adverse employment action” after filing the EEO complaint, the district court did not err in granting the USCS summary judgment on Cavicchi's Title VII retaliation claims.

D. FMLA Retaliation Claim *6 Cavicchi argues that the district court erred by not addressing his FMLA claim that the USCS violated 5 U.S.C. § 6385, which forbids retaliation against employees who request leave under Title II of the FMLA. We agree the district court should have addressed it, but affirm because there is no right of private action under 5 U.S.C. § 6385 of Title II of the FMLA.

Title I of the FMLA applies to private sector employees. See 29 U.S.C. § 2611(2)(B)(I). Conversely, “most employees of the federal government to whom the FMLA applies, ... are governed by Title II of the FMLA.” Mann v. Haigh, 120 F.3d 34, 36 (4th Cir.1997); see 5 U.S.C. §§ 2105(a)(1)(A), (a)(1)(D) and 6301(2) (providing a series of definitions for the term “employee” as used in Title II of the FMLA). Title I expressly creates a right of action for private employees, see 29 U.S.C. § 2617(a)(2); however, Title II does not contain an analogous provision, see 5 U.S.C. §§ 6381-6387.

Although this Court has never addressed the issue of a right of action for federal employees under Title II of the FMLA, the Ninth and Fourth Circuits both have held that federal employees may not bring suits based on FMLA violations. Russell v. United States Dep't of the Army, 191 F.3d 1016, 1019 (9th Cir.1999) (“[T]he absence of an express waiver of the government's sovereign immunity in Title II of the FMLA bars private suits for violations of its provisions.”); Mann, 120 F.3d at 37 (“No unequivocal waiver of immunity exists in Title II, and, consequently, the omission of a provision in Title II similar to that in Title I creating a private right of action is treated as an affirmative congressional decision that the employees covered by Title II of the FMLA should not have a right to judicial review of their FMLA claims through the FMLA.”). We agree with these circuits that

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the absence of an express authorization precludes Cavicchi's FMLA claim for retaliation because the United States Supreme Court has held that the sovereign immunity of the United States may only be waived through an “unequivocal” expression of Congressional intent to do so. See, e.g., Franconia Assocs. v. United States, 536 U.S. 129, 141, 122 S.Ct. 1993, 2001, 153 L.Ed.2d 132 (2002).

Accordingly, we affirm the grant of summary judgment on Cavicchi's FMLA claim for retaliation.

E. Motion to Alter or Amend the Judgment Finally, plaintiff Cavicchi argues that the district court erred by denying his motion to alter or amend its order granting summary judgment to the USCS. Cavicchi contends that; despite his efforts to compel discovery, he did not receive a copy of the “IA investigation 001” until just before the district court ruled on summary judgment. Cavicchi acknowledges that he filed the IA report with the district court on August 20, 2003, and the district court's decision was dated September 3, 2003, but argues that the district court had “already made up its mind” when he filed the document.FN6

FN6. Cavicchi relies on the fact that the date of the district court's order is typewritten as “August, 2003.” However, that typewritten date was crossed out and “Sept” was written in its place.

*7 This Court reviews the denial of a motion to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e) for abuse of discretion. See Mincey v. Head, 206 F.3d 1106, 1137 (11th Cir.2000). “It is not an abuse of the court's discretion to deny a Rule 59(e) motion that requests an amendment that relates to a matter that could have been raised before the judgment was entered.” Id. at 1137 n. 69.

Here, Cavicchi not only had the opportunity to file the IA report prior to the entry of summary judgment, he did so. Moreover, the district court indicated in its order denying the Rule 59(e) motion that “all relevant evidence was before the Court” when it decided the summary judgment motion. Thus, the district court did not abuse its discretion by denying Cavicchi's Rule 59(e) motion.FN7

FN7. Cavicchi has abandoned any claim that the district court abused its discretion by denying his Federal Rule of Civil Procedure 60(b) motion because his initial brief contains no argument on this isssue. See United States v. Jernigan, 341 F.3d 1273, 1283 n. 8 (11th Cir.2003) (stating that, to preserve an issue on appeal, an appellant must devote a discrete, substantial portion of his argument to that issue).

III. CONCLUSION

For the foregoing reasons, we conclude that the district court properly granted summary judgment in favor of the USCS on all of Cavicchi's claims, and did not abuse its discretion in denying Cavicchi's Rule 59(e) motion.

AFFIRMED.

C.A.11,2004. Cavicchi v. Secretary of Treasury Not Reported in F.3d, 2004 WL 4917357 (C.A.11 (Fla.))

Briefs and Other Related Documents (Back to top)

• 2004 WL 3140016 (Appellate Brief) Brief for the United States (May 19, 2004) • 2004 WL 3140015 (Appellate Brief) Appellant's Corrected Brief (Apr. 8, 2004) • 2004 WL 3140014 (Appellate Brief) Brief of Appellant (Feb. 11, 2004) • 04-10451 (Docket) (Jan. 30, 2004) END OF DOCUMENT

Wednesday, June 25, 2008 America Online: Jecavicchi

EXHIBIT 4

DOCUMENTARY EVIDENCE OF LYING TO THE COURTS

Selecting Official Heinrich declaration, claiming he was unaware of Cavicchi’s age and gender and that he was under an ongoing IA investigation—drafted by Agency Attorney Francesca Alvaro

Eugene Alfred Cavicchi’s job application—he graduated from college in 1972

Agency document showing his EEO characteristics—DOB 1950, is white

Gene’s high-risk public trust periodic reinvestigation, provided by the same office of Internal Affairs in 1999, five days after the IA investigation had concluded and been reported in 1999

IA report of investigation on September 28, 1999 showing the IA investigation “had concluded.”

Referenced final report of IA investigation, dated 10/1/99

Case 1:03-cv-21764-JEM Document 104 Entered on FLSD Docket 09/21/2004 Page 14 of 88 Case 1:03-cv-21764-JEM Document 104 Entered on FLSD Docket 09/21/2004 Page 15 of 88 Case 1:03-cv-21764-JEM Document 104 Entered on FLSD Docket 09/21/2004 Page 17 of 88 Case 1:03-cv-21764-JEM Document 104 Entered on FLSD Docket 09/21/2004 Page 18 of 88 Case 1:03-cv-21764-JEM Document 104 Entered on FLSD Docket 09/21/2004 Page 19 of 88 Case 1:03-cv-21764-JEM Document 104 Entered on FLSD Docket 09/21/2004 Page 20 of 88 Case 1:03-cv-21764-JEM Document 67 Entered on FLSD Docket 06/28/2004 Page 112 of 124 Case 1:03-cv-21764-JEM Document 67 Entered on FLSD Docket 06/28/2004 Page 113 of 124 Case 1:03-cv-21764-JEM Document 67 Entered on FLSD Docket 06/28/2004 Page 114 of 124 Case 1:03-cv-21764-JEM Document 67 Entered on FLSD Docket 06/28/2004 Page 53 of 124 Case 1:03-cv-21764-JEM Document 83 Entered on FLSD Docket 08/05/2004 Page 4 of 25 Case 1:03-cv-21764-JEM Document 83 Entered on FLSD Docket 08/05/2004 Page 8 of 25

EXHIBIT 5

JUDGE JOSE E. MARTINEZ

News release regarding his apparent conflict of interest with Coca-Cola, which sponsors the University of Miami sports web site, for which he broadcasts baseball, football and basketball games. Judge Martinez ruled on Coke’s behalf.

Article—Judge Martinez is also a Eucharistic minister, but did not disclose his relationship with lawyers suing the Catholic archdiocese and reversed a jury verdict against the archdiocese

Judge Martinez and his association with DHS

Judge Jose Martinez and Coca-Cola: Conflict-Of-Interest Pattern Emerges Page 1 of 2

Judge Jose Martinez and Coca-Cola: Conflict-Of-Interest Pattern Emerges

Report by Campaign To Stop Killer Coke Published: 12/01/07

For more information, contact Pat Clark or Ray Rogers at (718) 852-2808

The Florida federal judge whose rulings have repeatedly limited legal options for plaintiffs seeking to hold Coca-Cola accountable for crimes and human rights violations in Colombia is entangled in a web of questionable ties to the world’s largest beverage company, the Campaign to Stop Killer Coke has recently discovered.

U. S. District Judge Jose E. Martinez, elevated to the bench by President Bush in November 2002, is a proud and active alumnus of the University of Miami (UM) and its law school. He is “best known for his sideline: color commentator on Spanish radio for Los Huracanes,” referring to the UM football and baseball teams, according to the Miami Herald (11/23/02).

Coca-Cola directly subsidizes UM athletic programs under the terms of an exclusive beverage contract with the school, in effect since at least the 2003 football season. Judge Martinez’s role as a radio sports analyst, which continued through the just-ended football season, was described on UM’s Athletic Dept. website, sponsored by Coca-Cola.

Judge Martinez has also “been active in UM matters, serving as...a member of the Governing Board of the UM Hurricane Club,” according to the biographical note supplied for an Oct. 30, 2006 luncheon at which he was the keynote speaker. UM identifies the Hurricane Club as “the primary fundraising arm of the athletic department,” and a major share of the money it has collected before and since Martinez became a judge came from Coca-Cola.

In 2003, Judge Martinez initially dismissed The Coca-Cola Company from lawsuits brought by the International Labor Rights Fund and the United Steelworkers, AFL-CIO, that documented collaboration between Coke’s Colombian bottlers and paramilitary terrorists bent on destroying SINALTRAINAL, the major union representing Coca-Cola workers.

His dismissal of The Coca-Cola Company, headquartered in Atlanta, from the 2001 lawsuits was based on the notion that Coke didn’t have sufficient ownership or control of its bottlers to bear any responsibility for such crimes as the killing of 28-year-old union leader Isidro Gil at his workplace.

Last September 29 – after almost four years of inaction that underscored how justice delayed is really justice denied – Martinez ruled that Coke’s bottlers in Colombia weren’t liable either, despite the fact that many Colombian Coke workers have been tortured, kidnapped and/or illegally detained by paramilitaries who often work closely with Coke’s plant managers. All of Martinez’s rulings are being appealed.

Martinez’s 2003 decision was made prior to any discovery, meaning that the plaintiffs

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had no chance to show the degree to which Coca-Cola controls foreign operations. The decision was also based on a single document: a sample bottlers’ agreement that Coke admitted wasn’t the actual agreement with the bottlers cited in the lawsuits.

Martinez also failed to take into account documents admittedly created by The Coca- Cola Company that described its control over workplace practices and its right to inspect plants to insure that local managers abide by human rights conventions and obey domestic laws.

Coca-Cola FEMSA is Coke’s largest Latin American bottler and a defendant in the lawsuits. FEMSA’s website lists The Coca-Cola Company as owning either 31. 6% or 39. 6% of its capital stock (both figures are used) and 46. 4% of its capital voting stock. Many of Coca-Cola’s top executives serve on Coca-Cola FEMSA’s board of directors.

As Forbes magazine noted in an article entitled “Coke’s Sinful World” (12/22/03), “The biggest bottlers aren’t subsidiaries of Coke, nor are they completely independent. Coke effectively controls them by maintaining big equity stakes and a heavy presence on their boards, and by providing their main source of business. Yet it keeps its stakes in the bottlers below 50% thereby avoiding getting hit with their piles of debt and any unpleasant liabilities.”

The judge’s predisposition in favor of corporate interests came up during his brief confirmation hearing in 2002, when Sen. Dianne Feinstein (D-Calif.) pointed out that he “specialized in product liability litigation... advising and defending large corporations.”

Martinez was a name partner in the law firm of Martinez & Gutierrez from 1991 to 2002. After his appointment to the bench, the firm was renamed Gutierrez & Associates, but it retained a web address (www.martlaw.com) that seems to reflect Martinez’s continuing link to the firm and the many large corporations it represents. Martinez himself represented the Tobacco Institute in a January 2000 case before the Supreme Court.

The website of Gutierrez & Associates lists among its associated law firms a Bogota, Colombia firm, Gamboa, Chelela, Gamboa & Useche. That firm’s website, in turn, identifies as a name partner Carlos Alberto Useche-Ponce de Leon, a former vice president of Coca-Cola de Colombia, S. A., who also serves as an “Advisor” to the Council of American Companies.

“Everything we have learned about Judge Martinez’s connections to the interests of the University of Miami, its Coke-subsidized athletic department, Coca-Cola, and his former law firm suggests at least the appearance of impropriety, if not actual bias,” said Ray Rogers, director of the Campaign to Stop Killer Coke. “To preserve the integrity of the judicial process, we believe he must be recused from the Coca-Cola cases.”

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News Tuesday, March 27, 2007

NEWS BLOGS RESTAURANTS ENTERTAINMENT MUSIC MOVIES BEST OF CLASSIFIED PROMOTIONS SEARCH

write to the editor | email a friend | print article Most Popular

Most Viewed Most Commented N

Religious Conviction Crash of an Icon Judge José E. Martinez ruled on a contentious case involving Once a lifeline and a symbol, Chalk's deliv

the Archdiocese of Miami. Problem is, he's a Eucharistic Paradise Lost minister For many residents, the luster of Williams long gone By Trevor Aaronson

Published: October 12, 2006 The Ride to Perdition Miami-based Bangbus.com is a leading purv On October 24, 2004, following a six-day trial in federal court, Internet porn, but at what cost to naïve mo

Ofelia Canals won a major victory against her former employer Land Grab We ask questions and a historic land battle and one of the most powerful institutions in South Florida: the Roman Catholic Archdiocese of Miami. Catch of the Year Classic American seafood finds a sequel in

A jury believed her contention that CHRISTOPER SMITH archdiocesan officials asked her to

commit perjury. The religious leaders had hoped to protect the church from claims that institutional negligence led to the sexual molestation of a five-year- old boy. But Canals asserted that she refused to lie and consequently was harassed, tormented, and then fired. The jury awarded her $40,000 plus attorneys' fees. Subject(s): Ofelia Canals, Archdiocese of Blogs But four months later, on February Miami, Judge José E. WMC Meets Liberty City at the Umoj Martinez 28, 2005, U.S. District Judge José Shanty-Down E. Martinez overturned the verdict. At the time, he didn't Culture 08:04AM 03/27/07

mention his apparent conflict of interest: Martinez is a El Salvador Says No to Satan News 05:00AM 03/27/07

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Eucharistic minister, a spiritual leader who wears a holy robe, Club Madonna Earns its Feminist Str Flotsam 04:40AM 03/27/07 serves communion to parishioners during Catholic mass, and WMC Revelers Can’t Beat the Bartsc embodies the spirit of Christ. Culture 07:33AM 03/26/07 Federal Investigator Says Miami Cop "He's the guy behind the Body of Christ," says Eddie Cruz, a Attacked Him News 04:30AM 03/26/07 legal assistant on the team that represented Canals.

Be Social That's right: The 65-year-old Martinez overturned a verdict to protect the Archdiocese of Miami, an organization in which he is an agent. Asian Art from the Bass... Children of Men Cuba Current art shows DVD Although the U.S. Eleventh Circuit Court of Appeals ruled I Have Before Me a... Karel Appel: In Memoriam Martinez was not required to recuse himself, his decision to Leon Ferrari Letters Letters from Iwo Jima Lysergic Garden: an... Masters in Sculpture hear the case — and not inform the attorneys of his position Merce Cunningham: Dancing... Oscar Bony with the Catholic Church — raises questions about his Sundance 2007 The Missionary Tracey Snelling Treasures from the Bass... Wi impartiality.

Recent Articles Related Articles The roots of the conflict date back more than two decades. Recent Articles By Trevor Aaro Beginning in 1983, Canals worked as the head teacher at Osama’s Thug Centro Mater Child Care Center, a day care run by Catholic Jose Padilla is (a) a punk; (b) a terrorist in (c) an unwitting pawn for Uncle Sam and a Charities of the Archdiocese of Miami, a nonprofit organization or (d) all of the above partially funded by government grants. Death Do Us Part A murder-suicide left Hialeah Gardens in s In 1995 Canals transferred to a new facility run by the There were warning signs.

archdiocese called Centro Mater West, near Okeechobee Road Classroom Felon, Part 2 Former AG Bob Butterworth has a double in Hialeah Gardens. Her job was to help build the staff and for felons

teaching programs. Both Centro Mater facilities receive public Megabyte Millionaire funding through Head Start, a federal program designed to Jon Jacobs wants to make a fortune. His b virtual real estate. help children under age six and their low-income families. The Miami Strangler, Part 2 Eight years later, a dead girl's family await "I was the head teacher of the three levels — infants, day care,

and after-school," Canals explained in Spanish during a National Features deposition. Her responsibilities included "everything," as she Seattle Weekly Cleveland Sce put it. If there was trouble with another teacher or the air- Give That Man a Hand Broke Banks' M The serial bus masturbator's Meet the internati conditioning unit was broken, everyone turned to Canals. newspaper of choice? Ours! acclaimed filmmak By John Metcalfe can't afford toilet p By Rebecca Mei But in July 2001, her star began to fade. She was having City Pages The Bush Beat particular trouble with another teacher, Zita de la Sierra, whom A Minnesota professor rides she had reprimanded several times for leaving children the Gonzalez Eight to fame, but there are holes in the unattended. On July 5, after discovering that de la Sierra had research. By Mike Mosedale again left kids alone in a classroom despite the warnings,

http://www.miaminewtimes.com/2006-10-12/news/religious-conviction/full 3/27/2007 Miami - News - Religious Conviction - miaminewtimes.com Page 3 of 5

Canals described the problem in a memo to Miriam Roman, administrator for Centro Mater West. Roman allegedly told Canals that she was being "unjust and unfa

One week later, Canals's worst fears were realized. After de la Sierra left class once again, a five-year-ol walked out, crossed a five-lane street, and was picked up by an unknown man in the parking lot of a Sed supermarket. The man sexually molested the boy and returned him home later that night. (Although th identified in court papers, New Times is withholding his name.)

The head teacher recalled in a deposition that the day after the molestation, Lucia Vicencio, a senior off the Archdiocese of Miami, confronted Canals. Vicencio allegedly wanted Canals to pretend her memo d exist. She demanded that Canals act as if she had never warned officials about de la Sierra's habit of lea class unattended.

"We are going to start a new life. We are going to rip up all your memos," Canals remembered Vicencio her.

Canals told Vicencio that if she were ever called to testify, she would talk about the memo and her warn was not going to lie in a court of law," Canals said.

In court testimony, Vicencio denied this conversation occurred.

On September 4, 2001, three months after the boy was molested, Canals was fired for "insubordination

Three months later, the family of the five-year-old filed a negligence lawsuit in Miami-Dade Circuit Cou archdiocese settled out of court for $125,000. Canals was never asked to testify.

On August 19, 2003, Canals filed her lawsuit in federal court, alleging, among other things, that the arc illegally fired her because she was unwilling to testify. She claimed protection under the Florida Whistl Act, which shields employees who come forward to state authorities after being asked to do something unethical.

Her case was assigned to Martinez, a 2002 appointee of President George W. Bush. A short, squat man Martinez was born in the Dominican Republic and raised in Coral Gables. After graduating from the Un of Miami School of Law, he specialized in defending large corporations in product-liability lawsuits. Du confirmation hearing, Sen. Dianne Feinstein of California questioned whether Martinez could be object hearing liability cases against large organizations. He said he could be impartial in any case.

"I believe I am smart enough to understand that there are both sides to an issue, and I can take either s equally well," Martinez told the Senate Judiciary Committee in July 2002. "And I think I will do the rig and the fair thing."

Canals's attorney, Emmanuel Perez, questions that claim. After he persuaded a jury unanimously that C

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was fired in retaliation for her unwillingness to lie, archdiocese lawyers asked Martinez to overturn the judgment. The Whistleblower Act could not apply, they argued, because Canals had never been asked to

Despite an earlier ruling in the same case from U.S. Magistrate Judge Theodore Klein that whistleblow protection applies whether or not Canals testified under oath, Martinez sided with the archdiocese. On 28, 2005, he threw out the jury verdict, claiming Canals needed to have given an official statement to b protected as a whistleblower. "Catholic Charities did not demand that Canals commit perjury ... becaus no evidence that Canals ever made, or attempted to make, a statement under oath," Martinez wrote in h opinion.

One month later, Perez was having a conversation with another attorney involving a separate case. The discussing a witness list.

"During the ensuing telephone conversation, the codefendant's lawyer casually mentioned Judge Marti status as a Eucharistic minister," Perez wrote in a June 2005 motion to recuse Martinez and overturn h rulings.

Martinez serves in the unpaid position at St. Augustine Catholic Church in Coral Gables. It's unclear ho has served or how active he is in religious affairs. A spokesperson for the archdiocese declined to comm Martinez's affiliation with the church but did not deny he is a Eucharistic minister. In court papers, Ma also does not deny his position as a Eucharistic minister. The judge did not respond to repeated calls to chambers seeking comment.

In the meantime, the Canals case drags on. In one filing, Perez asked the U.S. Eleventh Circuit Court of to overturn Martinez's ruling, alleging the judge should have recused himself:

"On one hand, there is the image of Martinez as a Judge, gavel in hand, wearing his judicial robe, and s the bench dispensing justice while presiding in judgment over Defendant Archdiocese of Miami. On the hand, there is the image of Eucharistic Minister Martinez, crucifix in hand, clad in the sacred robe of a Eucharistic Minister, and standing side-by-side with the Priest, the medallion around his neck symboli status, dispensing the 'Body of Christ' and the 'Blood of Christ' to the faithful as an authorized agent an representative of the Archdiocese of Miami."

On June 12, the court denied the appeal, ruling the conflict of interest was not "clear and one which wo recognized by all objective, reasonable persons."

A second appeal is now before the court. Perez has argued that Martinez didn't have legal grounds to ov the jury's verdict — even if he does have the authority to offer communion at St. Augustine on Sundays

http://www.miaminewtimes.com/2006-10-12/news/religious-conviction/full 3/27/2007

EXHIBIT 6

ELEVENTH CIRCUIT COURT OF APPEALS’ PERFUNCTORY DISMISSAL IN CAVICCHI II— VACATED BY THE SUPREME COURT

Unpublished two page decision in Cavicchi’s second case

Vacated and remanded by the Supreme Court

Order on remand to the district court—note typo and further whittling down of Cavicchi’s case

Declaration of former SAC David Mark Conrad and notice to the district court that there is still pending a motion to compel discovery

Judge Martinez assigns the case to himself, states Conrad’s declaration is “vague and conclusory,” ignores the Supreme Court and the outstanding motion to compel discovery

Motion to Alter or Amend Judgment and Motion to Recuse Martinez and Ex. A—Order re replacement magistrate

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

______FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 05-11065 NOVEMBER 14, 2005 Non-Argument Calendar THOMAS K. KAHN ______CLERK

D. C. Docket No. 03-21764-CV-JEM

EUGENE CAVICCHI,

Plaintiff-Appellant,

versus

HOMELAND SECURITY SECRETARY, Michael Chertoff, and the United States Department of Homeland Security by and through the Bureau of Customs and Border Protection,

Defendants-Appellees.

______

Appeal from the United States District Court for the Southern District of Florida ______

(November 14, 2005)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Eugene Cavicchi appeals from the January 12, 2005 order in the United States District Court for the Southern District of Florida granting summary judgment to Defendants-Appellees on Appellant’s claims of discrimination on the basis of age, violation of the FMLA, retaliation in violation of Title VII, and violation of the Privacy Act. The instant case is closely related to a previous suit brought by Cavicchi against the same defendants. The district court granted summary judgment in the previous case, and this Court affirmed in an extensive unpublished opinion, No. 04-10451-FF (11th Cir. Oct. 15, 2004). We conclude that many, and possibly all, of the claims brought in the instant suit are barred by res judicata.

With respect to the few claims that may not be barred by res judicata, the district court in the instant case addressed the merits thereof and granted summary judgment in favor of defendants.1 In that regard and for substantially the same reasons set out by the district court, we agree that summary judgment was due to be granted in favor of defendants.

Accordingly, the judgment of the district court is

AFFIRMED.2

1 The parties consented in accordance with 28 U.S.C. §636(c), and thus the order entered by the magistrate judge (Docket 134) constitutes the judgment of the district court in this case.

2 Appellant’s motion to incorporate the briefs from the prior appeal is denied as moot, the same already being available to the panel.

2 4a

APPENDIX C Supreme Court of the United States No. 05-770 EUGENE CAVICCHI, Petitioner v. MICHAEL CHERTOFF, SECRETARY OF HOMELAND SECURITY, ET AL. ON PETITION FOR WRIT OF CERTIORARI to the United States Court of Appeals for the Eleventh Circuit.

THIS CAUSE having been submitted on the petition for a writ of certiorari and response hereto.

ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the petition for a writ of certiorari is granted, and the judgment of the above court is vacated with costs, and the case is remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of Burlington N. & S. F. R. Co. v. White, 548 U.S. ___ (2006).

IT IS FURTHER ORDERED that the petitioner Eugene Cavicchi recover from Michael Chertoff, Secretary of Homeland Security, et al., Three Hundred Dollars ($300.00) for costs herein expended. June 30, 2006 Clerk’s costs: $300.00 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ______U.S. COURT OF APPEALS ELEVENTH CIRCUIT NOVEMBER 13, 2006 No. 05-11065 THOMAS K. KAHN Non-Argument Calendar CLERK ______

D. C. Docket No. 03-21764-CV-JEM

EUGENE CAVICCHI,

Plaintiff-Appellant,

versus

HOMELAND SECURITY SECRETARY, Michael Chertoff, and the United States Department of Homeland Security by and through the Bureau of Customs and Border Protection,

Defendants-Appellees.

______

Appeal from the United States District Court for the Southern District of Florida ______

(November 13, 2006)

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges. PER CURIAM:

The Supreme Court vacated the judgment of this court in this case and remanded the case to this court for further consideration in light of Burlington

Northern & Santa Fe Rilway Co. v. White, 548 U.S. __(2006). Upon reconsideration, we vacate the judgment of the district court pertaining to

Cavicchi’s August 2002 Internal Affairs interview and remand to the district court for reconsideration in the light of Burlington.

AFFIRMED in PART, VACATED in PART, and REMANDED.1

1 Appellant’s motion to transfer this case to the panel that decided Cavicchi I is denied.

2 Case 1:03-cv-21764-JEM Document 161 Entered on FLSD Docket 03/30/2007 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 03-21764-CIV-Martinez

EUGENE CAVICCHI, Plaintiff,

MICHAEL CHERTOFF, Defendant.

PLAINTIFF’S NOTICE OF FILING: DECLARATION OF DAVID MARK CONRAD, dated February 23, 2007

Now comes the Plaintiff and files the Declaration of David Mark

Conrad, attached hereto.

In addition, there is presently an outstanding motion to compel

discovery, D.E. 84, D.E. 89, of the referenced final report of investigation,

dated October 1, 1999. These documents and Ms. Bonn’s admission to Mr.

Conrad prove that Ms. Bonn and the Defendant engaged in a sham defense

and have misled the courts into believing that there was a “lengthy and

ongoing Internal Affairs investigation” in 2001 and 2002, when, in truth, the

Defendant’s documents prove that IA investigation had concluded and a

final report of investigation was written in 1999.

Respectfully submitted,

/s/ John Cavicchi MA #079360 Plaintiff’s Attorney Case 1:03-cv-21764-JEM Document 161 Entered on FLSD Docket 03/30/2007 Page 2 of 4

5 Island Ave. #6d Miami Beach, FL 33139-1339 Tel. 305-531-3416 fax: 305-531-3416 Email: [email protected]

Mark J. Berkowitz Local Counsel 1620 W. Oakland Park Blvd. Suite 300 Ft. Lauderdale, FL 33311 (954) 527-0570 Telephone (954) 523-5893 Telecopier E-mail: [email protected]

CERTIFICATE OF PRE-FILING CONFERENCE The undersigned previously emailed Mr. Conrad’s declaration and spoke with Defendant’s attorney Carole Fernandez on March 30, 2007 in an attempt to resolve the issues of Ms. Bonn’s misrepresentations to the court. Unable to resolve the issue, the undersigned hereby files the declaration of Mr. Conrad.

