U.S. GOVERNMENT PRINTING OFFICE

72–302 PS WASHINGTON : 2001

NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF

2001

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

ON

H.R. 169

MAY 9, 2001

Serial No. 27

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250

Mail: Stop SSOP, Washington, DC 20402–0001

(II)

COMMITTEE ON THE JUDICIARY

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman

HENRY J. HYDE, Illinois

GEORGE W. GEKAS, Pennsylvania

HOWARD COBLE, North Carolina

LAMAR SMITH, Texas

ELTON GALLEGLY, California

BOB GOODLATTE, Virginia

STEVE CHABOT, Ohio

BOB BARR, Georgia

WILLIAM L. JENKINS, Tennessee

ASA HUTCHINSON, Arkansas

CHRIS CANNON, Utah

LINDSEY O. GRAHAM, South Carolina

SPENCER BACHUS, Alabama

JOE SCARBOROUGH, Florida

JOHN N. HOSTETTLER, Indiana

MARK GREEN, Wisconsin

RIC KELLER, Florida

DARRELL E. ISSA, California

MELISSA A. HART, Pennsylvania

JEFF FLAKE, Arizona

JOHN CONYERS, JR., MICHIGAN

BARNEY FRANK, Massachusetts

HOWARD L. BERMAN, California

RICK BOUCHER, Virginia

JERROLD NADLER, New York

ROBERT C. SCOTT, Virginia

MELVIN L. WATT, North Carolina

ZOE LOFGREN, California

SHEILA JACKSON LEE, Texas

MAXINE WATERS, California

MARTIN T. MEEHAN, Massachusetts

WILLIAM D. DELAHUNT, Massachusetts

ROBERT WEXLER, Florida

TAMMY BALDWIN, Wisconsin

ANTHONY D. WEINER, New York

ADAM B. SCHIFF, California

TODD R. SCHULTZ, Chief of Staff

PHILIP G. KIKO, General Counsel

JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

(III)

C O N T E N T S

MAY 9, 2001

OPENING STATEMENT

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress

From the State of Wisconsin, and Chairman, Committee on the Judiciary ... 1

WITNESSES

The Honorable Kweisi Mfume, President and CEO, National Association For

the Advancement of Colored People

Oral Testimony ..................................................................................................... 3

Prepared Statement ............................................................................................. 6

Mr. J. Christopher Mihm, Director, Strategic Issues, U.S. General Accounting

Office

Oral Testimony ..................................................................................................... 9

Prepared Statement ............................................................................................. 10

Mr. Bobby L. Harnage, Sr., National President, American Federation of Government Employees

Oral Testimony ..................................................................................................... 15

Prepared Statement ............................................................................................. 17

Dr. Marsha Coleman-Adebayo, Private Citizen

Oral Testimony ..................................................................................................... 18

Prepared Statement ............................................................................................. 20

APPENDIX

STATEMENTS SUBMITTED FOR THE RECORD

The Honorable John Conyers, Jr., A Representative in Congress From the

State of Michigan: Prepared Statement ............................................................. 35

The Honorable Sheila Jackson Lee, A Representative in Congress From the

State of Texas ....................................................................................................... 35

Dr. John E. Berthoud, President, National Taxpayers union: Prepared Statement ...................................................................................................................... 37

Mr. Thomas Devine, Legal Director, Government Accountabilty Project: Prepared Statement ................................................................................................... 37

Mr. Matthew Fogg, Chief Deputy U.S. Marshal, Executive Director, Redstone

Area Minority Employee Association; Executive Director of Congress

Against Racism & Corruption In Law Enforcement: Prepared Statement ..... 39

M. Kris J. Kolesnik, Executive Director, National Whistleblower Center: Prepared Statement ................................................................................................... 48

Dr. David L. Lewis, Research Microbiologist: Prepared Statement .................... 49

Mr. Gerald R. Reed, President, Blacks in Government and Mr. Rawle O.

King, National Legislative Director, Blacks in Government: Prepared Statement ...................................................................................................................... 50

Mr. Steven M. Spiegel, Private Citizen ................................................................. 52

MATERIALS SUBMITTED FOR THE RECORD

Bobby L. Harange, American Federation of Government Employees: Response

to Questions .......................................................................................................... 55

Mr. Christopher J. Mihm, General Accounting Office: Response to Questions .. 59

U.S. Department of Agriculture Racial Epithets, Submitted by NAACP ........... 63

Indian Health Service Rockville, Maryland, Hate Crime Symbols in Workplace, Submitted by the NAACP ......................................................................... 64

Page

IV

U.S. Army Corps of Engineers, New England District Office, Concord, MA

Hanging Noose—‘‘Staff Attitude Adjustment Notice’’, Submitted by NAACP 65

Additional Material For the Record ....................................................................... 66

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NOTIFICATION AND FEDERAL EMPLOYEE

ANTIDISCRIMINATION AND RETALIATION

ACT OF 2001

Wednesday, May 9, 2001

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to call, at 10:04 a.m., in Room

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding.

Chairman SENSENBRENNER. The Committee will be in order. The

Chair asks unanimous consent for him to declare a recess at any

time during the hearing today and I understand that a journal vote

is scheduled right after 10:00. So we are going to get going very

quickly.

The Federal Government is supposed to enforce the laws that

protect employees from discrimination and retaliation. But it sadly

appears that the Federal Government at times has failed to meet

this standard. According to the GAO, discrimination complaints by

Federal employees grew tremendously in the 1990’s. In fact, in fiscal year 1999, the number of complaints to the EEOC was about

120 percent greater than the number of complaints in 1991. The

GAO reported that complaints alleging retaliation against employees who had participated in the complaint process had increased as

well.

That very type of retaliation is what brings us here today. A

number of brave EPA employees and scientists came forward to tell

the Science Committee, which I chaired at the last Congress, about

a culture of intolerance and hostility at the EPA. By assisting a

congressional investigation, those employees risked retaliation and

some experienced it. In fact, the Labor Department concluded that

the EPA had retaliated against a female scientist because the

Science Committee used a memorandum she wrote over 10 years

prior to one of the hearings on the issue.

She did not even know the Committee had obtained her memorandum but was still punished by the agency. I will note that according to The Washington Post, the new Administrator of EPA,

Christine Todd Whitman, is taking steps to rectify problems at that

agency. That is good news, but from what we learned from the

oversight investigation, a change in the current law is needed to

ensure that all agencies are held accountable for discrimination

and retaliation against Federal employees.

2

In the response from what we learned from the oversight investigation, I, along with Representative Jackson Lee, introduced H.R.

169, the ‘‘Notification and Federal Employee Antidiscrimination

and Retaliation Act of 2001.’’ The No FEAR Act would require

agencies to pay for the settlements or judgment against them and

whistleblower and discrimination cases instead of allowing them to

pay for such judgments out of a government-wide general fund.

This will make the agencies more accountable for their actions. The

bill would also require notification to employees of their rights

under the various whistleblower and discrimination laws.

The notification requirement is intended to prevent discrimination and harassment in the first place by making employees and

managers aware of rules. Additionally, the bill would require agencies to report to Congress on the number of cases alleging intolerance, the disposition of those cases and the cost of the judgments

to the American taxpayer and the number of employees disciplined

for discrimination, harassment or retaliation.

This information will help to determine if there is a pattern of

misconduct and whether an agency is disciplining those employees

or managers involved in that behavior. Such tracking of complaints, cases and costs is not required today. H.R. 169 enjoys a

broad show of diverse support. The NAACP has endorsed the bill

as well as the National Taxpayers Union. Parenthetically, that I

will state, that must make it a very good bill or an outrageous rape

of the taxpayers. I prefer the former. We have some of the most liberal Members of Congress and some of the most conservative sponsoring this bill.

Just like private sector employees, Federal employees are protected against discrimination and retaliation. Just like the private

sector, Federal agencies must be held accountable. With that, I

would like to thank the witnesses appearing before this Committee

on this important issue, and I look forward to hearing their testimony. Without objection, the opening statement of Mr. Conyers

and other Members of the Committee will be inserted in the record

at this point.

[Statements follow in the Appendix]

Chairman SENSENBRENNER. The witnesses today are our former

colleague, the Honorable Kweisi Mfume, president and CEO of the

NAACP; Mr. Jay Christopher Mihm, director of Strategic Issues of

the United States General Accounting Office; Mr. Bobby L.

Harnage, Sr., national president of the American Federation of

Government Employees; and Dr. Marsha Coleman-Adebayo, a private citizen and a former EPA employee who won a significant settlement as a result of discrimination practiced against her. Would

all of you please stand and raise your right hand and take the

oath.

[Witnesses sworn.]

Chairman SENSENBRENNER. Let the record show that each of the

witnesses answered in the affirmative. Without objection, all of witnesses’ prepared statements will be included in the record after

their testimony.

Chairman SENSENBRENNER. I would like to ask each of witnesses

to summarize their testimony in about 5 minutes, and then at the

end of the panel, we will open it up for questioning for Members

3

of the Committee, and here comes the Journal vote, so the Committee will be recessed pending the Journal vote, and I would ask

Members following the Journal vote to come back promptly so that

we can continue. The Committee stands in recess.

[Recess.]

Chairman SENSENBRENNER. The Committee will be in order and

the witnesses will please take their seats. And Mr. Mfume, you are

first up, and would the witnesses please summarize their statements in about 5 minutes so we will have more time for questions.

STATEMENT OF THE HONORABLE KWEISI MFUME, PRESIDENT

AND CEO, NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE

Mr. MFUME. Thank you, Mr. Chairman. I will work very hard to

do that. I want to first begin by thanking you and Ranking Member Conyers,—who I understand will be joining us shortly—for

your support on this issue and for really taking the lead. I appreciate you holding this hearing as well as all of your efforts to shed

light on this very important issue. As my testimony will reflect the

NAACP is especially appreciative of your efforts and the efforts of

Congresswoman Sheila Jackson Lee to address this problem of Federal employee discrimination, both through legislation and through

hearings such as this. As a former Member of this body, it is an

honor always to sit before this distinguished Committee.

I want to particularly applaud, as you referenced earlier, Mr.

Chair, the bipartisan efforts to discuss and to find solutions to this

persistent problem of racism, sexism and anti-Semitism that, in the

aggregate, continue to plague this Nation and have done so far too

long. You, Mr. Conyers, and others, and particularly those on this

Committee, are to be commended.

Unfortunately Mr. Chairman, I am here because Federal employees today are still subjected to racial, religious, and gender discrimination with little or no recourse. We believe, obviously, that

this is a moral disgrace. Discrimination anywhere in the United

States is reprehensible and should not be tolerated. It is especially,

however, disconcerting when it takes place in the Federal Government. Fair employment, equal employment opportunities should be

basic cornerstones of the government.

Discrimination and retaliation against people who complain

about it and their supporters is rampant in Federal departments,

and quite frankly, in agencies across the Nation. And perhaps more

problematic is the fact that even complaining about racially discriminatory behavior on the job or even supporting someone who

complains about it is often tantamount to a death sentence for a

person’s career within our own government. And so the individual

who speaks out is often faced with harassment, and in some instances, even personal danger.

