July 30, 2001
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ALICIA FUENTES, JEANNE M.DAUMEN,
TOM RYBCZYK, RUSSELL F. HIXON,
DAVID C. WALES, RUDY M. CAMACHO,
DAVID BOND, T. BURGESS, B. STONEY
M. CHAMBERS, GEORGE J.WEISE, (ALL
IN THEIR INDIVIDUAL CAPACITIES),
CHARLES WINWOOD (IN HIS OFFICIAL
CAPACITY AS THE COMMISSIONER OF
CUSTOMS), PAUL H. O'NEILL (IN HIS
OFFICIAL CAPACITY AS SECRETARY
OF TREASURY), DOE 1, AN UNKNOWN
POLICE OFFICEROF THE LA MESA
POLICE DEPARTMENT AND DOES 2 TO
PLAINTIFF'S FIRST AMENDED
COMPLAINT FOR MONEY DAMAGES
AND INJUNCTIVE RELIEF FOR CIVIL
RIGHTS AND CONSTITUTIONAL
VIOLATIONS AND BIVENS CLAIMS
UNDER TITLE 42 U.S.C.§§ 1983, 1985
& 2000(e), THE FIRST, FOURTH, FIFTH
AND FOURTEENTH AMENDMENTS
TO THE U.S. CONSTITUTION,
VIOLATIONS OF WHISTLEBLOWER
PROTECTION ACT (5 U.S.C.1221),
WRONGFUL TERMINATION IN
VIOLATION OF PUBLIC POLICY AND
IN VIOLATION OF THE IMPLIED COVENANT
OF GOOD FAITH AND FAIR DEALING, NEGLIGENCE,
AND UNLAWFUL RETALIATION AND REPRISAL
PLAINTIFF REQUESTS A JURY TRIAL
CASE No. '00 CV 1215 JM (NLS)
For his Complaint against
the above-named Defendants Plaintiff John Carman alleges
PARTIES AND JURISDICTION
1. This is an action for injunctive and declaratory relief
and damages in that Plaintiff was denied his rights under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et
seq as amended by the Civil Rights Act of 1991, Pub. L. No. 102-166,
the Civil Rights Act of 1871, as amended, 42 U.S.C. §1983,
42 U.S.C. §1985, 5 U.S.C. 1221, and the Fourth, Fifth and
Fourteenth Amendments to the United States Constitution.
2. All of the foregoing claims are based on the unlawful
treatment of Plaintiff by his employer, the United States Customs
Service ("Customs"), an agency under the auspices of
the United States Department Of The Treasury. Plaintiff is suing
in his individual capacity including, but not limited to, his
status as "Whistle Blower" [5 U.S.C.A. 1221] and as
an employee of the United States Customs Service. Plaintiff has
been subjected to discrimination in the terms and conditions
of his employment, unlawful termination and to retaliation by
Customs employees and specific employees named herein, on the
basis of his being a "Whistleblower." This discrimination
and retaliation has been continuous against Plaintiff during
and subsequent to his employment separation from Customs and
has continued through the date of this First Amended Complaint.
3. Plaintiff is informed and believes, and on the basis of
that information and belief alleges, that at all times mentioned
in this complaint, Defendants Does 2 through 50, and each of
them, were the agents and employees of their co-defendants, and
in doing the things alleged in this Complaint were acting within
the course and scope of that agency and employment.
JURISDICTION AND VENUE
5. The Southern District of California is the Court of appropriate
venue under 42 U.S.C.§ 2000e et seq. and 29 U.S.C. §794(a)(1)
in that Unlawful employment practices were committed in and Plaintiff's
employment records relevant to such practices are maintained
and administered in the Southern District of California. Venue
is also proper under 28 U.S.C. A. §1391(e)(1)(2); §1331,
§1332, §1343(a)(3), and §1343(a)(4) et seq. as
it is the place where most of the Defendants reside and where
a substantial number of the acts or omissions occurred.
6. Beginning on or about June 1995 Plaintiff timely filed
formal complaints with the U.S. Treasury Department alleging
discrimination based on being a "Whistle Blower" [5
U.S.C.A. 1221] and retaliation for his involvement in making
"confidential disclosures" which were subsequently
improperly disclosed to members of high ranking officials that
were in fact the subject of the "confidential disclosures"
and he made further disclosures relating to officials accepting
money and other illegal activities.