/s/ John Cavicchi CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was sent by the court’s electronic filing system on this 30 day of March 2007, to Carole Fernandez, counsel for the defendant, Office of the U.S. Attorney, 99 N.E. 4th Street, Suite 300, Miami, FL 33132

/s/ Mark J. Berkowitz SERVICE LIST Cavicchi v. Chertoff Case No. 03-21764-Civ-Martinez United States District Court, Southern Diistrict of Florida

Carole M. Fernandez Assistant U.S. Attorney E-mail: [email protected]

2 Case 1:03-cv-21764-JEM Document 161 Entered on FLSD Docket 03/30/2007 Page 4 of 4 Case 1:03-cv-21764-JEM Document 162 Entered on FLSD Docket 06/07/2007 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division

Case Number: 03-21764-CIV-MARTINEZ-BANDSTRA

EUGENE CAVICCHI,

Plaintiff,

vs.

THOMAS J. RIDGE, Secretary Department of Homeland Security, et al,

Defendants. ______/

ORDER ON LIMITED REMAND FROM THE ELEVENTH CIRCUIT COURT OF APPEALS GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO CLAIMS PERTAINING TO PLAINTIFF’S 2002 INTERNAL AFFAIRS INTERVIEW

THIS CAUSE came before the Court upon remand from the United States Court of

Appeals for the Eleventh Circuit with instructions that this Court reconsider its judgment

pertaining to Plaintiff's 2002 Internal Affairs interview in light of Burlington Northern and Santa

Fe Railroad Co. v. White, 126 S. Ct. 2405 (2006) (D.E. No. 153). The Court has carefully

considered the motion, as well as the entire record, and is otherwise duly advised.

I. Relevant Factual and Procedural Background

Plaintiff Eugene Cavicchi (“Plaintiff”) filed two separate but similar lawsuits before this

Court that are relevant for the purposes of the instant remand. The first, styled Eugene Cavicchi

v. Secretary of Treasury, No. 01-3406-CIV-MARTINEZ (S.D. Fla.), was filed on August 2,

2001. On September 3, 2003, the Court granted summary judgment in favor of the Defendants as

to all of Plaintiff's claims. On October 15, 2005, the Eleventh Circuit affirmed that order in an

unpublished opinion. Cavicchi v. Secretary of Treasury, 123 Fed. Appx. 386 (11th Cir. 2004). Case 1:03-cv-21764-JEM Document 162 Entered on FLSD Docket 06/07/2007 Page 2 of 14

The instant case, which is closely related to the previous suit, was filed on June 30, 2003 against

the same defendants. (D.E. No. 1). An amended complaint was filed on September 9, 2003.

(D.E. No. 19). On October 28, 2004 the parties consented to the jurisdiction of the Honorable

United States Magistrate Judge Theodore Klein to resolve various matters, including summary

judgment. (D.E. No. 117). This Court issued an amended Order of Reference on October 7,

2004. (D.E. No. 119). A number of the claims brought in the instant case were barred by res

judicata, and Judge Klein granted Defendants’ motion for summary judgment as to all remaining

claims on January 12, 2005. (D.E. No. 134). The Eleventh Circuit affirmed that decision.

Cavicchi v. Homeland Sec. Secretary, 154 Fed. Appx. 189 (11th Cir. 2005). However, in light of

the 2005 Supreme Court decision in Burlington, the Supreme Court vacated the judgment and

remanded the case back to the Eleventh Circuit for further consideration. (D.E. No. 153). In a

mandate issued on February 12, 2007, a panel of the Eleventh Circuit stated: “[u]pon

reconsideration, we vacate the judgment of the district court pertaining to Cavicchi's August 2002

Internal Affairs interview and remand to the district court for reconsideration in the light of

Burlington.” Id. This Court now considers whether the Burlington case has any impact on

Plaintiff's retaliation claim under Title VII in relation to the August 2002 Internal Affairs interview

that is alleged in Counts I, II, and III of the amended complaint.1

II. Standard of Analysis

The standard for reviewing a summary judgment motion is stated in Rule 56(c) of the

Federal Rules of Civil Procedure:

1 Due to Judge Klein's untimely demise on September 27, 2006, this Court accepts the remand of this case.

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The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Id. Summary judgment may be entered only where there is no genuine issue of material fact.

Twiss v. Kury, 25 F.3d 1551, 1554 (11th Cir. 1994). The moving party has the burden of meeting

this exacting standard. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). An issue of fact

is “material” if it is a legal element of the claim under the applicable substantive law which might

affect the outcome of the case. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

It is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the

nonmoving party. Id.

In applying this standard, the district court must view the evidence and all factual

inferences therefrom in the light most favorable to the party opposing the motion. Id. However,

the nonmoving party: “may not rest upon the mere allegations or denials of the adverse party's

pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). “The

mere existence of a scintilla of evidence in support of the [nonmovant's] position will be

insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In addition, “the mere existence of

some alleged factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of material fact.”

Id. at 248.

In other words, the party opposing summary judgment “must do more than simply show

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that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.

Zenith Radio, 475 U.S. 574, 586 (1986). In determining whether this evidentiary threshold has

been met, the trial court “must view the evidence presented through the prism of the substantive

evidentiary burden applicable to the particular cause of action before it.” Anderson, 477 U.S. at

254. Summary judgment may be granted if the non-movant fails to adduce evidence which, when

viewed in a light most favorable to him, would support a jury finding in his favor. Id. at 254-55.

Furthermore, the nonmoving party must “make a showing sufficient to establish the

existence of an element essential to that party's case, and on which that party will bear the burden

of proof at trial.” Celotex Corp., 477 U.S. at 322-23. The failure of proof concerning an essential

element of the nonmoving party's case necessarily renders all other facts immaterial and requires

the court to grant the motion for summary judgment. Id. If the non-movant's evidence is merely

colorable, or is not significantly probative, summary judgment may be granted. See Celotex, 477

U.S. at 322-23; Matsushita Elec. Indus. Co., 475 U.S. at 586-87.

This Court has evaluated the Plaintiff's Title VII retaliation claims concerning the August

2002 Internal Affairs interview in light of Burlington. For the reasons discussed in this Order, this

Court finds that there are no genuine issues of material fact and that Defendants are entitled to

summary judgment as to all claims pertaining to Plaintiff's August 2002 Internal Affairs interview.

III. Discussion

The Supreme Court has recently reiterated the purpose of Title VII’s anti-retaliation

provision:

“Title VII's anti-retaliation provision forbids employer actions that ‘discriminate

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against an employee (or job applicant) because he has opposed’ a practice that Title VII forbids or has ‘made a charge, testified, assisted, or participated in’ a Title VII ‘investigation, proceeding, or hearing.’ § 2000e-3(a). No one doubts that the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals.”

Burlington, 126 S. Ct. at 2410. In order to establish a Title VII prima facie case of retaliation

under 42 U.S.C. § 2000e-3(a), a plaintiff must show evidence that: 1) plaintiff engaged in

protected activity, 2) plaintiff suffered an adverse employment action and, 3) there is a causal

connection between the adverse action and the plaintiff's statutorily protected conduct. Reis v.

University City Development Partners, Ltd., 442 F. Supp. 2d 1238, 1252 (M.D. Fla. 2006); see

also Stavropoulos v. Firestone, 361 F.3d 610 (11th Cir. 2004); Holifield v. Reno, 115 F.3d 1555,

1566 (11th Cir. 1997). If the plaintiff establishes a prima facie case of retaliation, the burden then

shifts to the defendant to: “proffer a legitimate, nondiscriminatory reason for the adverse

employment action.” Meeks v. Computer Associations, 15 F.3d 1013, 1021 (11th Cir. 1994).

Finally, “[t]he plaintiff must then demonstrate that the employer's proffered explanations are a

pretext for retaliation; ‘the burden of production shifts, but the burden of persuasion remains with

the plaintiff.’” Id. (citing EEOC v. Reichhold Chem., Inc., 988 F.2d 1564, 1572 (11th Cir.

1993)).

A. Plaintiff Fails to Demonstrate a Prima Facie Case of Retaliation

In the present case, it is undisputed that Plaintiff has established the first prong of a prima

facie case of retaliation by filing a lawsuit and requesting a trial by jury. (D.E. No. 134). At

issue, however, is the effect that the Supreme Court’s Burlington decision has on the adverse

employment action prong pertaining to Plaintiff's 2002 Internal Affairs interview. (D.E. No. 153).

In Burlington, the Supreme Court has clarified the scope of what might be considered adverse

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employment action stating that: “[a]n employer can effectively retaliate against an employee by

taking actions not directly related to his employment or by causing him harm outside the

workplace.” Burlington, 126 S. Ct. at 2412. In order to prove that the alleged retaliatory action

is adverse, the plaintiff must demonstrate that a “reasonable employee would have found the

challenged action materially adverse, which in this context means it well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Id. at 2415

(quotations omitted). “The [Supreme] Court emphasized that such adversity must be material as

the statute does not protect employees from ‘those petty slights or minor annoyances that often

take place at work.’” Reis, 442 F. Supp. 2d at 1253 (quoting Burlington, 126 S. Ct. at 2415).

Furthermore, “[t]he [Supreme] Court also stressed the objective nature of this standard and the

necessity of applying its general terms in the context of each case.” Id.; Gupta v. Fla. Bd. of

Regents, 212 F.3d 571, 587 (11th Cir. 2000) (explaining that “[w]hether an action is sufficient to

constitute an adverse employment action for purposes of a retaliation claim must be determined

on a case-by-case basis, using both a subjective and an objective standard.”) (internal citations

omitted); see also Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1449-53 (11th Cir. 1998)

(noting that plaintiff “must demonstrate that a reasonable person in his position would view the

employment action in question as adverse” and “[a]ny adversity must be material”).

The record evidence in the instant case demonstrates that the 2002 Internal Affairs

interview is not materially adverse when considered in light of the Supreme Court's objective

standard, and Plaintiff fails to establish that a genuine issue of material fact exists as to whether a

reasonable employee would have been dissuaded from “making or supporting a charge of

discrimination.” See Burlington, 126 S. Ct. at 2415. In fact, there is no evidence that suggests

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that Plaintiff’s 2002 Internal Affairs interview would have at all dissuaded a reasonable employee

from taking any action. As Judge Klein correctly determined:

Plaintiff has not alleged or otherwise shown that he was suspended, disciplined, or otherwise suffered a material disadvantage during the investigation or as a result of the August 2002 interview. Plaintiff does claim that at the interview,[sic] the agents took his gun, which he kept locked away in a locker, and that this was humiliating and insulting. See Cavicchi Dep. at 160. This action, including the interview itself, may well have been perceived by Plaintiff to be embarrassing and harassing. However disturbing these acts may have been to the Plaintiff, they do not rise to the level of adverse employment actions. None of these actions -- the investigation, interview, or the removal of his gun -- are objectively serious and tangible enough to alter the terms, conditions, or privileges of his employment. See Gupta . . . at 587. Likewise, Plaintiff's allegations that the interview prevented him from attending the deposition of Ms. Gordon, [the agent that Mr. Cavicchi wished to have deposed for his lawsuit,] does not constitute an adverse employment action. He agreed to meet with the agents on that date at his workplace. See Cavicchi Dep. at 159-160. Gordon refused to attend the deposition. See Am. Compl. ¶ 20. No harm was caused by Plaintiff's failure to attend the deposition.

(D.E. No. 134 at 18, 19) (Footnotes omitted, bracketed language added). In granting summary

judgment in favor of the Defendants, Judge Klein previously based his decision on an objective

standard. While the nature of this objective standard has been somewhat modified by the

Burlington decision, nothing in the record demonstrates a genuine issue of material fact as to

whether the August 2002 Internal Affairs interview rises to the level of the of an adverse

employment action. Burlington, 126 S. Ct. at 2412. This Court finds that, notwithstanding

Burlington, the August 30, 2002 Internal Affairs interview, when placed in the larger context of

the ongoing Internal Affairs investigation that had been occurring for several years, does not

constitute an adverse employment action.2

2 See further discussion of ongoing nature of the Internal Affairs investigation, which consisted of both a broader (i.e. several individuals at once) and individualized component (i.e. segmented as to individual workers), infra, at n.3.

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Furthermore, even if the Plaintiff were able to demonstrate that the August 2002 Internal

Affairs interview could lead a reasonable trier of fact to determine that it was materially adverse in

light of Burlington, he nonetheless fails to satisfy the third prong of a prima facie case of

retaliation: a causal connection. In order to demonstrate causation, a plaintiff must show that:

“(a) the decision-makers were aware of the protected conduct; and (b) the protected activity and

the adverse employment action were not wholly unrelated.” Hunt v. Gonzales, No. 06-10375,

2007 WL 245459, at *3 (11th Cir. Jan. 30, 2007) (citing Gupta, 212 F.3d at 590 (citations

omitted)); Murry v. Attorney General, USA., No. 06-15764, 2007 WL 1394640, at *1 (11th Cir.

May 14, 2007) (explaining that causation requires “actual knowledge, and real intent, not

constructive knowledge and assumed intent”). It should be noted that the while the Eleventh

Circuit interprets “the causal link requirement broadly,” the temporal proximity found in the

instant case is nonetheless insufficient to establish causation. Meeks, 15 F.3d at 1021.

“[T]emporal proximity alone is insufficient to create a genuine issue of fact as to causal

connection where there is unrebutted evidence that the decision-maker did not have knowledge

that the employee engaged in protected conduct.” Hunt at *3. (citing Brungart v. BellSouth

Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000)). “Moreover, while awareness of

protected expression may be premised upon circumstantial evidence, the plaintiff must show a

defendant's awareness with more evidence than mere curious timing coupled with speculative

possibilities.” Reilly v. Duval County Public Schools, No. 3:04-CV-1320-J-32MMH, 2006 WL

3130918, at *9 (M.D. Fla. Oct. 31, 2006) (citing Russell v. KSL Hotel Corp., 887 So. 2d 372,

379 (Fla. 3d DCA 2004)). “It is not enough for the plaintiff to know that someone in the

organization knew of the protected expression, the plaintiff must show that the person taking the

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adverse action was aware of the protected expression.” Bass v. Bd. of County Comm’rs, Orange

County, Fla., 256 F.3d 1095, 1119 (11th Cir. 2001).

Judge Klein correctly determined that: “[the plaintiff] has failed to show that the person

who arranged the interview or the agents who actually conducted the interview knew that he

engaged in a protected activity. . . [therefore] any retaliation claim based upon the August 30,

2002, I[nternal][]A[ffairs] interview fails.” (D.E. No. 134 at 19). In sum, Plaintiff produces no

evidence from which a reasonable juror could conclude that the interviewing agents or any

supervisor in charge of scheduling knew that Plaintiff had filed a lawsuit. As Judge Klein

correctly noted: “[o]n the record before the court . . . there is no showing that the decision makers

knew that Plaintiff engaged in protected activity.” (D.E. No. 134 at 17). This Court concludes

that Plaintiff has not met his burden of establishing a prima facie case of retaliation; he has not

demonstrated that the August 30, 2002 Internal Affairs interview constituted a materially adverse

action nor has he shown a causal connection between the interview and his protected activity.

B. Defendants’ Legitimate, Non-Discriminatory Reason and Plaintiff’s Failure to Demonstrate Pretext

In an abundance of caution, this Court also finds, in the alternative, that if Plaintiff had in

fact established a prima facie case of retaliation, Defendants have proffered a legitimate, non-

discriminatory reason for having the August 30, 2002 Internal Affairs interview. Meeks, 15 F.3d

at 1019 (explaining that “this burden is ‘exceedingly light,’ defendants need only proffer legitimate

job or business reasons, not prove them”). Defendants correctly point out that the record

establishes that the Internal Affairs investigation of Plaintiff was opened on September 26, 1999,

prior to any EEOC complaint or any lawsuit filed by Plaintiff, and remained open until October 1,

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2002. (Marwell Affidavit ¶26) (D.E. No. 103 at 23-26); (Gordon Depo. 8:13-25; 9:1-25; 16:14-

25; 17:1-14) (D.E. No. 103 at 284); (Crane Depo. 16:13-16; 17:15-17) (D.E. No. 103 at 446-

47).3 Furthermore, Judge Klein correctly determined that:

Even if Plaintiff has presented a prima facie case of retaliation on the basis of the interview, Defendants assert legitimate, non-pretextual reasons for their actions. Defendants claims that the interview was necessary to close out the investigation of the Plaintiff. See Defs.’ Reply to Pl.’s Opp’n to Defs.’ Mot. For Summ. J at 3. The IA investigation of Plaintiff began in 1999, as a separate, but as a result of, the larger, older “Operation Restore” investigation. In 2002, IA concluded their investigation of Plaintiff.

(D.E. No. 134 at 19).

Thus, Defendants’ have satisfactorily articulated a legitimate, non-discriminatory reason

for having the August 30, 2002 Internal Affairs interview: to close out the individualized Internal

Affairs investigation against Mr. Cavicchi. The burden now shifts to the Plaintiff “to produce

sufficient evidence to raise a genuine issue of material fact with regard to whether Defendant[s’]

proffered reason . . . was pretextual.” Reis, 442 F. Supp. 2d at 1254-55 (quoting Bass, 256 F.3d

at 1103-04). Again, Judge Klein correctly found that:

A plaintiff can only defeat the defendant’s offered reasons by showing they are pretextual by a preponderance of the evidence. See Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). Plaintiff has failed to show that Defendants’ reasons are pretextual. Plaintiff cannot rely on mere conclusory allegations or

3 Plaintiff infers from the Report of Investigation, ROI 001, drafted by Agent Gordon, that the Internal Affairs investigation of Mr. Cavicchi concluded on September 28, 1999. However, this assertion has no merit. Both Agent Gordon and Agent Crane explained that the document was the initial report of an individualized investigation of Mr. Cavicchi. (Gordon Depo. 8:13-25; 9:1-25; 16:14-25; 17:1-14) (D.E. No. 103 at 282); (Crane Depo. 16:13-16; 17:15-17). In other words, the evidence submitted by the Plaintiff explains that the investigation consisted of a broader component (i.e. investigating several individual at once) and a more focused individualized component (i.e. the investigation was segmented as to certain individual workers). Plaintiff provides no evidence to rebut Defendants’ explanation other than his own reading of the document, and, therefore, this argument has no merit.

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inadmissible evidence to defeat Defendants’ motion for summery [sic] judgment. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991) (citation omitted).

(D.E. No. 134 at 19) (citations original). “A plaintiff may not . . . establish pretext merely by

questioning the wisdom of the employer's reason as long as the reason is one that might motivate

a reasonable employer.” Reheiser v. Terminix Intern. Co., L.P., No. 5:05cv263/RS, 2007 WL

809779, at *8 (N.D. Fla. Mar 15, 2007) (quotations omitted) (citing Combs v. Plantation

Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997)). In the instant case, Plaintiff fails to satisfy his

burden because he does not present any evidence that demonstrates a genuine issue of material

fact as to whether Defendants’ explanation that an interview was required to close out the Internal

Affairs investigation is pretextual. The only argument that Plaintiff makes in regard to

Defendants’ proffered, non-discriminatory reason is based upon a recently filed affidavit. (D.E.

No. 161).4 Plaintiff’s affidavit is irrelevant to this Court’s analysis of what impact the Burlington

4 That affidavit of Mr. Conrad states: “1. I am a licensed attorney admitted to practice in Texas, an Associate General Counsel for the National Association of Federal Agents and chairman of the Legal Advisory Committee for the Federal Hispanic Law Enforcement Officers Association. I am also currently an assistant professor of criminal justice, Troy State University, Dothan, Alabama. I retired from the legacy U.S. Customs (now part of the Department of Homeland Security) in 1998 as the resident Agent in Charge (RAC), Internal Affairs (IA). My jurisdiction included a nine-state area and two foreign locations. My duties included conducting and supervising criminal, civil and administrative investigations of agency personnel that involved internal integrity and/or security issues. During my tenure as the RAC/IA I was also the Acting National Director of Training for all IA personnel. In addition to a juris doctor, I hold a Bachelors Degree in Criminal Justice and a Master’s Degree in Criminal Justice Management.

2. On October 5, 2004, I explicitly asked former Assistant United States Attorney Laura Bonn about her representation to the district court that Eugene Cavicchi had been the subject of a ‘lengthy and ongoing Internal Affairs investigation.’ I informed her that I could find no evidence in the files

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case may have on Plaintiff's retaliation claim under Title VII in relation to the August 2002

Internal Affairs interview that is alleged in Counts I, II, and III of the amended complaint. This

affidavit, and Plaintiff's Notice of Filing (D.E. No. 161), reflects Plaintiff's fundamental

misapprehension of the two-part structure of the internal affairs investigation. While Plaintiff

continues to operate under the unsubstantiated assumption that the investigation had actually

concluded on September 28, 1999, the unrebutted evidence submitted by Defendants

demonstrates that the investigation had not concluded at that point, but rather, the investigation

became segmented and "the allegations pertaining to each individual will be reported individually."

(Depo. Gordon 9:7-10) (D.E. No. 103 at 290) (quoting report dated September 28, 1999) (D.E.

No. 103 at 377). Tellingly, during the Deposition of Mr. Gordon, Plaintiff's counsel repeatedly

reads a sentence out of context in a strained effort to demonstrate that the investigation had

already concluded.5

Similarly, Mr. Conrad’s statements are vague and conclusory, and they essentially relate to

or the record that would support that allegation. I specifically asked her what witnesses she had who could testify to that allegation. Ms. Bonn admitted to me that there were no such witnesses. She stated that those words ‘lengthy and ongoing Internal Affairs investigation’ were her words and therefore that was the government’s position.”

5 See, e.g. (Depo Gordon 8:22-9:16) (D.E. No. 103 at 289-90). In that portion of the deposition, Plaintiff's counsel reads the sentence "the investigation has concluded" out of context of the complete sentence that states: "Several employees became subjects of the investigation, to include Senior Customs Inspector (SI) Eugene [Cavicchi]. The investigation has concluded and the allegations pertaining to each subject will be reported independently. This case will address the following allegations against SI Cavicchi: Preferential Treatment, Conflict of Interest, Dereliction of Duty, and Insubordination, among others." (D.E. No. 103 at 377). While some aspects of the investigation may have been concluded, the un-rebutted evidence, including direct testimony of agents Gordon and Crane, make it clear that the investigation continued beyond September 28, 1999.

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the wording of a brief rather than any record evidence in this case. Accordingly, in no way does

the affidavit demonstrate a genuine issue of material fact. The mere existence of a scintilla of

evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on

which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986). In addition, “the mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Id. at 248. Similarly, as the

Eleventh Circuit has held, a “[p]laintiff cannot rely on mere conclusory allegations or inadmissible

evidence to defeat Defendants’ motion for summary judgment.” Avirgan v. Hull, 932 F.2d 1572,

1577 (11th Cir. 1991) (citation omitted).

IV. Conclusion

This Court concludes from the record that Plaintiff’s retaliation claims under Title VII in

relation to the 2002 Internal Affairs interview fail. First, Plaintiff cannot establish a prima facie

case because there are no genuine issues of material fact concerning whether the interview

constitutes a materially adverse employment action in light of Burlington and because there is an

insufficient causal connection between Plaintiff’s protected activity and the 2002 Internal Affairs

interview. Second, in the alternative, even if Plaintiff were able to establish a prima facie case,

Defendants have proffered legitimate, non-discriminatory reasons behind the 2002 Internal Affairs

interview, and Plaintiff has failed to demonstrate a genuine issue of material fact as to whether

those proffered reasons are merely pretextual. For these reasons, this Court concludes that the

Supreme Court’s Burlington decision does not alter this Court’s previous conclusion that

Defendants are entitled to summary judgment as to Plaintiff’s retaliation claims pertaining to the

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August 30, 2002 Internal Affairs interview. Accordingly, it is hereby:

ORDERED and ADJUDGED that

1. The Supreme Court’s Burlington decision does not alter this Court’s previous

conclusion that Defendants are entitled to summary judgment as to Plaintiff’s retaliation claims

pertaining to the August 30, 2002 Internal Affairs interview.

2. Defendants’ Motion for Summary Judgment (D.E. No. 103) is GRANTED with

regard to all claims pertaining to the August 30, 2002 Internal Affairs interview.

3. This case is CLOSED, any pending motions not otherwise ruled upon are DENIED as

moot.

DONE AND ORDERED in Chambers at Miami, Florida, this 7th of June, 2007.

______JOSE E. MARTINEZ UNITED STATES DISTRICT JUDGE

Copies provided to: Magistrate Judge Bandstra All Counsel of Record

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION

CASE NO. 03-21764-CIV-Martinez/Bandstra

EUGENE CAVICCHI, Plaintiff, v.

MICHAEL CHERTOFF, et al., Defendants.

PLAINTIFF’S AMENDED RULE 59 (e) AND 60 (b) (3) MOTION AND INCORPORATED SUPPORTING MEMORANDUM OF LAW TO ALTER OR AMEND JUDGMENT AND FOR RELIEF FROM ORDER ON LIMITED REMAND FROM THE ELEVENTH CIRCUIT COURT OF APPEALS GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO CLAIMS PERTAINING TO PLAINTIFF’S 2002 INTERNAL AFFAIRS INTERVIEW.

Plaintiff moves the court to alter and amend judgment and for relief from the

court’s order and judgment, entered on June 7, 2007.

INTRODUCTION

This court departed from the acceptable and established course of judicial

procedure when it did not order supplemental briefing under Burlington N. & S. F. R. Co.

v. White, 126 S.Ct. 2405 (2006). The Court of Appeals ordered supplemental briefing. In

this court, the acceptable and established course of judicial procedure is the same.

Magistrate Klein followed proper procedure when he ordered simultaneous briefing.

(D.E. 120). Plaintiff and Defendants consented to the jurisdiction of a United States

magistrate. Plaintiff did not withdraw his consent. The current docket sheet identifies a

referral to Magistrate Torres. Instead, this court, sua sponte, and without the benefit of Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 2 of 22

briefing, departed from procedure and arbitrarily ruled that Burlington Northern had no

impact on Plaintiff’s case.

The case should have been referred to either Magistrate Torres or Magistrate

Bandstra, who is identified in the decision, for a supplemental briefing schedule. This

court repeated the same errors which previously resulted in the judgment being vacated.

The courts have delineated three major grounds justifying reconsideration: (1) an

intervening change in controlling law; (2) the availability of new evidence; and (3) the need

to correct clear error or prevent manifest injustice. Sussman v. Salem, Saxon & Nielsen, P.A.,

153 F.R.D. 689, 694 (M.D. Fla.) 1994; see also 18 Wright, Miller & Cooper, Federal Practice

and Procedure: Jurisdiction § 4478 (1981).

“A district court abuses its discretion if it applies an incorrect standard, follows

improper procedures in making the determination, or makes findings of fact that are

clearly erroneous. A district court may also abuse its discretion by applying the law in an

unreasonable or incorrect manner.” Klay v. Humana, Inc., 382 F.3d 1241, 1251 (11th Cir.

2004). “A district court by definition abuses its discretion in relying on an erroneous

interpretation of law.” Jackson v. Crosby, 431 F.3d 1290, 1295 (11th Cir.) cert denied,

127 S.Ct. 240 (2006). A district court also abuses its discretion by making a clear error of

judgment. Amlong & Amlong, P.A. v. Denny’s Inc., 457 F.3d 1180, 1188 (11th Cir. 2006).

This court erroneously engaged in fact-finding, made credibility determinations,

weighed evidence, and decided which inferences to draw from the facts; these are jobs

for a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Essentially, “the

inquiry is whether the evidence presents a sufficient disagreement to require submission

2 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 3 of 22

to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id.

at 477 U.S. 251.

1. The court abused its discretion when it made findings of fact that are disputed, clearly erroneous, disregarded the admission of the Defendants’ client and lawyer, declared an outstanding discovery motion “moot,” and made credibility determinations

It is clear that the court disregarded the facts, which were presented:

ROI 001, dated 9/28/99, “Investigative Findings.” The Office of Internal Affairs … conducted a criminal investigation based on allegations that U.S. Customs inspectors and vehicle exporters illegally and/or improperly exported vehicles….Several employees became subjects of the investigation, to include Senior Customs Inspector (SI) Eugene Cavicchi. The investigation has concluded and the allegations pertaining to each subject will be reported independently. This case will address the following allegations against SI Cavicchi: Preferential Treatment, Conflict of Interest, Dereliction of Duty, and Insubordination, among others (emphasis added) (D.E. 67 at 53, Pl.[’s] Mot. for Partial Summ. J.).