In February 1998, subsequent to a summit that we held at the

NAACP, we established a Federal sector task force with representatives of four States and the District of Columbia. And the primary

purpose of task force was to investigate and to address these evergrowing complaints about discrimination within our government.

Much of the testimony that I present today comes formally from

that task force led by our national board member, Leroy Warren,

4

who is here along with several members of that task force itself.

Since its inception, the task force has received and continues to receive hundreds of complaints each year, many of these complaints

are from ethnic minority Federal employees, who also have heard,

as we have, of this ongoing trend toward these discriminatory

issues. Interestingly enough, we have also heard from white men

and white women who have apparently been punished by their superior for upholding existing antidiscrimination law and existing

regulations.

In recent months, the task force has also begun hearing from an

even broader prospective and spectrum of people, specifically Jewish men and Jewish women who have also been subjected to discrimination and harassment based on their religious beliefs.

So the common thread among all of the complaints that the

NAACP has received as well as those in our own subsequent investigations is a nationwide pattern of discrimination that heretofore

has not been adequately addressed and certainly not eliminated.

A 1999 survey conducted at the Bureau of Printing and Engraving, a satellite facility, to be exact, in Fort Worth, Texas, 92 percent of the people surveyed said they had been personally subjected

to some form of discrimination on the job because of their race,

their color, their national origin, their age, their handicap, their

marital status and even their political affiliation. This means, at

best, we’re able to determine that not only is race based and other

types of discrimination pervasive throughout this facility and oftentimes throughout our government, but that it is also common

knowledge. Unfortunately this facility is typical of many of the others that we have surveyed, including departments right here in

Washington, D.C., and I’ll quickly try to give the Committee a couple of examples.

Number one, an employee at the national headquarters of the

Federal Aviation Administration complained to her supervisor and

other high ranking officials about displays of the confederate flag

and references to slavery at the FAA that many people there found

offensive. Subsequent to her complaining, her car was vandalized

while parked on the FAA lot, and to add insult to injury, no disciplinary action was ever taken against the people who initiated

what amounted to be racially offensive actions in the first place.

At the U.S. Department of Agriculture headquarters here in

Washington, someone defined the NAACP as the ‘‘Now Apes are

Called People’’ organization. They put that on the wall. A copy of

the racial epitaph is forwarded to the president of the Coalition of

Minority Employees at USDA and sent directly to his church for

his receipt. No one was ever investigated and held responsible for

either action.

And so as indicated earlier, while the problems of racial discrimination and intimidation exist here in Washington, they can be

found throughout facilities across our Nation.

Another example is a hanging noose sign that is referenced on

the charts to my right stating ‘‘staff attitude adjustment notice’’

that was found in a black employee’s work place at the U.S. Corps

of Army Engineers in Concord, Massachusetts. In addition to this

overt intimidation, Latino, Asian and black Federal employees have

consistently found that they have been discriminated against, and

5

oftentimes routinely, as a result of that, miss out on promotions because of their race or their ethnicity.

In Washington, employees at the Library of Congress successfully filed a class action lawsuit alleging, among other things, racial discrimination, and yet despite repeated findings which the

court, in favor of those employees, the Library continues to have

even its own set of problems.

In my testimony is referenced the case of Dr. William Ellis,

which illustrates, we believe, the Library’s ongoing failure to validate its competitive selection procedures and the illegal use of reassignments and details, which confers professional treatment

among some who were usually whites, and then effectively grooms

them for higher positions while passing over others for reasons that

we still don’t really understand.

Dr. Ellis is an African American senior specialist at the Congressional Research Service. He’s been denied a promotion despite

some 30 years of work experience and an exemplary work record.

And so, Mr. Chairman, suffice it to say that a careful examination of the record will show that race and gender-based discrimination and intimidation still run rampant in the Federal employment

sector, and real and comprehensive policies as well as vigorous enforcement of those policies is needed if that discrimination is ever

going to be stopped.

Let me just, if I might, in supporting this bill and supporting

your efforts, take a moment to point out how a few of the potential

repercussions, and quite frankly real dangers that are inherent in

this sort of discrimination can come back to hurt us and to clearly

hurt our government.

First, by allowing the status quo to continue within the Federal

Government, we are placing the safety and the service of dedicated

workers as well as taxpaying citizens at risk. Agencies know that

they cannot, or should not, discriminate. And yet in many instances, we have seen this still taking place. This includes such

agencies as the USDA, the Department of Defense and the U.S.

Marshall Service, all of which are charged with protecting various

aspects of our citizenry. Recently, each one of these agencies has

also been found guilty by our Nation’s courts of maintaining unbearable working conditions fostered by atmospheres of racial disharmony and mistrust.

I share the feelings of outrage, as I am sure many Members of

this Committee do, who realize that our tax dollars are being utilized in too many cases to support institutionalized race and gender

discrimination within the Federal ranks. It was shocking to me,

and I am sure it will be shocking to many Members of this Committee and the full House, to discover the amount of time, the

amount of money and the amount of resources that are expended

simply defending the Federal Government against such actions.

Chairman SENSENBRENNER. Mr. Mfume you are about 3 1/2 minutes over your time. Do you think we could wrap it up so we can

get to the others?

Mr. MFUME. I certainly will. You are very generous, Mr. Chairman, and I will be use the term ‘‘liberal,’’ and say that you are very

liberal with your time. Let me just say this, and refer obviously all

of you to the full set of testimony. We believe that H.R. 169 is a

6

step in the right direction. It is a good first step, a good way to proceed.

Again, the Chair and Ms. Jackson Lee and others who have supported this are to be commended. I really want to thank the distinguished Members of this Committee for having a chance to bring

these issues forward, as I am sure the others who give testimony

will also thank you.

At the end of the day we believe that the bottom line is to ensure

that discrimination of all types within the Federal Government

must be eradicated, and that America’s Federal employees who are

black and white and Jewish and Latino and Asian are treated

equally and treated fairly in the workplace.

Thank you, Mr. Chairman and I will yield back time that I do

not have.

Chairman SENSENBRENNER. Thank you, Mr. Mfume and this is

the first time in a long time that anybody has called me liberal.

[The prepared statement of Kweisi Mfume follows:]

PREPARED STATEMENT OF KWEISI MFUME

Thank you, Chairman Sensenbrenner and Ranking Member Conyers, for inviting

me here today to talk about the important issue of employment discrimination within the federal government. I appreciate your holding this hearing as well as all of

your hard work to address this issue.

As my testimony will reflect, the NAACP is especially appreciative of the efforts

that you, Chairman Sensenbrenner, as well as Congresswoman Sheila Jackson Lee

have undertaken to address this problem both through legislation as well as

through hearings such as this one that help shed light on the problem.

It is also an honor, as always, to sit before Congressman John Conyers to talk

about how to address the persistent problem of racism that has plagued this nation

for too long. Congressman Conyers has worked tirelessly with the NAACP on racial

discrimination issues and we look forward to many more years of your leadership

in this area.

Unfortunately, federal employees today are often subjected to racial and gender

discrimination with little or no recourse.

This is morally disgraceful, as discrimination anywhere in the United States is

reprehensible and should not be tolerated. It is, however, especially disconcerting

as the federal government should serve as a model of best practices for fair employment and equal opportunity to national and international companies.

Discrimination, and retaliation against people who complain about it and their

supporters, is rampant in federal departments and agencies across the nation.

Perhaps more problematic is the fact that complaining about racially discriminatory behavior on the job, or even supporting someone who complains, is often tantamount to a death sentence for a person’s career within the federal government and

the individual is often faced with harassment and in some cases personal danger.

In response to the rapidly expanding number of complaints of discrimination by

federal employees the NAACP, in January, 1998, held a Federal Sector Employment

Discrimination Summit at the University of Maryland at College Park. Subsequent

to the summit, in February, 1998, the NAACP established our Federal Sector Task

Force with representatives from four states and the District of Columbia to investigate and address the ever-growing number of complaints of discrimination within

the federal government. Much of the testimony that I have for you today comes from

the Task Force, which is led by NAACP National Board Member, Mr. Leroy Warren.

Since its inception, the Task Force has received and continues to receive hundreds

of complaints each year. While many of these complaints are from ethnic minority

federal employees, we have also heard from Caucasian males and females, who have

been apparently punished by their superiors for essentially upholding existing antidiscrimination laws and regulations. In recent months, the Task Force has also

begun hearing from an even broader spectrum of people, specifically Jewish men

and women, who have been subjected to discrimination and harassment because of

their religious beliefs.

Through all of the complaints we have received, as well as our own subsequent

investigations, the NAACP continues to see a nation-wide pattern of discrimination

that has, heretofore, not been adequately addressed and certainly not eliminated.

7

In a 1999 survey conducted at the Bureau of Printing and Engraving satellite facility in Fort Worth, Texas, 92% of the people surveyed said they had either been

personally subjected to discrimination on the job because of their race, color, religion, national origin, age, handicapped condition, marital status or political affiliation or they knew of a co-worker who had suffered from some form of discrimination. This means that not only is race-based discrimination pervasive throughout

this facility, but that it is also common knowledge.

Unfortunately, this facility is typical of many others that the NAACP Task Force

has investigated, including departments right here in Washington, D.C.

An employee at the national headquarters of the Federal Aviation Administration

complained to her supervisor and other high-ranking officials about the display of

confederate flags and references to slavery at the FAA that many found offensive.

Subsequent to her complaining, her car was vandalized while parked in the FAA

parking lot. To add insult to injury, no disciplinary action was ever taken against

the people who initiated the racially offensive actions in the first place. Nor were

the people responsible for vandalizing the employee’s car ever brought to justice.

At the US Department of Agriculture headquarters here in Washington, somebody

defined the NAACP as ‘‘Now Apes Are Called People’’ on a wall. A copy of this racial

epithet was then forwarded to the President of the USDA Coalition of Minority Employees at his church in Alabama. No one was ever held responsible for either action.

As I indicated earlier, while the problems of racial discrimination and intimidation exist here in Washington, they can also be found at federal facilities throughout

the United States. For instance, a hanging noose and sign stating ‘‘Staff Attitude

Adjustment Notice’’ was found in an African American’s workspace at the US Army

Corps of Engineers District Office in Concord, Massachusetts.

In addition to this overt intimidation, federal employees of color have consistently

found that they have been discriminated against, and routinely missed out on promotions because of their race. Here in Washington, African American employees at

the Library of Congress successfully filed a class action lawsuit alleging, among

other things, racial discrimination. Despite repeated findings by the Courts in favor

of the employees, the Library continues to have problems.

The case of Dr. William Ellis illustrates the Library’s ongoing failure to validate

its competitive selection procedures and the illegal use of reassignments and details,

which confers professional treatment to Caucasians, and effectively grooms them for

higher positions. Dr. Ellis, an African American Senior Specialist at the Congressional Research Service was denied a promotion despite some 30 years of experience. Dr. Ellis has testified that Library officials ‘‘routinely groom Caucasian employees for upper management and give preferred Caucasian employees . . . assignments and positions which confer an unfair advantage when competing for senior

positions.’’

In addition to the individual stories, another indicator of the extent of this problem may be the number of class action lawsuits that have been filed within the last

thirty years and continue to be filed today. Just a few of these actions include: In

1975, African American employees filed a class action lawsuit against the Library

of Congress. In a 1992 declaratory judgment, the U.S. District Court concluded that

the Library had clearly and systematically discriminated against African Americans

because of their race.

