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1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
3 ------------------------------------------------x
4 CARYL B. LEVENTHAL,
Plaintiff,
5
-against
HON. JANET RENO, ATTORNEY
7 GENERAL OF THE UNITED STATES,
Defendant.
8 ------------------------------------------------x
9
UNITED STATES ATTORNEY'S OFFICE
10 100 Church Street
New York, New York 10007
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May 3, 2000
12 10:20 a.m.

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16 EXAMINATION BEFORE TRIAL OF THE
17 DEFENDANT BY ROBERT G. BROUILLET.

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22 BETSY CONDIOTTI & ASSOCIATES
23 P.O. Box 2232
24 Neptune, New Jersey 07754
25 (732) 774-2902

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1 A P P E A R A N C E S:
2 MICHAEL R. BRESSLER, ESQ.
36 West 44th Street
3 New York, New York 10036
BY: MICHAEL R. BRESSLER , ESQ.
4 Attorney for the Plaintiff
5 MARY JO WHITE, ESQ.
United States Attorney
6 Southern District of New York
100 Church Street
7 New York, New York 10007
BY: ERIC B. FISHER, ESQ.
8 Attorneys for the Defendant
9 ALSO PRESENT:
10 MICHAEL LEVENTHAL

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1 I N D E X
2 WITNESS NAME PAGE NO.
3 ROBERT G. BROUILLET

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5 Direct Examination by Mr. Bressler 5

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7 E X H I B I T S
8 EXHIBIT NO. PAGE NO.

9 P-1 Postal receipt and two-page 23
letter dated 6/8/95
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P-2 Postal receipt and four-page 32
11 letter dated 6/13/96
12 P-3 Postal receipt and two-page 33
memorandum dated 6/10/96 and
13 three pages attached
14 P-4 Position description form for 42
supervisory applications clerk
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1 STIPULATIONS
2 IT IS HEREBY STIPULATED AND AGREED by and
3 between the attorneys for the respective parties
4 herein that the sealing, filing and certification of
5 the within Examination Before Trial be waived; that
6 all objections, except as to form, are reserved to
7 the time of trial;
8 That the transcript may by signed before any
9 Notary Public with the same force and effect as if
10 signed before a Clerk or Judge of the Court;
11 That this Examination Before Trial may be
12 utilized for all purposes as provided by the CPLR;
13 That all rights provided to all parties by the
14 CPLR shall not be deemed waived and the appropriate
15 sections of the CPLR shall be controlling with
16 respect thereto.

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1 ROBERT G. B R O U I L L E T,
2 26 Federal Plaza, Room 4128, New York, New
3 York, called as a witness, having been first
4 duly sworn according to law, testifies as
5 follows:

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7

8 DIRECT EXAMINATION BY MR. BRESSLER:

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10 Q Good morning, Mr. Brouillet.
11 A Good morning.
12 Q My name is Michael Bressler. I represent
13 Ms. Carol Leventhal, the Plaintiff, against the
14 Defendants, Janet Reno and the U.S. Department of
15 Justice.
16 Have you ever had a deposition before?
17 A No, I haven't.
18 Q I'm going to ask you questions. You have
19 to give verbal answers, because gestures can't be
20 picked up by the reporter. So articulate your
21 answer. If you don't understand a question, please
22 let me know and I will attempt to rephrase it, okay?
23 A Okay.
24 Q In the past twenty-four hours, have you
25 taken any drugs, medication, alcohol or anything else

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1 that would make you unable to correctly answer
2 questions today?
3 A No, I haven't.
4 Q Have you reviewed any documents, papers
5 and so forth before coming in today for the purpose
6 of this deposition?
7 A Yes, I have.
8 Q What have you reviewed?
9 A Some of the file cases related to this, myself
10 and Mr. Fisher.
11 Q Do you have copies of those documents?
12 MR. FISHER: For the record, the
13 documents were documents that I showed Mr.
14 Brouillet and they were documents that were
15 produced to us by Plaintiff's counsel.
16 MR. BRESSLER: Okay.
17 Q Are you employed?
18 A Yes, I am.
19 Q By whom are you employed?
20 A Immigration & Naturalization Service.
21 Q For how long have you been employed by
22 INS?
23 A Since February of 1991.
24 Q What is your current job title?
25 A Personnel staffing specialist.