Because the “field investigative work had been concluded” (D.E. 103, Gordon

Dep. at 17), the only task remaining for IA was to write a final report, “which are

required to conclude a case.” Id. IA wrote a final report regarding Plaintiff on October 1,

1999. However, the court erred when did not address this report and again erroneously

ruled the motion to compel discovery of this report moot:

[T]he related final reports of investigation are listed for reference as follows: 199507246-IS LOCKE; 19905016-SI BARBER 19905344-CI GOMEZ; 19905529-CI CAVICCHI (emphasis added) (D.E 83 at 1-8, at 8 ¶15, Closing Report of Investigation in Support of Pl.[’s] Mot. for Partial Summ. J.).

On October 5, 1999, five days after IA wrote the final report regarding Plaintiff,

the Office of Internal Affairs notified him that he had passed a “high risk public trust”

periodic reinvestigation, i.e., an updated background investigation (D.E. 67 at 112-114,

Pl.[’s] Mot. for Partial Summ. J.).

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March 21, 2001 IA Interview

On March 21, 2001, three weeks after Plaintiff filed an EEO complaint, IA agents

Gordon and Ives conducted an accusatory interview based solely on false allegations

contained in a 1998 affidavit from his former supervisor, Helen Calvit, which allegedly

occurred in 1996 and 1997. (D.E. 67 at 95-99). Defendants’ attorney, AUSA Bonn,

admitted that this affidavit was “inadmissible hearsay” and “stale.” (D.E. 93 at 11, ¶ B,

Defs.[’] Mot. to Strike Pl.[’s] Mot. for Partial Summ. J).

Gordon repeatedly denied that she wrote a report after that interview because she

was “no longer assigned to the Office of Internal Affairs.” (D.E. 103, Gordon Dep. at

60, 73, 78). In truth, subsequent to her deposition, Defendants produced a report which

proves that Gordon reported the allegations as “unsubstantiated,” after the 3/21/01

interview. (D.E. 118, Pl.[’s] Notice of Filing: Withheld IA Report). IA agent Crane also

refuted Gordon, stating, “There was a report that had been written by Agent Gordon.”1

(D.E. 103, Crane Dep. at 13).

1 Gordon also admitted that she had recently altered her notes regarding a February 7, 1997 interview of Plaintiff, which stated in the margin, “Cavicchi was interviewed only as a witness in an unrelated matter pertaining to the [Vehicle Export Station].” However, she could not recall when she altered her notes, but answered, “recently.” She did this “for the Assistant U.S. Attorney’s purposes ....” (Gordon Dep. at 20-21). See The Starr Report, The Official Report of the Independent Counsel’s Investigation of the President, Forum (1998), 317, n.154, 311, n.3. “In criminal law, a feigned lack of memory is sufficient for a perjury conviction. See, e.g., United States v. Chapin, 515 F.2d 1274 (D.C. Cir. 1975); Behrle v. United States, 100 F.2d 174 (D.C. Cir. 1938).” Starr at 317, n.152…. ‘[W]e categorically reject any suggestion, implicit or otherwise, that perjury is somehow less serious when made in a civil proceeding. Perjury, regardless of the setting, is a serious offense that results in incalculable harm to the functioning and integrity of the legal system as well as to private individuals.’ United States v. Holland, 22 F.3d 1040, 1047 (11th Cir. 1994); see also United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998).” Starr at 311, n.3.

4 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 5 of 22

August 30, 2002 IA Interview

On August 30, 2002, eighteen months later, on the same day as Gordon’s

deposition, other IA agents (Crane and Butler) appeared at Plaintiff’s workplace and

conducted a second accusatory interview. (D.E. 103, Cavicchi Dep. at 134-137, 187-

200). Gordon refused to testify at her deposition and invoked “the law enforcement

privilege.” (D.E. 103, Gordon Dep. at 10).

In 2004, Gordon was finally deposed. When asked what she did from September

28, 1999 until the March 21, 2001 interview of Plaintiff, Gordon replied, “[T]he other

subjects in the investigation, their concluding reports were in the process of being

written.” (D.E. 103, Gordon Dep. at 52). When asked what she did regarding Plaintiff,

she stated, “Nothing.… There was nothing left to do.” Id. In truth, on October 1, 1999,

Gordon wrote a closing Redbook report referencing the final report regarding Plaintiff.

(D.E. 83 at 1-8 at 8 ¶ 15). Her supervisor, David Marwell, approved the report. Id. at 4.

Furthermore, Gordon left IA on October 1, 1999. (D.E. 103, Gordon Dep. at 6-7).

Former IA agent Leon Ives stated, referring to ROI 001, dated September 28,

1999, the date the investigation “had concluded,” “[T]hose allegations were

unsubstantiated.” (D.E. 148, Ives Dep. at 17). Therefore, the reasonable inferences are

that the IA investigation concluded in 1999, a final report was written on October 1,

1999, the allegations were “unsubstantiated,” and that IA agent Gordon perjured herself.

Defendants’ client, Senior Advisor to the Assistant Commissioner of Internal

Affairs, Debra Herzog, Esq., stated, “Cavicchi wasn’t interviewed at all before the case

was deemed ‘concluded’…[T]he age of the case, coupled with a lack of evidence to

5 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 6 of 22

substantiate the charges will obviate the need for an interview.” (D.E. 67 at 5-6).2 On

August 30, 2002, Herzog determined to close the case “so that discovery could

proceed.” Id. Herzog claimed that “the case seemed to have ‘fallen through the

cracks.’” Ibid. However, on September 3, 2002, five days later, Defendants’ attorneys

refused to provide discovery. Id. at 11-16.

Because the case concluded without an interview and because old allegations of

alleged wrongdoing in 1996 or 1997 were “unsubstantiated,” there was no need to

interrogate Plaintiff years later, not once, but twice.

More than four months later, despite Herzog’s instructions and admissions, on

December 23, 2002, Defendants’ attorney (Francesca Alvaro), drafted and provided the

Heinrich Declaration, falsely claiming that Plaintiff was the subject of an “ongoing

Internal Affairs investigation.” (D.E. 104 at 14-15, Pl.[’s] O’ppn to Summ. J.)

Therefore, it is reasonable for the court to infer that Defendants’ attorney ignored her

client and drafted a false declaration.

IA did not follow its rules:

Customs Directive No. 1420-010, Reports of Investigation Issued by the Office of

Internal Affairs (D.E. 103, Crane Dep., Ex. 7), states in part:

The Office of Internal Affairs is responsible for ensuring compliance with Servicewide programs, policies, and procedures pertaining to security activities and the maintenance of high standards of honesty, integrity, and suitability of Customs employees.

Based on the investigative findings and reports from the Office of Internal Affairs, principal Headquarters and field officers have the authority and responsibility to take timely administrative action to promote the integrity

2 The Florida Bar authorized the release of this sworn statement to the Defendants.

6 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 7 of 22

and the efficiency of the Service. …. When due to extraordinary circumstances these constraints cannot be met, principal Headquarters and field officers will submit, within the same prescribed time constraints, comments to be entered by LER in the case tracking system detailing the reason for the delay. Thereafter, LER case tracking system updates will be required every 45 days until final notification of the administrative action is issued.

There was no entry in the system explaining the reasons for delay. (D.E. 103,

Marwell Aff., Ex. 1).

Plaintiff’s expert, David Mark Conrad,3 testified:

[W]hen things went past 30, 45 days, I was a supervisor, I would get an automated notice that one of my subordinates hasn’t done something in a 30, 45- day period. (D.E. 107, Conrad Dep. at 116).

I find it hard to accept the number of coincidences as far as timing that have occurred in this case…After spending 27 years as a criminal investigator for the Customs Service, it does not pass the smell test. Id. at 165.

Conrad stated that under former Commissioner of Customs Ray Kelly:

[H]e wanted things done in a timely fashion. And we got stomped on… I do not understand how this could have been a legitimate investigation and nothing happened for 18 or 19 months, especially with the allegations that were there. Id. at 105.

Conrad testified that the investigation was “basically open and closed, done with on

September 28, 1999.” Id. at 107. “[I]t is beyond my comprehension that it’s anything but

a direct result of … his filing of the EEO complaint.” Id. at 108. Mr. Conrad further

testified that he does not know how it was possible to pass a high risk security periodic

reinvestigation with these allegations pending. Id. at 167. IA could have verified the

3 See qualifications in court’s decision, pp. 11-12 n.4.

7 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 8 of 22

truth or falsity of the allegations in “Literally minutes,” by going into the TECSII System.

Id. at 170:

[T]he interview of Cavicchi on August 30, 2002, was, in my opinion, a sham whose whole purpose was to prevent the deposition of IA Special Agent Gordon from taking place on the last day of discovery in the civil case by claiming that the IA investigation was still ongoing.

The purpose of the interview was set up to prevent misspellings and typos … [T]hey ask him to take a polygraph … Mr. Cavicchi had repeatedly offered to take a polygraph and the others to take polygraphs and resolve this one way or the other early on, and the agency declined it, somewhat of a surprise.

[V]ery much like the March 21, 2001 interview was when Marwell … asked Gene to come in for the purpose …of … a close-out interview…the inquisition started when he got there. Id. at 134, 139-140.

Therefore, we submit that the reasonable inference from the above is that IA is

mandated to conduct investigations expeditiously, which it did when it concluded and

reported the results of the investigation in 1999. However, after Plaintiff began litigation,

it “un” concluded and “un” reported the investigation and did not follow its rules. See,

e.g., Chennareddy v. Bowsher, 935 F.2d 315, 320 (D.C. Cir. 1991).

Although Deputy Assistant Commissioner of Internal Affairs Robert Weber

instructed IA to obtain documentation from Chief Inspector Helen Calvit, IA did not.

(Marwell Decl., Defs.[’] Ex. 3, at 2, para. 4-5). Plaintiff repeatedly told IA that Calvit

lied. (D.E. 148, Ives Dep. at 57, 60, 70, 78-79, 92).

There was no Customs Directive in effect when Calvit and IA falsely alleged a

conflict of interest. That directive became effective on April 19, 1999, more than a year

after Plaintiff had left the Vehicle Export Station. (D.E. 67 at 91-93). The court may

infer that in 2002, IA again targeted Plaintiff without initially interviewing his accuser,

8 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 9 of 22

Helen Calvit, on a conflict of interest directive, which did not exist. The court may infer

that Defendants’ conduct was ex post facto and retaliatory.

Furthermore, AUSA Bonn admitted that her clients destroyed Work and

Assignment Sheets, which showed the dates and locations where Plaintiff worked.

(D.E. 67 at 81). The destruction of these documents violated a January 2002 Treasury

Directive regarding the preservation of documents in anticipation of litigation. Id. at 83-

85, stating the destruction of records, “[C]ould also give the appearance of impropriety.”

Id. at 85, para. 7.

On page 10 n.3, the court abused its discretion when it made credibility

determinations relying on the now proven perjured testimony of Gordon and the

testimony of Crane. The court correctly quotes from ROI 001, as did Plaintiff, but then

neglects to quote from the 1999 final report of another individual, which references the

Plaintiff’s 1999 final report of investigation, which the Defendants are withholding. On

page 12 n.5, the court further abused its discretion when it claimed Plaintiff “took the

sentence ‘the investigation has concluded’ out of context.” The court also erroneously

stated that Gordon’s and Crane’s testimony was “unrebutted.” In fact, Crane, supra at 4,

rebutted Gordon. The final report referencing Plaintiff’s final report of investigation of

October 1, 1999 is sufficient rebuttal and additional proof Gordon lied. See p. 2, supra.

Herzog, Conrad and Bonn rebut the Defendants. Moreover, at the time of all the

depositions, Plaintiff did not have the report referencing the final report of Plaintiff’s

investigation. This report proves the existence of a 1999 final report of investigation

regarding Plaintiff. Defendants also withheld, until the depositions were concluded, the

9 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 10 of 22

report of investigation after the March 21, 2001 interview wherein Gordon reported that

the allegations were “unsubstantiated.” See p. 4, supra.

The uncontroverted Conrad declaration was not a “motion.” It was filed notifying

the court that there was an outstanding motion to compel discovery of the referenced final

report of investigation in 1999 (D.E. 84, 89), and in order to inform the court that

Defendants’ attorney misrepresented that there was a “lengthy and ongoing Internal

Affairs investigation.” The court should have ordered the Defendants to deliver the 1999

final report of investigation and ordered an evidentiary hearing. On page 12, the court

also abused its discretion when it ruled that the Conrad declaration was “vague and

conclusory.” In truth and in fact, AUSA Bonn admitted she had nothing to support her

defense, a Rule 11 violation. The court should have recognized that with Bonn’s

admission, there was no need to proceed further.

The Defendants withheld documents and continue to withhold documents.

Because the government fabricated a defense and withheld documents to support that

defense, the court should also have reversed itself in Cavicchi I, and entered judgment on

behalf of Plaintiff in that case.

2. Defendants’ explanation is inconsistent, contradictory, implausible, and unworthy of belief: Internal Affairs conducted two other investigations expeditiously

We submit that IA is simply a management tool, which protects

management—there were two other so-called IA investigations, which occurred

during the same timeframe as the alleged “lengthy and ongoing Internal Affairs

investigation” into Plaintiff. Consider the conduct of the Defendants those cases:

10 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 11 of 22

A. A Documented Homicide of a Customs Inspector on Customs’ Property is Declared a Suicide

In 1999, Plaintiff’s antagonist, Myra Quirk, was the Chief Inspector at the

Free Trade Zone, Defendants’ work location. (D.E. 75, Suppl. Decl. of Cavicchi at 3-

4, ¶ 4 n.1, Attach. 4.). Two Customs Inspectors who hated each other, Berkofsky and

Marrero, struggled over a gun. Berkofsky died from a gunshot wound to the head.

Myra Quirk’s husband, a Miami-Dade criminalist, participated in the investigation.

Id. at 33. The medical examiner reported, “[W]hen a struggle for control of a weapon

occurs between two individuals, and one of the individuals dies as a result, the

manner of death is classified as a homicide.” Id. at 31-32. However, IA promptly

ruled the death a “suicide.” (D.E. 75, Suppl. Decl. of Cavicchi at 4 n1; Id. at 21-29).

B. Planting Marijuana in a [Black] Couple’s Luggage is not Evidence of Wrongdoing and Merits Three Promotions

Consider Miami Port Director Jose Ramirez. (D.E. 75 at 4, ¶ 5; Ramirez

Compl. at 35-56). Ramirez supports Plaintiff’s allegations of retaliation against those

who file EEO complaints. He has personal knowledge of retaliation against those who

file EEO complaints, and was “disillusioned with the concepts of fairness, integrity

and honesty.” Id. at 38-39, 55. Ramirez’s case was pending in district court during

Plaintiff’s first case. Ramirez had applied for a downgrade from a GS-14 to a GS-12.

In [June] 1994, Ramirez “placed” marijuana in a cruise ship passenger’s luggage, and

sought to have the passenger prosecuted. (D.E. 104, 26-48 at 28, Pl.[’s] O’ppn to

Summ. J., Ramirez v. Snow, No. 01-0173 (S.D. Fla. June 11, 2003)). Despite

information that Ramirez had routinely planted drugs, Ramirez received an oral

11 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 12 of 22

reprimand. IA made no findings of improper conduct, and promptly concluded its

investigation on August 4, 1994, stating, “No further action is anticipated by the

Office of Internal Affairs, this case is closed with this report of investigation.” Id. at

28-29. However, after Ramirez filed an EEO complaint, IA reopened its

investigation. (D.E. 81, Reply to Opp’n to Supplement Witness List; D.E. 82, Filing

of page 99 of Ramirez Dep.). The court stated:

After this scathing decision, the Defendants promoted Ramirez to Port

Director, GS-15.

3. The court abused its discretion as a matter of law under Burlington Northern when it relied upon the terms, conditions, or privileges of employment standard

On page 7 of its decision, the court disregards Supreme Court precedent. The

Supreme Court stated, “[T]he anti-retaliation provision, unlike the substantive provision

[anti-discrimination provision], is not limited to discriminatory actions that affect the

terms and conditions of employment.” Burlington Northern, 126 S.Ct. 2405 at 2412-13

(2006) (internal citation omitted) (emphasis added). “[T]he anti-retaliation provision is

not limited to actions affecting employment terms and conditions.” 126 S.Ct. at 2406.

“We therefore reject the standards applied in the Courts of Appeals that have treated the

anti-retaliation provision as forbidding the same conduct prohibited by the anti-

12 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 13 of 22

discrimination provision and that have limited actionable retaliation to so-called

‘ultimate employment decisions.’” 126 S.Ct. at 2414 (emphasis added).

The court’s reasoning is further invalidated because the Supreme Court focused

“on the materiality of the challenged action and the perspective of a reasonable person in

the plaintiff’s position....” 126 S.Ct. 2416. The Supreme Court distinguished between

“material adversity because we believe it is important to separate significant from trivial

harms.” 126 S.Ct. at 2415 (citation omitted) (emphasis in original). The second IA

interview, on the very date Gordon’s deposition was scheduled, occurred at Plaintiff’s

workplace, and was designed to humiliate and intimidate him, and to send a message:

They used Gestapo-like tactics, come into my office, I had my weapon in my locker, they made me take my weapon out of my locker, which was locked, turn it over to another supervisor. I found that very insulting and demeaning.

When you see two plainclothes special agents walk in the building, everyone knows who they are. It was public knowledge that I had to turn my weapon in… It was humiliating…. (D.E. 103, Cavicchi Dep. at 134, 138).

The court admitted the actions of IA were “disturbing” to “Plaintiff.” The court

also ignored Plaintiff’s obvious emotional distress and that the investigation had actually

concluded in 1999:

[I]’ve been on this job almost 19 and half years. I’ve never had my integrity questioned until I file an EEO complaint against Myra Quirk and the Customs Service for discrimination on a GS7 job. (D.E. 67 at 122, Tr. of 2002 IA Interview).

[I]f Internal Affairs Agents Gordon and Ives had done their research, had done their jobs, they would have arrested Helen Calvit for perjury ... to have Crane and Butler come down here and ask me the same questions over something over which I had proven on the dates of my alleged illegal activities, I was either on annual leave, I was on sick leave, or I was translating at the CMC for a Haitian Diplomat. (D.E. 103, Cavicchi Dep. at 191-192).

13 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 14 of 22

The additional flaw in the court’s overruled reasoning is that it condones law

enforcement thuggery: it allows so-called investigators to continue to make knowingly

false criminal allegations without regard to due process considerations under the guise

that it did not alter the terms, conditions or privileges of employment or that Plaintiff did

not suffer any material harm or economic loss. Knowingly false criminal allegations and

attacks on an individual’s integrity, after the investigation had concluded several years

earlier, are sufficient to warrant a finding that this conduct is unreasonable, materially

adverse to a “reasonable plaintiff,” discrete discrimination and, retaliation. See also Berry

v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996) cited in Burlington

Northern, 126 S.Ct. at 2412 (emphasis in original).

In Burlington Northern, 126 S.Ct. 2405, 2414 (2006), Justice Breyer wrote:

We refer to reactions of a reasonable employee because we believe that the provision’s standard for judging harm must be objective. An objective standard is judicially administrable.

We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. * * * By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff’s position, we believe that this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination. Id. at 2415-16.

The Defendants made knowingly false criminal allegations and withheld

documents which proved that the IA investigation had concluded, had been reported in

1999, and that Plaintiff had indeed passed a “high risk public trust security

reinvestigation,” i.e., an updated background investigation—in 1999.

14 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 15 of 22

4. The court abused its discretion as a matter of fact and law when it ruled there was no temporal proximity between Plaintiff’s protected activity and the 2002 Internal Affairs interview.

The 2002 accusatory Internal Affairs interview occurred eighteen months after the

March 21, 2001 interview and on the same day Gordon’s deposition was scheduled. On

page 8 of its decision, this court erred as a matter of fact and law when it disregarded the

Court of Appeals’ decisions regarding the causal connection and temporal proximity. In

Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999), the Court held

that a time period of seven weeks was sufficiently proximate to create a causal nexus for

purposes of establishing a prima facie case. In Farley, the court accepted 52 days as

showing “temporal proximity.” See also Higdon v. Jackson, 393 F.3d 1211, 1220 (11th

Cir. 2004) (three months sufficient to establish temporal proximity).

Because the Supreme Court held that Title VII’s anti-retaliation provision is

not to be read in pari materia with its anti-discrimination provision and is not

coterminous, Burlington Northern, 126 S.Ct. 2411-2414, may no longer require a

plaintiff to show that the decision-makers knew Plaintiff had engaged in protected

activity. Previously, to establish a causal connection, a plaintiff was required to show

that “the decision-makers were aware of the protected conduct, and that the protected

activity and the adverse action were not wholly unrelated.” “Close temporal

proximity may be sufficient to show that the protected activity and the adverse action

were not wholly unrelated.” See Gupta v. Fl. Bd. Of Regents, 212 F.3d 571, 590 (11th

Cir. 2000).

15 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 16 of 22

However, in Plaintiff’s case, Quirk, the Defendants, their lawyers, and IA knew

that that Plaintiff had reported Quirk to IA and lodged a complaint for discrimination. In

response, Quirk falsely claimed that Plaintiff had filed falsified medical documentation

and continued to retaliate; IA knew in 2001-2002 that it had already concluded its

investigation on September 28, 1999, reported the results of its investigation on October

1, 1999, and had provided Plaintiff with his favorable periodic reinvestigation five days

later. Marwell, the Agent-in-Charge, knew that he had approved the 1999 final report

referencing IA’s final report of investigation regarding Plaintiff (D.E. 83 at 4). However,

the Defendants refuse to produce this final report of investigation.

Moreover, at the March 21, 2001 IA interview, Plaintiff’s EEO complaint was

discussed. He asked Gordon and Ives whether the interview had anything to do with the

recent filing of his EEOC complaint and IA investigation against Quirk. (D.E. 148, Ives

Dep. at 120-122). It is reasonable to conclude that Marwell, Weber, Crane and Butler

read the transcripts. According to Crane, “[T]ranscripts ... needed to be corrected

because they had misspellings and typos.” (D.E. 103, Crane Dep. at 26-27). See also

D.E. 103, Cavicchi Dep. at 193. “[C]rane and Butler ... say they’re going to correct all

these typographical errors on the transcript...” See also Conrad, supra at 7. Therefore,

the reasonable inference is that IA had actual knowledge of Plaintiff’s protected activity

after the March 21, 2001 interview.

5. The court abused its discretion as a matter of law and fact when it did not address the Defendants’ admission that Plaintiff was a reasonable employee and that he suffered a material adverse action under Burlington Northern

16 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 17 of 22

The court abused its discretion by misapplying the law under Burlington Northern

because the Defendants admitted that Plaintiff is a reasonable employee and the material

harm its misconduct caused Plaintiff.

The Defendants’ attorney identified the origin of the case:

[U]nfortunately the case began when prior to the filing of the first lawsuit when one of the Customs Employees, a supervisor of Mr. Cavicchi [Myra Quirk] contacted his mother’s doctor….And that situation sort of percolated because it is a violation of the Family and Medical Leave Act….I respect the hurt that that caused Mr. Cavicchi….” (D.E. 57, Transcript of hearing on 3/4/04 at 27-28).

In Plaintiff’s case, Defendants’ agent, Myra Quirk, violated the FMLA, called his

mother’s doctor and, when challenged, subsequently falsely accused him of filing

falsified medical documentation. The Defendants cannot produce any documents in

support of these false allegations because none exist. When Plaintiff learned of Quirk’s

call and her subsequent false criminal allegations against him, he reported her to IA.

In Burlington Northern, 126 S.Ct. at 2415, “[A] plaintiff must show that a

reasonable employee would have found the challenged action materially adverse, ‘which

in this context means it might well have ‘dissuaded a reasonable worker from making or

supporting a charge of discrimination.’” Therefore, Defendants have conceded that

Plaintiff is a reasonable worker and that he suffered a materially adverse action by Quirk,

i.e., knowingly false allegations of misconduct.

Additionally, in Plaintiff’s case, the IA investigation had concluded and a final

report was written in 1999; however, once Plaintiff filed his EEO complaint, Defendants

“un”concluded and “un” reported the investigation in order to justify denying him career

opportunities, desired transfers, made knowingly false allegations of malfeasance,

17 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 18 of 22

extortion, and falsely claimed that he was subjected to an “ongoing Internal Affairs

investigation.” Defendants coordinated their accusatory activity the timing of his

protected EEO activity, i.e., Plaintiff’s civil litigation by accusing him shortly after he

filed an EEOC complaint in 2001, eighteen months later (August 2002), during

management depositions (including Quirk and Gordon) and, without probable cause,

challenged him to a polygraph (August 30, 2002 IA interview). See, e.g., Polkey v.

Transtecs Corporation, 404 F.3d 1264, 1270 (11th Cir. 2005), and issued another final

report and letter on October 1, 2002—the same day of court ordered mediation.

The Supreme Court also cited Ray v. Henderson, 217 F.3d 1234, 1242-1243, 1245

(9th Cir. 2000).126 S.Ct. at 2411 (2006). Ray was “falsely accused of misconduct,” which

the court found actionable.

Therefore, the Defendants’ conduct was designed “to dissuade a reasonable

worker from making or supporting a charge of discrimination.” Burlington Northern,

126 S.Ct. at 2415. The Defendants unleashed the full force of their unlimited

resources against Plaintiff once he made a charge against Quirk to IA and filed an

EEO complaint and civil lawsuit.

Sheila White underwent a retaliatory investigation but was compensated.

Burlington Northern at 2417. However, after the false allegations against Plaintiff

were thrice deemed “unsubstantiated,” the Defendants never made him whole—he

was not given a desired transfer and was never retroactively promoted to a GS-12/13,

thereby losing tens of thousands of dollars in pay, not to mention the emotional and

financial toll the false allegations took on his life and career. Plaintiff was a GS-11,

18 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 19 of 22

age fifty-four (54), a graduate of Boston Latin (1968), Holy Cross (1972), Junior Year

Abroad, Institute of European Studies, and State Department certified and fluent in

French. (D.E. 103, Cavicchi, Dep. at Tr. 10-15) As the Supreme Court stated,

“Congress amended Title VII in 1991 to permit victims of intentional discrimination

to recover compensatory … damages concluding that the additional remedies were

necessary to “‘help make victims whole.’” Burlington Northern at 2417.

6. Request for relief under Rule 60 (b) (3)

The above-referenced withheld final report(s) of investigation, the client

Herzog’s admission to the Florida Bar, and Ms. Bonn’s admission to Conrad

demonstrate that the Defendants engaged in a sham defense. In addition, in her

motion for summary judgment (D.E. 103 at 1, para. 2), AUSA Bonn falsely certified

that she filed the deposition of Leon Ives. In truth, Defendants did not file the Ives

deposition until June 9, 2005 (D.E. 148), when the case was in the Court of Appeals

and long after Judge Klein’s decision. Ms. Bonn also substituted Plaintiff’s official

signed deposition for an unofficial differently paginated, unsigned, uncorrected

deposition, which was missing an exhibit. (D.E. 104, O’ppn to Mot. for Summ. J.,

Corr. to Official Dep. at 53-88). This court’s references to Plaintiff’s deposition do

not coincide with the transcript. This court could not possibly have “carefully”

reviewed the record, because if it had, it would have realized that its citations to

Plaintiff’s deposition on page 7 of its decision do not coincide with the pages. Ms.

Bonn also admitted that the work and assignment sheets “have been destroyed”

(D.E. 67 at 81) and then stated that her representation is “inadmissible hearsay.”

19 Case 1:03-cv-21764-JEM Document 164 Entered on FLSD Docket 06/13/2007 Page 20 of 22

(D.E. 93 at 11 B). She also argued that the affidavit Helen Calvit provided to IA in

1998 is “inadmissible hearsay” and “stale.” Id. She should have corrected “her

words” to the court regarding a “lengthy and ongoing Internal Affairs investigation”

because, in addition to the foregoing, the Defendants never interviewed Calvit.

She also denied the authenticity of Defendants’ records, which she delivered

in hand, in her office, stating they were “unauthenticated documents.” (D.E. 93 at

12). The documents prove that Plaintiff was not working on December 19, 1996, the

date IA falsely claimed Helen Calvit told him not to process Gant’s paperwork (D.E.

75 at 17-19, Suppl. Cavicchi Decl., Attach. 3).

CONCLUSION

For the foregoing reasons and the foregoing authorities, the court should grant

the motion. The court should also grant the motion to compel discovery.