• In 1995, an organization known as Black Males for Justice at the Social Security Administration filed a class action complaint of discrimination with the

Social Security Administration. In April of 1997, an administrative judge at

the Equal Employment Opportunity Commission (EEOC) issued a recommendation that the complaint be accepted as a Class Action Complaint. A

month later, the Social Security administration issued a final agency decision

rejecting the decision of the EEOC.

• In 1995, female employees of the United States Department of Agriculture

Forest Service in the Pacific Southwest Region filed a lawsuit on behalf of

6,000 members charging that the region maintains a sexually hostile work environment and has engaged in a pattern and practice of sexual harassment

and retaliation against female employees.

Suffice it to say that a careful examination of the record will show that race- and

gender-based discrimination and intimidation are still rampant within the federal

employment sector, and that real and comprehensive policies, as well as, the vigorous enforcement of these policies are needed if discrimination is going to be

stopped.

8

It may be a cliche, but it appears that it is going to take an Act of Congress to

make the federal agencies, departments and other government entities, address the

problems that exist within their own ranks.

Before I get into specific details about what needs to be done, I would like to take

a minute and point out a few of the potential repercussions and, quite frankly, real

dangers that are unique to racial discrimination within the federal government.

First, by allowing this status quo to continue within the federal government, we

are placing the safety and service of both our dedicated workers, as well as our taxpaying citizens at risk. Agencies that cannot or are unwilling to acknowledge discrimination or retaliation within their own ranks cannot be operating productively.

This includes agencies such as the USDA, the Department of Defense, and the US

Marshall’s Service, all of which are charged with protecting various aspects of our

population and all of which have fairly recently been found guilty by our nation’s

courts of maintaining unbearable working conditions fostered by atmospheres of racial disharmony and mistrust.

Secondly, in addition to the feelings of outrage that I, and others have when we

realize that our tax dollars are being utilized, in all too many cases, to support institutionalized race and gender discrimination within the federal ranks, it was shocking to me to discover the amount of time, money and other resources that are expended defending the federal government in these legal actions. It has been estimated that the average EEO investigation costs the federal government approximately $3,000. Add to this the cost of waging a legal defense in all of the class action lawsuits, as well as the amount of tax-payers’ money spent in both settlements

and court rulings against the government, and you find the burden to our federal

government is staggering.

So, how is it that racial and gender employment discrimination of this magnitude

is able continue almost unchecked in the year 2001? This is particularly perplexing

given the economic costs, the threats to public safety, as well as the gross disregard

for the public trust. The over-riding answer appears to be a lack of incentive in some

cases and ability in others on the part of managers and those responsible for overseeing the action of federal employees to stop the problem.

Specifically, there are currently no sanctions or other deterrents in place to punish federal departments or agencies that engage in or allow discrimination to fester

within their ranks. Persons and Departments found guilty of discriminatory actions

pay virtually nothing; a majority of the money spent on settlements or judgments

comes from the Federal Treasury Judgment Fund.

Furthermore, the EEOC lacks adequate funding as well as federal authority to

intervene rapidly, even in the most blatant discrimination cases. In addition to looking at how we can make individuals, departments and agencies more accountable,

I hope that Congress will take the time to look at how we can strengthen and enhance the EEOC authority and scope.

In my discussions with the NAACP Task Force members, as well as other members of the civil rights community, there seems to be an overriding consensus that

the EEOC needs more staff and more resources if it is going to adequately meet

the challenges that it has been presented with in the last decade. Even a casual

examination of the amount of funding provided to the EEOC over the last few years

by Congress and the Administrations makes us wonder how the EEOC has been

able to achieve all that it has, as well as marvel at what could be if it had adequate

funding and authority.

The bill introduced by Chairman Sensenbrenner and Congresswoman Jackson

Lee, H.R. 169, is a positive step in enhancing our approach to eliminating discrimination within the federal sector. By requiring that federal agencies be held accountable for violations of anti-discrimination and whistleblower protection laws, H.R.

169 renews efforts to address a problem that has been allowed to fester far too long.

Furthermore, by requiring that federal agencies notify their employees of their

rights under discrimination and whistleblower statutes, H.R. 169 would require the

federal government to send an important message to all it employees that we are

serious about ensuring that people’s rights are protected.

The portion of H.R. 169 that requires that federal agencies report to Congress

each year on the number of discrimination complaints lodged against it, as well as

the disposition of such cases would also let employees know that their rights are

being monitored, and that Congress is watching out for them.

Finally, the language in H.R. 169 requiring that federal agencies pay out of their

own budgets any discrimination or whistleblower judgments, awards or settlements

against the agency, would clearly help make agency administrators as well as Department Secretaries more aware of what is happening and more interested in taking steps to prevent these discriminatory practices.

9

In short, I commend Chairman Sensenbrenner, Congresswoman Sheila Jackson

Lee and this committee for taking on this crucial problem, and introducing this important legislation. If nothing else, it advances the need to put the federal government on alert that racial and gender discrimination is being noticed and will not

be tolerated.

Thank you for the opportunity to bring these issues before the Committee and I

look forward to working with you to make certain that all of America’s federal employees are able to work in an environment which is free of discrimination and intimidation.

Chairman SENSENBRENNER. Mr. Mihm.

STATEMENT OF J. CHRISTOPHER MIHM, DIRECTOR, STRATEGIC ISSUES, UNITED STATES GENERAL ACCOUNTING OFFICE

Mr. MIHM. Thank you, Mr. Chairman. It is a pleasure and an

honor to be here this morning to provide information for your deliberations on the No FEAR Act. Over the years, Congress has put in

place a statutory framework to help ensure that Federal employees

are able to achieve results in an environment free from discrimination and the fear or experience of retaliation or reprisal for blowing

the whistle on waste, fraud and abuse.

Unfortunately, and as Mr. Mfume detailed, despite these protections, some Federal employees have experienced or believe that

they have been subject to workplace discrimination or reprisal for

whistleblowing. Such experiences or perceptions, and the complaints and lawsuits that they spur not only disrupt the lives of the

affected employees, they also undermine the efficient and effective

delivery of government services to the public and discourage our

goals of a diverse, pluralistic and accountable workforce. With

these thoughts in mind, I will hit the highlights of the three points

detailed in my written statement concerning the need for first, better reporting; second, accountability; and third, notification. As you

know, the No FEAR Act seeks to address each of these issues. First

in regards to reporting, as you mentioned in your opening statement, Mr. Chairman, because data are not currently available,

there is no clear picture on the number of complaints of workplace

discrimination and reprisal for whistleblowing at agencies or government-wide or the outcome of those cases.

In addition, although initiatives are under way to deal with data

shortcomings, key information is still lacking on the relationship

between the statutory basis of complaints, for example, race, sex or

disability, and the kind of issues such as nonselection for promotion

or harassment that were cited in the complaints.

The point here is that such data are important because they can

be a starting point for Congress, agency managers, and the public

to better understand the nature and scope of issues in the workplace involving discrimination, reprisal, conflict and other problems

and can help in developing strategies for dealing with these issues.

In short, if we don’t know the scope of the problem and the nature of the problem, we can’t begin to start addressing it.

Second, in regards to accountability, agencies and their leaders

and managers must be accountable for providing a fair and equitable workplace free from discrimination and reprisal. Data along

the lines that I just mentioned is helpful in that it fosters transparency, which in turn provides an incentive for agency leadership

10

1 Applicants for federal employment are also covered under these laws.

to improve performance and enhance the imagine of the agency in

the eyes of both its employees and the public.

The No FEAR Act includes another possible means for promoting

accountability by having agencies, as you mentioned, Mr. Chairman, in your opening statement, more fully bear the cost of payments of complainants and their lawyers made in resolving cases

of discrimination and reprisal. However, just as it is important for

agencies to be held accountable, so must individuals be held accountable for their misconduct. In that regard, published statistical

data as envisioned by the Act can be important for agencies to send

clear, unmistakable messages to their employees that individuals

will be held accountable for their actions in cases involving discrimination, retaliation or harassment.

My third point this morning concerns notification. In order for

the full benefit of the laws protecting the workforce to be realized,

agencies need to take steps to make Federal employees sufficiently

aware of their protections, from discrimination and reprisal. There

has been wide spread concern that Federal employees were not sufficiently aware of their protections, particularly about protections

in regards to reprisal for whistle blowing. And without this knowledge of their protections they may not come forward for fear of reprisal. We pointed out this lack of awareness—we first pointed this

out back in 1992 and available data suggests it is still a problem

today.

In summary, Mr. Chairman, to help ensure economical, efficient,

effective delivery of services for the benefito f the American people,

allegations of discrimination and reprisal in the Federal workforce

must be dealt with in a fair, equitable, and timely manner. Doing

so requires first reliable and complete reporting of data as a starting point to understand the nature and scope of issues in the workplace involving discrimination.

Second, agencies and individuals must be held accountable for

their actions; and third, the workforce must be aware of laws protecting them from discrimination and reprisal not only to deter this

type of conduct, but also so that employees will know what type of

action to take when this misconduct has occurred.

Mr. Chairman, Members of the Committee this concludes my

statement. I will be pleased to answer any questions that you have.

Chairman SENSENBRENNER. Thank you, Mr. Mihm.

[The prepared statement of J. Christopher Mihm follows:]

PREPARED STATEMENT OF J. CHRISTOPHER MIHM

Mr. Chairman and Members of the Committee:

I am pleased to have this opportunity to provide information for your deliberations on H.R. 169, the Notification and Federal Employee Antidiscrimination and

Retaliation Act of 2001, commonly referred to as the No FEAR Act.

In a high-performing workplace, federal employees must be able to pursue the

missions of their organizations free from discrimination and should not fear or experience retaliation or reprisal for reporting—blowing the whistle on—waste, fraud,

and abuse. To help achieve such a workplace, federal antidiscrimination laws protect these employees from discrimination based on their race, color, sex, religion, national origin, age, or disability, as well as retaliation for filing a complaint of discrimination.1 In addition, the Civil Service Reform Act of 1978 articulates the merit

system principles for the fair and equitable treatment of the federal workforce and

defined personnel practices that are prohibited. Among the prohibited personnel

11

2We have previously reported that the redress system for federal employees has been criticized for being adversarial, inefficient, time-consuming, and costly. See Federal Employee Redress: A System in Need of Reform (GAO/T-GGD-96–110, Apr. 23, 1996) and Federal Employee

Redress: An Opportunity for Reform (GAO/T-GGD-96–42, Nov. 29, 1995). 3Discrimination complaints against federal agencies are processed in accordance with regulations promulgated by EEOC. Complaints are filed with and investigated by agencies with hearings conducted by EEOC administrative judges. EEOC also hears appeals of agency and administrative judges’ decisions on cases.

practices is reprisal for whistleblowing. Several other laws also protect employees

from reprisal by prohibiting agencies’ taking or threatening to take—or not to

take—a personnel action because of an employee’s whistleblowing activities.