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1 Q Was that the title you had in 1995 and
2 1996?
3 A No, it's not.
4 Q When did you become personnel staffing
5 specialist?
6 A Summer of '97.
7 Q What are your duties and responsibilities
8 as personnel staffing specialist?
9 A I handle the staffing and recruitment duties
10 for assigned positions within the New York district
11 of the INS.
12 Q Prior to the summer of 1997, what
13 position did you hold?
14 A I was supervisory personnel management
15 specialist.

NOTE: THIS IS VERY INTERESTING.  ONE YEAR AFTER MS. LEVENTHAL WAS ILLEGALLY TERMINATED AND SHE BEGAN A FORMAL COMPLAINT, MR. BROUILETTE'S POSITION WAS CHANGED FROM SUPERVISORY PERSONNEL MANAGEMENT SPECIALIST TO PERSONNEL STAFFING SPECIALIST.  IN GENERAL TERMS AND TO THIS WRITER'S KNOWLEDGE, THIS IS A REDUCTION IN POSITION.

16 Q When did you become supervisory personnel
17 management specialist?
18 A When I joined INS in February of '91.
19 Q What were your duties as supervisory
20 personnel management specialist?
21 A I was in charge of personnel, all areas.
22 Q Can you be more specific about when you
23 say you are responsible for personnel, all areas?
24 A Staffing and recruiting, labor relations,
25 employee relations, training, security, personnel

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1 processing.
2 Q Now, is that for the New York district
3 office?
4 A New York district office.
5 Q Any other offices?
6 A Just the New York district office.

7 Q And supervisory personnel management
8 specialist was your title in 1995 and 1996?
9 A Yes.

10 Q And your duties were as you just

11 specified in 1995 and 1996?
12 A Yes.
13 Q Now, basically, most of my questions will
14 deal with the period of 1995 and 1996.
15 A Okay.
16 Q Unless otherwise specified. Now, in
17 general, can you briefly describe how you would come
18 to hire a person in INS who didn't take a civil
19 service exam?
20 A Simply put, if someone is seeking employment
21 with us through the office of personnel management,
22 well, then they would apply through OPM, which would
23 recruit for us.
24 Q What is OPM?
25 A The United States office of personnel

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1 management.
2 Q Can you briefly describe the process,
3 basically, your relationship with OPM?
4 A If we choose to fill a position with outside
5 candidates, if we want to fill a position that would
6 be open to the general public, under the law, we
7 would go through OPM. They would announce the job
8 for us. Then they would, you know, receive the
9 applications, determine their qualifications, rate
10 and rank them and place them on a certificate of
11 eligibles and issue that to the requesting agency.
12 Q Now, do you know how OPM rates and ranks
13 candidates?
14 A No, I don't.
15 Q For instance, in a typical case or a
16 typical placement, they give you a list of
17 candidates?
18 MR. FISHER: Objection as to form.
19 A Yes, it would be a certificate of eligibles
20 that they would issue.
21 Q Approximately how many people would be on
22 the list?
23 A Depending on the number of vacancies.
24 Q Are you saying that there is a list of
25 eligibles for positions in general or is it a

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1 additional point?
2 MR. FISHER: Objection as to form.
3 A It's not added, no.
4 Q Do you know if you have an Affirmative Action
5 program?
6 A Yes, we do.
7 Q Can you describe the Affirmative Action
8 program or your understanding of it?
9 A The Affirmative Action plan states mainly that
10 all personnel actions will be based upon merit
11 reasons only without, you know, race, marriage, sex,
12 ethnicity entering into the picture. Everything is
13 decided on merit factors alone.
14 MR. BRESSLER: Can you read that back.
15 (The record is read back.)
16 Q Well, what then is the Affirmative Action
17 program, as you know?
18 A Okay, the Affirmative Action plan also
19 stipulates that efforts should be made to, you know,
20 make an outreach effort to all groups so that the
21 Federal government will be well representative of all
22 groups that make up the country.
23 Q Now, you are talking about making an
24 effort to recruit all groups?
25 A All groups, yes.

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1 Q But is INS or your office involved in
2 recruitment?
3 MR. FISHER: Objection as to form.

NOTE: NOTICE HOW THE US ATTORNEY IS GETTING MR. BROUILETTE USED TO HEARING THE CODE WARNING "OBJECTION TO FORM."  IN THIS CASE HE IS WARY ABOUT THE DEPOSER GETTING INVOLVED WITH QUESTIONS ABOUT AFFIRMATIVE ACTION.  RACIAL DISCRIMINATION AGAINST MS. LEVENTHAL IS MENTIONED IN HER COMPLAINT.  THE USDOJ IS PETRIFIED OF THIS AREA OF QUESTIONING.