Submitted by,

/s/ John Cavicchi 5 Island Ave. #6d Miami Beach, FL 33139-1339 Tel. 305-531-3416 Fax. 305-531-3416 Email: [email protected]

Mark J. Berkowitz Local Counsel 1620 W. Oakland Park Blvd. Suite 300 Ft. Lauderdale, FL 33311 (954) 527-0570 Telephone (954) 523-5893 Telecopier E-mail: [email protected]

20 Case 1:03-cv-21764-JEM Document 167 Entered on FLSD Docket 06/29/2007 Page 1 of 17 Case 1:03-cv-21764-JEM Document 167 Entered on FLSD Docket 06/29/2007 Page 2 of 17 Case 1:03-cv-21764-JEM Document 167 Entered on FLSD Docket 06/29/2007 Page 3 of 17 Case 1:03-cv-21764-JEM Document 167 Entered on FLSD Docket 06/29/2007 Page 6 of 17 Case 1:03-cv-21764-JEM Document 167 Entered on FLSD Docket 06/29/2007 Page 7 of 17 Case 1:03-cv-21764-JEM Document 167 Entered on FLSD Docket 06/29/2007 Page 8 of 17 Case 1:03-cv-21764-JEM Document 167 Entered on FLSD Docket 06/29/2007 Page 9 of 17 Case 1:03-cv-21764-JEM Document 167 Entered on FLSD Docket 06/29/2007 Page 10 of 17 Case 1:03-cv-21764-JEM Document 167 Entered on FLSD Docket 06/29/2007 Page 11 of 17 EXHIBIT 7

CHIEF JUDGE FEDERICO ANTONIO MORENO

Moreno’s law clerk signing the judge’s signature and stopping trade to Latin America

Local Rules regarding recusal and reassignment of judge

Moreno subverts rules and assigns Cavicchi’s cases to himself—in Cavicchi 3 on 8/29/07

Moreno’s decision in case on remand, repeating same errors and ignoring facts

Amended Complaint in Cavicchi 3

Calendar Call on 1/18/08 in Cavicchi 3--Judge Moreno’s Christmas present; he admitted that he had not read the complaint, contradicting himself when he assigned case to himself

DHS on Jose Ramirez—cannot fulfill duties of a GS-12 in a “credible and effective manner”

Judge Moreno’s 2003 scathing decision on Jose Ramirez

Justice Scalia on the EEOC: “My main concern ... is to do something that will require the EEOC to get its act in order, because this is nonsense.”

On 1/28/08, Moreno issues a one page denial of Cavicchi’s motion for summary judgment, grants DHS’s motion, disregards Cavicchi’s witnesses, claims Cavicchi’s pleadings were “rambling,” failed to state a claim, and that Cavicchi’s reliance on his earlier decision and DHS’s assessment of Ramirez were “bombastic insinuations and accusations.” Moreno demeaned Cavicchi’s reliance on Justice Scalia’s criticism of the EEOC and attributed them to Cavicchi. Page 1 of 4 Case 1:06-cv-21406-FAM Document 108-2 Entered on FLSD Docket 02/26/2008 Page 11 of 20

Reprints & Permissions Print The Judiciary Unauthorized court order halts PlayStation shipments

February 15, 2008 By: John Pacenti

n unauthorized court order generated by a law clerk in a case before Chief U.S. District Judge Federico Moreno resulted in the suspension of shipments of older generation PlayStation consoles through Miami for three months.

Web Extra: Moreno's The errant preliminary injunction dated last unauthorized Oct. 24 granted more than Sony was court order requesting and contained typographical errors and apparent contradictions. It was Motion for withdrawn this month. Federico Moreno clarification The order effectively stopped the defendants from moving Sony consoles and accessories through the Port of Miami for export to Latin America but also instructed U.S. Customs and Border Protection to “hold and preserve any and all goods bearing the PlayStation trademarks” at the port.

Customs agents applied the order to all companies importing PlayStation goods through the Port of Miami.

“When Customs gets a ruling by a judge, we work to follow that ruling or finding,” Customs spokesman Zachary Mann said. “They vacated the initial ruling, and we are in the process of releasing the merchandise.”

U.S. Magistrate Judge Andrea Simonton issued a 30-page report and recommendation with a stipulated agreement on Sony’s injunction request last April.

Defendant NASA Electronics was taken aback by the unauthorized order, and company attorney Richard Wolfe asked Moreno for clarification Nov. 9.

“The order bans legal activity … which was not the object of the current lawsuit,” Wolfe said in a motion he filed with the court.

Moreno convened a status conference to address the order Jan. 30, notifying the parties that the order never should have been filed in the first place.

The hearing took place in his chambers without a court reporter present, said Kody Kleber, one of Moreno’s law clerks.

The judge vacated the injunction with a substitute order Feb. 8, stating the injunction was “improperly filed.”

Monday, February 18, 2008 America Online: Jecavicchi Page 2 of 4 Case 1:06-cv-21406-FAM Document 108-2 Entered on FLSD Docket 02/26/2008 Page 12 of 20

Moreno also said U.S. Customs and Border Protection “shall not enforce such restrictions unless and until a new injunction issues from this court.”

The export companies have not offered any estimate of financial impact while the errant order was in effect.

A hearing on Sony’s request for the preliminary injunction was held Thursday.

“This case has been hanging around too long and a lot of things have been happening, and I want to take charge of it,” Judge Moreno told attorneys. “We’re not back to square one. But we’re back to the report and recommendation.”

The mistaken order was entered in a trademark infringement suit filed by Foster City, Calif.-based Sony Computer Entertainment America last March 28.

Sony sought an injunction to stop shipments of PlayStation products to the U.S. market by NASA Electronics and World International Trading, both from Miami and Singapore’s Jay Es PTE. All compete in the shipment of Sony-made consoles to Latin America.

“What happened is that inadvertently a member of the staff uploaded an order without my approval. It was a mistake — nothing intentional,” Moreno told the Daily Business Review.

The judge did not identify the clerk. He declined to be specific when asked if any disciplinary action had been taken.

“Action has been taken that is appropriate when mistakes have been made,” Moreno said.

According to numerous sources in the legal community, the law clerk who handled the order is Matthew Bohrer, son of prominent media lawyer Sanford Bohrer.

Matthew Bohrer, whose clerkship is scheduled to end soon, is still listed as one of Moreno’s clerks on the Web site for the U.S. District Court for the Southern District of Florida.

Bohrer did not return calls for comment before deadline. His father, a Miami partner with Holland & Knight in Miami who has represented the Review and other news media on First Amendment and other legal matters, had no comment.

Attorneys involved in the Sony case said they had no comment. Neither did Steve Larimore, the Clerk of Court for the Southern District of Florida, or the other law clerks in Moreno’s office.

Moreno and Larimore offered no explanation for the mechanics of processing an authorized order through the judge’s and clerk’s offices.

One part of the unauthorized order said, “A pinprick upon Goliath, after all, may involve far more blood than a decapitation of [sic] mouse. Defendants may not shield themselves in their relative size to plaintiffs.”

Magistrate Simonton’s report recommended to Judge Moreno that a preliminary injunction be granted to bar console sales by the defendants in the United States but denied for sale in Latin America. She said the parties stipulated to the marketing split.

Referring to Latin American sales, “plaintiff has not established a likelihood of success on

Monday, February 18, 2008 America Online: Jecavicchi Page 3 of 4 Case 1:06-cv-21406-FAM Document 108-2 Entered on FLSD Docket 02/26/2008 Page 13 of 20

the merits since the goods at issue are genuine goods, and that the resale of these goods without material change in the parallel or gray market is legal,” Simonton wrote.

Sony’s systems intended for only the Japanese market are in dispute. The systems often are sought by game aficionados because the games are more graphic, violent and contain sexual content.

In its lawsuit, Sony said it feared its PlayStation and PlayStation 2 consoles were being altered to play North American games and could accept counterfeits, cutting into the company’s prime profit stream.

The electronics giant alleged the importers and their owners were importing PlayStation game consoles meant only for sale in Japan and configured only to play games sold in Japan.

But in her report, Simonton said the parties agreed PlayStation imports configured for the Japanese market would not be sold in the United States but could be sold in Latin America.

The Oct. 24 order bearing Moreno’s signature concluded Sony met the requirements for a preliminary injunction.

“The existence of a niche market — by definition a small and specialized group — for savvy customers does nothing to demonstrate the system from other regions would not confuse typical customers here in the United States,” the withdrawn order stated.

The erroneous order allowed the defendants to do business in Latin America, but in an apparent contradiction, barred them from moving their quarantined merchandise from the Port of Miami to Latin America.

The order did not apply to Sony’s latest console model, PlayStation 3, because it is not coded for regional use.

The defendants have not disclosed the source of their consoles but said they are sold only in Latin America.

Among the allegations made by Sony were federal trademark infringement, unfair competition and illegal importation of trademarked goods.

On the underlying issue of the preparation of court orders, judges and clerks work hand in hand when preparing them, often exchanging drafts several times before the final version is produced.

Senior U.S. District Judge James Lawrence King said he signs major orders personally and intentionally keeps a low-tech system for security reasons. On routine orders, he hands them to his courtroom deputy for electronic signatures.

“At first I didn’t have an electronic signature at all because I don’t trust the gizmo,” King said. The former chief judge said chief judges may employ up to four law clerks by going without a secretary.

Manny Kadre, general counsel for CC1 Companies in Coral Gables who clerked for Moreno in the early 1990s, said he was aware of the dispute over the PlayStation court order through the grapevine.

Monday, February 18, 2008 America Online: Jecavicchi Page 4 of 4 Case 1:06-cv-21406-FAM Document 108-2 Entered on FLSD Docket 02/26/2008 Page 14 of 20

“One thing you know about Judge Moreno, the man is going to do the right thing no matter what the consequences,” Kadre said. “Just from knowing him, when he figured out what was wrong, he took every step to correct it, not only to preserve the litigants’ rights but to preserve the integrity of the system.”

Kadre commended Moreno for maintaining an exceptional relationship with his clerks.

“Each one of us [law clerks] had a special relationship with him and considers him not only as a mentor but as a father figure,” he said. “The man spent so much time mentoring his law clerks about their work and about their life. He really goes above and beyond the call.”

John Pacenti can be reached at [email protected] or at (305) 347-6638.

Federico Moreno photo by A.M. Holt

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Monday, February 18, 2008 America Online: Jecavicchi 1 2 RULE 3.6 RECUSALS 3 4 In the event of recusal in any matter, the assigned Judge shall enter the fact of recusal on the record 5 and refer the matter to the Clerk of the Court for permanent reassignment to another Judge in 6 accordance with the blind random assignment system. 7 8 Effective Dec. 1, 1994. 9 10 Authority 11 12 (1993) Former Local Rule 5.2, minor language modification. 13 14 Comment 15 16 (1993) Renumbered per Model Rules. 17 18 RULE 3.7 REASSIGNMENT OF CASES DUE TO RECUSAL, TEMPORARY 19 ASSIGNMENT OR EMERGENCY 20 21 A. The procedure for reassignment of cases due to recusal, temporary assignment or emergency 22 shall be similar to the blind filing assignment for newly-filed cases and shall be administered in a 23 manner approved by the Court so as to assure fair and equitable distribution of all such matters 24 throughout the dDistrict. 25 26 B. Any emergency matter arising in a case pending before a Judge who is physically absent from 27 the Southern District of Florida or who is unavailable due to illness, or is on vacation, may, upon 28 written certification as to each matter from the Judge's office setting forth such grounds therefor, be 29 referred to the Clerk of the Court for reassignment under a blind random assignment procedure. 30 Such assignment, when effected, shall be of temporary duration, limited only to the immediate relief 31 sought, and the case for all other purposes or proceedings shall remain on the docket of the Judge 32 to whom it was originally assigned. 33 34 C. Uncontested matters wherein the parties cannot be prejudiced through delay occasioned by the 35 normal course of business shall not be deemed emergency matters for referral. 36 37 D. The Clerk of the Court shall not have any discretion in determining the Judge to whom any 38 such matter is assigned, nor shall the Clerk of the Court disclose the name of the Judge to attorneys 39 or other persons until after the assignment has been made. 40 41 Effective Dec. 1, 1994. 42 43 Authority 44

5 Case 1:06-cv-21406-JEM Document 48 Entered on FLSD Docket 08/29/2007 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division

Case Number: 06-21406-CIV-MORENO

EUGENE CAVICCHI,

Plaintiff,

vs.

MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, BY AND THROUGH THE U.S. BUREAU OF CUSTOMS AND BORDER PROTECTION,

Defendant. ______/

ORDER OF REASSIGNMENT AS CHIEF JUDGE AND ORDER DENYING MOTION TO RECUSE AS MOOT

THIS CAUSE came before the Court upon Plaintiff’s Motion for Recusal (D.E. No. 41), filed

on July 26, 2007.

THE COURT has considered the motion and the pertinent portions of the record, and being

otherwise fully advised in the premises, it is

ADJUDGED that the motion is DENIED as moot. In view of Judge Martinez’s recent heart

surgery, he is unable at this time to rule on present motions. Therefore, the Court, in its position as

Chief Judge reassigns the case to itself. The case shall be 06-21406-CIV-MORENO from this point

forward.

DONE AND ORDERED in Chambers at Miami, Florida, this 29 day of August, 2007. Case 1:06-cv-21406-JEM Document 48 Entered on FLSD Docket 08/29/2007 Page 2 of 2

______FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE

Copies provided to:

Counsel of Record

-2- Case 1:03-cv-21764-FAM Document 172 Entered on FLSD Docket 10/23/2007 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division

Case Number: 03-21764-CIV-MORENO

EUGENE CAVICCHI,

Plaintiff,

vs.

THOMAS J. RIDGE, Secretary Department of Homeland Security, et al.,

Defendants. ______/

ORDER DENYING PLAINTIFF'S MOTION TO AMEND JUDGMENT

This cause came before the Court upon Plaintiff's Rule 59(e) and 60(b)(3) Amended Motion

to Alter or Amend Judgment and Relief from Order on Limited Remand for the Eleventh Circuit

Court of Appeals (D.E. No. 164), filed on June 13, 2007. On February 12, 2007, the Eleventh

Circuit remanded a portion of Eugene Cavicchi's 2003 civil rights suit for further proceedings

consistent with the United States Supreme Court ruling in Burlington N. & S. F. R. Co. v. White, 126

S.Ct. 2405 (2006). The Eleventh Circuit directed the Court to reconsider whether Cavicchi's August

30, 2002 Internal Affairs (“IA”) interview constituted an adverse employment action under the newly

clarified standards of Burlington.

On June 7, 2007, District Judge Jose Martinez ruled that the August 30, 2002 IA interview

did not constitute a retaliatory action under the standards elaborated in Burlington (D.E. No. 162),

and its earlier decision awarding the Defendants summary judgment in this matter would stand. See

(D.E. Nos. 134 and 136). Cavicchi seeks relief from this final judgment and seeks to have the

judgment amended. Judge Martinez’s heart condition prompted the undersigned to exercise his

discretionary administrative authority as Chief Judge and reassign the case to himself on July 18, Case 1:03-cv-21764-FAM Document 172 Entered on FLSD Docket 10/23/2007 Page 2 of 14

2007. Having reviewed the record, the Court denies Defendant’s motion.

I. Relevant Background and Procedural History

On June 30, 2003, Cavicchi sued his employer, the United States Customs Service, and the

Department of Homeland Security, which oversees the U.S. Customs Service, under Title VII of the

Civil Rights Act of 1974. Cavicchi alleged that the Customs Service retaliated against him for

asserting his right to report discrimination at the workplace. See Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-3(a). Cavicchi amended his Complaint on September 9, 2003 (D.E. No.

19).1 According to Cavicchi's Amended Complaint, he first provoked his employer’s ire in March

2001, when he complained to the Equal Employment Opportunity Commission (“EEOC”) about

discriminatory hiring decisions and violations of the Family Medical Leave Act ("FMLA"). Cavicchi

alleged that shortly thereafter the Customs Service had Internal Affairs ("IA") interview him about

allegations Cavicchi's former supervisor made in 1998, although Cavicchi maintains that IA agents

had long since discredited the allegations.2 Cavicchi alleged that the Customs Service ordered the

1The Amended Complaint alleged that the Defendants violated several statutes including the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) et seq.; the Privacy Act of 1974, 5 U.S.C. § 552(b), and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq. See (D.E. No. 19). Not all of the claims alleged in the Amended Complaint are pertinent here. Therefore, this discussion focuses only on the claim that alleged retaliatory action on August 30, 2003. Cavicchi's 2003 Amended Complaint actually cited four incidents of retaliation, but the Eleventh Circuit mandate only directed the Court to reconsider the August 30, 2002 incident.

2After allegations surfaced that Customs Inspectors at the Port of Miami were assisting with the export of stolen vehicles, the U.S. Customs Service launched a broad-scale investigation of the Port's inspectors in 1995. The investigation was named "Operation Restore." See (D.E. No. 134 at 5, n.5). In 1998, one of Cavicchi's former supervisors, Helen Calvit, submitted an affidavit to IA, which caused IA to question Cavicchi. Id. The affidavit stated that Cavicchi, who was working as a Customs Inspector in the Vehicle Export Station at the Port of Miami in 1996 and 1997, had authorized the issuance of blank export documents to a friend, who was a civilian vehicles processor. See (D.E. 67 at 95-99). The affidavit also alleged that Cavicchi had engaged in other improper practices involving vehicle export documentation. Id. IA concluded the investigation in 1999, questioning Cavicchi as the investigation was drawing to a close. See (D.E. No. 134 at 5, n.5). Cavicchi maintains that IA closed out the investigation in 1999 and cites a reference that IA agent Sherrie Gordon made in a report, R01 001, filed on September 28, 1999. (D.E. No. 164 at 3). The Defendants contend that the IA concluded its broad-scale investigation of the Miami Vehicle Export Station in 1999, but that individual subjects were to be reported separately. See Defs.’ Reply to Pl.’s Opp’n to Defs.’ Mot. For Summ. J at 3. The Defendants assert that as a result

-2- Case 1:03-cv-21764-FAM Document 172 Entered on FLSD Docket 10/23/2007 Page 3 of 14

interview in retaliation for his EEOC complaint.

The EEOC dismissed Cavicchi's discrimination complaint because he failed to file it in a

timely manner. See (D.E. No. 103 at 271). After the EEOC dismissed the complaint, Cavicchi

asserted his right to bring a Title VII civil rights action against his employers and filed suit in federal

district court for the Southern District of Florida on August 2, 2001. His suit named the U.S.

Customs Service, his immediate supervisor, Myra Quirk, and the Secretary of the Treasury, which

supervised the Customs Service at the time, as Defendants. Cavicchi later argued in his 2003

Amended Complaint that the Customs Service subjected him to another series of IA interviews after

he filed his 2001 civil rights suit. The final interview occurred on August 30, 2002, and it is this

interview that the Eleventh Circuit mandate addressed. Cavicchi attached great significance to the

date of this interview, noting that his counsel was scheduled to depose a critical witness for

Cavicchi’s 2001 lawsuit that very same day. According to Cavicchi, the Customs Service scheduled

the interview to prevent him from attending this deposition.

Cavicchi’s 2001 suit was still pending when he filed his 2003 civil rights suit and his 2001

Complaint asserted a number of allegations that Cavicchi later reasserted in 2003. For example,

Cavicchi alleged that his supervisor violated the "FMLA" and the Privacy Act of 1974 by calling his

physician to question the authenticity of a medical leave letter and inquire about medical conditions

afflicting Cavicchi and his mother. Cavicchi's 2001 Complaint also accused the Customs Service

of discrimination under Title VII of the Civil Rights Act of 1974. Cavicchi asserted that the

Customs Service had passed him over for a position as a part-time Customs Inspector at Port

Canaveral in favor of two less qualified female applicants who lacked his seaport experience.

of an oversight the individual report on Cavicchi was not completed until October 1, 2002. Id.; see also (D.E. No. 134 at 19).

-3- Case 1:03-cv-21764-FAM Document 172 Entered on FLSD Docket 10/23/2007 Page 4 of 14

Finally, Cavicchi argued that the Customs Service ordered IA agents to interview him shortly after

he filed his EEOC complaint in reprisal for his complaint.

On January 23, 2004, the Court rendered a decision on Cavicchi's 2001 claims, awarding the

Defendants summary judgment. See Eugene Cavicchi v. Secretary of Treasury, Order, No. 01-3406-

CIV-MARTINEZ (S.D. Fla. Jan. 23, 2004). Cavicchi appealed the decision to the Court of Appeals

for the Eleventh Circuit, but the Eleventh Circuit ruled against him on October 15, 2004, affirming

summary judgment for the Defendants. See Cavicchi v. Secretary of Treasury, 123 Fed. Appx. 386

(11th Cir. 2004).

Accordingly, when Cavicchi raised many of these same claims again in his 2003 Amended

Complaint, the doctrine of res judicata came into play.3 On June 28, 2004, Cavicchi moved for

partial summary judgment on his Amended Complaint in the 2003 action (D.E. No. 67). The

Government followed suit by filing its own motion for summary judgment on September 15, 2004

(D.E. No. 107). Shortly thereafter, on October 26, 2004, the Defendants amended their Consent to

the Jurisdiction of a Magistrate Judge form, stipulating that they would consent to have a Magistrate

Judge rule on motions for summary judgment in addition to discovery matters (D.E. No. 117). As

Cavicchi had previously consented to the jurisdiction of the Magistrate Judge on all matters,

including trial, (D.E. No. 31), the Court referred the cross-motions for summary judgment to

Magistrate Judge Theodore Klein on October 28, 2005 (D.E. No. 119).

On January 12, 2005, Magistrate Judge Klein granted the Defendants' motion for summary

3 Res judicata or claim preclusion bars a plaintiff from re-litigating an action where "(1) the prior decision was rendered by a court of competent jurisdiction; (2) there was a final judgment on the merits; (3) the parties were identical in both suits; and (4) the prior and present causes of action are the same." Israel Discount Bank, Ltd. v. Entin, 851 F.2d 311, 314 (11th Cir. 1992) (citations omitted). The record shows that Myra Quirk was voluntarily dismissed as a Defendant in Cavicchi's 2001 civil rights suit by the agreement of the parties on November 15, 2001. See (D.E. No. 134 at 3, n.3). Accordingly, after this date, the parties in Cavicchi's 2003 suit were identical to the parties in his 2001 suit.

-4- Case 1:03-cv-21764-FAM Document 172 Entered on FLSD Docket 10/23/2007 Page 5 of 14

judgment, noting that many of Cavicchi's claims were barred by the doctrine of res judicata because

they were raised in his 2001 lawsuit, or, alternatively, could have been raised at that time because

they relied upon the same set of facts. See (D.E. No. 134 at 9-13, 26-29). The Magistrate Judge

found that res judicata applied with respect to Cavicchi's employment discrimination claim, and his

retaliation claims to the extent that those claims were based on the denial of his application for the

part-time Customs Inspector position; the initiation of the IA investigation and the first IA interview

of 2001, and the actions of his former supervisor Myra Quirk. Id. at 12-13. The Magistrate Judge

also found that res judicata applied to bar Cavicchi's ADEA claim. Id. at 22.

Additionally, the Magistrate Judge found that Cavicchi could have raised his Privacy Act

claim in the 2001 suit, given that it was predicated on the allegedly improper actions of his

supervisor Myra Quirk, whom Cavicchi named as a defendant in the 2001 suit. Because "claim

preclusion bars relitigation not only of claims raised but also claims that could have been raised,"

Id. at 10 (quoting In re: Justice Oaks, II, Ltd., 898 F.2d 1544, 1550 n.3 (11th Cir.), cert. denied, 498

U.S. 959 (1990), the Magistrate Judge ruled that res judicata applied to Cavicchi's 2003 Privacy Act

claim as well. Id. at 13.

The Magistrate Judge disposed of the one remaining claim at issue here, Cavicchi's claim

regarding the allegedly retaliatory IA interview of August 30, 2002, on other grounds. Id. at 19.4

4As noted previously, see supra, at 2, n.1, Cavicchi alleged four separate incidents of retaliation in his 2003 Amended Complaint. Only one of those incidents concerns us here — the August 30, 2002 IA interview. However, Magistrate Judge Klein's Order considered these other incidents as well. (D.E. No. 134 at 14-20). Cavicchi's other retaliation claims involved the following: (1) a statement that Cavicchi's supervisor, Myra Quirk, made to one of his co-workers, in which she allegedly revealed her plans to demote Cavicchi; (2) a fraud that the Defendants allegedly perpetrated upon the Court by withholding documents and misrepresenting the facts about the duration of the IA's 1999 investigation of Cavicchi; and (3) employment decisions that denied Cavicchi a lateral transfer opportunity and a promotion. Id. Magistrate Judge Klein opined in a footnote to the Order that he thought all four of Cavicchi's retaliation claims might well be barred by res judicata because they could have been raised during the 2001 lawsuit. Id. at 14, n.8. Nevertheless, he noted that he would consider them and ultimately disposed of them because none of the incidents qualified as an "adverse action." Id.

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The Magistrate Judge found that Cavicchi had failed to establish a prima facie case of retaliation on

the basis of this interview. That fact alone would entitle the Defendants to summary judgment as a

matter of law. However, the Magistrate also noted that the Defendants had proffered legitimate non-

pretextual reasons for the carrying out the interview, which Cavicchi had failed to rebut. Id.5 The

Court issued a Final Judgment on the matter on January 19, 2005 (D.E. No. 136) in accord with the

reasons stated in the January 12, 2005 Order of the Magistrate Judge. Cavicchi appealed the

Magistrate Judge's decision to the Eleventh Circuit on February 18, 2005 (D.E. No. 140). The

Eleventh Circuit affirmed the decision. Cavicchi v. Homeland Sec. Secretary, 154 Fed. Appx. 189

(11th Cir. 2005).

Cavicchi filed a petition for a writ of certiorari with the United States Supreme Court. The

Supreme Court vacated the judgment and remanded the case back to the Eleventh Circuit for further

consideration in light of its decision in Burlington. (D.E. No. 153 at 4). In a mandate issued on

February 12, 2007, a panel of the Eleventh Circuit stated: “[u]pon reconsideration, we vacate the

judgment of the district court pertaining to Cavicchi's August 2002 Internal Affairs interview and

remand to the district court for reconsideration in the light of Burlington.” Id.

In the interim, Magistrate Judge Klein died. Accordingly, when the Eleventh Circuit mandate

issued, the Court accepted the case on remand and reviewed the record regarding Cavicchi's August

30, 2002 interview in light of Burlington, which clarified the standard for "adverse" employment

5The Magistrate Judge noted that Cavicchi had established the first element of a prima facie retaliation case under Title VII by filing an EEOC complaint and a civil rights suit because these actions are protected actions under Title VII. (D.E. No. 134 at 14-15). However, the Magistrate Judge noted that Cavicchi failed to establish the other required elements of a prima facie retaliation case — that he suffered an adverse employment action which was causally related to his protected actions. Id. at 15-21. Moreover, the Magistrate noted that even if Cavicchi had established a prima facie case for retaliation with respect to the August 30, 2002 interview, the Defendants had presented a legitimate non-retaliatory reason for the interview. Id. at 19. At this point, the Magistrate Judge noted, it became incumbent upon Cavicchi to present evidence that the proffered reason was merely a pretext for retaliation, but Cavicchi failed to present such evidence. Id.

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actions. Burlington held that the proper standard was whether an allegedly retaliatory employment

action would dissuade a "reasonable employee" from filing a complaint against his employer.

Burlington, 126 S.Ct. at 2415.

On June 7, 2007, the Court issued an Order Granting the Defendants' summary judgment

motion with respect to the retaliation claim surrounding this interview. (D.E. No. 162). The Court

noted, as Magistrate Judge Klein had, that there was no evidence to suggest that a reasonable

employee would have been dissuaded from filing an EEOC complaint or civil rights suit because of

the IA interview. Id. at 7. The Court observed that Cavicchi had failed to allege that he suffered any

sort of material disadvantage as a result of the interview. For example, there was no evidence that

he was suspended or disciplined in connection with the interview. Id.