Unfortunately, despite these protections, some federal employees have experienced or believe that they have been subject to workplace discrimination or reprisal

for whistleblowing. Such experiences or perceptions—and the complaints and lawsuits they spur—not only disrupt the lives of the affected employees, they can also

undermine the efficient and effective delivery of government services to the public

and discourage a diverse, pluralistic, and accountable workforce.

With these thoughts in mind, I have three points to make that relate to the principles underlying the proposed act.

• Reporting. Because data are not readily available, there is no clear picture of

the number of complaints of workplace discrimination and reprisal for whistleblowing at agencies or governmentwide and the outcome of these cases.

Data of this nature are important because they can be a starting point for

agency managers to understand the nature and scope of issues in the workplace involving discrimination, reprisal, and other conflicts and problems, and

can help in developing strategies for dealing with those issues.

• Accountability. Accountability is a cornerstone of results-oriented management. Agencies and their leaders and managers should be accountable for

providing fair and equitable workplaces, free from discrimination and reprisal. In addition, individuals need to be held accountable for their actions

in cases where discrimination or reprisal for whistleblowing has occurred.

• Notification. Finally, in order for the full benefit of laws protecting the workforce to be realized, agencies need to take steps to make federal employees

sufficiently aware of their protections from discrimination and reprisal for

whistleblowing.

In making our observations today, and as agreed with the Committee, I will draw

upon our work examining discrimination and whistleblower issues in the federal

workplace and performance management principles embodied in the Government

Performance and Results Act, particularly in regard to human capital.

REPORTING: NO CLEAR PICTURE OF COMPLAINT ACTIVITY

The federal government lacks a clear picture of the volume of discrimination and

whistleblowing reprisal cases involving federal employees. The lack of a complete accounting of cases is in part a by-product of the complexity of the redress system for

federal employees and the different ways in which case data are reported. The No

FEAR Act would require agencies to report the number of discrimination and whistleblower reprisal cases.

Executive branch civil servants are afforded opportunities for redress of complaints of discrimination or retaliation for whistleblowing at three levels: first, within their employing agencies; next, at one of the administrative bodies with sometimes overlapping jurisdictions that investigate or adjudicate their complaints; and,

finally, in the federal courts. 2

• Where discrimination is alleged, the Equal Employment Opportunity Commission (EEOC) hears complaints employees file with their agencies and reviews agencies’ decisions on these complaints.3 In a case in which an employee alleges that discrimination was the motive for serious personnel actions, such as dismissal or suspension for more than 14 days, the employee

can request a hearing before the Merit Systems Protection Board (MSPB).

MSPB’s decisions on such cases can then be reviewed by EEOC.

• For federal employees who believe that they have been subject to whistleblower reprisal, the Office of Special Counsel (OSC) will investigate their

complaints and seek corrective action when a complaint is valid. When agencies fail to take corrective action, OSC or the employee can take the case to

MSPB for resolution. Alternatively, an employee can file a whistleblower reprisal complaint directly with MSPB, if the personnel action taken against

12

4 In a whistleblower reprisal case decided by MSPB, an appeal can be filed with the U.S.

Court of Appeals for the Federal Circuit. For a case decided by DOL, an appeal can be filed

with the U.S. Court of Appeals for the circuit in which the alleged reprisal occurred. 5 In a DE NOVO trial, a matter is tried anew as if it had not been heard before. 6For a further discussion about the reliability and accuracy of data reported by EEOC, see

Equal Employment Opportunity: Data Shortcomings Hinder Assessment of Conflicts in the Federal Workplace (GAO/GGD-99–75, May 4, 1999). 7 In earlier reports, we discussed factors behind the increase in the number of discrimination

complaints in the forum under EEOC’s jurisdiction and how rising caseloads have been accompanied by an increase in case processing time. See Equal Employment Opportunity: Discrimination Complaint Caseloads and Underlying Causes Require EEOC’s Sustained Attention (GAO/

T-GGD-00–104, Mar. 29, 2000); Equal Employment Opportunity: Complaint Caseloads Rising,

With Effects of New Regulations on Future Trends Unclear (GAO/GGD-99–128, Aug. 16, 1999);

and Equal Employment Opportunity: Rising Trends in EEO Complaint Caseloads in the Federal

Sector (GAO/GGD-98–157BR, July 24, 1998).

the person is itself appealable to MSPB. In addition, under certain environmental laws and the Energy Reorganization Act, employees can ask the Department of Labor (DOL) and the Nuclear Regulatory Commission to investigate their complaints.

• Employees who belong to collective bargaining units represented by unions

can also file grievances over discrimination and reprisal allegations under the

terms of collective bargaining agreements. In those situations, the employee

must choose to seek relief either under the statutory procedure discussed

above or under the negotiated grievance procedure, but not both. If an employee files a grievance alleging discrimination under the negotiated grievance procedure, the Federal Labor Relations Authority (FLRA) can review

any resulting arbitrator’s decision. A grievant may appeal the final decision

of the agency, the arbitrator, or FLRA to EEOC.

A complainant dissatisfied with the outcome of his or her whistleblower reprisal

case can file an appeal to have the case reviewed by a federal appeals court.4 An

employee with a discrimination complaint who is dissatisfied with a decision by

MSPB or EEOC, however, can file a lawsuit in a federal district court and seek a

de novo trial.5

With reporting requirements and procedures varying among the administrative

agencies and the courts, data on the number of discrimination and whistleblower

reprisal cases are not readily available to form a clear and reliable picture of overall

case activity. However, available data do provide some insights about caseloads and

trends. These data and our prior work show that most discrimination and whistleblower reprisal cases involving federal employees are handled under EEOC, MSPB,

and OSC processes, with complaints filed under EEOC’s process by far accounting

for the largest volume of cases. In fiscal year 2000, federal employees filed 24,524

discrimination complaints against their agencies under EEOC’s process. In fiscal

year 2000, MSPB received 991 appeals of personnel actions that alleged discrimination. MSPB also received 414 appeals alleging whistleblower reprisal in fiscal year

2000, while OSC received 773 complaints of whistleblower reprisal. There are two

caveats I need to offer about these statistics. The first is that because of jurisdictional overlap among the three agencies, the statistics cannot be added together to

give a total number of discrimination and whistleblower reprisal complaints. The

second caveat is that in our past work, we found some problems with the reliability

and accuracy of data reported by EEOC.6

Notwithstanding these caveats, the available data also show that the last decade

saw an overall increase in the number of cases, particularly discrimination complaints under EEOC’s jurisdiction.7 The number of cases under EEOC’s jurisdiction,

which stood at 17,696 in fiscal year 1991, showed a fairly steady upward trend,

peaking at 28,947 in fiscal year 1997. Although the number of new cases each year

has declined since fiscal year 1997, the number of cases in fiscal year 2000— 24,524—is almost 40 percent greater than in fiscal year 1991, despite a smaller federal workforce.

Caseload data can be a starting point for agency managers to understand the nature and scope of issues in the workplace involving discrimination, reprisal, and

other conflicts and problems, and can help in developing strategies for dealing with

these issues. However, caseload data can only be a starting point because they obviously do not capture any discrimination or reprisal that is not reported.

As I discussed above, most discrimination complaints are handled within the process under EEOC’s jurisdiction. However, we have found in our past work that

EEOC does not collect data in a way needed by decisionmakers and program managers to discern trends in workplace issues represented by discrimination complaints, understand the issues underlying these complaints, and plan corrective acVerDate 11-MAY-2000 11:24 Sep 28, 2001 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 G:\WORK\FULL\050901\72302.000 HJUD2 PsN: HJUD2
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8GAO/GGD-99-75.

9See GAO/T-GGD-00–104 for a discussion of EEOC initiatives to deal with data shortcomings. 10Favorable actions include actions taken directly to benefit the complaining employee; actions taken to punish, by disciplinary or corrective action, the supervisor involved in the personnel action; and systemic action, such as training or educational programs, to prevent future

questionable personnel actions. 11For a further discussion of ADR initiatives, see Alternative Dispute Resolution: Employers’

Experiences With ADR in the Workplace (GAO/GGD-97–157, Aug. 12, 1997). 12We have prepared Human Capital: A Self-Assessment Checklist for Agency Leaders (GAO/

OGC-00–14G, Sept. 2000) to help make this assessment.

tions.8 Although EEOC has initiatives under way to deal with data shortcomings,

relevant information is still lacking on such matters as (1) the statutory basis (e.g.,

race, sex, or disability discrimination) under which employees filed complaints and

(2) the kinds of issues, such as nonselection for promotion or harassment, that were

cited in the complaints.9

The No FEAR Act would also require agencies to report the status or disposition

of discrimination and whistleblower reprisal cases. The available data show that

most allegations of discrimination and reprisal for whistleblowing are dismissed,

withdrawn by the complainant, or closed without a finding of discrimination. However, many other cases are settled. Of the discrimination cases within EEOC’s jurisdiction, 5,794 (21.3 percent) of the 27,176 cases were closed through a settlement.

At MSPB, 279 (28.5 percent) of the 980 appeals that alleged discrimination were

settled. With regard to the 440 whistleblower cases at MSPB, 93 (21 percent) were

settled. While settlements are made when evidence may point to discrimination or

reprisal, at other times an agency may make a business decision and settle for a

variety of reasons, including that pursuing a case may be too costly, even if the

agency believes it would have ultimately prevailed. Finally, in some cases, discrimination or reprisal is found. Of the 27,176 cases within the discrimination complaint

process under EEOC’s jurisdiction that were closed in fiscal year 2000, 325 (about

1 percent) contained a finding of discrimination. At MSPB, of the 980 cases alleging

discrimination, discrimination was found in 4 (four-tenths of a percent). In 440 cases

alleging whistleblower reprisal it reviewed, MSPB found that a prohibited personnel

practice occurred in 2 (five-tenths of a percent) of the cases. At OSC, favorable actions were obtained in 47 of 671 (7 percent) whistleblower reprisal matters closed

in fiscal year 2000.10

AGENCY MOVEMENT TOWARD ALTERNATIVE DISPUTE RESOLUTION

It is important to note that agencies have responded to the rise in the number

of complaints and the costs associated with them by adopting alternative means of

dispute resolution (ADR). Using ADR processes, such as mediation, agencies intervene in the early stages of conflicts in an attempt to resolve or settle them before

positions harden, workplace relationships deteriorate, and resolution becomes more

difficult and costly. A premise behind a requirement EEOC put in place in 1999 that

agencies make ADR available was that the complaint system was burdened with

many cases that reflected basic workplace communications problems and not necessarily discrimination. Some agencies, most notably the Postal Service, have reported reductions in discrimination complaint caseloads through the use of ADR. In

fact the Postal Service, from fiscal year 1997 through fiscal year 2000, saw a 26 percent decline in the number of discrimination complaints that the agency largely attributes to its mediation program.11 Because ADR prevents some disputes from rising to formal complaints, a reduction in the number of formal complaints should not

necessarily be looked at as a reduction in workplace conflict, but it can indicate that

an agency is more effectively dealing with workplace conflict.

Meaningful data along the lines I discussed earlier are useful in helping to measure an agency’s success in adhering to merit system principles, treating its people

in a fair and equitable way, and achieving a diverse and inclusive workforce. We

encourage such assessments of agencies’ workplaces and human capital systems to

help them align their people policies to support organizational performance goals.12

In addition, data foster transparency, which in turn provides an incentive to improve performance and enhance the image of the agency in the eyes of both its employees and the public.