The same "persons" that were the subject of the
confidential disclosures, conspired [42 U.S.C.1985] to have Plaintiff
removed from his position creating a "hostile work environment"
and subsequently Plaintiff was fired/ "forced to resign".
Pursuant to the Civil Rights Act of 1964 §717(c), as amended,
42 U. S. C. 52000e-16 (c), jurisdiction for de novo review of
Plaintiff's Title VII action exists.
7. This discrimination has included, but is not limited to,
unequal treatment in promotions and work assignments, creation
of a hostile work environment, and unlawful retaliation for the
filing of "Whistleblower" [5 U.S.C.A. 1221] and EEO
8. Plaintiff is informed and believes and based thereon alleges
that, as a direct and proximate result of the discriminatory
practices of Defendants, and each of them, Plaintiff has suffered
systematic violation of his constitutionally protected rights
to be free from discrimination and retaliation, during and subsequent
to his employment on the basis of his being a "Whistleblower"
[5 U.S.C.A. 1221]. Plaintiff has a right to be free from unlawful
retaliation including, but not limited to, his right to be free
from" intimidation, retaliation, and death threats, all
under the color of law.
9. Plaintiff is informed and believes and based thereon alleges
that Defendant Charles Winwood is the current Commissioner of
Customs having succeeded Raymond W. Kelly who was Commissioner
when the past acts alleged occurred. Paul J. O'Neill is the current
Secretary of Treasury having succeeded Robert Rubin. Defendants
Winwood and O'Neill are sued in their official capacities. Customs
is a federal agency under the auspices of the United States Department
10. At all times material, until his termination of employment
Plaintiff was employed by the Department of Treasury as a Customs
Special Agent. Plaintiff brings this action to remedy his termination
in violation of United States laws and California's public policy
prohibiting discrimination against an employee who is a "whistleblower."
Venue of this action lies in the Southern District of California
because the acts alleged herein occurred within the Southern
District of California.
11. Plaintiff is informed and believes and based thereon
alleges that Defendant, the Secretary of the Treasury of the
United States of America, is a proper party because the discriminatory
acts alleged herein occurred while Plaintiff was employed in
San Diego, California by the United States Customs Service, a
branch of the Department of the Treasury, Defendants Winwood
and O'Neill are properly named as Defendants herein. 42 U.S.C.
12 . Plaintiff is informed and believes and based thereon
alleges that Defendant Rudy Camacho at all pertinent times herein
resided in San Diego County and was Plaintiff's superior.
13. The jurisdiction of this Court over the subject matter
of this action is predicated on 28 U.S.C. §1332. The amount
in controversy exceeds $50,000, exclusive of interest and costs
and attorney's fees if applicable.
14. Plaintiff joined the United States Customs Service, a
branch of the United States Department of the Treasury, on 12
October 1983 as an employee by lateral move from the United States
Mint Police. Plaintiff has a significant history in law enforcement,
having also been employed by the United States Secret Service
and the San Diego Police Department.
15. Beginning in the year 1989 and up until he was fired
on June 19, 1997, Plaintiff held the positions of Senior Customs
Inspector together with the responsibility of the position and,
subsequently under protest, Import Specialist, GS-1890-11. Plaintiff
accepted, under protest, the Import Specialist position as a
result of a medical condition arising from the inhalation of
automobile fumes at the Otay Mesa Port of Entry, and as a result
of pressure from his superiors.
THE UNITED STATES CUSTOMS SERVICE
16. The United States Customs Service (Customs Service) is
a branch of the United States Treasury Service and is charged
with enforcing the laws of the United States with respect to
the importation and exportation of unauthorized merchandise,
including firearms, vehicles, narcotics, currency and other substances,
as well as the prevention of the entry of illegal aliens, and
entrance and/or exit of fugitives to or from the United States.
Additionally, customs officers are charged with enforcing over
forty other Federal Agencies' laws and regulations, including
both Federal and State laws.
The duties of the Customs Inspectors require the utmost integrity
and honesty in the face of necessary contacts with felons, smugglers,
money launderers and fugitives. The Customs Inspectors provide
the 'front line' of defense on the borders of the United States.
Huge amounts of money are often at stake and physical violence
is common. Death threats are also common. News reports indicate
that drug cartels have virtually routine payoff amounts for cars,
trucks and tankers carrying cocaine across the United States
borders, ranging from $50,000 for a car to $250,000 for an 18-wheeler.