4 A Not directly, because we have a separate EEO
5 office that is responsible for that.
6 Q Is it OPM or INS that recruits
7 candidates?
8 A We do both, because OPM will do it if we go
9 through OPM, but each agency, as you probably know,
10 can also fill positions internally with their own
11 vacancy announcements.
12 Q Now, are you given by either OPM or any
13 other agency any targets for hiring in terms of race
14 or numbers?
15 A From OPM?
16 Q From OPM or any agency.
17 MR. FISHER: Objection as to form.
18 A I think that there's statistics that show, you
19 know, the makeup of the agencies as part of the EEO
20 law to see that we reach all groups in our
21 recruitment drives.
22 Q Overall, you basically review the
23 statistics of the agency to see if the agency is
24 representative of the country?
25 MR. FISHER: Objection as to form. Who

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1 is "you" in the question?

NOTE: AGAIN, "OBJECTION TO FORM" IS USED WHEN THE POSSIBILITY OF QUOTAS AND RACIAL INFORMATION IS BROUGHT UP.

2 MR. BRESSLER: Well, meaning him
3 personally.
4 A Not me, no.
5 Q Does INS, to your knowledge, review the
6 hiring to see if it's met certain targets on racial
7 hiring?
8 A I believe they do at a higher level.

NOTE: "RACIAL TARGETS" ARE A CODE WORD FOR RACIAL QUOTAS AND RACE BASED AFFIRMATIVE ACTION.

9 Q Does anyone from a higher-level tell you,
10 for example, we need to hire more blacks or more
11 Asians, et cetera?
12 A No.
13 Q Do you ever get a report of the
14 statistics of hiring, like, on a periodic basis?
15 MR. FISHER: You meaning Mr. Brouillet?
16 MR. BRESSLER: His agency.
17 Q I'm saying, how do you insure that you
18 met the targets?
19 MR. FISHER: Objection as to form. There
20 hasn't been any testimony that there are
21 targets.

NOTE: ON THE CONTRARY.  IN #5-8, MR. BROUILETTE HAS JUST STATED THAT HE BELIEVES IT IS DONE ON A HIGHER LEVEL.

22 Q Your testimony is that you keep
23 statistics on the hiring; and that's designed for
24 what purpose?
25 A It's not done in my office.

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1 Q Do you know what office does this?
2 A EEO, as far as I know.
3 Q Would you know what statistics EEO keeps
4 in this area?
5 A Male, female, I think, race, ethnicity.
6 Q If you personally would like to obtain
7 statistics for a given section of your office, would
8 you be able to obtain that from the computer?
9 A No, we don't have access to that on computer.
10 Q Does the EEO office have those
11 statistics?
12 A I don't know.
13 Q Now, let me shift gears a little. Were
14 you involved in the hiring of Ms. Caryl Leventhal?
15 A Somewhat, yes.
16 Q Can you briefly describe your
17 involvement.
18 A If I recall, we requested an OPM certificate
19 of eligibles and her name was one of the candidates
20 on there and she was subsequently selected.
21 Q Do you know how many individuals are on
22 the list of eligibles?
23 A No.
24 Q Do you have an approximation?
25 A No, I can't -- I don't even know the number of

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1 vacancies at the time. It could have been anywhere
2 from four to twelve.
3 Q Of the eligibles, do you know, if you
4 remember, the race of any of the eligibles, the
5 racial makeup?
6 A No, I don't recall.
7 Q Did OPM rank the eligibles?
8 A Yes, they were in rank order, by score order.
9 Q Do you know what Ms. Leventhal's rank
10 was?
11 A No, I don't.
12 Q Do you know what criteria was used to
13 rank the eligibles?
14 A I don't even recall if there was a test or not
15 involved with that. So then OPM would have rated and
16 ranked the candidates.
17 Q Do you know if Ms. Leventhal was
18 interviewed for this position?
19 A I recall, yes, she was interviewed.
20 Q Do you know by whom?
21 A No, I don't.
22 Q Do you know when she was interviewed?
23 A Sometime in 1995.
24 Q Who was the person who made the final