Another possible means of promoting accountability might be to have organizations bear more fully the costs of payments to complainants and their lawyers made

in resolving cases of discrimination and reprisal for whistleblowing. Currently, federal agencies do not always bear the costs of settlements or judgments in discrimination or reprisal complaints. Agencies will pay these costs when a complaint is reVerDate 11-MAY-2000 11:24 Sep 28, 2001 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 G:\WORK\FULL\050901\72302.000 HJUD2 PsN: HJUD2
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13For additional discussion about payments made by agencies and from the Judgment Fund

for discrimination cases, see Discrimination Complaints: Monetary Awards in Federal EEO

Cases (GAO/GGD-95–28FS, Jan. 3, 1995). 14 In most lawsuits, the Department of Justice is responsible for handling the litigation and

safeguarding the Judgment Fund by approving all settlements. 15 41 U.S.C. § 612(c). 16 EEOC’s regulations (29 C.F.R. 1614.102(a)(6)) require that agencies take appropriate action

against employees who engage in discriminatory conduct.

solved by administrative procedures, such as the discrimination complaint process.

However, when a lawsuit is filed, any subsequent monetary relief is generally paid

by the Judgment Fund. (One exception is the Postal Service, which is responsible

for settlement and judgment costs.) The Judgment Fund provides a permanent indefinite appropriation to pay settlements and judgments against the federal government. Congress created the Judgment Fund to avoid the need for a specific congressional appropriation for settlement and judgment costs and to allow for prompter

payments. The No FEAR Act would require that agencies reimburse the Judgment

Fund for payments made for discrimination and whistleblower reprisal cases.

Table 1 below shows payments made by agencies for discrimination complaint

cases processed under administrative procedures within EEOC’s jurisdiction and

payments from the Judgment Fund for employment discrimination lawsuits (these

were the only readily available data). In addition to attorney fees and expenses, payments made to complainants include back pay, compensatory damages, and lump

sum payments. As the table shows, agencies made payments totaling about $26 million in fiscal year 2000 for discrimination complaint settlements and judgments. At

the same time, agencies were relieved of paying almost $43 million in cases because

of the existence of the Judgment Fund.13

Table 1: Payments Made in Discrimination Cases by Agencies and the Judgment Fund,

Fiscal Years 1998±2000 (Dollars in Millions)

FY 1998FY 1999 FY 2000

Agencies $24.4 $26.3 $26.1

Judgment Fund 37.1 41.842.7

Total $61.5 $68.1 $68.8

Source: EEOC and Treasury Department Judgment Fund Data.

The availability of the Judgment Fund to pay settlement and judgment costs has

brought about debate with regard to agency accountability. On one hand, it could

be argued that the Judgment Fund provides a safety net to help ensure that agency

operations are not disrupted in the event of a large financial settlement or judgment. It can also be argued, however, that the fund discourages accountability by

being a disincentive to agencies to resolve matters promptly in the administrative

processes; by not pursuing resolution, an agency could shift the cost of resolution

from its budget to the Judgment Fund and escape the scrutiny that would accompany a request for a supplemental appropriation.14 Congress dealt with a somewhat

similar situation when it enacted the Contract Disputes Act 15 in 1978, which requires agencies to either reimburse the Judgment Fund for judgments awarded in

contract claims from available appropriations or to obtain an additional appropriation for such purposes. This provision was intended to counter the incentive for an

agency to avoid settling and prolong litigation in order to have the final judgment

against the agency occur in court. In reconciling these viewpoints on financial accountability, Congress will need to balance accountability with the needs of the public to receive expected services.

Certainly, just as it is important for agencies to be held accountable in cases

where discrimination or reprisal for whistleblowing is found, so must individuals be

held accountable for engaging in such misconduct. The No FEAR Act would require

agencies to report the number of employees disciplined for discrimination, retaliation, or harassment.16 Published statistical data can be important for agencies to

send a message to their employees that individuals will be held accountable for their

actions in cases involving discrimination, retaliation, or harassment.

Although we have not done any formal work in this area, we know of two agencies—the Department of Agriculture and the Internal Revenue Service (IRS)—that

systematically review outcomes of discrimination cases to determine if any individual should be disciplined. Since January 1998, Agriculture has been reviewing

cases in which discrimination was found or in which there were settlement agreeVerDate 11-MAY-2000 11:24 Sep 28, 2001 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 G:\WORK\FULL\050901\72302.000 HJUD2 PsN: HJUD2
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17The 1994 amendments to the Whistleblower Protection Act require federal agencies to ensure that their employees are informed of the rights and remedies concerning whistleblower protection. In addition, EEOC’s regulations (29 C.F.R. 1614.102(b)(5)) require agencies to make

written materials available to all employees and applicants informing them of the variety of

equal employment opportunity program and administrative and judicial remedies available to

them. 18Whistleblower Protection: Survey of Federal Employees on Misconduct and Protection From

Reprisal (GAO/GGD-92-120FS, July 14, 1992).

ments to determine if an employee should be disciplined for discrimination or misconduct related to civil rights. An Agriculture official said that a formal policy on

accountability and discipline in civil rights-related cases was currently pending approval. Since July 1998, IRS has been reviewing cases in which discrimination was

found or in which there were settlement agreements to determine if the discrimination was intentional. Where an employee has been found to have discriminated

against another employee of IRS (or a taxpayer or a taxpayer’s representative), the

IRS Restructuring and Reform Act of 1998 provides that the individual be terminated for his or her actions. Only the IRS Commissioner has the authority to mitigate termination to a lesser penalty.

I would also add that besides traditional forms of discipline—such as termination,

suspension, or letter of reprimand—employees can be held accountable for their behavior through an agency’s performance management system. For example, an employee whose behavior does not rise to the level of discrimination but otherwise

demonstrates insensitivity or poor communication skills can and should have that

fact reflected in his or her performance appraisal.

The No FEAR Act provides that agencies notify employees of the rights and protections available to them under the antidiscrimination and whistleblower statutes

in writing and post this information on their Internet sites. This provision reinforces

existing requirements that employees be notified of rights and remedies concerning

discrimination and whistleblower protection.17

There has been a concern that federal employees were not sufficiently aware of

their protections, particularly about protections from reprisal for whistleblowing,

and without sufficient knowledge of these protections, may not come forward to report misconduct or inefficiencies for fear of reprisal. We first pointed this out in a

report issued in 1992.18 Now, almost a decade later, OSC has identified ‘‘widespread

ignorance’’ in the federal workforce concerning OSC and the laws it enforces, even

though agencies are to inform their employees of these protections. According to

OSC’s fiscal year 2000 Performance Report, responses to an OSC survey indicated

that few federal agencies have comprehensive education programs for their employees and mangers.

CONCLUDING OBSERVATIONS

To help ensure economical, efficient, and effective delivery of services for the benefit of the American people, allegations of discrimination and reprisal for whistleblowing in the federal workplace must be dealt with in a fair, equitable, and timely

manner. Doing so requires, first, reliable and complete reporting of data as a starting point to understand the nature and scope of issues in the workplace involving

discrimination, reprisal, and other conflicts and problems, and to help develop strategies for dealing with these issues. Second, agencies and individuals must be accountable for their actions. Third, the workforce must be aware of laws prohibiting

discrimination and whistleblower reprisal to deter this kind of conduct but also so

that they know what course of action they can take when misconduct has occurred.

Mr. Chairman, this concludes my prepared statement. I would be pleased to answer any questions you or other Members of the Committee may have at this time.

Chairman SENSENBRENNER. Mr. Harnage. Could you please turn

the mike on. I don’t think it’s on.

STATEMENT OF BOBBY L HARNAGE, SR., NATIONAL PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

Mr. HARNAGE. I represent 600,000 Federal and D.C. Government

employees, and I thank you and your Committee for granting me

the opportunity to testify today regarding H.R. 169. This bill will

require that Federal agencies will be held accountable for violations of employment discrimination and whistleblower protection

16

laws. AFGE has a long history of active involvement in the fight

to protect Federal employees from discrimination and against retaliation or whistleblowing actions. AFGE congratulates you for your

leadership in offering this legislation to improve agency accountability with respect to whistleblower and discrimination laws.

Mr. Chairman we wholeheartedly support the thrust of this bill,

but AFGE is concerned about possible unintended consequences

that could end up hurting the Federal employees, whom it is designed to protect. Section three of the bill requires that the amount

of any claim, final judgment award or a compromise settlement

paid to any current or former Federal employee or applicant in connection with specified antidiscrimination and whistleblower protection proceedings be reimbursed through the government fund established for such payments out of the operating expense of the

agency, to which the discrimination or conduct is attributable.

In order to effectuate its intended purpose, AFGE believes a simple amendment could be added to prohibit such agency reimbursements from being paid out of salaries and expense accounts. Salaries and expense accounts should be broadly defined to include salaries, health and retirement, training, child care subsidies, transportation subsidies, tuition assistance for low income parents,

frankly anything that serves to compensate agency employees.

Unless a legislative firewall is designed to prevent antidiscrimination payment out of salaries and expense accounts, agencies may

be tempted to use those resources to make the payments this bill

would require. If so, this bill, which is designed to penalize the

Federal agency, would in fact penalize the Federal employees.

Mr. Chairman, your bill states the case in one terse sentence in

subsection 2 of section 2. And I quote it here, ‘‘Federal agencies

cannot be run effectively if they practice or tolerate discrimination.’’ The practice of discrimination is invidious and pernicious.

The toleration of discrimination in the Federal workplace is equally

invidious and pernicious and yet more harmful. Continued complacency paves the way for continued evil and has a great cost to our

citizens, to our government and to the fabric of our country.

Continued complacency provides no incentive for change. Complacency emboldens those would-be offenders.

Mr. Chairman your bill breaks the mold of complacency which

has become settled in too many areas of our government.

Indeed, your bill brings personal responsibility to the Federal

workplace. The theory underlying this proposal is to create a financial disincentive for discrimination in Federal agencies. If agencies

have to pay out of their own budget, agencies will ferret out bad

behavior and promote zero tolerance policies regarding discrimination and retaliation against legally protected whistleblower actions.

For this reason, AFGE supports the reporting requirements of section 5.

Mr. Chairman, discrimination is not an abstract topic. It has

human faces on all sides of this. We would like to recommend further steps to help prevent discrimination in the Federal workplace,

to further promote personal responsibility for discrimination. AFGE

proposes adding a sensitivity section to this bill which would require managers who are disciplined for discrimination, retaliation,

17

harassment or any other infraction covered by this bill to attend

and participate in such training.

Payment of the fines is not enough to change behavior. Mr.

Chairman, rapid privatization of our Federal Government is occurring. The Federal Government appears to be headed in a direction

where its function is no more than handing out contracts to vendors. AFGE firmly believes that antidiscrimination measures in

this bill must also be applied to private firms with Federal contracts as well. It is time for this government to stop subsidizing the

discriminatory actions of the shadow government and prevent that

which cannot be done directly by Federal agencies from being done

indirectly by Federal contractors. The full faith and credit of the

United States government must be granted to those who are employed by entities doing the work of the United States government

with Federal dollars.