Payoffs for leaking Customs air surveillance schedules likewise
generate enormous amounts of money paid as bribes to federal
officials who knowingly and unlawfully accept said payments.
17. Plaintiff is informed and believes and based thereon
alleges that, because of the financial incentives at stake, corruption
within the Customs Service, at least in San Diego, is rampant.
18. Plaintiff is informed and believes and based thereon alleges
that customs personnel, including high ranking personnel, have
accepted bribes and engaged in other unethical and illegal activities,
including falsifying reports, deleting suspect information from
the Customs Intelligence Reporting Computer Systems, aiding and
abetting in the facilitating and importing into the United States
undocumented persons and contraband such as narcotics. In one
case alone 8,500 pounds of cocaine was involved. In another case
the entry into the United States of one hundred and sixty-seven
unauthorized persons was facilitated. Other cases involved converting
seized monies and tampering with export shipments. High ranking
officials discouraged line inspectors from searching suspected
trucks, ignoring or destroying intelligence reports, providing
preferential treatment to companies with ties to drug trafficking,
and providing what agency personnel refer to as "Bingo Cards"
or "Get out of Jail Free Cards" to drug dealers and
other unauthorized persons. Said cards, when presented by the
holder, entitle the recipient to "preferential treatment"
at the United States borders.
19. Plaintiff is informed and believes and based thereon
alleges that Customs Inspectors who have complained about corruption
or unlawful practices are harassed, retaliated against, demoted,
transferred, discredited and/or dismissed. Few Inspectors are
willing to reveal their names as "whistleblowers" for
fear of reprisals against them, all of this in violation of public
policy and both state and federal law.
20. Plaintiff is informed and believes and based thereon
alleges that anyone who stands up and speaks out to identify
unlawful conduct in the agency is labeled a troublemaker and
his or her statements are dismissed as those of a disgruntled
employee. Plaintiff was specifically ordered by his superiors
not to speak with other "whistleblowers".
21. Plaintiff is informed and believes and based thereon
alleges that, the agency has intentionally failed and refuses
and continues to fail and refuse to take the affirmative steps
necessary to properly investigate and prosecute the offenders.
22. Plaintiff is informed and believes and based thereon
alleges that Customs lacks an independent investigative unit
to investigate wrongdoing within the agency. Plaintiff's complaints
to Internal Affairs fell on deaf ears and the only significant
action taken by the department was to conduct "damage control"
by "plausible deniability" and to cause the termination
of employment and discredit employees, and specifically the Plaintiff,
who address this corruption .
MEDIA COVERAGE AND SENATORIAL INQUIRIES
23. Plaintiff is informed and believes and based thereon
alleges that the rampant corruption within the Customs Service,
at least in San Diego, has been the subject of media attention
as well as concerns raised by persons such as United States Senator
Diane Feinstein. For example, in April, 1997, CBS "60 Minutes"
program ran a story about known Mexican drug smugglers knowingly
being permitted to enter into the United States without inspection.
The footage demonstrated two tanker trucks owned by California
Gas Transport coming across the Otay Mesa Port of Entry entirely
free from inspection. Customs' own intelligence reports allegedly
indicated at the time that California Gas Transport is connected
to members of the Mexican-based Zaragosa Fuentes family who are
suspected of heavy narcotics smuggling and money laundering.
Senator Feinstein wrote to Treasury Secretary Robert Rubin
on April 25, 1997, "Based on the information in Customs'
own intelligence report just two months earlier, how is it possible
that California Gas Transport could possibly be considered a
"minimum threat?".. Senator Feinstein also brought
to the attention of Secretary Rubin that Customs Inspectors refuse
to come forward because they "know what happens to whistle
blowers." The above-described California Gas Transport trucks,
which were on at least two occasions the subject of a strong
alert by Customs K-9 teams, were ordered "released"
by Customs Supervisor, Arthur D. Gilbert, one of the key persons
reported by Plaintiff to Internal Affairs. Subsequently one of
the trucks was discovered to contain 8,500 pounds of cocaine.
The CBS story recounted an incident on October 3, 1990 wherein
San Diego Supervisor Gilbert tried everything in his power to
prevent a hydro propane tanker carrying four tons of cocaine
from being searched, even after a K-9 alert on the tanker. The
driver of that tanker was allowed to casually walk back across
the border to Mexico.
