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Halik v. Chertoff

February 24, 2009

EVELYN HALIK, PLAINTIFF(S),
v.
MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, AGENCY, DEFENDANT(S).



The opinion of the court was delivered by: David O. Carter United States District Judge

I. Background

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This cause came for trial on January 15, 2009, before the Court sitting without a jury as to Plaintiff Evelyn Halik's cause of action for wrongful termination in violation of public policy under Title VII of the Civil Rights Act of 1964, as amended. The Court, having heard the testimony and having examined the proofs offered by the respective parties, the cause having been submitted for decision, and the Court being fully advised in the premises, makes its finding of fact and conclusions of law as follows:

II. Findings of Fact

1. Plaintiff Evelyn Halik ("Plaintiff" or "Halik") entered on duty as an Applications Clerk (GS-5, step 1) with United States Customs and Immigration Services ("CIS,"formerly Immigration and Naturalization Service) at the California Service Center located at Laguna Niguel, Orange County, California, on May 20, 2001.

2. Plaintiff is of Filipino national origin.

3. Beginning on May 20, 2001, Plaintiff was subject to a one-year probationary period.

4. Supervisory Center Adjudications Officer Carolyn Nguyen, of Vietnamese national origin, was assigned as Plaintiff's first-line supervisor in Division II throughout Plaintiff's employment at CIS.

5. Nguyen acted as the only direct supervisor of Halik. Halik alleges that throughout her employment at CIS, Nguyen repeatedly directed anti-Filipino comments at Halik, such as, "You Filipinos are all alike."

6. Conflict arose between Nguyen and Halik at the onset of employment. The first incident involved the consolidation of Halik's two fifteen-minute rest breaks with her one-half hour lunch break into a single one-hour lunch break. Halik consolidated her lunch break without telling Nguyen but likely did not know that she needed to ask Nguyen for permission. Nguyen ultimately allowed Halik to combine her lunch breaks after informing Halik that she could not otherwise take a one-hour lunch break without consolidation. Halik contends that Nguyen said, "You Filipinos are all alike," when Halik asked to combine her breaks.

7. Overtime hours also became a point of contention between the parties in June. Halik did not know at the start of her employment that there were certain limits on the amount of overtime an employee could work. While Halik contends that her requests to work overtime were denied and that another Applications Clerk under Nguyen, Dipti Khambhaita (of Indian origin), was allowed all overtime requests, the evidence suggests otherwise. For example, according to pay sheets, Halik worked 15 hours of overtime in her first week and 17 hours of overtime in her second week. Further Deputy Director Christina Poulos testified that Halik and Khambhaita worked virtually the same hours during Halik's first three pay periods.

8. Another incident occurred between Nguyen and Halik in the first week of June 2001 regarding System Time and Attendance Reporting ("STAR") training. Plaintiff requested from Nguyen that she be able to attend this training. When Nguyen asked another supervisor, Rachel Wolcott, how to sign up for the June training, Nguyen learned that Halik had already asked Wolcott to sign up for the training and had been told that she would be unable to participate in it until July as all June spaces were full. While employees are not forbidden from speaking to other supervisors, Nguyen felt that the request evidenced Halik basically trying to get two bites at one apple.

9. A conflict also occurred between Nguyen and Halik regarding the provision of telephones for Nguyen's team. On July 2, 2001, Nguyen directed Halik to canvass Nguyen's team for telephone extension number preferences. Nguyen then learned that Halik had already requested a phone for herself from fellow employee Gregg Cotton and supervisor Howard Dyson without informing Nguyen, though Halik denies making such a request. Nguyen took issue with the alleged request because Nguyen claims that she had advised Halik regarding a certain priority order in relation to the provision of telephones.

10. Further, while Halik points out that the only other Applications Clerk in Nguyen's team who had a telephone at his or her station on July 2, 2001, was Dipti Khambhaita, Khambhaita testified that there was already a phone at her assigned workstation when she began work and that she did not have to request one as a result. Further, according to Halik's testimony, Khambhaita started working at CIS prior to Halik by at least a few weeks or a month.

11. As to fellow Applications Clerk Khambhaita, on June 28, 2001, Halik first brought concerns to Nguyen that Nguyen was treating Khambhaita more favorably. However, Nguyen contends that Halik could not provide specific examples regarding how Khambhaita was treated more favorably. Instead, Nguyen told Halik that Nguyen tried to equally distribute interesting assignments between them and had told Khambhaita to include Halik in preparing the Time and Attendance even though Halik had not received the requisite training yet.

12. The situation between Khambhaita and Halik came to a head on July 20, 2001, when Khambhaita came to Nguyen indicating that Halik was improperly paying attention to Khambhaita's work and trying to compete with her. The three women met to discuss the matter later that same afternoon. After this meeting, there were no reoccurring issues between Khambhaita and Halik.

13. Other issues between Halik and Nguyen that allegedly occurred between the end of May and July 2001 include Nguyen denying Halik's request to attend PowerPoint and computer training, even though Halik was eventually allowed to attend such training, Nguyen denying Halik's request to attend a Work Recreation Association meeting, and Nguyen's claim that Halik falsely claimed to be working for another supervisor.

14. In July 2001, Plaintiff reported her issues with Nguyen to Union Representative Joe Nina.

15. On July 24, 2001, Nguyen and Assistant Center Director Barbara Velarde, of Hispanic national origin, met with Halik in an effort to enhance communication between the parties.

16. On July 26, 2001, Nguyen, Velarde, Halik, and Nina met to address the same concerns. Halik ultimately requested to be transferred to another supervisor, but Velarde denied the request, indicating that a transfer would not likely resolve any of the issues with Halik. While Halik indicates that at this meeting she told Velarde that Nguyen made anti-Filipino remarks, Velarde denies ever hearing this. Further, while Halik states that she told Nina about the ...


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