Mr. Chairman, I look forward to working with you on this bill.

I support the testimony of the three other panel members. AFGE

fully supports your goal of zero tolerance of discrimination within

our government and I will be available to answer any questions.

Chairman SENSENBRENNER. Thank you, Mr. Harnage.

[The prepared statement of Bobby L. Harnage, Sr. follows:]

PREPARED STATEMENT OF BOBBY L. HARNAGE, SR.

Mr. Chairman and Members of the Committee:

My name is Bobby L. Harnage, Sr. I am the National President of the American

Federation of Government Employees (AFGE), AFL-CIO. AFGE represents over

600,000 federal and District of Columbia government employees.

Mr. Chairman, I thank you and your committee for granting me the opportunity

to testify today regarding H.R.169, the ‘‘Notification and Federal Employee Antidiscrimination and Retaliation Act of 2001’’. This bill would require that Federal

agencies be held accountable for violations of employment discrimination and whistleblower protection laws. AFGE has a long history of active involvement in the

fight to protect federal employees from discrimination and against retaliation for

whistleblowing actions. AFGE congratulates you for your leadership in offering this

legislation to improve agency accountability with respect to whistleblower and discrimination laws.

While we wholeheartedly support the thrust of this bill, AFGE is concerned about

possible unintended consequences that could end up hurting the federal employees

whom it is designed to protect. Section 3 of the bill requires the amount of any

claim, final judgment, award, or compromise settlement paid to any current or

former federal employee or applicant in connection with specified antidiscrimination

and whistleblower protection proceedings to be reimbursed to the government fund

established for such payments out of the operating expenses of the agency to which

the discriminatory conduct is attributable.

In order to effectuate its intended purpose, AFGE believes that your bill should

be amended to prohibit such agency reimbursement from being paid out of salaries

and expense accounts. Salaries and expense accounts should be broadly defined to

include salaries, health and retirement, training, childcare subsidies, transportation

subsidies, tuition assistance for low income parents—frankly anything that serves

to compensate agency employees.

Unless a legislative firewall is designed to prevent antidiscrimination payment reimbursement out of salaries and expense accounts, agencies may be tempted to use

those resources to make the payment this bill will require. If so, this bill which is

designed to penalize the federal agency would in fact penalize the federal employees.

Mr. Chairman, your bill states the case in one terse sentence in Section 2(2) and

I quote it here. ‘‘Federal Agencies cannot be run effectively if they practice or tolerate discrimination’’. The practice of discrimination is invidious and pernicious. The

toleration of discrimination in the federal workplace is equally invidious and pernicious and yet more harmful. Continued complacency paves the way for continued

evil and has a great cost to our citizens, to our government and to the fabric of our

country. Continued complacency provides no incentives for change. Complacency

emboldens would be offenders.

18

Mr. Chairman, your bill breaks the mode of complacency which has become settled in too many areas of our government. Indeed, your bill brings personal responsibility to the federal workplace. The theory underlying his proposal is to create a

financial disincentive for discrimination in federal agencies. If agencies have to pay

out of their own budgets, agencies will ferret out bad behavior and promote zero tolerance policies regarding discrimination and retaliation against legally protected

whistleblower actions. For these reasons, AFGE supports the reporting requirements of Section 5.

Mr. Chairman, discrimination is not an abstract topic, it has human faces on all

sides of this abhorrent dynamic. We would like to recommend further steps to help

prevent discrimination in the federal workplace. To further promote personal responsibility for discrimination, AFGE proposes adding a sensitivity training section

to this bill, which would require managers who are disciplined for discrimination,

retaliation, harassment, or any other infractions covered by this bill to attend and

participate. Payment of fines is not enough to change behavior. We believe that education and awareness of what constitutes these infractions are important deterrents

as well. AFGE has a long history of advocating that those managers who knowingly

and blatantly ignore the laws be held accountable for their actions. The most effective deterrent is to direct penalties at those individuals whose actions gave rise to

the claim leading to a judgment.

Mr. Chairman, rampant privatization of our federal government is occurring. The

federal government appears to be headed in a direction where its function is no

more than handing out contracts to vendors. AFGE firmly believes that the antidiscrimination measures in this bill must also be applied to private firms with federal contracts as well. It is time for this government to stop subsidizing the discriminatory actions of the ‘‘shadow’’ government and to prevent what cannot be done

directly by federal agencies from being done indirectly by federal contractors. The

full faith and credit of the United States government must be granted to those who

are employed by entities doing the work of the United States government with federal dollars.

Mr. Chairman, I look forward to working with you on this bill. AFGE fully supports your goal of zero tolerance of discrimination within our government.

I am available for any questions that you and this committee may have for me.

Chairman SENSENBRENNER. Dr. Coleman-Adebayo.

STATEMENT OF MARSHA COLEMAN-ADEBAYO, PRIVATE

CITIZEN

Ms. COLEMAN-ADEBAYO. Mr. Chairman, I testify today as a private citizen and not an EPA employee.

Chairman SENSENBRENNER. Would you please—could you please

turn the mike on.

Ms. COLEMAN-ADEBAYO. It is on.

Chairman SENSENBRENNER. Then bring it closer to you, because

it is not coming through.

Ms. COLEMAN-ADEBAYO. Mr. Chairman, I testify today as a private citizen and not an EPA employee. I thank you for your compliment and unwaiving support for the civil rights of Federal workers. Because of the No FEAR Act, the first civil rights bill of the

21st century, victims of discrimination whistleblowers who have

fought this battle on the front lines will experience relief from retaliation. I thank Congresswoman Sheila Jackson Lee for co-sponsoring this bill and for her personal support of victims of discrimination.

Congressman John Conyers, as one of your former constituents,

I thank you for your long-term commitment to civil rights. I would

also like to thank EPA Administrator Christine Todd Whitman for

asking the Department of Justice not to pursue an appeal in my

case. I would also like to thank the EPA Victims Against Racial

Discrimination, the NAACP Federal task force, and other people

19

here who have come to support the victims of discrimination. And

most importantly, I thank God for this day.

The legislation before you has widespread support from such

groups as the NAACP, the EPA Victims Against Racial Discrimination, the No FEAR Coalition, the National Whistleblower Center,

and the Southern Christian Leadership Conference, the organization founded by the late Martin Luther King, Jr. These groups support this legislation because it will deter future acts of discrimination and retaliation.

In my situation, a Federal jury found the EPA guilty of discriminating against me on the basis of my race and sex and subjecting

me to a hostile work environment. Yet no official action has been

taken to hold these officials accountable. As such, these same managers are still in a position of authority to discriminate and retaliate against others.

For instance, since Jon Grand, a senior EPA employee, testified

on my behalf during my trial, the same EPA managers have been

harassing him by reducing his assignments and damaging his career. Internal discrimination is inextricably linked to government

policies and practices as Richard Moore, an environmental justice

activist, has stated, you cannot have injustice inside EPA and environmental justice in the community.

Surely before my trial, in an act of retaliation, I was reassigned

from my primary duties to a project to provide research in the

areas of toxicology and epidemiology. Subjects outside of my area

of expertise. I hold a Ph.D. from MIT in international relations.

However, in my new assignment, I was to examine among other

questions, within 120 days, how many chemical substances are

typically in the human body, and what are the primary routes of

entry for these chemicals.

I must tell this Committee that I have never taken a course in

either toxicology or epidemiology. By retaliating against me, EPA

managers placed the American public at risk. But I was only taken

off that assignment when Chairman Sensenbrenner wrote to the

agency. But how many other employees are being asked to conduct

or implement programs outside of their areas of expertise as a result of their retaliation?

The No FEAR Act would require government agencies be held responsible for discrimination—discriminating—against their employees. Some critics question if the concerns of Federal workers for

their own dilemma will adversely impact the programs that we

serve and create. Dr. King addressed this very concern in his book,

Why We Can’t Wait. Many critics of Dr. King argued that the Civil

Rights movement would detract funding and attention from other

problems. He wrote, ‘‘While the Negro is not so selfish as to stand

isolated in his concerns for his own dilemma there is a certain bitter irony in the picture of his country championing freedom in foreign lands and failing to ensure that freedom to 20 million of its

own.’’

Another reason why we must stop this discrimination is that its

victims become ill. As a result of stress caused by discrimination

that I suffered, I developed hypertension. When I was first diagnosed, my blood pressure was 157 over 117. Which I had been informed could trigger a stroke, a heart attack, or permanent kidney

20

damage. Yet when my cardiologist wrote four letters to the agency

requesting that I be put on work-at-home status so I could avoid

the stress caused by a hostile work environment, the request was

denied last week. Since the agency disagreed with my doctor’s recommendation, the agency hired its own doctor. He never met me

or examined me before rendering his decision that I should return

to the work environment, immediately.

Within 3 days of my return to the work environment, my blood

pressure was elevated 168 over 105. Mr. Chairman, I wish I could

tell you that my situation is unusual, but unfortunately this is

standard practice. In fact, one of my colleagues who has devoted 25

years to the Federal Government was forced to file an EEOC complaint for accommodations due to his illness as a result of HIV. I

believe with the passage of the No FEAR Act, this kind of lifethreatening harassment will stop.

The reporting requirement in this act is essential so that Congress may adequately perform its oversight responsibilities. The

Federal Government is supposed to set the standard for the rest of

the country. It is morally repugnant to treat the just compensations awarded to whistleblowers, and which is part of discrimination, as acceptable collateral damage incurred as the necessary

costs of doing business.

In closing, Mr. Chairman, we can no longer live in fear of compromising our health, from the stress created by working in a cruel

work environment. We can no longer live in fear of retaliation and

out-of-control managers who discriminate without consequences

and face no accountability for their actions. We can no longer live

in fear of being retaliated against when we courageously expose

fraud, waste, abuse and mismanagement in the government. We

can no longer live in fear. Mr. Chairman, as victims of discrimination, we have fought a good fight. We have finished the course and

we kept the faith. Congress should pass the No FEAR bill. Thank

you, Mr. Chairman.

Chairman SENSENBRENNER. Thank you, Dr. Coleman-Adebayo.

[The prepared statement of Marsha Coleman-Adebayo follows:]

PREPARED STATEMENT OF MARSHA COLEMAN-ADEBAYO

Mr. Chairman, I testify today as a private citizen and not an EPA employee.

I thank you for your commitment and unwavering support for the civil and

human rights of federal workers. Because of the NO FEAR bill, the first civil rights

bill of the 21st Century, both victims of racial, sexual, and hostile work environments, and whistleblowers who have courageously fought this battle on the front

lines, will experience relief from daily retaliation. The American public will directly

benefit from a system that encourages merit and not cronyism or nepotism. This Bill

will ensure that government agencies that discriminate directly pay for their actions

and not abdicate or escape their financial obligations. Under the NO FEAR Act,

Agencies will directly feel the consequences of discriminating against employees and

will, I am confident, devise effective plans to address the problem.

We thank Congresswoman Sheila Jackson Lee for co-sponsoring this Bill and for

her personal support of victims of racial and sexual discrimination.