The only injuries that Cavicchi alleged were that the IA agents asked him to surrender his gun

before the interview began, and that the interview was scheduled to preclude him from participating

in a deposition. Id.; see also Cavicchi Dep. at 160. The Court noted, however, that Cavicchi agreed

to meet with IA agents on August 30, 2002, even though his counsel had a deposition scheduled that

day. (D.E. No. 162 at 7). Moreover, the Court noted that the deposition did not take place that day

because the agent failed to appear. Id. Accordingly, the Court concluded that the interview did not,

in fact, preclude Cavicchi from attending the deposition. Id. With respect to the agents' request that

Cavicchi surrender his gun before the interview, the Court noted that Cavicchi may, indeed, have

considered this to be embarrassing, but it was not objectively serious enough to "alter the terms,

conditions or privileges of his employment." Id.

II. Motion to Amend or Alter Judgment under Fed. R. Civ. P. 59(e)

Rule 59 does not provide explicit standards for courts to apply in ruling on motions to alter

or amend judgment. Nevertheless, the courts have recognized three major grounds that justify

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reconsideration: (1) where there has been an intervening change in controlling law; (2) where new

evidence arises; and (3) where there is a need to correct clear error or prevent manifest injustice.

Williams v. Cruise Ships Catering and Serv. Int'l., 320 F. Supp. 2d 1347, 1357-58 (S.D. Fla. 2004).

Cavicchi does not assert that there has been an intervening change in controlling law or that new

evidence has emerged. Rather, he asserts that the Court failed to properly apply Burlington's

standards for establishing a prima facie case of retaliation under Title VII's anti-retaliation provision,

42 U.S.C. § 2000e-3(a). However, "to demonstrate clear error, the movant must do more than

simply restate previous arguments." Bautista v. Cruise Ships Catering and Serv. Int'l N.V., 350 F.

Supp. 2d 987, 992 (S.D. Fla. 2004).

Cavicchi presents three main arguments in support of his Rule 59(e) motion: (1) that the

Court erred by failing to order supplemental briefing of Cavicchi's retaliation claim on remand; (2)

that the Court erred by failing to refer the matter on remand to a Magistrate Judge; and (3) that the

Court misapplied the "reasonable employee" standard from Burlington.6 The Court addresses each

6Cavicchi also asserts a number of other arguments which the Court does not consider here because they lie outside the scope of the Eleventh Circuit's very limited mandate. For example, Cavicchi challenges the Court's findings regarding IA agent Sherrie Gordon's deposition. (D.E. No. 164 at 4-6, 9-10). Cavicchi argues that Gordon perjured herself because she testified that the 1999 IA investigation of Cavicchi remained open after October 1999. Cavicchi points to a report that Gordon wrote on September 28, 1999, which summarized the results of the Operation Restore investigation and noted that the investigation had "concluded." Id. According to Cavicchi, this statement shows that the Customs Service's rationale for the 2001 and 2002 IA interviews was a thinly disguised excuse for retaliation. Id. The Court examined Agent Gordon's deposition and the report in its Order on Limited Remand. See (D.E. No. 162 at 10, n.3; 12, n.5). However, the Court failed to note any discrepancy. See id. The report states that allegations regarding individual subjects will be reported separately, and according to the Gordon deposition and case tracking system records, IA never followed up with an individual report on subject Cavicchi. See (Depo. Gordon 9:7-10) (D.E. No. 103 at 290) (quoting report dated September 28, 1999)) and (D.E. No. 103 at 377). Cavicchi also argues that the Court erred because it failed to draw the proper inferences from the deposition of David Conrad, who served as an expert witness for Cavicchi. (D.E. No. 164 at 7-9). According to Cavicchi, the proper inference was that the IA did not follow its own rules regarding the need for timely reports. Thus, Cavicchi argues that the Court should have found the Defendants' assertions about an on-going IA investigation of Cavicchi to be pretextual. Id. The Court also considered this argument before and discounted it. See (D.E. No. 162 at 12-13). In its Order on Limited Remand, the Court concluded that Mr. Conrad's statements were vague and conclusory and failed to rebut the Defendants' proferred reason for the 2001 and 2002 IA interviews. See (D.E. No. 162 at 12-13). As the Court noted in the immediately preceding discussion, see supra, at 8, to demonstrate "clear error" on a Rule 59(e) motion, "the movant must do more than simply restate previous arguments." Bautista, 350 F. Supp. 2d at 992. Thus, not only do these arguments address issues that lie outside the scope of the Eleventh Circuit's mandate, they also provide an improper basis for reconsideration under Fed. R. Civ. P. 59(e).

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of these arguments in turn below.

A. Whether the Court erred by failing to order supplemental briefing on remand.

Cavicchi asserts that the Court "departed from the acceptable and established course of

judicial procedure" because it failed to order supplemental briefing under Burlington, as the Eleventh

Circuit did. (D.E. 164 at 1). Cavicchi’s assertion fails to establish clear error. The Eleventh Circuit

issued a very limited mandate on remand. It vacated the judgment pertaining to the August 30, 2002

IA interview for reconsideration in light of Burlington, which clarified the standard for determining

whether an employer's actions should be considered retaliatory. Cavicchi does not cite any authority

that holds that it is clear error for the Court to rely on the existing record in this situation.

B. Whether the Court erred by failing to refer the matter on remand to a magistrate judge.

The Plaintiff also asserts that the Court should have referred the matter on remand to a

magistrate judge since the parties consented to the jurisdiction of a magistrate judge and Plaintiff did

not withdraw his consent. Id. at 1-2. Rule 73 of the Federal Rules of Civil Procedure provides,

however, that a district court may vacate a referral to a magistrate judge, including one that was

referred upon the consent of the parties, for good cause shown. Here, Magistrate Judge Klein, the

Magistrate Judge who issued the summary judgment order that was the subject of the Eleventh

Circuit remand, died before the Eleventh Circuit mandate issued. Rather than delay the resolution

of the Plaintiff's complaint by referring the matter to an entirely new magistrate judge, who would

have to familiarize himself with the case, the Court took the case back for good cause. Moreover,

Cavicchi appears to assume that referral of consent matters to the jurisdiction of a magistrate judge

is mandatory under 28 U.S.C. § 636(c)(1). The statute provides that

[u]pon the consent of the parties, a full-time United States magistrate judge or a part- time United states magistrate judge who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by

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the district court he serves.

28 U.S.C. § 636(c)(1). Accordingly, this Court has the discretion to refer a matter to the jurisdiction

of a magistrate judge or to retain jurisdiction over the matter. It was entirely appropriate for the

Court to take Cavicchi's case back on remand rather than designate a new magistrate judge to handle

the matter on remand.

C. Whether the Court misapplied the "reasonable person" standard of Burlington

Cavicchi asserts that the Court failed to consider his perspective to be that of a reasonable

person (D.E. No. 164 at 13-14), although it acknowledged that the actions of the IA agents

investigators were "disturbing" to him. The Supreme Court observed that the "significance of any

given act of retaliation will often depend upon the particular circumstances." Burlington, 126 S.Ct.

at 2414. Nevertheless, the Supreme Court eschewed the use of a subjective standard in Burlington,

126 S.Ct. at 2415, noting that

[w]e refer to the actions of a reasonable employee because we believe that the provision's standards for judging harm must be objective. An objective standard is judicially administratable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings.

As the Court noted previously, see supra, at 6, Cavicchi did not allege that he suffered any sort of

material disadvantage in the aftermath of the August 20, 2002 interview. There is no evidence that

a reasonable employee would have been dissuaded from filing a complaint against his employer

because of this type of IA interview.

D. The Court failed to apply the temporal proximity standard to the question of causality

Plaintiff asserts that the Court erred by refusing to infer a causal connection between the

August 2002 IA Interview and his 2001 lawsuit, notwithstanding evidence of temporal proximity

between the two events. In order to demonstrate causality, a plaintiff who asserts a retaliation claim

pursuant to Title VII must show that (1) the decision makers knew of the protected activity, and (2)

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that the protected activity and the employment action were "not wholly unrelated." Simmons v.

Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.), cert denied, 474 U.S. 981 (1985).

Cavicchi notes that the Eleventh Circuit has held that "[c]lose temporal proximity may be sufficient

to show that the protected action and the adverse action were not wholly unrelated." (D.E. No. 164

at 15 (quoting Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000)). Cavicchi argues

that the August 2002 IA interview was scheduled for the very day that his counsel was to depose IA

agent Sherrie Gordon, the agent who conducted the first of the allegedly spurious IA interviews in

March 2001.

However, causality does not turn on the contemporaneity of the August 30, 2002 IA interview

and Ms. Gordon's deposition. It turns on the question of whether there is any temporal link between

the protected action that Cavicchi took to assert his legal rights (filing a civil rights suit against his

employer on August 2, 2001) and the alleged adverse employment action (the August 20, 2002 IA

interview). The record shows that the allegedly retaliatory action occurred more than one year after

the protected action. Clearly, there is no temporal proximity between these two events.

Moreover, as the Court noted in its Order on Limited Remand, “temporal proximity alone

is insufficient to create a genuine issue of fact as to causal connection where there is unrebutted

evidence that the decision-maker did not have knowledge that the employee engaged in protected

conduct.” Id. at 8 (quoting Hunt v. Gonzales, No. 06-10375, 2007 WL 245459, at *3 (11th Cir. Jan.

30, 2007). Magistrate Judge Klein noted that Cavicchi had failed to show that the IA agents who

conducted the August 20, 2002 interview knew about his 2001 lawsuit. (D.E. No. 134 at 16).

Accordingly, he concluded that Cavicchi had failed to demonstrate causality. After reviewing the

record, this Court finds no evidence that the IA agents knew, when they interviewed Cavicchi on

August 20, 2002, that he had a lawsuit pending against the Customs Service. Indeed, the Court is

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not convinced that it needs to revisit its earlier findings on the issue of causality. The Eleventh

Circuit mandate did not direct the Court to reconsider this aspect of its 2005 decision on remand and

Burlington did not modify the standard for establishing causality in Title VII retaliation claims.

Finally, assuming arguendo that the August 30, 2002 IA interview did constitute an adverse

employment action, which was causally related to Cavicchi's protected action, the Defendants would

still prevail in their motion for summary judgment. The Defendants proffered a legitimate non-

retaliatory reason as to why IA agents interviewed Cavicchi on August 30, 2002; namely, that the

case had not been officially closed on their electronic case tracking system. Therefore, the burden

shifted to Cavicchi to rebut the proffered explanation with evidence that it was merely pretextual.

Cavicchi did not present any evidence to rebut this point. Thus, he failed to establish a necessary

element of his Title VII retaliation claim, and the Court could award the Defendants summary

judgment as a matter of law for this reason alone.

III. Motion for Relief from Final Judgment under Fed. R. Civ. P. 60 (b)(3)

Rule 60(b)(3) of the Federal Rules of Civil Procedure provides that the court may, upon

motion, relieve a party from a final judgment, order or proceeding on the grounds of "fraud,

misrepresentation, or other misconduct of an adverse party." Cavicchi argues that the Defendants

knowingly engaged in a meritless defense and withheld critical documents from the Court.

Accordingly, he asserts that the Court should grant him relief from final judgment on this basis.

Cavicchi cites a number of examples of alleged misconduct, misrepresentation and/or

outright fraud on the part of opposing counsel. First and foremost, he alleges that Assistant U.S.

Attorney ("AUSA") Bonn falsely certified in her motion for summary judgment that she had filed

the deposition of Special Agent Leon Ives, one of the agents who reported on IA's investigation of

the Vehicle Export Station inspectors from 1996-1999. (D.E. No. 163 at 20 (citing D.E. No. 103 at

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1,¶ 2)). Cavicchi maintains that the Ives's deposition was not filed until June 9, 2005, long after

Magistrate Judge Klein awarded summary judgment to the Defendants. However, Cavicchi asserts

that the Magistrate Judge claimed to have "carefully reviewed" the Ives deposition, notwithstanding

this obvious discrepancy. Id. (citing D.E. 134 at 18-21). The Court has carefully combed through

Magistrate Judge Klein's Order and finds no evidence that he ever made this claim.

Cavicchi also alleges that AUSA Bonn substituted Cavicchi's official signed deposition for

an unofficial one which followed a different pagination scheme and was unsigned. (D.E. No. 163

at 20). Cavicchi has made this allegation previously. See (D.E. No. 105 at 11). Now, Cavicchi

grafts another allegation onto it. He claims that neither Magistrate Judge Klein nor the undersigned

could have "carefully reviewed" the record or they would have noticed that their citations to specific

pages of Cavicchi's deposition do not match up with corresponding pages in his deposition transcript.

Id. However, Cavicchi does not indicate precisely which citations contain the allegedly faulty

references. Moreover, Cavicchi submitted a copy of his corrected deposition as part of his Response

in Opposition to Defendants' Motion for Summary Judgment. Accordingly, Magistrate Judge Klein

had access to a correctly paginated and signed copy of Cavicchi's deposition before he rendered his

decision. Thus, the Court fails to see how this alleged misrepresentation ultimately prejudiced

Cavicchi.

Finally, Cavicchi argues that AUSA Bonn made certain admissions that demonstrate she was

presenting a meritless defense. For example, he alleges that AUSA Bonn admitted that the affidavit

which prompted IA to investigate Cavicchi in 1999 was "inadmissible hearsay" and "stale" and that

worksheets and assignment sheets that would have countered some of the allegations in the affidavit

"were destroyed." Id. at 20 (quoting D.E. 93 at 2, ¶ B; D.E. No. 67 at 54). The Court does not see

how these charges are relevant to the matter at hand. The propriety of IA's 1999 investigation was

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not at issue in Cavicchi's 2003 civil rights suit. Nevertheless, even if these charges were relevant,

they do not evince misconduct or misrepresentation on the part of opposing counsel, much less

outright fraud. In light of the foregoing, it is

ADJUDGED that

1. Plaintiff's Rule 59 (e) and 60 (b)(3) Amended Motion to Alter or Amend Judgment and

Relief from Order on Limited Remand for the Eleventh Circuit Court of Appeals is DENIED.

2. This case remains CLOSED and all pending motions are DENIED as moot.

DONE AND ORDERED in Chambers at Miami, Florida, this 23 day of October, 2007.

______FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE

Copies provided to:

Counsel of Record

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 06-21406-CIV-MORENO

EUGENE CAVICCHI § Plaintiff, § § v. § § MICHAEL CHERTOFF, § Secretary of the Department of § Homeland Security, by and through the § U.S. Bureau of Border and Customs § Protection, § Defendant. § §

AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

COMES NOW Plaintiff, Eugene Cavicchi, by and through his undersigned counsel and

sues Defendant, Michael Chertoff, Secretary of the Department of Homeland Security,

(hereinafter “Defendant”) and for causes of action states the following:

Introduction, Jurisdiction and Venue

1. This is a proceeding for damages to redress unlawful violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 20000e et seq. (Title VII), and the Civil Rights Act of

1991, 42 USC § 1981a. The amended complaint also seeks unlimited damages pursuant

to The Privacy Act of 1974, as amended, 5 U.S.C. § 552a (a) et seq., and adds three

counts, to wit, Refusal to accommodate/transfer from hostile work environment; Adverse

employment action, i.e., demeaning assignment to deliver inter-office mail; Constructive

discharge.

1 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 2 of 36

2. Plaintiff seeks damages against his former employer, Defendant, who engaged in

intentional and unlawful employment practices against Plaintiff by discriminating against

Plaintiff because of his protected statutory activity and retaliated against Plaintiff for

protected EEO activity, subjected Plaintiff to retaliation, hostile work environment, and

adverse employment actions from February 2002 until November 1, 2005.

3. This Court has subject matter jurisdiction over these claims pursuant by virtue of 28 USC

§ 1343(4), 28 USC § 1331.

4. Declaratory, injunctive, and equitable relief is sought pursuant to Title 28 U.S.C. § 2201

and 2202. Compensatory damages are sought pursuant to 42 USC § l981a.

5. Costs and attorney’s fees may be awarded pursuant to 42 USC § 2000e-5(k) and Fed. R.

Civ. P. 54.

6. Venue of this action is proper in the Miami Division of the Southern District of Florida,

pursuant to 28 U.S.C. § 1391(b) and 42 U.S.C. § 2000e-5(f)(3), because events giving

rise to Plaintiff’s employment discrimination claims occurred in Dade County, Florida

within this Division.

Parties

7. At all times material hereto, Plaintiff was employed as a Senior Customs and Border

Inspector (Officer) [hereinafter CBPO], GS1895-11, by the Department of Homeland

Security (successor agency to the Department of Treasury), and its legacy Agency, the

United States Customs Service, at the Miami Seaport and Miami Free Trade Zone.

Plaintiff is currently a resident of Dade County, Florida. He is a white male, over the age

of 40, college educated, and State Department certified in French.

2 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 3 of 36

8. Defendant is Michael Chertoff, Secretary of the Department of Homeland Security of the

United States, duly appointed by the President of the United States and confirmed by the

United States Senate. He is being sued in his official capacity as head of the department,

and as such is amenable to suit as provided in § 7 17(c) of Title VII, 42 U.S.C. § 2000e-

16(c).

Background

9. In prior litigation, the Defendant denied Plaintiff’s claims of age, gender and disability

discrimination, and retaliation and violation of the Family Medical Leave Act of 1993

[hereinafter FMLA] on the grounds that the violation of the FMLA provided no basis for

relief and claimed that Plaintiff had been subject to a “lengthy and ongoing Internal

Affairs investigation.” The Defendant also claimed that it was unaware of his age, gender

and his “alleged” disability, i.e., kidney dysfunction. Admitting that a Responsible

Management Official [hereinafter RMO] had violated the FMLA, it stated, through its

attorney, AUSA Laura Bonn, “One of the Customs Employees, a supervisor of Mr.

Cavicchi [Myra Quirk] contacted his mother’s doctor. . . .And that situation sort of

percolated because it is a violation of the Family and Medical Leave Act.... I respect the

hurt that that caused Mr. Cavicchi.” Quirk had accused Plaintiff of filing falsified

medical documents. Underlying acts of retaliation were accepted by the Agency during

and after pendency of the above in federal court.

Procedural History

10. On or about July 14, 2003, Plaintiff timely made initial contact with an EEO counselor

from the Department of Treasury (legacy agency to the Department of Homeland

3 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 4 of 36

Security), Office of Equal Employment Opportunity [hereinafter “EEO”].

11. On or about August 12, 2003, a Notice of Right to File a Complaint was issued.

12. On or about August 15, 2003, Plaintiff timely filed his formal EEO complaint alleging

unlawful discrimination based on retaliation for engaging in protected EEO activity. His

complaint was given Agency Complaint Number 03-2534T.

13. On December 22, 2003, the case was received by the EEO investigator who investigated

the case from January 12, 2004 through April 2, 2004.

14. On October 1, 2003, Plaintiff upon learning that he was denied a transfer because there

was a Letter of Reprimand [hereinafter LOR] in his file, timely made initial contact with

an EEO counselor.

15. On November 3, 2003, he was given Notice of a Right to file a Discrimination Complaint

and timely filed a Complaint on November 10, 2003. The Complaint was given case

number CBP #04-4008/04-2026.

16. The case was received by the EEO investigator on December 22, 2003 and investigated

from January 19, 2004 through April 2, 2004.

17. Both cases were consolidated by EEOC Administrative Law Judge Lorraine Anaya-

Colao and were given EEOC Docket Nos. 150-2004-00398X and l50-2004-00399X.

18. A hearing was held before AJ Anaya-Colao from November 29-30, 2004, who issued a

decision on February 2, 2005, denying Plaintiff’s claims. On or about March 15, 2005,

the Defendant adopted the AJ’s administrative findings and issued a Final Agency

Decision, from which Plaintiff timely appealed to the Equal Employment Opportunity

Commission in Washington, D.C.

4 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 5 of 36

19. On September 12, 2005, the EEOC affirmed the administrative judge’s decision. Plaintiff

filed a timely request for reconsideration, which was denied on March 21, 2006,

notifying him that he had the right to file a “civil action in the appropriate United States

District Court within ninety (90) calendar days....” Additional underlying acts of

retaliation and discrimination occurring during the above-mentioned EEO complaint

have been added hereto. See paragraphs Nos. 98-117 and Count IV-VI, refusal to

accommodate or transfer from hostile work environment; adverse employment action,

i.e., demeaning assignment and demotion to deliver inter-office mail; and constructive

discharge.

20. Because more than 180 days have elapsed since the filing of the additional EEO

complaint, and no final agency decision has been issued, Plaintiff now timely files this

Amended Complaint and Demand for Jury Trial.

Facts

21. In 1983, Plaintiff Eugene Cavicchi, entered duty with U.S. Customs Service. At the time

of the events that led to the initiation of the present complaint (February 2002 to present),

Plaintiff was a GS-11, Senior Customs Inspector, Miami Seaport and Miami Free Zone.

22. As a result of Plaintiff’s reporting RMO Chief Inspector Myra Quirk [hereinafter Quirk]

for violating the FMLA, Quirk was counseled by her supervisor, Port Director Ruby

Hogan. During Plaintiff’s mother’s last illness, in January 2002, Plaintiff attempted to

obtain a transfer/reassignment to Boston. Because the transfer lay unprocessed on

Quirk’s desk and while Plaintiff’s mother lay dying in the hospital, on February 28, 2002,

he engaged in a heated argument with Ray Knopp, his immediate supervisor. He

5 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 6 of 36

immediately apologized for the incident. Plaintiff’s mother died on March 7, 2002. When

he returned to work after her funeral, on April 4, 2002, he was presented with a Letter of

Reprimand [hereinafter LOR], signed by Quirk for “disrespectful conduct.”

23. Plaintiff had never had a prior history of disciplinary problems at work nor had he ever

been counseled. Ray Knopp agreed to remove the LOR. Because discipline is

progressive, the LOR was an improper remedy and motivated by Quirk’s animus and

retaliation against Plaintiff for reporting her for violating the FMLA, and the subsequent

counseling she received for violating the FMLA. The LOR also violated Article 28, of

the National Treasury Employees’ Union [hereinafter NTEU] Contract, which recognized

that “remedial actions shall generally be progressive and not punitive in nature ....”

24. Because of the LOR, Defendant admitted that Plaintiff was denied a transfer. The denial

of a transfer was an adverse employment action and violated the provisions of the NTEU

Contract, Article 36, Section 9, paragraph C.

25. Myra Quirk had been transferred from the Miami Seaport and was no longer in Plaintiff’s

chain of command. However, in about March 2003, she was transferred back to the

Miami Seaport and placed in an office adjacent to Plaintiff’s. Although RMO Quirk was

not in Plaintiff’s chain of command, she interfered with his assigned work, began

harassing him, and ordered him to attend a meeting. Plaintiff told Quirk to “Go through

the chain of command.” Quirk replied, “I am the chain of command.” Quirk did not

attend the meeting. Plaintiff was not disciplined for allegedly ignoring her order.

26. In January 2003, RMO John Casale [hereinafter Casale] became the Assistant Port

Director for Trade Operations, Port of Miami. He became Plaintiff’s second line

6 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 7 of 36

supervisor.

27. Plaintiff’s duties at the Miami Seaport consisted of checking immigration documentation

on personnel effects shipments and running people through the system in order to

determine whether there were outstanding warrants.

28. Plaintiffs duties were considered “law enforcement.”

29. Towards the end of March 2003, Casale ordered that all personnel effects shipments

placed on USDA “hold” sent to a business owned and or operated by his friend and

fishing companion, Ron Hill.

30. Casale’s order to send the above-referenced shipments to Ron Hill’s business created the

appearance of a conflict of interest.

31. Because Plaintiff refused to obey the aforesaid order, prior to the scheduled rotation,

Casale, on about April 14, 2003, ordered Plaintiff transferred to the Miami Free Zone, a

location as far away from Plaintiff’s residence as possible. i.e., a 40 mile round trip drive.

32. The reason Casale gave for the transfer was that, “Supervisor Georges had asked for him

[Plaintiff]. We needed help out there and we needed somebody that knew in-bounds [sic]

procedures.”

33. Supervisor Diane Georges [hereinafter Georges] discussed the transfer with Quirk,

stating to Quirk, “[B] ecause of the tension in the office ... I think it would be ... just for

the sake of keeping both of you away from each other.” Georges also stated Plaintiff had

an “expertise” in “in-bounds” [sic] and that “[W]ith this expertise and experience that he

had, that he could be an asset as far as training and helping and showing [the other

employees].”

7 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 8 of 36

34. Georges did not communicate Plaintiff’s “expertise” to the other employees.

35. When Plaintiff arrived at the Miami Free Zone, instead of “training and helping” the

other employees, Georges ordered Plaintiff to clean out cabinets and old, out-dated files.

36. The work Georges ordered Plaintiff to perform was the work performed by a GS 2 or 3,

was demeaning, not within his job description, and constituted an adverse employment

action.

37. Georges stated that Plaintiff “did not know his place in the office.”

38. Georges admitted that Plaintiff was transferred in part because of his lawsuit against

Defendant.

39. Georges, on at least three occasions, told Plaintiff to drop his prior lawsuit against

Defendant. During the Defendant’s official EEO investigation, Georges told Plaintiff,

“I’m still here, bring em on, bring em on.”

40. When Defendant transferred Plaintiff to the Miami Free Zone, it was a documented

hostile work environment.

41. In 1999, at the Miami Free Zone, Customs Inspector David Berkofsky was shot and

killed during a struggle over a gun with another inspector.

42. Quirk was the Chief Inspector and Georges was the supervisor at the Miami Free Zone

when Berkofsky died.

43. In a statement to Miami-Dade police on January 8, 1999, which is incorporated herein by

reference, Georges admitted that she was the supervisor, and that Berkofsky “became

very angry and verbally abusive [I]t got to a point where it was necessary for her to

admonish him and counsel him openly about his behavior .... He had two loud outbursts,

8 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 9 of 36

the last of which she had to order him to stand down and advised him that he was out of

line.”

44. Quirk’s husband, Thomas Quirk, was a Miami-Dade officer, who participated in the

investigation into the death of Berkofsky.

45. In a medical examiner’s report dated April 30, 1999, incorporated herein by reference,

the medical examiner stated, inter alia, “[B]y convention, when a struggle for control of a

weapon occurs between two individuals, and one of the individuals dies as a result, the

manner of death is classified as a homicide.” The medical examiner further noted, “The

other agent, [Marrero] has not expressed sympathy to Mr. Berkofsky’s family in regard to

the death.” Marrero declined a polygraph.

46. Customs IA and Miami-Dade officials determined the death to be a suicide.

47. In 2004, regarding Plaintiff, Supervisor Georges stated, “[I] never had any trouble until

he arrived at the trade zone....We never had the types of in-house conflicts that we are

now experiencing—name calling, character assassination, and loud outburst.”

48. When Plaintiff arrived at the Miami Free Zone, Georges allowed CBPOs O’Donnell,

Tavel, and Loredo to show preferential treatment to civilian runners, Miriam and Magda,

who routinely brought in free food and beverages in exchange for the expeditious

processing of paperwork.

49. In July 2003, after Plaintiff informed Georges that it was wrong to allow preferential

treatment and that there had been an Internal Affairs investigation at the Vehicle Export

for the same reasons, i.e., allegedly providing preferential treatment in exchange for

gratuities, and that he had informed CBPOs Tavel and O’Donnell that they should not be

9 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 10 of 36

showing preferential treatment, that CBPO Alice O’Donnell told him to go f--- himself,

Georges replied that Plaintiff needed psychological help and contacted the Employees’

Assistance Program [hereinafter EAP] without his permission. O’Donnell and other

CBPO employees who accepted the gratuities in exchange for preferential treatment and

the individuals who provided the gratuities began to file complaints against Plaintiff.

50. As a result thereof, on or about July 29, 2003, Plaintiff took three months unpaid leave

under FMLA and an additional month of leave without pay.

51. Approximately the day after Plaintiff took leave, he privately reported Georges’ office to

IA.

52. Four months later, on or about November 3, 2003, Plaintiff returned to work.

53. When he returned to work, a majority of office personnel would not talk to him.

54. IA investigations are confidential.

55. IA had leaked to Georges that Plaintiff had reported her office. In November 2004,

Georges testified, “[I] got a call from an agent from Internal Affairs by the name of

Stephen Perez . . . he said to me ‘Eugene called this office ... and he complained about

food at the zone, and you guys accepting food for preferential treatment.’”

56. Georges told her employees in the office that Plaintiff had reported her to IA.

57. After an administrative inquiry, Georges and her staff were prevented from accepting

gratuities.

58. Although the acceptance of gratuities in exchange for preferential treatment by a United

States government official is prohibited, and a serious, if not a criminal matter, Georges

stated, “It’s a Spanish culture ... Take a little drink . . .It’s part of their heritage ... this is

10 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 11 of 36

their culture .. . .To them it’s no big deal.”