25 determination on whether Ms. Leventhal should be

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1 A I would have reviewed the application to make
2 sure all necessary documents were there; and then I
3 would have reviewed the document from the
4 interviewing official that they were, in fact,
5 selecting this person.
6 Q To your knowledge, did race have any role
7 whatsoever in selecting the person or in determining
8 who would get the position that Ms. Leventhal was
9 applying for?
10 A To my knowledge, no.
11 Q In May of 1995, did you inform Ms.
12 Leventhal she was hired as a supervisory applications
13 clerk?
14 MR. FISHER: What's the date?
15 MR. BRESSLER: I said in May 1995.
16 A Yes.
17 Q Did you ask her for a starting date in
18 May of 1995?
19 A Yes, I did.
20 Q Do you recall what she told you?
21 A Specifically, no.
22 Q Well, do you recall telling her the date
23 she selected was good, because it starts a new pay
24 period?
25 A I don't remember those exact words.

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1 Q Well, did there come a time after you
2 told her she was selected that she could not start
3 her employment?
4 A Yes, I recall that at that time.
5 Q What was the reason that you told her
6 this?
7 A The specific reason that we had to delay her
8 start day, I don't recall. I don't recall the
9 reasons.
10 Q You don't recall at all why it was
11 delayed?
12 A Specifically, no, I don't recall.
13 Q Could it have been to choose someone else
14 for the position?
15 MR. FISHER: Objection as to form.
16 A I don't understand the question.
17 Q Could the delay of hiring been as a
18 result of you seeking someone else for that position?
19 A I don't think so.
20 Q Do you know when Ms. Leventhal started,
21 actually started in her position, started working?
22 A It was in October of '95.
23 Q Did you ever talk to Mr. Michael
24 Leventhal between May of 1995 and October of 1995?
25 A I don't recall.  

NOTE: MICHAEL LEVENTHAL RECALLS.  THE ANSWER IS YES.

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1 Q Did you ever speak with Ms. Leventhal
2 between May 1995 and October 1995?
3 A I don't recall, but I must have.

NOTE: HE DID ON SEVERAL OCCASIONS AND MR. LEVENTHAL LISTENED IN TO TWO OF THEM.

4 Q Do you recall anything about any
5 conversations you may have had with Ms. Leventhal
6 between May 1995 and October 1995?
7 A What I do recall was trying to tell her that
8 we had to delay her starting work, that she would be
9 starting work, but there was going to be a delay.
10 Q Is it common that there are these kind of
11 delays?
12 A They do happen on occasion, yes.
13 Q And you don't know specifically why there
14 was a delay in her case?
15 A I don't know why in her case.
16 Q Well, in general, do you know why there
17 would be a delay?
18 A In general, I do know some of the delays, yes.
19 Q What reasons are there for a possible
20 delay?
21 A It could be a number of reasons, a simple
22 mistake, a sudden hiring freeze, a hold off for a
23 number of pay periods for more monies to become
24 available. There could have been an error made in
25 the clearance process, fingerprint check, drug

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1 clear record, when did you review those
2 letters?
3 THE WITNESS: After I was contacted by
4 Mr. Fisher.
5 Q When were you contacted by Mr. Fisher?
6 A Two weeks ago.
7 Q I'm going to show you what I'm going to
8 mark as Plaintiff's Exhibit 1.
9 (A postal receipt and two-page letter
10 dated June 8, 1995, is marked as Plaintiff's
11 Exhibit 1 for identification, as of this
12 date.)
13 Q Do you recall receiving this letter?

NOTE: THIS WAS A LETTER OF COMPLAINT ABOUT HAVING HER JOB OFFER RESCINDED.  IT WAS SENT CERTIFIED MAIL TO MR. BROUILETTE.

14 A Honestly, I don't recall.
15 Q Do you recall if you took any action in
16 response to receipt of this letter?
17 MR. FISHER: Objection as to form.
18 A I don't recall.

NOTE: OFCOURSE HE "DOESN'T REMEMBER."  MR. BROUILETTES ACTIONS LEFT THE USDOJ OPEN TO A LAWSUIT BASED ON NEGLIGENCE AND DISCRIMINATION.

19 Q Well, between May and October, did you
20 have any conversations with Mr. Berriman regarding
21 Ms. Leventhal's hiring?
22 A I don't recall.