Another example of the gravity of the problem, left unchecked,
was 207 telephone calls, within a two week period, allegedly
originating from Supervisor Gilbert's residence to a known money
launderer, Samuel Gomez Chaidez. Other than the telephone investigation,
no charges were ever brought or further investigation mentioned.
Other similar incidents are too numerous to describe herein.
24. Senator Feinstein copied her correspondence of April
24, 1997 detailing her grave concerns to President Clinton, Janet
Reno, Attorney General, Erskine Bowles, Chief of Staff to the
President and Raymond W. Kelly, Under Secretary of Treasury for
Enforcement, but no discernable action was taken to remedy Plaintiff's
concerns, or those reiterated by Senator Feinstein.
25. In an article in the San Diego Union-Tribune published
on October 1, 1995, U.S. Customs Service Commissioner George
Weise, who quit his position in April, 2000, in part because
of the unceasing criticism of corruption in San Diego, was quoted
as having given "personal assurances that no employee with
information about corruption would be penalized for coming forward."
Further, Commissioner Weise confirmed on February 21, 1995 the
right of Customs Inspectors to speak with news agencies regarding
perceptions of misconduct or mismanagement. These representations
and assurances were false as the prevailing attitude and actions
taken by high ranking Customs officials did not encourage such
disclosures but, in fact, discouraged them as acts of retaliation
were natural consequences taken against any employee revealing
26. This same October 1, 1995 news article quoted Plaintiff
as indicating that retaliation for reporting is rampant and that
corruption is clearly present in San Diego. On September 21,
1996, Plaintiff provided information to "E1 Universal,"
a Mexican newspaper, wherein he again publicly criticized the
San Diego branch of U.S. Customs.
27. Since Plaintiff began reporting to his superiors in Washington
his beliefs about corruption in San Diego, Plaintiff has been
repeatedly retaliated against. While he was an employee he was
refused promotions, to which he was entitled, has had his performance
evaluations changed, has had test scores reduced by those very
persons who ordered him to attend an Import Academy, and was
further told that he was required to "pass" the training
provided there. In further retaliation Plaintiff was stripped
of his gun and badge and told not to use the Treasury Enforcement
Computer System (TECS). Because Plaintiff believed that he was
being "set up" for failure and based on his physician's
directive, Plaintiff declined to attend the Import Specialist
28. On June 19, 1997, after Plaintiff gave several radio
interviews about the corruption at Customs, and having, on June
5, 1997, reported Port Director Joyce Henderson and Branch Chief
Rosa Hernandez to Commissioner Weise for "serious mismanagement,
and/or illegal conduct, Plaintiff was wrongfully terminated,
in violation of California's public policy, and in violation
of the implied covenant of good faith and fair dealing, on the
pretext that he failed to attend the Import Specialist Academy
training which had been previously ordered. This also followed
a demand made on June 6, 1997 by Stephanie Castro, on behalf
of Port Director Henderson, to divulge the contents of Plaintiff's
confidential report to Commissioner Weise in Washington D.C.
which was sent the day prior on June 5, 1997. Plaintiff declined
to divulge the protected material, notwithstanding significant
and unwarranted pressure to do so.
29. Plaintiff is informed and believes and on that basis alleges
that he was terminated in retaliation, increasing media coverage
of Plaintiff, and because of the disclosures being made by Plaintiff
to his superiors and the media about corruption and mismanagement.
30. Plaintiff is informed and believes and on that basis
alleges that Rudy Camacho in particular desired to terminate
Plaintiff because of negative publicity about Customs and Mr.
Camacho in particular.
31. Plaintiff alleges that Rudy Camacho acted with malice
and oppression and with an intent to harm and retaliate against
Plaintiff for personal reasons as well as to conceal from the
public a host of mismanagement errors and corruption within the
San Diego Customs District.
32. Plaintiff is informed and believes and on that basis
alleges that based on the oppressive and malicious conduct of
Mr. Camacho in reckless disregard for Plaintiff's rights Plaintiff
seeks an award of exemplary damages against Mr. Camacho for the
purpose of punishing him and to deter others in Customs from
retaliating against other "Whistleblowers" [5 U.S.C.A.
1221; 2302 et. seq.] and concerned employees of the Department
of the Treasury who want nothing more than to protect their country
and to enforce the laws of the United States with the integrity
and honesty which the position requires.
