Customs and Border Protection supervisors erred when they reprimanded an employee who reported illegal searches of African-American truck drivers in the Detroit area who took the wrong road leading to the Canadian border, a watchdog said.
The managers were found to have violated a whistleblower’s rights by denying him a new assignment and placing a letter of reprimand in his file, according to a report released late last month by the Homeland Security Department’s inspector general.
The unidentified CBP officer’s complaint, first expressed in April 2016 during a training session in Glynco, Georgia, came in the form of discussions with a training instructor and phone calls and emails to the CBP’s Office of Chief Counsel.
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“The port of Detroit, located in a dense urban area with many roads feeding into it, frequently had vehicles approach in error, after taking a wrong turn,” the investigators noted. “Even when vehicles attempted to turn around, CBP would chase them down, stop them, and subject them to warrantless searches under its border inspection powers,” the complainant said. The employee believed that “CBP was improperly targeting African-American drivers and abusing its border search authority.”
He went on to cite the Fourth Amendment’s protections against wrongful search and seizure and general prohibitions on racial profiling.
The letter of reprimand, the complainant added, caused him to lose out on a temporary duty assignment. The whistleblower was encouraged by an attorney who was training him in Georgia to file his complaint with the chief counsel’s Detroit office. That attorney also emailed a summary of the complaint to that Detroit office, the report noted, saying the conduct was “potentially problematic.”
Back on duty, the complainant was overheard repeating his criticisms, at which point a supervisor argued back, citing case law in the Sixth Circuit (which covers Detroit) that allowed the CBP to make such searches. His supervisors also found the employee’s phone calls on the issue “argumentative” and “unprofessional.”
The employee was ordered not to file his complaint with the chief counsel. “Shortly afterwards, complainant disobeyed and spoke on the phone to an OCC legal assistant,” the report said. But the legal assistant declined to put the employee through to an attorney and demanded his name, concluding that she could not find him in the database. The complainant hung up.
Investigators interviewing the parties last winter and spring concluded that under the whistleblower laws, the complainant met the criteria for reasonable protected disclosures, and they substantiated the complaint. Citing a Supreme Court case that warns of abuses in such situations, they concluded “by a preponderance of the evidence that Supervisor No. 1, port director, and others, caused an official letter of reprimand to be placed in the personnel file of complainant in reprisal for complainant’s protected communications, which caused him to be denied” an emergency medical technician training opportunity in Arizona.
The legal burden shifted, the report said, to the agency to “demonstrate by ‘clear and convincing evidence’ that it would have filed the same letter of reprimand absent the whistleblowing.”
The auditors recommended that CBP be directed to make quickly a similar training opportunity available to the employee. In addition, the report said, the agency should provide guidance to the Port of Detroit and the entire CBP on “protections applicable to whistleblower disclosures, and establish training and procedure for OCC attorneys and staff who receive such disclosures.”