NOTE: YOU'LL FIND MR. BROUILETTE CONSTANTLY FALLS BACK ON LAWYER TRAINED EVASIONS SUCH AS "I DON'T RECALL."  THE US ATTORNEY TRAINED HIM WELL.  REMEMBER, IN LAWYER SPEAK, THIS IS NOT A LIE.  BUT TO EVERYONE ELSE, A LIE IS A LIE.

23 Q You could have had conversations?
24 A I could have.
25 Q Well, was there any specific person who

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1 said we need to place a hold on the hiring of Ms.
2 Leventhal?
3 A Say that again.
4 Q Do you recall who said we must place a
5 hold on the hiring of Ms. Leventhal?
6 MR. FISHER: Objection as to form.
7 A No, I don't recall.
8 Q Do you know if it was someone in INS or
9 someone who said hold off on this hiring or was it
10 someone from OPM?
11 A I don't recall, but in line with your
12 question, it could have been someone with OPM if they
13 were to say we haven't completed a background
14 investigation as required.
15 Q But you have no specific knowledge about
16 why there was a hold?
17 A No, I can't recall.
18 Q Do you recall when you were told to put a
19 hold on Ms. Leventhal's hiring?
20 A Specifically, no, I don't recall.
-1 Q Do you recall speaking with Mr. Leventhal
22 and informing him that Ms. Leventhal couldn't begin
23 because others had points over her?
24 MR. FISHER: Objection as to form.
25 A I don't recall.  

NOTE: BY USING "OBJECTION TO FORM," THE US ATTORNEY IS ATTEMPTING TO PROTECT OTHER PEOPLE FROM BECOMING COMPLICITUS.

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1 Q Well, could the issue of points be the
2 reason for the hold in Ms. Leventhal's case?
3 A Possibly because OPM, you know, rates and
4 ranks the candidates in score order on the list. So
5 there may have been other people with a higher score
6 higher up on the list than Ms. Leventhal.
7 Q If that was the case, then why would you
8 offer a position to Ms. Leventhal?
9 A As I said, some of the errors that could have
10 been made at the time, you know, there may have been
11 two vacancies or three vacancies, but if there was a
12 change of only one vacancy, then that one vacancy
13 would have had to go with the top available three.
14 She may have been further down the list
15 and maybe getting the second vacancy. Like I said, I
16 don't recall the specific circumstances.
17 Q When you say the vacancies, you are
18 talking about all the total vacancies in the New York
19 district office?
20 A No, vacancies for the position in question,
21 supervisory applications clerk. This certificate of
22 eligibles was for the position of supervisory
23 applications clerk.
24 Q What do you mean by vacancies in this
25 context?

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1 A At that time, the adjudications branch might
2 feel that they have three vacancies, which means we
3 can make three selections from this one certificate
4 of eligibles. If suddenly the number of vacancies
5 change, for whatever reasons, then the selections we
6 would make then would be in accordance with the
7 number of vacancies, one selection or two selections
8 or maybe even four selections if additional vacancies
9 open up.
10 Q Well, when you say if there was an issue
11 of points, does race or ethnicity have any role in
12 the point value?
13 A No role whatsoever.
14 Q Are you familiar with a person named
15 Steven Smith?
16 A It rings a bell, yes.
17 Q Do you know a Steven Smith who is an INS
18 security officer in Vermont?
19 A Yes.
20 Q Do you recall if Mr. Smith conducted an
21 investigation of Ms. Leventhal in the summer of 1995?
22 A He would have been the agency's processor of
23 her paperwork prior to it going to OPM.
24 Q Do you know what his job is in doing
25 that?

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1 A Well, as security officer for the region, his
2 job is to, you know, process requests for security
3 clearances for employees and candidates for
4 employment.
5 Q Well, can you describe the process of
6 when you would use someone like Mr. Smith or a
7 security officer?
8 A For any new employee that we bring on board,
9 they have to have a security clearance.
10 Q How does a security check work?
11 A Well, when we hire a new employee, there are
12 certain requirements that have to be met, as far as a
13 background investigation goes; and that involves
14 taking fingerprints so the FBI can do a fingerprint
15 check, name, date of birth check. Drug testing is
16 required.
17 There is the credit history that is
18 checked and then certain background investigation
19 forms have to be completed on all candidates. We
20 review the paperwork to make sure that everything is
21 completed; and then we send that package up to the
22 regional office in Vermont. They do further
23 processing before they forward the package on to OPM,
24 which will do the investigation.
25 Q Is this all done before a candidate is

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