59. Georges told Plaintiff, “The free food is for everybody, so it’s okay.”

60. One week after Plaintiff returned to work, on or about November 10, 2003, Plaintiff was

in his office, in the performance of his duties, assisting a civilian African-American

female, Norma Bennett, processing her paperwork. Mrs. Bennett was a middle school

teacher with master’s degree in education and is trained in the area of hostile work

environment/harassment.

61. While Plaintiff was assisting Mrs. Bennett, CBPO Joseph Ward Cox entered Plaintiff’s

office, and initiated an argument with the Plaintiff.

62. Mrs. Bennett stated Cox “started yelling at him .... The manner was very menacing and

[Cox] proceeded to harass [Plaintiff].” She described Cox’s conduct as “hostile.” “I

thought it was very unsettling. . . I thought it was a really bad work environment ....”

Regarding the incident, Mrs. Bennett stated, “Wow, you wouldn’t believe that happened

in there. It was really incredible.”

63. Georges subsequently claimed Cox’s actions were justified because Cox was the acting

supervisor in her absence.

64. Cox admits that he has never been a supervisor or even an acting supervisor.

65. Cox is disqualified from ever being a supervisor because during his career with

Defendant, he received a demotion for misappropriation of money.

66. By condoning Cox’s conduct towards Plaintiff, i.e., the public berating in the presence of

a civilian, Georges made Cox her alter ego.

67. On or about November 20, 2003, Georges counseled Plaintiff not to talk to a co worker,

11 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 12 of 36

who had previously complained to him regarding her back injury.

68. On or about November 26, 2003, Plaintiff, while in the performance of his duties, was

assaulted and battered by an associate of Miriam and Magda, Claudia Cuadra, who used

to bring in free food in exchange for preferential treatment.

69. Although Cuadra was arrested, prosecuted, placed on probation and two civilian

witnesses provided statements, Defendant, including but not limited to RMOs Casale,

Georges and the Defendant’s attorney Francesca Alvaro, referred to the assault and

battery as an “alleged assault.”

70. After the assault and battery, on or about December 2, 2003, when Plaintiff returned to

work after the Thanksgiving holiday, Georges harassed Plaintiff and accused him of

disruptive behavior and harassing the “public,” causing the Plaintiff to obtain a petition

from the “public.” Georges also told Plaintiff, “You want my job so bad, you can taste

it.”

71. After Georges accused Plaintiff of disruptive behavior and harassing the “public,”

because of stress, Plaintiff took three days sick leave. On the third day of sick leave,

December 5, 2003, Georges called Plaintiff at home, and further harassed him by

ordering him to bring in a doctor’s note, although a doctor’s note is not required unless

an individual is on leave for more than three days.

72. After the assault and battery on Plaintiff, Georges ordered CBPO John Short to write a

statement about Plaintiff, stating to Short, “I want you to sit down and don’t come out

until a written statement is prepared.”

73. After the assault and battery, on or about December 5, 2003, NTEU representative

12 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 13 of 36

Wilfredo Lopez, at Plaintiff’s request to be transferred from the hostile work

environment, stated to RMO Casale, “[Plaintiff] has expressed that he’s working under

[a] hostile environment....“[W]hy do we want to keep him there? Why don’t we move

him to another section?”

74. Casale replied, “Mr. Cavicchi has been disorderly—disruptive behavior in the work

place. I am not going to reward him with a transfer until we resolve the issues that he has

in that section.”

75. Although Plaintiff was required to report an assault on a federal officer, on December 10,

2003, RMO Casale called IA and reported Plaintiff, thereby initiating an investigation

into Plaintiff for reporting the assault and battery. Casale claimed Plaintiff’s report of the

assault and battery was “for retaliatory and non-law enforcement purposes.”

76. By reporting Plaintiff to IA, Casale further retaliated against Plaintiff and attempted to

justify keeping Plaintiff in the hostile work environment.

77. On or about January 26, 2004, while Plaintiff was on his lunch break talking to civilians,

when he was approached by Georges and ordered into her office. Plaintiff told Georges

he was on his lunch break and to leave him alone. After his break, he went to Georges’

office. Georges, who was born in the U.S. Virgin Islands, began yelling, waiving her

hand, pointing her finger at him, and told him, “You have a demon inside you, get it out,

get it out!”

78. Georges also made additional false, unsubstantiated allegations against Plaintiff, claiming

that he had been harassing a woman and that her husband had complained and that he had

also made threatening gestures to a bank employee, “when [he] would walk past the bank

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he would make his hand in the appearance of a gun and he would make a shooting

motion with his hand. . . .“ Despite her written and oral counseling sessions with

Plaintiff, she never communicated these allegations to him nor reported them to IA.

Port Director Jose Ramirez

79. In 1994, RMO Jose Ramirez admitted to “placing” marijuana in a black cruise ship

passenger’s luggage and attempted to have the passenger prosecuted.

80. IA found no evidence of wrongdoing and Ramirez received two promotions.

81. Subsequently, Ramirez applied for a downgrade from a GS-l4 to a GS-12, Supervisory

Customs Inspector position. In January and March 1999, Defendant notified Defendant’s

management in Miami and Ramirez that Ramirez “cannot fulfill the full range of

Supervisory Customs Inspector duties in a credible and effective manner.”

82. Ramirez filed an EEO complaint and subsequent lawsuit in this court in 2001 wherein he

alleged that his “fear of reprisal for engaging in EEO activity was based on his nearly

twenty years’ of first hand experience as a Customs’ employee, his personal

observations, conversations with other employees who filed EEO complaint against

Customs and other common knowledge gained during employment with the

government....” Ramirez’s Am. Compl. at 4-5, ¶ 15. See Ramirez v. Snow, No. 01-0173-

Civ-Moreno/Garber (S.D. Fla.). In an affidavit dated June 21, 1999, Ramirez stated,

“[T]here are dozens of Customs Officials in the South Florida area that clearly fall under

the guidelines of Henthorn and Giglio and still remain in ‘covered’ positions....” Ramirez

Aff. at 6. “[T]he Customs Service’s behavior has been reprehensible. There [sic] ‘cover

up’ mentality at all costs has resulted in some of the most overt acts of retaliatory

14 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 15 of 36

discrimination in recent memory.” Id. at 8. Ramirez’s file in this Court is incorporated

herein by reference.

83. Denying Ramirez’s EEO claims, this Court [United States Magistrate Judge Garber] said

of Ramirez and the Defendant, “Without question, Defendant could have relied on

Plaintiff’s [Ramirez’s] actions not only to deny Plaintiff’s reassignment request, but also

to terminate Plaintiff’s employment ... [T]he parties have produced disturbing evidence,

including the fact that in spite of Plaintiff’s conduct, Defendant has not only continued to

employ him, but has repeatedly promoted him.” See Ramirez v. Snow, No. 01-0173-Civ-

Moreno/Garber, June 11, 2003 (S.D. Fla.), at 22 n.9.

84. After this decision, Defendant promoted Ramirez to Port Director, GS-l5.

85. Although Plaintiff reported harassment by Cox to Defendant’s Harassment Hotline and

complained to his supervisor Georges, on January 23, 2004, Ramirez told the

Defendant’s Official EEO investigator that he “did not know of any complaints” made by

Plaintiff. However, Ramirez was aware of complaints filed by O’Donnell and Cox, and

stated, “Complaints have been filed by other employees about [Plaintiffs] demeanor and

unprofessional behavior”.

86. Stalking is a criminal offense in the State of Florida.

87. According to Ramirez, “The employee ... is required to report all allegations of

inappropriate behavior to both their supervisor and to Internal Affairs.”

88. Ramirez, who was the subject of a criminal stalking complaint See Payton v. Ramirez,

No. 04-61450-Civ-Cohn/Snow (S.D. Fla.), accused Plaintiff of, inter alia, “Woman

complaining of being ‘harassed’ by Cavicchi—Do not know her name; Woman’s

15 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 16 of 36

husband complaining that her [sic] wife is being stalked by Cavicchi—unsure of his

name.” However, Ramirez did not report the crime of stalking and the allegation of

harassment to Internal Affairs.

89. On or about February 5, 2004, the Defendant, through Ramirez and his subordinates

(O’Neill and Russo) ordered the confinement of Plaintiff, i.e., false imprisonment.

Defendant ordered Plaintiff to remain in his work cubicle, to not take any breaks for

lunch or to smoke a cigarette, to use a separate bathroom, and not to have any interaction

with the public while on duty.

* * *

90. On or about April 7, 2004, Cox approached Plaintiff from behind while Plaintiff was in

the performance of his duties and accused Plaintiff of leaving a door open. Plaintiff told

Cox the cleaning lady had left the door open and told Cox to mind his business. Cox told

Plaintiff, “If you can’t stand the heat, get out of the kitchen,” thereby further harassing

and provoking Plaintiff.

91. On or about April 15, 2004, the first of two offensive notes appeared on the bulletin

board in Plaintiff’s office. The first note was a flyer from Wendy’s [a hamburger chain]

“We are now hiring at Wendy’s” The reasonable interpretation of this note suggested

Plaintiff apply for a job at Wendy’s, inferring that he was unfit to work as a Customs

Inspector. Georges told Plaintiff to forget about the note. CBPO Cox thought the note

was funny, like applying for a job as a garbage collector. Approximately one week later,

an offensive card was posted on Plaintiff’s bulletin board, “I’m trying to decide what to

tell people when I defend your goofy actions....” The reasonable inference from this

16 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 17 of 36

message was that Plaintiff was crazy.

92. While Plaintiff was on the telephone complaining to NTEU Representative Barbara

Evans regarding the offensive messages, Georges entered his office, interrupted his

telephone conversation, and provoked an argument with Plaintiff.

93. Although Georges was aware of Plaintiff’s numerous requests for transfer and knew that

other employees were responsible for the offensive messages, she defended the

employees and blamed Plaintiff for the messages, quoting the employees, “How do we

know that he didn’t put it on himself, because of the fact that he wants to be out of here

and he would do anything to get out of here? So before you accuse us, you better look at

him.”

94. Pursuant to the NTEU and Defendant’s Grievance Process, on May 24, 2004, the NTEU

representative (Barbara Evans) and Casale and Georges had a meeting, wherein the

NTEU attempted to have Plaintiff transferred from the hostile work environment for

among other reasons, George’s mistreatment of Plaintiff and her soliciting of complaints

against Plaintiff.

95. The Defendant, through Casale and Georges, refused to answer any questions and made

the process a sham. Regarding the assault on Plaintiff and the subsequent prosecution of

the assailant, Casale stated, “Anybody could be in jail, even me.” The state prosecution

of the assailant “didn’t mean anything.”

96. The Defendant refused to transfer Plaintiff from the hostile work environment.

97. On June 24, 2004, Port Jose Ramirez proposed to suspend Plaintiff for 14 days for

“failure to follow procedures” when Plaintiff reported the assault and battery, and that

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Plaintiff displayed “disrespectful or otherwise inappropriate behavior” towards Georges

and Cox.

98. Approximately two weeks prior to the scheduled aforementioned EEOC administrative

hearing, RMO Georges, on or about November 14, 2004, falsely accused Plaintiff of

processing forged transportation entries and not adhering to Customs procedures.

99. In truth and in fact, Plaintiff was on leave and was not at work when the forged entries

were allegedly processed.

100. Administrative Judge Anaya-Colao refused to allow a motion to add the false allegations

of processing forged entries as a like and related claim.

101. Subsequently, Plaintiff made timely contact with an EEO counselor on or about

December 14, 2004, requesting immediate transfer from the Miami Free Trade Zone, i.e.,

a hostile work environment, compensatory damages and attorney fees. Plaintiff filed a

formal complaint on or about February 17, 2005, which was amended several times.

102. On December 21, 2004, Plaintiff was issued a LOR for disrespectful and inappropriate

behavior towards Cox and Georges, which occurred April 2004. No action was taken

against either Cox or Georges.

103. There were no misconduct allegations pending against Plaintiff from December 21, 2004

until February 2005, until CBPO Officer Alice O’Donnell, made sexual harassment

charges based on bits of conversations she allegedly overheard between Plaintiff and

other female co-workers with whom Plaintiff was friendly. The other females had

initiated the conversations. Despite O’Donnell’s allegations, Defendant did not transfer

either the Plaintiff or O’Donnell to another work location.

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104. The discriminatory acts investigated occurred between April 2004 and July 2005. The

investigation was numbered EEOC Case No. 510-2006-00225X, Agency Case No. CBP

05-100C/05-4079. It was amended to include, inter alia, management’s refusal to transfer

Plaintiff from the Miami Free Trade Zone, harassment from Ward Cox , i.e., “bullying,”

a demeaning assignment to deliver inter-office mail, and constructive discharge on

November 1, 2005.

105. Because more than 180 days have elapsed since the filing of the formal complaint and no

final agency decision has issued, Plaintiff timely amends this complaint.

106. Because Chertoff refused to transfer Plaintiff from the Miami Free Zone, Plaintiff

submitted his retirement papers in April 2005.

107. Despite complaints filed by Plaintiff against his supervisor and coworkers and complaints

by his supervisor and coworkers against Plaintiff, Defendant Chertoff, contrary to his

position in Hudson v. Chertoff, No. 05-60985-Civ-Graham/O’Sullivan (S.D. Fla.),

provided varying and conflicting pretextual reasons for not transferring Plaintiff from the

hostile work environment, i.e., he had filed an EEO complaint, that there were

outstanding misconduct investigations regarding Plaintiff, that there was “no operational

need,” that Plaintiff had “limited abilities,” that Defendant was not going to “reward

Plaintiff,” and that transfers are determined on a “case by case basis.”

108. On or about February 10, 2005, Ward Cox berated and made derogatory comments

regarding Plaintiff at a staff meeting. Plaintiff had suggested that the Plaintiff correct

errors on documents that had been returned for corrections. Cox stated, “Why would we

give corrections to a part-timer to do?”

19 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 20 of 36

109. Cox’s comments were perceived by Plaintiff and insulting and demeaning and by CBPO

Officer John Short as “derogatory.”

110. On or about July 14, 2005, shortly after an investigation into O’Donnell’s sexual

harassment charges were apparently dismissed, Port Director Ramirez, after discussing

Plaintiff’s EEO case with DFO Winkowski, arbitrarily changed Plaintiff’s work schedule,

and ordered Plaintiff to perform “inter-office mail delivery,” a demeaning work

assignment.

111. In May 2005, CBPO Mark Read was transferred to the Free Trade Zone. Shortly

thereafter, a female CBPO employee stated to him to be careful of Cavicchi, “we think

he’s either going to ‘go postal or commit suicide’” or words to that effect.

112. On or about July 15, 2007, according to CBPO Mark Read, when Plaintiff’s supervisors

announced Plaintiff had been reassigned from the Free Trade Zone, Read “observed

several of his co-workers cheering. One [Alice O’Donnell] was jumping up and down

and jabbing her arms in the air and said, ‘Hooray—now he is someone else’s problem!’”

113. Later, Read was informed by either SCBPO Georges or Wilfredo Lopez, or both that

Read did not have to make a statement to the EEO investigator because “strange things

happen to people who become involved in Mr. Cavicchi’s EEO complaints.” Shortly

thereafter, on July 29, 2005, Lopez informed Read that he was being reassigned from the

Free Trade Zone, his overtime was cancelled and his tour of duty was changed.

114. The position of “inter-office mail delivery and the arbitrary changing of Plaintiff’s work

schedule also violated Office of Personnel Management rules. Also, the position was not

within Plaintiff’s job description and in fact was a demeaning, degrading assignment with

20 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 21 of 36

lesser and menial duties, i.e., a demotion. Defendant neither asked for volunteers nor

chose an individual according to seniority, contrary to Defendant’s previously established

procedures.

115. The position of mail delivery was a demeaning, less desirable position which is

performed by a GS 2 or 3 employee or civilian contractors, with no chance of

advancement or promotion.

116. Plaintiff took three months unpaid leave under FMLA and finalized his involuntarily

retirement on the earliest date possible, to wit, November 1, 2005.

117. Because of the continuing retaliation by Defendant, refusal to transfer Plaintiff from a

hostile work environment, and assignment to a demeaning position, i.e., “inter-office

mail delivery,” working conditions had been so intolerable that Plaintiff had no choice

but to take three months unpaid leave under FMLA, finalized his retirement on the

earliest date possible and involuntarily retired on November 1, 2005.

COUNT I

Discrimination on the Basis of Protected Activity and EEO Activity Pursuant to Title VII of the Civil Rights Act 1964, 42 U.S.C. Section 2000e et seq.

118. Plaintiff re-alleges and incorporates herein Paragraphs 1 through 117 of this amended

complaint.

119. Defendant and the Department of Homeland Security and its legacy agency, United

States Customs Service, now known as Customs and Border Protection, is a

governmental entity covered by and subject to the provision of Title VII.

120. Defendant intentionally discriminated against Plaintiff because of his EEO activity and

other protected activity by taking adverse employment actions against him by, among

21 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 22 of 36

other things, being subjected to unfounded and harassing administrative inquiries, duress

and attempted coercion, collusion between IA and management, IA investigations and

adverse personnel actions; being involuntarily transferred; denied transfers; being under

utilized, given menial and degrading work, denied transfers from a hostile work

environment, being subjected to verbal abuse, public berating, ridicule, false criminal

allegations of stalking, harassment; receiving a harassing telephone call at home from his

supervisor; being subjected to the posting of offensive and derogatory notes in his office

and being blamed for placing the notes there himself, being subjected to an assault and

battery and subsequently investigated for reporting the assault and battery, and being

counseled for “harassing the public;” being subjected to disruptive and abusive conduct

by his supervisor and being subjected to the soliciting of complaints by his supervisor,

being falsely accused of processing forged documents, being kept in an increasingly

hostile work environment, and being given a demeaning, menial work assignment, i.e.,

mail delivery, a GS-3 position.

121. As a result of Defendant subjecting Plaintiff to a hostile work environment and a pattern

of retaliation based on his prior protected EEO activity, Plaintiff has suffered loss of

wages and other benefits, and has suffered physically, emotionally, psychologically, has

suffered and will continue to suffer irreparable injury requiring injunctive relief, as more

particularly alleged hereafter.

122. Plaintiff has satisfied all of the procedural and administrative requirements set forth in

Section 706 of Title VII, and in particular:

(a) Plaintiff filed a timely written charge of discrimination with the United States

22 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 23 of 36

Equal Employment Opportunity Commission.

123. This Court has jurisdiction to hear and resolve this claim by virtue of Section 706(f)(3) of

Title VII and 28 U.S.C. Sections 1331 and l343(a)(4).

124. Plaintiff demands a jury trial.

125. WHEREFORE, Plaintiff respectfully request this Court enter judgment against

Defendant as follows:

(a) For a declaratory judgment that Defendant’s acts, policies, and procedures

violated Plaintiff’s rights as secured under Title VII of the Civil Rights Act of

1964.

(b) That Defendant, his agents, successors and representatives be permanently

enjoined from discriminating against Plaintiff with respect to his employment,

from engaging in other employment practices which discriminate on the basis of

EEO activity; from continuing to deprive Plaintiff of his rights to the equal

protection of the laws and privileges and immunities under the laws in any of the

respects herein above alleged, and from conspiring with each other or with any

other person to deprive Plaintiff of any of said rights;

Plaintiff for all the benefits the Plaintiff would have received had it not been for

Defendant’s unlawful conduct including, but not limited to: back pay, benefits,

and contributions to the employees’ thrift savings plan, promotions, front pay and

seniority.

(d) For actual and consequential damages as may be proven at trial, plus interest;

23 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 24 of 36

(f) For compensatory damages for pain, suffering, humiliation, and discriminatory

treatment that the Plaintiff suffered as a result of Defendant’s unlawful conduct;

(g) For an award to Plaintiff for the costs and expenses of this action and reasonable

attorney’s fees as provided in Section 706(k) of Title VII of the Civil Rights Act

of 1964 and 42 U.S.C. 2000e-5(k);

(h) Plaintiff demands the right to have a jury trial decide all issues raised by his

Amended Complaint that are triable to a jury as a matter of right, including issues

common to his claim under Title VII.

(i) For such other and further relief as the Court may find just and proper.

COUNT II

Retaliation Claim Pursuant to Title VII of the Civil Rights Act 1964, 42 U.S.C. Section 2000e et seq.

126. Plaintiff re-alleges and incorporate herein paragraphs 1-40, 47-78, paragraphs 85-99,

102-117 and paragraph 120.

127. Plaintiff timely complained about discrimination and filed EEO complaints of

discrimination

128. Plaintiff’s actions constituted protected activities under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. Section 2000e et seq.

129. Defendant, through his subordinates retaliated against Plaintiff from February 2002 to

November 1, 2005, by among other things: being subjected to unfounded and harassing

administrative inquiries, Internal Affairs investigations and personnel actions; being

involuntarily transferred; denied transfers, being under utilized, given menial and

degrading work, given lesser training opportunities than other employees; not selected for

24 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 25 of 36

any favorable assignments.

130. As a result of Defendant’s retaliatory actions, Plaintiff has suffered loss of wages and

other benefits, and has suffered physically, emotionally, psychologically, has suffered

and will continue to suffer irreparable injury requiring injunctive relief, as more

particularly alleged hereafter.

131. Plaintiff has satisfied all of the procedural and administrative requirements set forth in

Section 706 of Title VII, and in particular:

(a) Plaintiff filed timely written charges of discrimination with the United States

Equal Employment Opportunity Commission.

132. This Court has jurisdiction to hear and resolve this claim by virtue of Section 706(f)(3) of

Title VII and 28 U.S.C. Sections 1331 and l343(a)(4).

133. Plaintiff demands a jury trial.

134. WHEREFORE, Plaintiff respectfully request this Court enter judgment against

Defendant as follows:

(a) For a declaratory judgment that Defendant’s acts, policies, and procedures

violated Plaintiff’s rights as secured under Title VII of the Civil Rights Act of

1964.

(b) That Defendant, his agents, successors and representatives be permanently

enjoined from discriminating against Plaintiff with respect to his employment,

from engaging in other employment practices which discriminate from continuing

to deprive Plaintiff of his rights to the equal protection of the laws and privileges

and immunities under the laws in any of the respects herein above alleged, and

25 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 26 of 36

from conspiring with each other or with any other person to deprive Plaintiff of

any of said rights;

Plaintiff for all the benefits the Plaintiff would have received had it not been for

Defendant’s unlawful conduct including, but not limited to: back pay, front pay,

benefits, contributions to the employees’ thrift savings plan, training, promotions,

and seniority.

(d) For actual and consequential damages as may be proven at trial, plus interest;

(e) For compensatory damages for pain, suffering, humiliation, and discriminatory

treatment that the Plaintiff suffered as a result of Defendant’s unlawful conduct;

(f) For an award to Plaintiff for the costs and expenses of this action and reasonable

attorney’s fees as provided in Section 706(k) of Title VII of the Civil Rights Act

of 1964 and 42 U.S.C. 2000e-5(k);

(g) Plaintiff demands the right to have a jury trial decide all issues raised by his

Complaint that are triable to a jury as a matter of right, including issues common

to his claim under Title VII.

(h) For such other and further relief as the Court may find just and proper.

COUNT III

Violation of the Privacy Act of 1974

135. Plaintiff repeats and re-avers paragraphs 1-9, 47-78, 85-99, 102-117, and 120, with the

same force and effect as if expressly repeated herein.

136. The Privacy Act of 1974, as amended, 5 U.S.C. §552a (b) states as follows:

26 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 27 of 36

No agency shall disclose any records which are contained in a system of records by any

means of communication to any person, or to another agency, except pursuant to a

written request by, or with the prior written consent of the individual, the individual to

whom the record pertains....

5 U.S.C. § 552a (a) (4) states:

The term “record” means any item, collection, or grouping of information about an individual....

137. In November 2004, Plaintiff learned that Internal Affairs agent Perez informed RMO

Georges that Plaintiff reported her and her office to Internal Affairs for providing

preferential treatment in exchange for gratuities. Agent Perez’s informing RMO Georges

that Plaintiff reported her and her office to Internal Affairs for providing preferential

treatment in exchange for gratuities violated the Privacy Act of 1974.

138. As a result of Defendant’s violating the Privacy Act of 1974, Plaintiff suffered

irreparable harm, including, but not limited to being subjected to a hostile work

environment, false criminal allegations, denial of transfers, and an assault and battery.

139. WHEREFORE, Plaintiff respectfully request this Court enter judgment against

Defendant as follows:

(a) For a declaratory judgment that Defendant’s acts, policies, and procedures

violated Plaintiff’s rights as secured under the Privacy Act of 1974;

(b) That Defendant, his agents, successors and representatives be permanently

enjoined from discriminating against Plaintiff with respect to his employment,

from engaging in other employment practices which discriminate from continuing

to deprive Plaintiff of his rights to the equal protection of the laws and privileges

27 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 28 of 36

and immunities under the laws in any of the respects herein above alleged, and

from conspiring with each other or with any other person to deprive Plaintiff of

any of said rights;

Plaintiff for all the benefits the Plaintiff would have received had it not been for

Defendant’s unlawful conduct including, but not limited to: back pay, front pay

contributions to the employees thrift savings plan and benefits;

(d) For actual and consequential damages as may be proven at trial, plus interest;

(e) For compensatory damages for pain, suffering, humiliation, and discriminatory

treatment that the Plaintiff suffered as a result of Defendant’s unlawful conduct;

(f) For an award to Plaintiff for the costs and expenses of this action and reasonable

attorney’s fees as provided in the Privacy Act of 1974;

(g) Plaintiff requests that the jury hear these claims in conjunction with Counts I and

II.

(h) For such other and further relief as the Court may find just and proper.

COUNT IV

Refusal to accommodate/transfer from hostile work environment

140. Plaintiff repeats and re-avers paragraphs 1-9, 35-78, 85-99, 102-103, 107-109, 111-113,

120, 137-138, with the same force and effect as if expressly repeated herein.

141. Despite Plaintiff’s repeated requests to be transferred from the hostile work environment

and a grievance filed by the NTEU, Defendant refused to accommodate or transfer

Plaintiff from the hostile work environment.

28 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 29 of 36

142. Plaintiff has satisfied all of the procedural and administrative requirements set forth in

Section 706 of Title VII, and in particular:

(a) Plaintiff filed a timely written charge of discrimination with the United States

Equal Employment Opportunity Commission.

143. This Court has jurisdiction to hear and resolve this claim by virtue of Section 706(f)(3) of

Title VII and 28 U.S.C. Sections 1331 and l343(a)(4).

144. WHEREFORE, Plaintiff respectfully request this Court enter judgment against

Defendant as follows:

(a) For a declaratory judgment that Defendant’s acts, policies, and procedures

violated Plaintiff’s rights.

(b) That Defendant, his agents, successors and representatives be permanently

enjoined from discriminating against Plaintiff with respect to his employment,

from engaging in other employment practices which discriminate from continuing

to deprive Plaintiff of his rights to the equal protection of the laws and privileges

and immunities under the laws in any of the respects herein above alleged, and

from conspiring with each other or with any other person to deprive Plaintiff of

any of said rights;

Plaintiff for all the benefits the Plaintiff would have received had it not been for

Defendant’s unlawful conduct including, but not limited to: back pay,

contributions to the employees thrift savings plan, front pay and benefits;

(d) For actual and consequential damages as may be proven at trial, plus interest;

29 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 30 of 36

(e) For compensatory damages for pain, suffering, humiliation, and discriminatory

treatment that the Plaintiff suffered as a result of Defendant’s unlawful conduct;

(f) For an award to Plaintiff for the costs and expenses of this action and reasonable

attorney’s fees;

(g) Plaintiff demands a trial by jury.

COUNT V

Adverse employment action, demeaning assignment to deliver inter-office mail

145. Plaintiff repeats and re-avers paragraphs 1-9, 110-117, 120, with the same force and

effect as if expressly repeated herein.

146. Plaintiff has satisfied all of the procedural and administrative requirements set forth in

Section 706 of Title VII, and in particular:

(a) Plaintiff filed a timely written charge of discrimination with the United States

Equal Employment Opportunity Commission.

147. This Court has jurisdiction to hear and resolve this claim by virtue of Section 706(f)(3) of

Title VII and 28 U.S.C. Sections 1331 and l343(a)(4).