33. Defendants' retaliation against Plaintiff continued subsequent
to the time that his employment with Customs terminated as, upon
information and belief, Defendant Camacho and others made a concerted
and intentional effort to prohibit Plaintiff from securing a
concealed weapons permit which was necessary to Plaintiff's successfully
pursuing his livelihood of becoming a California Licensed Private
Investigator. Plaintiff's law enforcement and investigative background
made this a logical choice for his future career and due to the
inherent risks in that occupation it was necessary for Plaintiff
to carry a concealed weapon not only for his own protection but
for the protection of his clients as well.
34. In 1998 when Plaintiff applied for a concealed weapon
permit from the State of California he was told that he qualified
and all that was needed for him to secure that license was copies
of his personnel files from United States Customs relating to
his employment which they had requested.
35. Plaintiff continued to inquire of the state as to when
his permit would be granted but he continuously received the
same response that their request to Customs has not been responded
to and without those files he could not get a permit. Upon information
and belief, Plaintiff alleges that over the past three years
Defendants Camacho and others have deliberately refused to supply
California with the requested records as a further act of unlawful
retaliation against Plaintiff designed to intentionally deprive
him of his constitutional rights.
36. These retaliatory actions frustrated Plaintiff's efforts
to secure a concealed weapons permit and also violated Defendants'
explicit written and verbal promises to the contrary regarding
Plaintiff's application for a concealed weapons permit.
37. Plaintiff is informed and believes and on that basis
alleges that, on or about June 16, 1999 United States Customs
Officers without basis and/or probable cause, retaliated further
against Plaintiff by ordering and directing state law enforcement
officers of the La Mesa Police Department, Defendants herein,
to stop Plaintiff's vehicle and detain and search him and his
vehicle which they did without probable cause violating Plaintiff's
right under the Fourth, Fifth, and Fourteenth Amendments of the
United States Constitution.
38. Defendant's Alicia Fuentes, Jeanne M. Daumen, Tom P.
Rybczyk, Russell F. Hixon, David C. Wales and at the direction
of Rudy M. Camacho, and Does 1 through 15, all agents of the
U.S. Customs Service, and then Customs Commissioner Raymond W.
Kelly, conspired with David Bond, T. Burgess, B. Stoney, M. Chambers,
and Doe 1 an unknown Police Officer of the City of La Mesa and
Does 16 through 20, to violate the Plaintiff's rights protected
by the United States Constitution to be free from unreasonable
search and seizure and malicious criminal prosecution.
39. The Defendant Police Officers, David Bond, T. Burgess,
B. Stoney, M. Chambers, and Doe 1, an unknown Police Officer
of the City of La Mesa, without probable cause, detained and
subjected the Plaintiff to harassment and arrest, at the direction
of Defendants Alicia Fuentes, Jeanne M. Daumen, Tom P. Rybczyk,
Russell F. Hixon, David C.Wales and at the direction of Rudy
M. Camacho, all agents of the U.S. Customs Service and Raymond
W. Kelly, as retaliation and intimidation by federal officers
and state officers against the Public Policy of protecting "Whistleblowers".
Each conspired with the other to violate the rights of the Plaintiff
through force and fear under the color of law.
40. Plaintiff was prosecuted, and prevailed in the motion
stage wherein a San Diego County Superior Court Judge found that
there was no probable cause for the stopping of the Plaintiff.
At that hearing the state officer admitted that the "pretextual
stop" was directed by Defendants, U.S. Customs Officers.
United States Customs Officers, together with state law enforcement
officers, identified herein violated the Plaintiff's right to
be free from harassment, and illegal use of Law Enforcement tactics
to threaten, and intimidate and harass Plaintiff.
41. Defendants , the state law enforcement officers identified
herein, admitted that they were coaxed and directed by the Defendants
Alicia Fuentes, Jeanne M. Daumen, Tom P. Rybczyk, Russell F.
Hixon, David C. Wales and at the direction of Rudy M. Camacho,
and Does 1 through 15, and agents of the U.S. Customs Service
and Raymond W. Kelly to violate the rights of the Plaintiff under
the color of law, because of the "Whistleblower" status
and to harass the Plaintiff and intimidate and threaten him under
the color of law.
FIRST CAUSE OF ACTION
VIOLATIONS OF 42 U.S.C. 1983
DEFENDANTS BOND, BURGESS, STONEY, CHAMBERS
AND DOE 1
42. Plaintiff incorporates by reference the allegations stated
in paragraphs 1 through 40 inclusive as though fully set forth
43. Defendants David Bond, T. Burgess, B. Stoney, M. Chambers,
and Doe 1 an unknown Police Officer of the City of La Mesa, acted
in concert and under color of state law when they unlawfully
stopped, detained and searched Plaintiff and his vehicle all
in violation of 42 U.S.C. 1983.