Congressman John Conyers, I thank you for your long-term commitment to

human and civil rights. As you know, I was raised in Detroit. You have always provided encouragement for me and my family. In fact, you wrote the recommendation

for me to attend both Barnard College and to pursue my doctorate at MIT in the

areas of development and African Studies. I enjoyed your mentorship while I was

the senior research analyst at the Congressional Black Caucus Foundation and later

your advice when I joined the United Nations.

21

I would also like to thank Governor Whitman for asking the Department of Justice not to pursue an appeal in my case.

Most imporatanly, I thank God for this day.

The EPA Victims Against Racial Discrimination and the No FEAR Coalition

strongly endorse this legislation. I am honored to announce that on April 28, 2001

the Executive Board of the Southern Christian Leadership Conference, the organization founded by the late Dr. Martin Luther King, Jr. also voted to endorse this Bill.

We are graced by the presence today of Rev. (Dr.) Ruby Moone, Maryland State

President of SCLC.

Dr. King in his book, Why We Can’t Wait addressed critics that charged that the

civil rights movement would detract funding and attention from other national concerns: He wrote: ‘‘While the Negro is not so selfish as to stand isolated in his concern for his own dilemma, . . . there is a certain bitter irony in the picture of his

country championing freedom in foreign lands and failing to ensure that freedom

to 20 million of its own.’’ Mr. Chairman, there are those that say that the concern

of federal workers for our ‘‘own dilemma’’ should not impact the programs that we

serve and create. I believe Dr. King would answer those critics by saying that ‘‘injustice anywhere is an affront to justice everywhere’’. The 1964 Civil Rights Act must be strengthened to include direct consequences,

both financial and personal, for participating in prohibited personal practices such

as discrimination.

Although, my case has been widely covered in the media, allow me to summarize

my story. I endured five years of racial and sexual discrimination in the EPA Office

of International Activities. I was called by derogatory racial epithets and excluded

from any possibility of career advancement. When I filed an EEO complaint, I, like

so many employees, became the target of daily harassment and unrelenting retaliation. What is not so widely known, however, is that I, like so many other victims

of discrimination, became ill in the process of fighting for my civil rights.

On August 18, 2001, a federal jury found the EPA guilty of race, sex, color discrimination and of creating a hostile work environment. However, there is no enforcement of the Code of Conduct and Merit System Principles that outline disciplinary measures and consequences for discrimination and mismanagement. Therefore,

these four EPA managers are still conducting US environmental foreign policy as

though the complaints of discrimination and the verdict never took place. Sadly,

they are now actively harassing a senior EPA staff member who testified on my behalf, Jon Grand. Mr. Grand’s assignments have been severely reduced and his career damaged.

Mr. Grand is now being made an example for other employees to ponder the consequences of testifying against the government in a discrimination case. Another

subtle message that is being communicated is that managers can survive, even jury

verdicts, without fear of career damage. When laws and regulations are not enforced, whether inside the government or in the private sector, the judicial system,

the moral fabric of our society, individuals, and the American public suffer.

Retaliation is an ever-present aspect of one’s life once you file a complaint of discrimination or when you win a jury verdict. Shortly before my trial, in an act of

retaliation, I was re-assigned from my primary duties—during which I received

major awards—to a project to provide research in the areas of toxicology and epidemiology. I was to examine among other questions: How many chemical substances

are typically in the human body? What are the primary routes of entry for these

chemicals? What is the current state of environmental epidimiology? and What are

some of the major and ongoing issues in environmental, health and safety fields?.

It is important for this Committee to know that I have never taken a course in

either toxicology or epidemiology. EPA managers, in their desperate attempt to retaliate against me for filing a law suit against the Agency, placed the American public at risk by deliberately assigning me work outside of my area of expertise, international relations. Discrimination and retaliation within federal agencies place the

American public at risk.

I was only taken off that assignment when Chairman Sensenbrenner, then the

Chairman of the House Committee on Science, wrote to the Agency and I publicly

disclosed this retaliatory assignment before his Committee. But, how many other

employees are being asked to conduct research or implement programs outside of

their expertise as a result of retaliatory actions?

Internal discrimination is inextricably linked to government policies and practices.

As Richard Moore, an environmental justice activitist has stated, ‘‘you can not have

injustice inside EPA and environmental justice in the community.’’

Let there be no confusion, good policymaking, program implementation, or good

science cannot co-exist in an environment of chaos caused by any form of discrimination.

22

Managers need to be sanctioned, including dismissal, when American taxpayers

are forced to pay for their mismanagement and prejudice.

Discrimination is a human tragedy that spills over to the public arena. The public

suffers because the Agencies are operated by some immoral and unethical managers. Bad managers make poor decisions that result in grave consequences. On the

personal level, families are torn apart and left in financial ruin from legal costs. Ultimately, lives and careers are destroyed. Discrimination and corruption in the

workplace lead to a lack of competency and poison the environment so that employees fear disagreeing with management paradigm or speaking out about mismanagement. In the end everyone loses, tax payers, the government, and individuals.

An invisible cost of discrimination is that its victims often succumb to illness and

even premature death. I would posit that the stressful and hostile environment that

Lilian Peasant lived in at the Agency contributed to her early death. In an environment where there is no accountability or consequence for managerial actions—man- agers literally have the power of life and death. ‘‘Power corrupts and absolute power

corrupts absolutely.’’ Once victims of discrimination become ill, the Agency retains ‘‘doctors for hire’’ to

overturn the treating physicians recommendation. The goal of the retaliatory acts

is to force the employee to choose between their health or their job. Mr. Chairman,

this insidious practice, which is both immoral and unconscienable, must be stopped.

On April 30, 2001, I was forced to return to work by my immediate manager

against my Cardiologist advice. My Cardiologist had written four letters to the

Agency warning them about my medical status. The Agency doctor neither examined me or consulted my physician in making his diagnosis. Within three days of

my return to work my blood pressure was elevated to 168 over 105. Elevated levels

occured despite my usage of prescibed medication. Prior to be ordered back into the

office, my blood pressure was close to normal. By the fourth day, my blood was significantly elevated requiring that I once again work from home. One week prior to

my return to EPA headquarters a complete work station had been installed in my

home by the Agency. Subsequently, the Agency granted me an additional sixty days

to work from home. How many victims are currently enduring such work environments.

I believe with the passage of the NO FEAR Act this kind of life threathening harassment will stop.

Daily exposure to stressful situations compromises life span and quality-of-life.

Families and marriages are placed at risk when individuals suffer from daily harassment and discrimination.

A report commissioned by the former Administrator by Holland and Knight,

states that EPA’s minority and women employees allege that EPA’s disciplinary system is discriminatory and flawed, that the Office of Civil Rights is dysfunctional,

and that employees are routinely subject to retaliation for raising employment

issues. There is a belief, the report offers, even among senior managers, that filing

a formal complaint is a career ending action. It is my understanding that the Agency paid this company over $200,000. The EPA Victims Against Racial Discrimination could have provided this infomation to the Agency for free.

However, one useful fact that we learned from this document is that the current

average processing time for EPA complaints is 575 days ( well over a year and a

half) more than 3 times the legally required 180 day processing time for complaints.

The government-wide average was 384 days. During the year and a half that employees wait for their complaints to be processed, harassment and retaliation become a fact of life.

Since the Agency is discouraged by the general counsel or Department of Justice

from even admitting culpability in discrimination cases, the incentive to admit

wrong-doing is wholly lacking.

If EPA’s response to environmental emergencies was as slow as its processing

time for human and civil rights abuses, the American people would have long ago

indicated their displeasure.

To my knowledge, no EPA manager has been disciplied for discrimination, even

repeat offenders. In many instances, these managers are rewarded.

Discrimination is clearly evident in the firing practice at EPA. African-Americans

account for 18% of those hired at the Agency, in recent years, but 57% of all fired.

The federal government is supposed to set the standard for the rest of the country. When the Federal government ignores its own laws and regulations regarding

discrimination, it sets the tone for the rest of the country. With the passage of the

NO FEAR bill the government will no longer be able to abdicate its responsibility

to seriously deal with the problems of discrimination in the federal sector.

The reporting aspect of this legislation is very important. The primary laws which

protect EPA employees who raise concerns about good science or potential public

23

health issues are contained in six environmental laws, the Clean Air Act, the Solid

Waste Disposal Act, the Safe Drinking Water Act, the Water Pollution Control Act,

Superfund and the Toxic Substances Control Act. These laws have effectively

blocked EPA managers from destroying the careers of scientists who in the past

have questioned EPA science. Yet most EPA employees are unaware that this protection exist.

The EPA’s own Office of Inspector General issued a report that recommended

EPA employees be informed of their rights under the six statutes. Incredibly, EPA

officials during the last administration overrode the advice of the OIG and made a

decision to continue to deny information about their rights as employee-whistleblowers. Instead of advising employees of their rights under the six environmental

statutes, EPA officials removed any mention of the environmental whistleblower

protections from the proposed notice, and issued an order which failed to inform employees of their rights under the law. When later questioned about this decision during a hearing before the House Committee on Science, an EPA official stated that

the Agency chose not to inform it’s employees of their protections under these environmental laws because there is no statute requiring it to do so.

It is morally repugnate to treat the just compensations awarded to African-Americans, women, the disabled and whistleblowers as acceptable collateral damage incurred as the necessary cost of during business.

Mr. Chairman, we can no longer live in fear of compromising our health from the

stress created by working in a cruel environment.

• We can no longer live in fear of compromising our families futures and that

of our communities.

• We can no longer live in fear of retaliation and out-of-control managers who

discriminate without consequences and face no accountability for their actions.

• We can no longer live in fear of being retaliated against when we courageously expose fraud, waste, abuse, and mismanagement in the government.

• We can no longer live in fear of losing our jobs because we refuse to compromise our principles or morals.

• We can no longer live in fear. And, we can no longer wait.

Mr. Chairman, as victims of discrimination, we have fought a good fight, we have

finished the course, we have ‘‘kept the faith’’. Congress should pass the NO FEAR

bill.

Chairman SENSENBRENNER. The Chair will now recognize Members in the orders in which they have appeared alternately by

sides.

The gentleman from Michigan, Mr. Conyers.

Mr. CONYERS. Morning and thank you, Mr. Chairman. I greet

our former colleague Kweisi Mfume and my former constituent, I

still thought she was my constituent. You know we have a rule in

Detroit once a constituent always a constituent.

Chairman SENSENBRENNER. We will get into that when we examine elections. [Laughter]

Mr. CONYERS. But let’s start in Florida first. Now to begin with,

I want to commend Chairman Sensenbrenner and I think this is

an important investigation, and I am pleased that he’s doing that.

I would like to observe that you do not have to be a liberal to support fairness in the government or in Civil Rights movement. So

if anybody thinks that he’s changed his philosophy, I would I

would, from personal experience, disabuse one and all from that.

But we can work together and so I commend this hearing today.

The bill itself responds to a problem about which we can do much

more.

I want to create a uniform standard for agencies to discipline

managers who have committed illegal discrimination in connection

with whistleblower retaliation. We can’t do this episodically, one by

one, we’ll never come out of this in an effective way. We also need

24

to encourage the use of EEOC-based voluntary alternative dispute

resolution at an early stage in the process and to provide for more

funding to process the backlog, the huge backlog of cases that exists.