148. The position of “inter-office mail delivery and the arbitrary changing of Plaintiff’s work

schedule also violated Office of Personnel Management rules. It is an adverse

employment action. Also, the position was not within Plaintiff’s job description and in

fact was a demeaning, degrading assignment with lesser and menial duties, i.e., a

demotion. Defendant neither asked for volunteers nor chose an individual according to

lesser seniority, contrary to Defendant’s previously established procedures.

149. The position of inter-office mail delivery was a demeaning, less desirable position which

30 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 31 of 36

is performed by a GS 2 or 3 employee or civilian contractors, with no chance of

advancement or promotion.

150. Plaintiff took three months unpaid leave under FMLA and finalized his involuntarily

retirement on the earliest date possible, to wit, November 1, 2005.

151. Because of the continuing retaliation by Defendant, refusal to transfer Plaintiff from a

hostile work environment, and assignment to a demeaning position, i.e., “inter-office

mail delivery,” working conditions had been so intolerable that Plaintiff had no choice

but to take three months unpaid leave under FMLA, finalized his retirement on the

earliest date possible and involuntarily retired on November 1, 2005.

152. WHEREFORE, Plaintiff respectfully request this Court enter judgment against

Defendant as follows:

(a) For a declaratory judgment that Defendant’s acts, policies, and procedures

violated Plaintiff’s rights.

(b) That Defendant, his agents, successors and representatives be permanently

enjoined from discriminating against Plaintiff with respect to his employment,

from engaging in other employment practices which discriminate from continuing

to deprive Plaintiff of his rights to the equal protection of the laws and privileges

and immunities under the laws in any of the respects herein above alleged, and

from conspiring with each other or with any other person to deprive Plaintiff of

any of said rights;

Plaintiff for all the benefits the Plaintiff would have received had it not been for

31 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 32 of 36

Defendant’s unlawful conduct including, but not limited to: back pay,

contributions to the employees thrift savings plan, front pay and benefits;

(d) For actual and consequential damages as may be proven at trial, plus interest;

(e) For compensatory damages for pain, suffering, humiliation, and discriminatory

treatment that the Plaintiff suffered as a result of Defendant’s unlawful conduct;

(f) For an award to Plaintiff for the costs and expenses of this action and reasonable

attorney’s fees;

(g) For such other and further relief as the Court may find just and proper, including

but not limited to reinstatement at a position consistent with his abilities and away

from the supervisory chain of command of the aforementioned RMOs;

(h) Plaintiff demands a trial by jury.

COUNT VI

Constructive discharge/involuntary retirement

153. Plaintiff repeats and re-avers paragraphs 1-78, 85-99, 102-117, 120, 137-138 and 148-

151 with the same force and effect as if expressly repeated herein.

154 Plaintiff has satisfied all of the procedural and administrative requirements set forth in

Section 706 of Title VII, and in particular:

(a) Plaintiff filed a timely written charge of discrimination with the United States

Equal Employment Opportunity Commission.

155. This Court has jurisdiction to hear and resolve this claim by virtue of Section 706(f)(3) of

Title VII and 28 U.S.C. Sections 1331 and l343(a)(4).

156. The position of “inter-office mail delivery and the arbitrary changing of Plaintiff’s work

32 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 33 of 36

schedule also violated Office of Personnel Management regulations. It is an adverse

employment action. Also, the position was not within Plaintiff’s job description and in

fact was a demeaning, degrading assignment with lesser and menial duties, i.e., a

demotion. Defendant neither asked for volunteers nor chose an individual according to

seniority, contrary to Defendant’s previously established procedures.

157. The position of inter-office mail delivery was a demeaning, less desirable position which

is performed by a GS 2 or 3 employee or civilian contractors, with no chance of

advancement or promotion.

158. Plaintiff took three months unpaid leave under FMLA and finalized his involuntarily

retirement on the earliest date possible, to wit, November 1, 2005.

159. Because of the continuing retaliation by Defendant, refusal to transfer Plaintiff from a

hostile work environment, and assignment to a demeaning position, i.e., “inter-office

mail delivery,” working conditions had been so intolerable that Plaintiff had no choice

but to take three months unpaid leave under FMLA, finalized his retirement on the

earliest date possible and involuntarily retired on November 1, 2005.

160. WHEREFORE, Plaintiff respectfully request this Court enter judgment against

Defendant as follows:

(a) For a declaratory judgment that Defendant’s acts, policies, and procedures

violated Plaintiff’s rights.

(b) That Defendant, his agents, successors and representatives be permanently

enjoined from discriminating against Plaintiff with respect to his employment,

from engaging in other employment practices which discriminate from continuing

33 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 34 of 36

to deprive Plaintiff of his rights to the equal protection of the laws and privileges

and immunities under the laws in any of the respects herein above alleged, and

from conspiring with each other or with any other person to deprive Plaintiff of

any of said rights;

Plaintiff for all the benefits the Plaintiff would have received had it not been for

Defendant’s unlawful conduct including, but not limited to: back pay,

contributions to the employees thrift savings plan, front pay and benefits;

(d) For actual and consequential damages as may be proven at trial, plus interest;

(e) For compensatory damages for pain, suffering, humiliation, and discriminatory

treatment that the Plaintiff suffered as a result of Defendant’s unlawful conduct;

(f) For an award to Plaintiff for the costs and expenses of this action and reasonable

attorney’s fees;

(g) For such other and further relief as the Court may find just and proper, including

but not limited to reinstatement at a position consistent with his abilities, i.e., GS-

13, and away from the supervisory chain of command of the aforementioned

Responsible Management Officials;

(h) Plaintiff demands a trial by jury.

Respectfully submitted,

/s/ John Cavicchi, MA BBO #079360 Plaintiff’s Counsel 5 Island Ave. #6d Miami Beach, FL 33139-1339 Tel. 305-531-3416

34 Case 1:06-cv-21406-FAM Document 56 Entered on FLSD Docket 10/09/2007 Page 35 of 36

Cell. 617-304-0470 Fax. 305-531-3416 [email protected]

Mark J. Berkowitz Local Counsel 1620 W. Oakland Park Blvd. Suite 300 Ft. Lauderdale, FL 33311 (954) 527-0570 Telephone (954) 523-5893 Telecopier E-mail: [email protected]

Ronald H. Tonkin 2777 Allen Parkway, Suite 1080 Houston, Texas 77019 Tel. No. 713-520-1655 Fax. No. 713-942-0102 Email: [email protected]

Ashok Bail (of Counsel) 2777 Allen Parkway, Suite 1080 Houston, Texas 77019 Tel. 713-520-1655 Fax. 713-942-0102

E-mail: [email protected]

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was sent by the court’s electronic filing system on this 9 day of October 2007, to Carole Fernandez, counsel for the defendant, Office of the U.S. Attorney, 99 N.E. 4th Street, Suite 300, Miami, FL 33132

/s/ Mark J. Berkowitz

EXHIBIT 1

CALENDAR CALL ON JANUARY 18, 2008

Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 1 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 2 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 3 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 4 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 5 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 6 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 7 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 8 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 9 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 10 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 11 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 12 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 13 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 14 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 15 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 16 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 17 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 18 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 19 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 20 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 21 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 22 of 23 Case 1:01-cv-00173-FAM Document 50 Entered on FLSD Docket 06/12/2003 Page 23 of 23 Page 1 of 2

Subj: S.Ct. argument: EEOC takes beating Date: 11/7/2007 To: [email protected], [email protected], [email protected], MJB2157

Supreme Court Argument Report: EEOC Takes a Beating From the Justices

Laurel Newby Law.com 11-07-2007

The Supreme Court on Tuesday heard argument in the first of the term's closely watched employment cases, concerning what constitutes a charge of discrimination under the Age Discrimination in Employment Act. The Equal Employment Opportunity Commission received a drubbing from several members of the Court for its inconsistencies in processing such claims. And in another case, Chief Justice John Roberts Jr. got a reminder of his past life as a high court advocate.

On Dec. 3, 2001, Federal Express courier Patricia Kennedy filed an intake questionnaire and affidavit with the EEOC alleging age discrimination in violation of the ADEA. Kennedy and a number of other FedEx employees filed a class action suit on April 30, 2002. Kennedy subsequently filed a formal charge with the EEOC on May 30, 2002. The case is Federal Express Corporation v. Holowecki, et al.

Under the ADEA, an individual seeking to bring a civil action against his or her employer must file a charge of discrimination with the agency, then wait 60 days to bring suit, during which time the EEOC is to notify the employer of the charge and seek conciliation between the parties.

The district court held that Kennedy failed to meet the requirement of filing a formal charge 60 days before bringing suit, and said that the intake questionnaire did not constitute a charge. The 2nd U.S. Circuit Court of Appeals reversed, holding that the content of the questionnaire satisfied the statutory requirements for a charge.

A key issue in the case is the distinction between EEOC Form 5, a formal charge form, and EEOC Form 283, which functions as an intake questionnaire. Circuits are split on whether an intake questionnaire constitutes a formal charge.

Justice Antonin Scalia, who throughout the argument seemed particularly frustrated by the EEOC's policies and practices related to ADEA claims, said, "I don't see much difference between the substance of these two forms ... they basically cover the same ground."

Justice Ruth Bader Ginsburg pointed out that "all the statutes EEOC administers are designed for claims that are put forth initially largely by unrepresented people. And the notion is that the agency should make it as easy as possible for them to get through the legal process."

Tennessee attorney Connie L. Lensing argued on behalf of FedEx that "it is clear from the structure of the statute that notice and an opportunity to conciliate" is required before a plaintiff can commence a suit.

Lensing said that the problem is "that the practice at the EEOC has been so inconsistent" in terms of "what they call a charge, what they recognize as a charge, and their treatment of documents as a charge."

Roberts told Lensing: "I just don't understand your leap from government incompetence to saying the plaintiff loses."

Lensing said that equitable tolling is available as a remedy "to rectify a true mistake on the EEOC's part" if the agency fails to notify an employer after an employee files a charge.

Thursday, November 22, 2007 America Online: Jecavicchi Page 2 of 2

Attorney David L. Rose, on behalf of the respondents, argued that FedEx was not prejudiced by the fact that the EEOC failed to give notice of the claim, because the company would have been unlikely to pursue conciliation efforts.

"But you want us to write an opinion saying, we're not concerned with conciliation?" Justice Anthony Kennedy asked him.

Rose shared argument time with Assistant to the Solicitor General Toby Heytens, who represented the United States as amicus curiae on behalf of the respondents.

As soon as Heytens took the podium, Scalia continued his attack on the EEOC: "Mr. Heytens, let me tell you going in that my ... main concern in this case, however the decision comes out, is to do something that will require the EEOC to get its act in order, because this is nonsense.

"This whole situation can be traceable back to the agency, and ... whoever ends up bearing the burden of it, it's the agency's fault, and this scheme has to be revised," Scalia said.

Justice Clarence Thomas, who served as chair of the EEOC from 1982 to 1990, was characteristically silent during the argument.

Thursday, November 22, 2007 America Online: Jecavicchi Case 1:06-cv-21406-FAM Document 101 Entered on FLSD Docket 01/28/2008 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division

Case Number: 06-21406-CIV-MORENO

EUGENE CAVICCHI,

Plaintiff,

vs.

MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, BY AND THROUGH THE U.S. BUREAU OF CUSTOMS AND BORDER PROTECTION,

Defendant. ______/

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court upon Plaintiff’s Motion for Summary Judgment (D.E.

No. 69), filed on December 10, 2007.

THE COURT has considered the motion, response, reply to the response and the pertinent

portions of the record, and being otherwise fully advised in the premises, it is

ADJUDGED that the motion is DENIED in light of the fact that the Court has granted

Summary Judgment in favor of Defendant.

DONE AND ORDERED in Chambers at Miami, Florida, this 28 day of January, 2008.

______FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE

Copies provided to:

Counsel of Record Case 1:06-cv-21406-FAM Document 100 Entered on FLSD Docket 01/28/2008 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division

Case Number: 06-21406-CIV-MORENO

EUGENE CAVICCHI,

Plaintiff,

vs.

MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, BY AND THROUGH THE U.S. BUREAU OF CUSTOMS AND BORDER PROTECTION,

Defendant. ______/

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court upon Defendant Chertoff’s Motion for Summary

Judgment (D.E. No. 73), filed on December 23, 2007.

THE COURT has considered the motion, response, reply to the response and the pertinent

portions of the record. The Court has also heard oral arguments on the Motion for Summary

Judgment and is otherwise fully advised in the premises.

I. INTRODUCTION

Plaintiff Eugene Cavicchi worked for the Department of Homeland Security as a part-time

Senior Customs Inspector until his retirement on November 1, 2005. He filed Equal Employment

Opportunity (“EEO”) complaints on August 15, 2003, November 10, 2003 and February 17, 2005.

He has exhausted his administrative avenues, and it is from these claims that his present suit arises.

Plaintiff also engaged in prior EEO activity by filing complaints in 2001 and 2002 and reporting his Case 1:06-cv-21406-FAM Document 100 Entered on FLSD Docket 01/28/2008 Page 2 of 19

office to Internal Affairs in July of 2003 for providing preferential treatment in exchange for

gratuities. This is Plaintiff’s third suit in the Southern District of Florida.

Plaintiff’s final amended complaint in this case contains the following allegations: Count I

for discrimination on the basis of protected activity pursuant to Title VII of the Civil Rights Act of

1964; Count II for retaliation under Title VII; Count III for violation of the Privacy Act of 1974;

Count IV for refusal to accommodate or transfer from a hostile work environment; Count V for

adverse employment action; and Count VI for constructive discharge. See 42 U.S.C. § 2000e-3(a).

The alleged discriminatory action in this case occurred from February 2002 to November 2005 and

comprised 25 distinct instances.1 Plaintiff seeks declaratory judgment, injunctive relief, and damages

resulting from the alleged discrimination and other violations.

Defendant filed his Motion for Summary Judgment on December 23, 2007, arguing that

Plaintiff failed to: (1) establish a prima facie case for discrimination based on protected activity; (2)

adequately refute Defendant’s legitimate, non-discriminatory reasons for his actions; (3) prove hostile

work environment harassment because his employer’s action was not based on a protected activity

and was not sufficiently severe or pervasive; and (4) provide sufficient evidence to support his

constructive discharge or Privacy Act violation claims. Plaintiff responded on December 28, 2007

and Defendant replied to the response on January 1, 2008. The Court held oral arguments on January

18, 2008, in which Plaintiff attempted to succinctly state his claims in open court and succeeded to

1 Each individual instance is addressed below. See infra part IV. As Plaintiff does not coherently refute Defendant’s classification of his claims or offer an organizational substitute, the Court will analyze them according to Defendant’s Motion for Summary Judgment with incorporated statement of undisputed material facts and memorandum of law.

-2- Case 1:06-cv-21406-FAM Document 100 Entered on FLSD Docket 01/28/2008 Page 3 of 19

some degree with assistance from the undersigned.2 However, after reviewing the record, the Court

agrees with Defendant that Plaintiff has not met his burden, and therefore, it is

ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is authorized when there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The burden of

establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the party opposing the motion, who

must set forth specific facts and establish the essential elements of his case on which he will bear the

burden of proof at trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Inferences are drawn in favor of the non-moving party, but such inferences “must, in every

case, fall within the range of reasonable probability and not be so tenuous as to amount to speculation

or conjecture.” Thompson Everett, Inc. v. Nat’l Cable Advert., 57 F.3d 1317, 1323 (4th Cir. 1995).

The non-moving party “may not rest upon the mere allegations or denials of the adverse party’s

pleadings.” Fed. R. Civ. P. 56(c). Rule 56(e) mandates that a party moved against respond with

affidavits, depositions, or otherwise, in order to reflect that there are material facts which must be

presented to a jury for resolution. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-61 (1970).

Conclusory allegations without specific supporting facts have no probative value. Leigh v. Warner

Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (citing Evers v. Gen. Motors Corp., 770 F.2d 984,

986 (11th Cir.1985)). Where the record could not support a finding by the trier of fact for the

2 Though Defendant did not file a Motion to Dismiss, the Court notes that it could have dismissed this case for Plaintiff’s failure to clearly and concisely state his claim.

-3- Case 1:06-cv-21406-FAM Document 100 Entered on FLSD Docket 01/28/2008 Page 4 of 19

non-movant, there is no genuine issue for trial and summary judgment is appropriate. Matsushita,

475 U.S. at 587. Although there may be evidence somewhere within the non-moving party’s

submitted record that might create a genuine issue of material fact, “[t]he district judge is not required

to comb the record to find some reason to deny a motion for summary judgment.” Forsberg v. Pac.

N.W. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988).

III. APPLICABLE LAW

1. Retaliation

Title VII prohibits retaliation by an employer against an employee because the employee has

opposed an unlawful employment practice or made a charge under the statute. 42 U.S.C. § 2000e-

3(a). Barring direct evidence of discrimination, a plaintiff must establish a prima facie case of

retaliation by showing that he suffered an employment action that a “reasonable person would find

materially adverse.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 2415

(2006). An adverse employment action is an ultimate employment decision, such as discharge or

other conduct that “alters the employee’s compensation, terms, conditions, or privileges of

employment, deprives him or her of employment opportunities, or adversely affects his or her status

as an employee.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000) (quoting

Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)). These are actions that might

dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington, 126

S. Ct. at 2415.

A plaintiff, in order to establish a prima facie case of retaliation, must also establish that there

is a causal connection between his protected activity and his employer’s action by showing that the

decision-maker was aware of the plaintiff’s activity and that the activity and the employer’s action

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were “not wholly unrelated.” Gupta, 212 F.3d at 587. The causality element is satisfied when the

plaintiff: (1) provides evidence that the decision-maker had knowledge of the protected activity; and

(2) shows “close temporal proximity” between the knowledge of the protected activity and the adverse

employment action or provides other evidence suggesting causation. Higdon v. Jackson, 393 F.3d

1211, 1220 (11th Cir. 2004) (citing Shotz v. City of Plantation Fla., 344 F.3d 1161, 1180 n.3 (11th

Cir. 2003)).

Once the plaintiff establishes a prima facie case of retaliation as to one or more of his claims,

the burden then shifts to the defendant to articulate a “legitimate, non-discriminatory reason” for the

employer’s action. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000). This is a light

burden. If the defendant succeeds, the presumption of discrimination evaporates and the burden shifts

back to the plaintiff to produce sufficient evidence for a reasonable factfinder to conclude that each

of the employer’s proffered reasons are “merely pretextual.” Id. at 1024-25. The plaintiff must

address and rebut each reason directly, and his evidence must be “significantly probative.” See

Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 444 (11th Cir. 1996), cert. denied,

521 U.S. 1119 (1997). After viewing all of the plaintiff’s evidence, the Court must determine

whether the plaintiff has cast sufficient doubt on the defendant’s proffered nondiscriminatory reasons

such that a reasonable factfinder could conclude those reasons did not actually motivate the

defendant’s conduct. Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (citations

omitted).

The plaintiff cannot meet his burden by merely quarreling with either the wisdom of his

employer’s decisions or the process by which the decisions were reached. Chapman, 229 F.3d at

1024-25 at 1030. Moreover, a plaintiff cannot prevail by simply showing that management on

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occasion made a mistake or overreacted; rather, the action must not be discriminatory. Nix. v. WLCY

Radio/Rahill Comm’ns, 738 F.2d 1181, 1187 (11th Cir. 1984). It is not the Court’s role to reexamine

or second-guess the wisdom of managerial decisions. Chapman, 229 F.3d at 1030.

2. Hostile Work Environment

Under Title VII, a plaintiff can establish a hostile work environment claim if he proves that

his workplace is “permeated with discriminatory intimidation, ridicule, and insult.” Miller v.

Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993)). To establish a hostile work environment claim, a plaintiff must establish

each of the following elements: (1) he belongs to a protected group; (2) he has been subject to

unwelcome harassment; (3) the harassment was based on a protected characteristic; (4) the

harassment was “sufficiently severe or pervasive to alter the terms and conditions of employment and

create a discriminatorily abusive working environment;” and (5) the defendant was responsible for

such environment under either a theory of vicarious or direct liability. Miller, 277 F.3d at 1275.

To determine whether harassment is sufficiently severe or pervasive, the Court considers four

factors: (1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether

the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether

the conduct unreasonably interferes with the employee’s job performance. Harris, 510 U.S. at 23.

Plaintiff must establish that he subjectively perceived the work environment as hostile and abusive,

but also that a reasonable person would perceive the environment as hostile and abusive. Gupta, 212

F.3d at 583. Even if a plaintiff succeeds in showing that he was subjected to such conduct, he must

show the subjection was based on prior Title VII protected activity. Miller, 277 F.3d at 1275.

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3. Constructive Discharge

A constructive discharge occurs only when a discriminatory employer imposes working

conditions that are “so intolerable that a reasonable person in [the employee’s] position would have

been compelled to resign.” Nettles v. LG Sky Chefs, No. 05-17224, 2006 WL 3345290, at *1 (11th

Cir. Nov. 20, 2006) (quoting Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974, 977 (11th Cir.

2003)); see also Hill v. Winn-Dixie Stores, Inc., 934 F.2d 1518, 1527 (11th Cir. 1991). An employee

has a duty to act reasonably before choosing to resign, and he must first notify his employer of the

intolerable conditions and afford the employer an opportunity to correct them. See Garner v. Wal-

Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987).

IV. ANALYSIS

1. Retaliation

A. Allegations that do not Constitute Adverse Employer Action

Under retaliation case law, Plaintiff must show that Defendant actually took some materially

adverse action against the employee in order to establish a prima facie case. Whether an action is

materially adverse or not is determined by applying a reasonable person standard under Burlington.

126 S. Ct. at 2415. The following allegations by Plaintiff do not constitute materially adverse

employer action at all, much less concern protected Title VII activity:

(1) Plaintiff was subjected to verbal abuse and ridicule by co-workers and a supervisor beginning in March of 2003; (2) The agency failed to reassign Plaintiff to the Vehicle Export Examination Station; (3) Plaintiff was ordered to send all personal effects shipments to one particular warehouse; (4) The agency allowed an employee to interfere with the performance of Plaintiff’s duties and allowed a supervisor to counsel only Plaintiff about the incident; (5) The agency counseled Plaintiff not to speak to a co-worker who filed a complaint against him;

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(6) The agency “allowed” a private citizen to physically assault Plaintiff on November 26, 2003; (7) Plaintiff was asked to provide medical documentation when he was absent from work; (8) Plaintiff was again subjected to “verbal abuse” by a supervisor on January 26, 2004; (9) The agency allowed a co-worker to “continuously bully” Plaintiff; (10) Plaintiff was “falsely accused” by his supervisor of processing forged transportation entries and not adhering to Customs procedures; (11) Plaintiff’s request for reassignment out of the Miami Free Trade Zone office to the Cargo Clearance Center was denied; and (12) Plaintiff was accused of disruptive behavior pertaining to the incident on November 26, 2003.

It is clear to the Court that these listed “actions” did not constitute ultimate employment

decisions that altered Plaintiff’s compensation, terms, conditions, or privileges of employment,

deprived him or her of employment opportunities, or adversely affected his or her status as an

employee. See Gupta, 212 F.3d at 587.

Claims (3) and (6) are clearly not employer actions and do not merit an in-depth discussion.

Moreover, Defendant points out that Cavicchi instigated the confrontation that is the subject of claim

(6). Being accused of disruptive conduct (claim (12)) is likewise not an adverse employment action.

Plaintiff had a number of interpersonal clashes during his employment as a Customs Inspector

(claims (1), (4), (8), (9)). However, a hallway discussion with Chief Inspector Myra Quirk concerning

Cavicchi’s failure to attend a meeting (claim (1)) does not constitute “verbal abuse and ridicule” and

is not an adverse employment action. Plaintiff also had a dispute with a co-worker named Ward Cox

regarding a certain agency policy (claim (4)). Plaintiff’s supervisor, Diane Georges (“Georges”),

informed Plaintiff that Cox was correct regarding the policy and then issued a memo to all office

personnel clarifying the policy. Plaintiff found this personally humiliating, but it is not an adverse

employer action. Plaintiff further claims Cox harassed him on two other occasions (claim (9)).

Plaintiff and Cox had an argument about leaving a door open and Plaintiff told Cox they could settle

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the matter outside if Cox lost 30 pounds. The final time, Cox objected in a meeting that part-timers

should not be allowed to correct paperwork. Again, neither of these instances constitute adverse

employer actions.

Claim (8) dealt with an altercation Cavicchi had with a female co-worker. Georges counseled

both parties, but Plaintiff claims she yelled at him and took his co-worker’s side. Plaintiff responded

to Georges by calling her a liar to her face and telling her that he was more experienced than she was.

This is not a materially adverse employer action.

With regard to claims (2) and (11), failure to transfer laterally or to a less prestigious position

at the request of an employee does not qualify as an adverse employment action. See Barnhart v.

Wal-Mart Stores, Inc., 206 Fed. Appx. 890, 893 (11th Cir. 2006) (“A lateral transfer that does not

result in ‘lesser pay, responsibilities, or prestige’ is not adverse. Likewise, the refusal to give an

employee such a transfer cannot be an adverse employment action.”) (internal citations omitted).

Additionally, under the reasonable person standard, the Court finds that the transfer denials in this

case are not materially adverse. Lastly, Defendant has supplied sufficient non-discriminatory reasons

for the denials that Plaintiff has not established were merely pretext. The first transfer request

position was no longer filled by a locally negotiated rotation procedure and the location was staffed

by full-time inspectors. The latter transfer request could not be unilaterally granted by the Seaport

Director because it constituted a transfer to another Port outside of his authority. In the second

instance, Cavicchi’s inability to work with others also did not merit a “reward” according to Director

Casale.

The Court fails to see how counseling Plaintiff not to speak with a co-worker who complained

about him (count (5)) could be construed as discrimination based on Title VII protected activity.

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Inspector Amy Everett filed a complaint against Plaintiff and Georges told Plaintiff not to speak with

her about certain sensitive issues. To the extent that this constitutes an adverse employment action,

it is not material and there was clearly a legitimate, non-discriminatory reason.

Plaintiff also claims that he was falsely accused of processing forged entries (claim (10)). In

actuality, Georges sent Cavicchi an email informing him of proper procedures and thought he made

the mistake because his name was on the records. Someone other than Plaintiff actually processed

the forms, and Georges therefore addressed the issue with that person and sent a memo to the office

regarding proper procedures. This is not a materially adverse employer action.

With regard to claim (7), Georges asked Plaintiff to provide medical documentation for a

three-day absence. Plaintiff was not technically required to do so unless he was absent for four days,

and he brought the matter to his union’s attention. Georges rescinded the request and apologized.

No action was taken whatsoever, therefore it cannot qualify as an adverse employer action.

B. Potentially Materially Adverse Employer Actions

i. Letters of Reprimand

Letters of reprimand may constitute materially adverse employer action. See Wallace v. Ga.

Dept. of Transp., NO. CIV.A. 7:04-CV-78(HL), 2005 WL 2031111, at *11 (M.D. Ga. 2005) (“[I]n

this circuit reprimands are among the employment actions generally considered to be ‘adverse.’”)

(quoting Stavropoulos v. Firestone, 361 F.3d 610, 619 (11th Cir. 2004)); see also Davis v. Town of

Lake Park, Fla., 245 F.3d 1232, 1240-41 (11th Cir. 2001). Cavicchi was issued two letters of

reprimand during the period of time at issue in this case. The first was issued on April 4, 2002. He

was given this letter after loudly accusing his first line supervisor at the time of lying and being a

drunk. The second letter was issued on December 21, 2004 for disrespectful and inappropriate

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behavior. The grounds for the letter consisted of Plaintiff’s previous altercation with Cox, in which

he threatened to take the matter outside, and for loudly calling Georges a “liar.”

Both of these letters, though perhaps materially adverse, were shown by Defendant to have

legitimate, non-discriminatory purpose. Plaintiff offers no evidence that would allow the Court to

conclude that these reasons were merely pretextual and that the actual reason these letters were issued

was because of his Title VII protected activity. Moreover, Plaintiff has not shown a close temporal

relationship between his letters of reprimand and his EEO complaints. Not only must Plaintiff

provide evidence that his employer had knowledge of the protected activity, he must show “close

temporal proximity” between the knowledge of the protected activity and the adverse employment

action or provide other evidence suggesting causation. Higdon, 393 F.3d at 1220 (citation omitted).

ii. Agency Contacting an Employee Assistance Program Coordinator

Georges contacted the EAP and discussed Plaintiff’s situation with a coordinator. Defendant

claims that Georges encouraged Cavicchi to seek help because of the complaints lodged against him.