44. The acts and conduct of the individual Defendants as
alleged above, constitute a violation of Plaintiff's rights protected
by the United States Constitution to wit, the 4th, 5th and 14th
Amendments thereof. As a proximate, direct, and indirect result
of the individual Defendants' conduct said individuals are liable
for Plaintiff's injuries, and damages alleged and described herein.
45. In depriving Plaintiff of his protected Constitutional
Rights and privileges, under the law of the State of California,
and the United States, the individual Defendants were guilty
of malice, oppression and willful disregard for the rights of
Plaintiff in that Defendants acted with reckless indifference
and did cause harm and injuries to Plaintiff.
SECOND CAUSE OF ACTION
VIOLATIONS OF 42 U.S.C. 1985
46. Plaintiff incorporates by reference all of the allegations
stated in paragraphs 1 through 45 inclusive as though fully set
47. Plaintiff is informed and believes that Defendants Alicia
Fuentes, Jeanne Daumen, Tom Rybczyk, Russell Hixon, Dave Wales,
George Weise, and at the direction of Defendant Rudy Camacho
all acting in concert conspired with and used the state police
officer Defendants to unlawfully deprive Plaintiff of his civil
and constitutional rights by ordering said officers to stop,
detain and search Plaintiff and his vehicle all in violation
of 42 U.S.C. 1985.
48. This conspiracy to deprive Plaintiff of his constitutional
rights was further retaliation against him by the federal Defendants
for his whistleblowing activities whereby he disclosed corruption
in the Customs Agency and Treasury Department.
49. As a direct and proximate result of this conspiracy to
deprive Plaintiff of his constitutional rights Plaintiff has
suffered emotional distress and mental aguish, loss of enjoyment
of life, loss of income and livelihood and other damages.
THIRD CAUSE OF ACTION
VIOLATIONS OF FOURTH, FIFTH AND FOURTEENTH AMENDMENTS
OF THE UNITED STATES CONSTITUTION
50. Plaintiff incorporates by reference the allegations stated
in paragraphs 1 through 49 inclusive as though fully set forth
51. Defendants' actions in unlawfully stopping Plaintiff's
vehicle without probable cause and in retaliation and further
searching and detaining Plaintiff again without probable cause
deprived Plaintiff of his constitutional rights to be free from
unreasonable searches and seizures and to be entitled to due
process of law.
52. As a direct and proximate result of Defendants' actions
for which they are liable Plaintiff has suffered emotional distress,
mental anguish, loss of enjoyment of life and other injuries.
FOURTH CAUSE OF ACTION
VIOLATIONS OF 42 U.S.C. 1985
ALL FEDERAL DEFENDANTS
53. Plaintiff incorporates by reference the allegations stated
in paragraphs 1 through 52 inclusive as though fully set forth
54. Upon information and belief, Defendants, in retaliation
against Plaintiff and acting in concert, conspired to refuse
to send the State of California the necessary documents relating
to Plaintiff knowing that said refusal would result in Plaintiff
being unable to secure a permit to carry a concealed weapon in
55. This refusal to send Plaintiff's files was done with
malice and in deliberate disregard for Plaintiff's rights and
was the direct and proximate cause of Plaintiff being unable
to obtain the permit.
56. As a direct result of Defendants' refusal to send these
records Plaintiff has suffered emotional distress, mental anguish,
loss of enjoyment of life, loss of livelihood and loss of income
FIFTH CAUSE OF ACTION
VIOLATIONS OF THE WHISTLEBLOWER PROTECTION
ACT (5 U.S.C. 1221)
ALL FEDERAL DEFENDANTS
57. Plaintiff incorporates by reference the allegations stated
in paragraphs 1 through 56 inclusive as though fully set forth
58. For many years, Plaintiff has brought to the attention
of his superiors at Customs, including the Office of Internal
Affairs, the San Diego Port Director, the Office of Special Counsel
in Washington D.C., and others responsible for the investigating
and prosecuting acts of corruption those wrongful, unlawful and
corrupt actions that he observed being committed by high ranking
59. In retaliation for reporting these corrupt acts, Plaintiff
was retaliated against and discriminated against by being transferred,
receiving poor performance evaluations and disciplinary actions
and by being terminated from his employment.
60. Additional retaliatory acts against him continued after
his employment including the above alleged failure to supply
California with his records and the unlawful stop, search, seizure
and detention of Plaintiff.
61. All of these retaliatory acts constitute violations of
the Whistleblower Protection Act (5 U.S.C. 1221) for which the
Defendants are liable.
62. As a direct and proximate result of Defendants' actions
in violation of 5 U.S.C. 1221 Plaintiff has suffered emotional
distress, mental anguish, loss of enjoyment of life, loss of
employment, salary and benefits including retirement benefits.
SIXTH CAUSE OF ACTION
WRONGFUL TERMINATION IN VIOLATION OF PUBLIC
ALL FEDERAL DEFENDANTS
63. Plaintiff incorporates by reference the allegations stated
in paragraphs 1 through 62 inclusive as though fully set forth
64. Defendants terminated Plaintiff from his employment with
Customs in retaliation for Plaintiff having reported corruption
and unlawful actions committed by certain Customs personnel.
65. Defendants' termination of Plaintiff's employment was
wrongful and in violation of California public policy which protects
whistleblowers from employment termination in retaliation for
reporting activities which are believed to be unlawful.
66. As a direct and proximate result of this wrongful termination
Plaintiff has suffered emotional distress, mental anguish, loss
of enjoyment of life, loss of employment, income and benefits
including substantial retirement benefits.
SEVENTH CAUSE OF ACTION
VIOLATION OF GOOD FAITH AND FAIR DEALING
ALL FEDERAL DEFENDANTS
67. Plaintiff incorporates by reference the allegations stated
in paragraphs 1 through 66 inclusive as though fully set forth
68. At all pertinent times herein, there existed an implied
covenant of good faith and fair dealing inherent in Plaintiff's
employment contract such that his employer was at all times required
to treat Plaintiff with fairness. Such covenant is implied as
a mater of law.
69. Defendants' termination of Plaintiff's employment was
in violation of this implied covenant of good faith and fair
dealing for which Defendants are liable.
70. As a direct and proximate result of Defendants' violation
of this covenant Plaintiff has suffered emotional distress, mental
anguish, loss of enjoyment of life, loss of employment, income
and benefits including retirement benefits.
EIGHTH CAUSE OF ACTION
DEFENDANTS COMMISSIONER OF CUSTOMS AND SECRETARY
71. Plaintiff incorporates by reference the allegations stated
in paragraphs 1 through 70 inclusive as though fully set forth
72. As the head of their individual agencies the Secretary
of Treasury and Commissioner of Customs owed a duty to its employees,
including Plaintiff, to exercise reasonable care to protect them
from unlawful and retaliatory actions taken against them by other
employees and supervisors.
73. These Defendants breached that duty owed to Plaintiff
by not exercising diligent care to insure such actions did not
74. As a direct and proximate result of that breach of duty
Plaintiff was retaliated against and wrongfully terminated for
which these Defendants are liable.
75. As a direct and proximate result of these Defendants
negligence Plaintiff has suffered, emotional distress, loss of
enjoyment of life, loss of employment, loss of salary and benefits
and loss of retirement benefits.
WHEREFORE, Plaintiff prays for relief as follows:
1) Judgment against Defendants and each of them on each cause
of action for compensatory damages, including back pay and front
pay, according to proof;
2) Punitive and exemplary damages against each of the federal
Defendants on each of the causes of actions brought against them;
3) Reinstatement of Plaintiff to the federal governmental
employment position, salary and benefits, including retirement
and pension benefits, that he would have had with appropriate
promotions had he not been wrongfully terminated from his position;
4) An Order enjoining Defendants from any further retaliation
and/or discrimination against Plaintiff;
5) An Order requiring that the Department of Customs release
the requested employee records of Plaintiff to the State of California
in relation to his application for a permit to carry a concealed
6) An Order that Defendants pay Plaintiff's attorney's fees
and costs; and
7) Such other relief that the Court deems appropriate and
July 30, 2001
Joel C. Golden, Attorney For Plaintiff
JOEL C. GOLDEN
California Bar No. 47907
2356 Moore Street, Suite 201
San Diego, CA 92110
Telephone No. (619) 294-7918
Fax (619) 296-8229
Attorney For Plaintiff John Carman
John Carman's Whistleblower's
Whistle's A'Gonna Blow