Plaintiff argues that Georges told him he needed psychological help. The program was voluntary and

Plaintiff refused assistance, regarding the EAP as a “joke.” The Court does not consider this contact

an adverse employer action, particularly because there was no mandatory referral and the EAP is

designed to assist, not punish, employees. Defendant proffers as the legitimate, non-discriminatory

reason Georges’ desire to help Cavicchi. Plaintiff does not draw the Court’s attention to any evidence

that this was merely pretextual or that it had anything to do with his Title VII protected activity.

iii. Reassignment to Miami Free Trade Zone

Two weeks after Plaintiff refused to send personal effects shipments to a particular warehouse

as ordered by his superiors, Plaintiff was transferred to MFZ. Defendant points out that even if this

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was actually the reason for the transfer, it does not bear any relationship to Plaintiff’s Title VII

protected activity whatsoever. The Court agrees.

Furthermore, Defendant offers the legitimate, non-discriminatory reason for the transfer that

Cavicchi was experienced at processing “in-bonds,” MFZ processed a large number of in-bonds, and

the office was short-staffed. Plaintiff complains that he was forced to clean out filing cabinets when

he first arrived, but Defendant points out that Cavicchi’s work was not limited to that task and that

Georges was also cleaning out filing cabinets. The Court does not agree with Plaintiff that the fact

that Georges signed a leave request on which Plaintiff wrote that he was “subjected to verbal abuse,

hostile work environment, admittance by SCI Georges that [he] was transferred, in part, because of

[his] lawsuit” constituted an admission that he was transferred to MFZ because of his protected

activity. From the perspective of a reasonable factfinder, this is insufficient evidence to cast doubt

on Defendant’s proffered nondiscriminatory reasons for the reassignment. See Combs, 106 F.3d at

1538. As Defendant notes, Georges’ signature on the leave request was to give supervisory approval

to the leave requested, not to endorse Cavicchi’s remarks.

iv. Confinement to Work Space

On February 4, 2004, Plaintiff was ordered confined to his cubicle by Port Director Ramirez.

While this would constitute an adverse employer action, the restriction lasted only about an hour and

Plaintiff did not follow the order. Thus, it scarcely satisfies the “material” component of the

requirement for adverse action. Moreover, Defendant proffered that Cavicchi had a number of issues

with co-workers and highlighted specific instances of bad conduct in an effort to satisfy the

requirement that there be a legitimate, non-discriminatory reason for the action. Even if Defendant

overreacted in this case, it is not the Court’s job to second-guess management decisions as long as

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they are not discriminatory. See Nix, 738 F.2d at 1187; Chapman, 229 F.3d at 1030.

There is no indication that this restriction order was a result of Title VII protected activity.

Plaintiff makes much of the fact that Port Director Ramirez knew about Plaintiff’s EEO claims at one

prior point in time when Plaintiff was refused a transfer. In his deposition, Ramirez stated that he did

not remember Cavicchi’s EEO complaints. However, even if the Court found that Ramirez was

aware of Plaintiff’s EEO claims, which would be proper to infer at the summary judgment phase, that

fact alone is not sufficient to show causality. Plaintiff must also show “close temporal proximity”

between the knowledge of the protected activity and the adverse employment action or provide other

evidence suggesting causation. Higdon, 393 F.3d at 1220 (citation omitted). Plaintiff has not

provided such evidence. The Court will not go so far as to infer Ramirez’s discriminatory purpose

based on Plaintiff’s bombastic insinuations and accusations regarding the Port Director.

v. Assignment to Deliver Interoffice Mail

On July 14, 2005, Port Director Ramirez assigned Plaintiff the duties of collecting and

delivering interoffice mail and delivering insect specimen to the USDA. Plaintiff performed the

duties for one week before complaining to another director, who removed him from the position.

Cavicchi never returned to work, using annual leave, sick leave, and family medical leave until his

retirement four months later. Whether a particular reassignment rises to the level of retaliation

depends on whether it is materially adverse from the perspective of a reasonable person. Burlington,

126 S. Ct. at 2416-17. In this instance, there are several factors weighing against Plaintiff. First of

all, he suffered no change to job title, supervisor, grade, pay or eligibility for promotion. While under

Burlington, reassignment of duties can constitute retaliatory discrimination even if it is not

accompanied by demotion, Plaintiff performed the task for only one week and was promptly relieved

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of the job when he complained about it. See 126 S. Ct. at 2416-17. DaCosta v. Birmingham Water

Works & Sewer Board held that loss of prestige, the requirement that the plaintiff bring in a doctor’s

note when ill, and a pattern of abusive comments were not materially adverse employment actions.

No. 07-11643, 2007 WL 4165939, at *3 (11th Cir. Nov. 27, 2007). In light of DaCosta, the Court

does not find Plaintiff’s reassignment to be materially adverse from the perspective of a reasonable

person.

Even if this action was materially adverse, Defendant has offered a sufficiently legitimate,

non-discriminatory purpose: Port Director Ramirez wanted to fill the position with a part-time

employee and thought that Cavicchi would welcome the assignment since he wanted so badly to leave

the MFZ. Again, Plaintiff has no evidence that Ramirez was influenced by Plaintiff’s Title VII

protected activity aside from allegations that Ramirez knew that Plaintiff filed EEO complaints.

Plaintiff has not established that this reason was merely pretext. He has also failed to show “close

temporal proximity” between the knowledge of the protected activity and the adverse employment

action or provide other evidence suggesting causation. Higdon, 393 F.3d at 1220.

2. Hostile Work Environment

Plaintiff appears to argue that the sum total of the incidents outlined above, which transpired

over the course of several years, constituted a hostile work environment. Unfortunately for Plaintiff,

the majority of the claims he has submitted as constituting a hostile work environment are trivial on

their face. See, e.g., Brammer v. Winter, No. 306CV16J32MCR, 2007 WL 4365643, at *9 (M.D. Fla.

Dec. 12, 2007). The most glaring problem for Plaintiff, and one that the Court finds sufficient to

dispense with his hostile work environment claim, is the fact that there is essentially no proof that any

of the issues have anything to do with Plaintiff’s “protected characteristic” (the fact that he filed EEO

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and IA complaints). See Miller, 277 F.3d at 1275; see also Brammer, 2007 WL 4365643, at *10. At

best, Plaintiff points to some evidence that indicates that his supervisors and the Port Director were

aware of the fact that he had brought EEO claims. There is evidence that some of his supervisors

were aware that he complained to IA, as well. However, Defendant has supplied plenty of evidence

that the actions taken against Plaintiff did not concern his Title VII protected activity. Plaintiff has

not adequately refuted this evidence, even though it is his responsibility to do so in order to defeat

summary judgment.

Even if the Court found that the environment was a result of Plaintiff’s protected activity,

Defendant argues that the totality of the circumstances do not meet the “severe and pervasive” test.

See Miller, 277 F.3d at 1275. The Court agrees. Applying the Harris factors to this case, the Court

finds that the allegedly discriminatory conduct was infrequent and isolated, it was not severe, it was

not physically threatening, and it did not interfere with the employee’s job performance. See 510 U.S.

at 23.

Cases on hostile work environment often turn on the issue of frequency. In Miller, the court

found for the plaintiff partly because he dealt with racial epithets on a daily basis. 277 F.3d at 1276.

Here the incidents were largely minor and intermittent. This case is more similar to Barrow v.

Georgia Pacific Corp. than Miller. See 144 Fed. Appx. 54, 57 (11th Cir. 2005). In Barrow, racially

discriminatory acts occurred only a few times per year rather than during a “short and intense period,”

so the court found that the problem was “isolated and sporadic” and ruled in favor of the defendant.

Plaintiff complains that he subjectively suffered humiliating harassment based on protected activity,

but objectively a reasonable person in his situation would disagree. See Gupta, 212 F.3d at 583.

An employer is subject to vicarious liability for a hostile work environment created by a

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supervisor with higher authority over the employee. Faragher v. City of Boca Raton, 524 U.S. 775,

807 (1998). Defendant does not raise a Faragher affirmative defense for co-worker conduct,3 but it

does not need to do so under the circumstances. Much of the activity complained of by Cavicchi was

taken by other co-workers, not his employer. Where the perpetrator of the harassment is merely a co-

employee of the victim, the employer will be held directly liable if it knew or should have known of

the harassing conduct but failed to take prompt remedial action. See Breda v. Wolf Camera & Video,

222 F.3d 886, 889 (11th Cir. 2000). Defendant took direct remedial action in nearly every instance

of co-worker conflict, usually in response to a disruption (or series of disruptions) caused or

exacerbated by Plaintiff himself. Plaintiff has not adequately shown that his Title VII activity was

ever the instigating factor.

3. Constructive Discharge

Cavicchi did not get not fired and he did not resign.4 Rather, he filed for retirement on April

1, 2005, to take effect November 1, 2005, the first day he was eligible to retire and receive health

benefits. Plaintiff has not shown that working conditions were so difficult or unreasonable as to

compel a reasonable person to resign. See Hill, 934 F.2d at 1527. Nor did Plaintiff notify his

employer of intolerable conditions and afford Defendant an opportunity to correct them. See Garner,

807 F.2d at 1539. In fact, Cavicchi did not allege that he was subject to any discriminatory behavior

during the three months prior to filing for retirement.

3 Under Faragher, a defending employer may raise as an affirmative defense to liability or damages: “(a) that the employer exercised reasonable care to prevent and correct promptly any ... harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” 524 U.S. at 807.

4 In fact, had Plaintiff actually been fired, Defendant could have persuasively argued that he was within his rights to do so. However, the Court need not reach that question here.

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Moreover, even though Plaintiff attempts to rely on his July 14, 2005 assignment to interoffice

mail duty in support of his constructive discharge argument, the Court notes that he had already filed

his application for retirement several months beforehand. Cavicchi was removed from this allegedly

degrading duty as soon as he complained about it, after only a week. Plaintiff never returned to work,

so Defendant did not have an opportunity to further rectify the allegedly intolerable conditions. These

facts are not indicative of working conditions that are so intolerable that a reasonable person would

have been compelled to resign. See Nettles, 2006 WL 3345290, at *1 (citation omitted).

4. Privacy Act Violation

Plaintiff did not respond in defense of his Privacy Act claim against Defendant’s Summary

Judgment or move for summary judgment on the Privacy Act claim; therefore, the Court treats that

claim as abandoned. See Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10

F.3d 1563, 1568 (11th Cir. 1994) (noting that claims not raised in summary judgment or pressed in

opposition to summary judgment are properly treated as abandoned) (citing Lazzara v. Howard A.

Esser, Inc., 802 F.2d 260, 269 (7th Cir. 1986).

V. CONCLUSION

Plaintiff has failed to establish a prima facie case of unlawful discrimination or retaliation

based on Title VII protected activity for many of his individual allegations. Even in the instances

where he has succeeded in laying out a prima facie case for summary judgment purposes, Plaintiff

has failed to establish that Defendant’s articulated legitimate, non-discriminatory reasons for its

actions were pretextual. Moreover, Plaintiff has not shown that a hostile work environment existed

as a result of his protected activity or that it was sufficiently severe and pervasive. Plaintiff also

cannot establish a constructive discharge claim, and he has abandoned his Privacy Act claim. In sum,

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Plaintiff failed to establish a genuine issue of material fact regarding any of his allegations. The Court

cannot conclude that a triable issue exists simply because certain supervisors were aware that

Cavicchi filed EEO and IA complaints and Plaintiff perceived that he was treated poorly. While the

Court draws inferences in favor of the non-moving party, in this case the evidence is so tenuous that

any inferences regarding Title VII discrimination amount to speculation and conjecture. See

Thompson Everett, 57 F.3d at 1323. The Court reiterates that it is not obligated to scour the record

and dissect Plaintiff’s rambling pleadings, which are laden with inflammatory rhetoric, to come up

with evidence indicative of a genuine issue of material fact. See Forsberg, 840 F.2d at 1418.

In the end, the record paints a clear picture of discord between Cavicchi and most of his co-

workers and supervisors. Plaintiff has called members his office liars, thieves, and sell-outs,

complained that avenues of employee assistance were “jokes,” regarded complaints against him as

“jokes,” and even threatened to fight one of his co-worker (but only if he lost weight first). Moreover,

Plaintiff has treated the court system as if it were a merger between soapbox and circus. Plaintiff has

not sought to advocate a potentially legitimate claim of discrimination so much as take the

opportunity to rail against Defendant for every perceived slight. Throughout the course of pleadings

and in the record of this case, Plaintiff has broached numerous irrelevant topics and cast insults and

accusations at nearly everyone whom he feels has wronged him. Plaintiff has called Port Director

Ramirez a “liar” and a “dirt bag” and brought up allegations of sexual harassment against him.

Plaintiff has complained at length about the EEOC. He has even blamed the death of a Customs

employee on his own supervisor. Obviously, none of this has anything to do with Plaintiff’s case.

Plaintiff also discussed a sexual harassment complaint against him and a letter of complaint

that he claims was fabricated by Defendant’s counsel. Neither of these are at all relied upon by

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Defendant in Defendant’s Motion for Summary Judgment. Finally, to the extent that Plaintiff

attempts to resuscitate claims based on incidents that occurred before February of 2002, those claims

have been adjudicated in prior cases before this Court and are therefore barred under the doctrine of

res judicata. See 01-03406-CIV-MARTINEZ; 03-21764-CIV-MORENO.

Summary Judgment is GRANTED in favor of Defendant on all claims. Further, it is

ADJUDGED that all pending motions are DENIED as moot.

DONE AND ORDERED in Chambers at Miami, Florida, this 28 day of January, 2008.

______FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE

Copies provided to:

Counsel of Record

-19-

EXHIBIT 8

MISCELLANEOUS DOCUMENTS

The Agency proffered an unsigned, typed letter against Gene Cavicchi and attributed it to an immigrant who cannot write or speak literate English; however, the unsigned, typed in perfect English letter was found in former Agency attorney Francesca Alvaro’s files—see declaration of David Mark Conrad

Medical Examiner’s report regarding a CBP officer who was killed during a struggle over a gun—although the M.E. called it a homicide, Miami IA promptly determined it to be a suicide. Supervisor Myra Quirk’s husband participated in the investigation.

Washington Post article on judges violating ethics—including Judge Gerald Bard Tjoflat (11th Cir.). Judge Tjoflat is on the Eleventh Circuit Judicial Council, which disciplines judges

Attorney John Cavicchi’s comments on proposed amendments to Code of Judicial Conduct and the Committee’s perfunctory response thereto

Case 1:06-cv-21406-FAM Document 57 Entered on FLSD Docket 10/12/2007 Page 20 of 42 Case 1:06-cv-21406-FAM Document 57 Entered on FLSD Docket 10/12/2007 Page 23 of 42

Ethics Lapses by Federal Judges Persist, Review Finds Page 1 of 4

Ethics Lapses by Federal Judges Persist, Review Finds Violations Involve Stock Holdings And Free Trips

By Joe Stephens Washington Post Staff Writer Tuesday, April 18, 2006; A17

A number of federal judges have violated ethics rules in recent years by presiding over lawsuits while having a financial conflict. Others have failed to disclose that they traveled to resorts on expense-paid trips.

Interviews and documents reviewed by The Washington Post identified about a dozen such ethical lapses in recent years.

One category of problems involves stock holdings. In 2003, records show, federal appeals court judges issued rulings in at least seven lawsuits while they or their spouses owned stock in a company involved in the case or had other financial ties to a party in the disputes. The problem stock holdings ranged in value from a few thousand dollars to as much as $50,000. Federal law requires that judges remove themselves from any case in which they know they have any financial interest.

A second set of ethical lapses involves seminars held at resorts by a Montana-based group, the Foundation for Research on Economics and the Environment (FREE).

On at least six occasions from 2002 to 2004, federal judges accepted air travel, food and lodging from the libertarian foundation but did not list the gifts on their annual disclosure reports, as required by law, documents and interviews show. The seminars dealt with economics and the environment, but also offered the judges time for fishing, hiking and horseback riding.

The review found that some judges were repeat offenders: Previous investigations by The Post identified nearly identical ethical lapses involving two of the judges.

It is impossible to determine just how frequently judges violate ethics laws because public records are limited. A 1998 law allows judges to black out some or all information on disclosure reports before releasing them to the public. Also, many organizations keep confidential the names of judges who accept expense-paid trips, frustrating attempts to verify disclosure reports.

Ethics experts expressed surprise that such transgressions persist because court authorities reacted to earlier revelations of ethical violations with promises of reform.

"It seems to be a very blatant violation of the code of judicial ethics," said Jeffrey M. Shaman, a judicial ethicist at DePaul University.

Stephen Gillers, a specialist in legal ethics at New York University, said the study "goes to the heart of what a judge is understood to be."

http://www.washingtonpost.com/wp-dyn/content/article/2006/04/17/AR2006041701296_p... 6/29/2008 Ethics Lapses by Federal Judges Persist, Review Finds Page 2 of 4

"Congress says you cannot sit [on a case] if you or your spouse owns even one share" of stock, Gillers said. "It's the law, and judges have to obey it."

The findings show that new laws are needed to prevent abuse, said Douglas T. Kendall, executive director of Community Rights Counsel, a nonprofit Washington law firm that supplied The Post with documents outlining the problems.

"These problems are getting worse, not better, and it's because the judiciary hasn't taken some simple steps to make them go away," Kendall said.

Thomas F. Hogan, chief judge for the District of Columbia and chairman of the executive committee of the U.S. Judicial Conference, which oversees ethics issues, said in a statement that the lapses, while regrettable, are the exception, not the rule.

"The judiciary will continue its already widespread efforts to educate judges on their financial disclosure requirements and will develop additional tools to assist judges in identifying potential conflicts," Hogan said.

Earlier this year, Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee, introduced legislation to ban privately financed trips for federal judges and make it easier for the public to identify stock conflicts. A Leahy spokeswoman said the senator raised the issue last month with the Judicial Conference.

In a statement, Leahy said, "Our judges must be beyond reproach -- in appearance and otherwise."

Stock Conflicts

The stock conflicts found involved federal appeals judges; the study did not look at conflicts involving the much larger pool of trial-level judges.

Some of the judges said they missed conflicts involving subsidiaries of companies in their portfolios. Others said they were confused by cases with multiple players or unaware of a spouse's assets. Federal law directs judges to know their financial interests so they can quickly resolve conflicts.

Judge Bruce Selya of the 1st Circuit in Rhode Island held up to $15,000 in stock in the Federal National Mortgage Association in 2003 while participating in a lawsuit against the company. Selya sold the stock nine days after entering judgment in the case.

Selya said he was unaware of the conflict until told by The Post, explaining that "anything that involves human beings is susceptible to error."

In 1999, a similar Post study discovered that Selya had participated in three lawsuits while owning stock in one of the companies involved. Selya blamed those problems on his investment manager, who the judge said bought stocks for his portfolio and only later supplied him with the company names.

Other judges whose disclosure statements showed that they had a financial interest in litigants in their courtrooms included Eric L. Clay of the 6th Circuit in Detroit, Martha Daughtrey of the 6th Circuit in Nashville, James Dennis of the 5th Circuit in New Orleans, John Coffey of the 7th Circuit in Milwaukee (two cases) and Harry Pregerson of the 9th Circuit in Woodland Hills, Calif.

http://www.washingtonpost.com/wp-dyn/content/article/2006/04/17/AR2006041701296_p... 6/29/2008 Ethics Lapses by Federal Judges Persist, Review Finds Page 3 of 4

Coffey said the securities in question were held in a trust overseen by his wife that primarily benefited their adult children and from which she had drawn money. The judge said he did not believe that he was required to withdraw from such cases but would do so in the future.

In numerous other cases, judges' disclosure reports appear to identify conflicts of interest involving stocks, but the judges contended in interviews that no true conflicts existed because they had inadvertently misrepresented their holdings on the statements.

Unreported Trips

In most cases, it is impossible to independently determine whether judges are complying with the disclosure laws. That's because most organizations that give judges expense-paid trips keep the names of the judges secret.

An exception is FREE, the libertarian foundation. In recent years it has listed on its Web site the names of participants in its seminars, which are held at a dude ranch and a historic railroad hotel in Montana.

Hundreds of judges have attended, and officials at the private, nonprofit foundation said they pick up all costs, including airfare, for 90 percent of them.

FREE estimated that food, lodging and horseback riding for one recent five-day seminar totaled $1,350 per person. Judges often bring their spouses but must pay for any additional costs incurred.

When questioned, five judges who attended seminars between 2002 and 2004 acknowledged accepting free trips but not listing them on disclosure reports. Some judges said they forgot to make the entries, while others said they were unaware of the rules.

Ethics experts questioned those explanations, pointing out that the annual financial disclosure forms, which the judges must sign under penalty of law, direct them to itemize each gift and reimbursement for "transportation, lodging, food."

One judge who left the section blank was Peter Beer of the Eastern District of Louisiana. Beer checked a box labeled "none" on his reports for 2002 and 2004.

In an interview, Beer said that FREE had paid expenses at two seminars on a tourist ranch near Yellowstone National Park. "As far as I was concerned, that was not an item that I was required to report," Beer said. "I never considered I was obliged to do that."

The sponsors of the seminars disagreed.

"There's no controversy over this -- it should be disclosed," said Pete Geddes, FREE's executive vice president. He called the judges' failures to make the trips public "surprising and a little frustrating."

Beer said the ranch provided "pleasant surroundings" and, after the day's discussions, allowed time for hiking and other outdoor activities. Beer said he thought, but could not be sure, that his wife accompanied him on one of the trips.

Beer should have been on notice about his legal duty to disclose the gifts, Kendall said. A study by The Post in 2000 found that Beer had failed to disclose an earlier FREE trip.

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Some ethics experts said the lapses were especially striking because the FREE seminars have become controversial in recent years after questions about their content were raised by Community Rights Counsel. The law firm argues that FREE tilts its seminars to emphasize views favorable to the foundation's corporate backers, something FREE and many judges adamantly dispute.

Other judges who acknowledged accepting expense-paid trips but failing to disclose them included David Sentelle of the District of Columbia Circuit Court, Gerald Bard Tjoflat of the 11th Circuit Court in Atlanta, Dudley H. Bowen Jr. of the District Court in Augusta, Ga., and Malcolm Howard of the District Court in Greenville, N.C.

Judges who did not respond to inquiries about their attendance at the seminars included Vanessa Gilmore of the district court in Houston, Donald E. Walter of the district court in Shreveport, La., and Judith M. Barzilay of the U.S. Court of International Trade in New York. None disclosed the trips in their annual reports.

Address Found: Gerald Proceed Here to Get Gerald Address Information. www.Gerald.Reunion.com

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Ethics Training for employees and professionals The Seven Layers of Integrity www.change-makers.com

http://www.washingtonpost.com/wp-dyn/content/article/2006/04/17/AR2006041701296_p... 6/29/2008 John Cavicchi 5 Island Ave. #6d Miami Beach, FL 33139-1339 Tel. 617-304-0470 Email: [email protected]

March 25, 2008 Judicial Conference Committee Administrative Office of the US Courts One Columbus Circle, NE Washington, DC 20544

Re: Comment on Proposed Amendments to Code of Judicial Conduct

Dear Committee:

I have been a lawyer for 35 years. I do not believe that codifying integrity will succeed when judges are determined to be dishonest. I suggest you examine misconduct complaints filed with the Eleventh Circuit. US Magistrate Judge Theodore Klein (since deceased) invited the assistant US attorney into chambers in my presence. After he threw out my case, which was subsequently vacated by the Supreme Court, both he and the AUSA claimed he invited the AUSA allegedly for the purposes of looking at pictures of his investiture. I was not invited into his chambers. The judicial council saw nothing wrong with that.

US District Judge Jose E. Martinez (S.D. Fla.) broadcasts baseball, football and basketball games for the University of Miami. He is also a "Eucharistic minister" and threw out a jury verdict against the Catholic archdiocese without disclosing that fact to the attorney suing the Catholic archdiocese. There are also misconduct allegations in the media regarding an alleged conflict of interest in a lawsuit brought by Sinaltrainal against Coca-Cola. Coke sponsors the University of Miami sports website and Martinez's former law firm has connections with Coke. Judge Martinez did not disclose his relationship to the attorneys suing Coke. I have no knowledge whether these parties filed complaints.

In my cases, on the case on remand from the Supreme Court to the Court of Appeals to the District Court, the case was a consent case and supposed to be decided by a US Magistrate Judge. Judge Martinez, however, assigned the case to himself and promptly reversed the Supreme Court. I filed a recusal motion. Judge Martinez had received an award from the Department of Homeland Security, at Miami DHS headquarters. He had also appeared at a DHS sponsored event and gave the keynote address. He was engaged in conversation with a DHS official who was named as a hostile witness in my case. Co- counsel Mark Conrad also responded by letter to Chief Judge Edmondson. He had submitted a declaration wherein the AUSA admitted she had nothing to support her defenses and that she had, in effect, made up the case. Judge Martinez disingenuously claimed that the declaration was "vague and conclusory." The judicial council saw nothing wrong with that even after the Chief Judge called Mr. Conrad, discussed Judge Martinez at length and admitted that there was a problem with Judge Martinez. Judge Martinez also ruled an outstanding discovery motion "moot." It has been pending since August 2004. The council saw nothing wrong with that either.

Rather than requiring Judge Martinez to rule on the recusal motion, Chief Judge Federico Moreno gave himself "a Christmas present," as he stated in open court, assigned the case to himself and also reversed the Supreme Court.

Judge Martinez also allowed the same AUSA Laura Bonn to lie in a subsequently filed lawsuit by claiming that the case on remand from the Supreme Court was not remanded to the Court of Appeals, but was remanded to the district court. She did this in order to manipulate the random judge case assignment procedure in order to assign the case to Judge Martinez. Once the case was assigned to Judge Martinez, she admitted that the case had not been remanded to the district court, but had been remanded to the Court of Appeals and requested a stay.

Judge Martinez did nothing about the lying and the judicial council saw nothing wrong with that. Chief Judge Moreno assigned the case to himself and again rescued Judge Martinez from ruling on a recusal motion.

Both cases are pending on appeal in the Eleventh Circuit: Cavicchi v. Homeland Security Secretary, No. 07-15939 and Cavicchi v. Homeland Security Secretary, # 08-10505. You may download my briefs.

I note that both judges were not born in this country. English is not their first language. Both are naturalized. Judge Martinez was born in the Dominican Republic. Judge Moreno hails from Venezuela.

There is a scandal brewing in the media regarding Judge Moreno. His law clerk, who was involved in my case, signed Judge Moreno's name and effectively stopped trade for almost three months. See John Pacenti, The Judiciary, Unauthorized court order halts PlayStation shipments. Daily Business Review, February 15, 2008. When Judge Moreno assigned my case to himself, he claimed he reviewed the record. However, at the Calendar Call, several months later, it was apparent that he had not even read the complaint. He threw out my case the day before a second Calendar Call.

Mr. Conrad and I shall be happy to provide you with any additional information you require.

Sincerely,

John Cavicchi

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Subj: Re: I mailed a hard copy because your mailbox was full Date: 5/1/2008 4:36:21 P.M. Eastern Daylight Time From: [email protected] To: [email protected]

Mr. Cavicchi:

This acknowledges your submission in connection with the United States Judicial Conference Committee on Codes of Conduct's request for comments on proposed revisions to the Code of Conduct for United States Judges. Staff to the Committee reviewed your submission and determined that it is not germane to the request for comments. Your to allege misconduct involving specific federal judges, which is outside the purview of the Committee on Codes of Conduct. As you know, complaints of judicial misconduct involving a federal judge are to be pursued in accordance with the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351-64. The Committee does not and cannot advise individuals whether to proceed with such a complaint.

[email protected] To [email protected] cc 04/07/2008 05:54 PM Subject I mailed a hard copy because your mailbox was full

Dear Committee: Attached is a copy in PDF of my comments. Your mailbox was full. I'm trying again. Attorney John Cavicchi. 305-531-3416

Planning your summer road trip? Check out AOL Travel Guides.[attachment "Comments on Code Of Judicial Conduct.pdf" deleted by AOdb_Code of Conduct Public Comments/DCA/AO/USCOURTS]

Monday, May 19, 2008 America Online: Jecavicchi