The Judiciary Committee can’t do that by itself. We want to examine the standard of proof required to prove illegal conduct and

any other disincentive to employees seeking redress of their legal

rights. So we’re at the beginning. I commend my Chairman for the

purpose, for what he’s done here in bringing us all together. But

it is not the end of the legislative process. And we are going to

work together to develop a full and complete response to racism,

sexism, illegal retaliation within the Federal Government of all

places.

Now, the one thing we can all do from this moment on is make

sure that the old reprisal game still isn’t being played after a person has complained, been victimized, went to court, won a lawsuit,

comes up on the Hill, and they’re still coming at her. So we want

to put everybody on notice in this one small part of Federal Government, cut it out. Starting now, the next thing we have to acknowledge is that EPA is not alone.

Last week we have just settled a lawsuit involving black agents

with guess who? The Federal Bureau of Investigation. And what

about the suits against Alcohol Tobacco and Firearms, ATF, Drug

Enforcement Administration, Immigration and Naturalization

Service, Department of Justice again, Secret Service. It goes on and

on.

So this is, as you have said, a common problem that we now have

an opportunity, thanks to the creative legislative skills of Chairman Sensenbrenner, to really begin to deal with the whole subject.

This cannot be dealt with in the morning with one victim and everybody sympathizing. This is a long entrenched problem.

The Congressional Black Caucus has been working this for 20

years. We have been listening to police and Federal people, marshalls, everybody, it would almost be a shorter list to talk about

who hasn’t been the victim of a subject of a class action suit.

So this is an important event that we’re doing this morning and

I want to commend all the witnesses. I look forward to working

very much closely with the NAACP as we move forward in this

very difficult area. And I thank the Chair.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentleman from Pennsylvania, Mr. Gekas.

Mr. GEKAS. I thank the Chair. I have noted that in the testimony

of all four of our witnesses, there was a common theme of approval

of the bill with regard to accountability. And Mr. Harnage himself

includes in his definition of that accountability some personal responsibility on the part of everyone concerned. And that’s important. And this gibes with the President’s proposals in various fields

up to now, including education reform, and even his tax cut legislation which bring into play particularly the education reform proposal accountability.

That is a strong theme in everything the government does, and

all four of you have, in one way or another, endorsed the strengthening of that theme. Kweisi was, I think, absolutely correct in saying that if it’s going to happen in the Federal Government where

25

it should be a model of behavior across the Nation, then we are

amiss. And the bill goes a long way as to setting us right in that

regard.

Mr. Mihm, I do want to ask one question, the bill calls for, as

one of its tenets, requiring annual reports to the Congress on the

number and severity, et cetera, you seem—you’re in accord with

that apparently?

Mr. MIHM. Yes, sir.

Mr. GEKAS. My problem is, I really thought I’m confessing my ignorance that there was a system of reportage, or reporting of these

incidents to the Congress. Am I to imply from the—or infer from

this provision in the bill and your testimony that this would be a

new thing?

Mr. MIHM. There are requirements in place that agencies report

data, for example, to EEOC on a variety of matters related to discrimination. The problem is, and this is laid out in our written

statement, is that you have a variety of different agencies and different avenues that employees can pursue if they feel they have

suffered discrimination, or if they have suffered reprise for whistleblowing. These different avenues don’t report in consistent ways

with consistent time frames with consistent definitions. Basically,

sir, what you have, you have a patchwork of different requirements

and agencies dealing with employee protection for discrimination

and reprisal that don’t all come together to allow us to have a unified, comprehensive picture of the amount of discrimination and reprisal and the outcomes of those cases.

So that’s one big structural problem. Second, you also have longstanding problems that EEOC has had in getting good information

out of the agencies. And EEOC has an initiative underway that is

designed to improve the information it gets from agencies, but basically, they have had problems getting data from agencies in the

right format that would allow for a targeting and an analysis of

really what’s going on in terms of employee discrimination. So you

have basically those two different problems.

Mr. GEKAS. What is notable about that testimony and the correlation is that we cannot have good accountability, strong accountability, unless we have the data that goes with it.

Mr. MIHM. Absolutely.

Mr. GEKAS. So this bill marries those two concepts.

Mr. MIHM. You cannot make progress unless you know what’s

going on.

Mr. GEKAS. Kweisi, I have notified the Speaker of the House that

if he runs out of replacements for the gavel on a given day, that

he’s to call upon you and that you will rush over to temporarily

gavel us down as we need it. Are you willing to serve?

Mr. MFUME. I’m willing to serve. I am assured it will be a news

story that we will have to respond to. But it was my pleasure to

serve as Speaker pro tem.

Mr. GEKAS. Yes, we admired your service in that term.

No further questions and I yield back my time.

Chairman SENSENBRENNER. Just for the record the Congress

does not require the Speaker of the House to be a Member. The

gentlewoman from Texas, Ms. Jackson Lee.

26

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Let me

add my appreciation for the expeditiousness in which this legislation has come to a hearing now in the Judiciary Committee. Let

me acknowledge all of the witnesses for your eloquence, and as

well, your commitment. Obviously, Mr. Mfume, let me thank you

for the pivotal role that the NAACP, the Southern Christian Leadership Conference, and the coordination of those of you who have

constantly put yourselves on the front line, both in terms of the energy and work, but also in terms of the intellect. I think the research that the NAACP offers is outstanding.

Chairman Sensenbrenner has been at the forefront and I appreciate that. We have been able to collaborate both in terms of the

rightness of this position but also on the passion about this issue.

I would offer to that that in paraphrasing Dr. King’s words, since

my very, if you will, long-standing heroine, Dr. Coleman-Adebayo,

has withstood all of this.

‘‘Discrimination anywhere is discrimination everywhere.’’ And I

believe what we are doing today, as I look at the audience, and is

similar to some of the challenges that we have been given over the

years, and the challenges that some day we shall overcome. This

particular legislative initiative, and I appreciate the testimony of

all of the witnesses, and I will recount for some and I will have a

question within the 5-minute time frame, but this is a legislative

initiative that I think will set the tone for what is still happening

in America, in the workplace and in corporate America in the private sector.

And I am reminded—I had—of the role of the Federal Government throughout the Civil Rights era. It was always that institution during a period of time that was looked to to come to save the

day—whether it was the FBI during the civil rights activities of the

deep south, whether it was the Department of Justice in conjunction with so many of our civil rights organizations.

And so now, as we look to tell the world that discrimination is

still about, and how do we correct it, it certainly must start with

the Federal Government. And it includes those who would have offered themselves to testify on behalf of the discriminated, and certainly in the instance of the EPA, and I am gratified that you have

mentioned the EPA Administrator that we worked very hard for

this to be understood, that this was not personal, but this was real,

that we could not accept that the head was against it. If the tentacles, the management, was still confining.

So I think it’s important to note several elements that we have,

and I would like to just recount them for you. And that is that we

notify Federal employees now of their rights.

Isn’t that interesting? Many did not know that we require the

annual reports that the GAO has said are so crucial and that we

penalize the specific Federal agency for its discriminatory practices,

notice of a punitive nature for that. And I think that is extremely

important to be able to set the tone. I might say to our good friends

in AFGE, I have listened to you, I look forward to working with

you on that issue. And I thank you for your leadership.

Let me ask two questions to Mr. Mfume, and, of course, to Dr.

Coleman-Adebayo.

27

Mr. Mfume, as it relates to your history in Congress, but as well,

as you have seen the atmosphere that we’re now in, this might be

characterized as overkill. You have civil rights laws, you have the

EEOC. What is your firsthand practical experience of the necessity

of this legislation, and I do thank you for your testimony. And then

to the good doctor, I understand that you, and I appreciate you

being a private citizen at this point, but that you are under a doctor’s care, it is difficult for you to return at this time. And I would

like you to explain that further about your physical condition, if

you don’t mind, to allow the Members to hear the extreme conditions that you are working under and you are symbolic of many

who are in this room who have worked under very extreme conditions, including whistleblowers and those who have helped in cases

like this.

Mr. Mfume.

Mr. MFUME. Thank you very much, Ms. Jackson Lee. And in

your absence, I took time to note our sincere appreciation for your

sponsorship of this bill, both you and the Chairman, and for the

leadership you provided. I believe that as long as we have discrimination of any type in our workplace, that one cannot really be accused of overkill, except to assume that our job is not to get rid of

it. And I think that our job really is.

At the NAACP we carry a little basic philosophy with respect to

the sort of discrimination that takes place in our society, and we

note that while we look at this bill as a first step, we recognize as

someone said earlier, that episodically we have got to find a way

to get beyond and step here and step there. We really need to

comes to grips with this entire problem.

We believe that racism, sexism, anti-Semitism are wrong. That

black bigotry is just as cruel and evil as white bigotry. That immigrant bashing, union bashing, gay bashing and city bashing deplete

us as a Nation. For the Federal employee, it is a deeper understanding of what the problem is, however, because they understand

that Jim Crowe, Sr. is dead, but Jim Crow, Jr. is alive and well

and oftentimes in Federal workplaces, creating situations—threatening people, intimidating individuals because of their race, because of the way they worship, because of what their sexual orientation may be, because of what their surname is.

All of those things are wrong. And the worst part of all of this

is, as I said in my testimony, there are so many individuals who

are white, both men and women, who are seeking to uphold the

law with respect to antidiscrimination and existing Federal regulations, and they themselves find that they are the victims of some

sort of campaign to further intimidate them for carrying out the

law.

Mr. MFUME. So I don’t think we could ever be accused of overkill

when we are attempting to get rid of a monster such as discrimination.

Ms. JACKSON LEE. Dr. Coleman-Adebayo.

Ms. COLEMAN-ADEBAYO. Thank you.

One of the reasons why I decided to disclose something that I

think is so very personal—and for me this was, I must admit, very

difficult because I tend to be a very private person—but what

has—what I think—one of the issues that I think has become very

28

close to my heart is the fact that when people think of discrimination, particularly in the Federal sector, most people think that Federal employees are essentially looking for higher promotions, and

we are, and better benefits, and that’s also true. But one of the real

issues of discrimination is that people become ill and some people

die in the process of fighting this battle.

I have seen it over and over again, that this is really a life-anddeath struggle in the Federal Government. People are trying to

support their families, people are trying to raise their children, and

the Federal Government offers some framework for doing those

kinds of activities. But in that framework there is a certain cruelty

that is attached to it, and that is that sometimes people have to

make the ultimate sacrifice, and that should not be the case in the

Federal Government.

The other day—on August 28th, to give you a very extreme example, a colleague of ours, Ron Isler, died. He had written to his

manager, and he said at the end of his memo that he sent to some

of his colleagues, ‘‘As I have requested during several of our

meetings′′—and he lists the dates—′′to be removed from ongoing

negative racial and harassing environments in OMA and that to

date no relief has occurred.’’ .

Well, he passed away very recently. I said August, but it was, I

think, maybe April 18th, if I’m correct, April 18th. I apologize.

So I think it’s important for this Committee to know that we’re

really dealing with survival issues here. We’re dealing with issues

of life and death and that people are literally being stressed out of

their physical existence because of the discrimination.

Now, I know that this kind of discrimination is much more exotic

when it’s a hanging or when it’s someone being dragged by a truck,

but I’m telling you hypertension and stress and blood pressure and

cancer kills just as well as those other kinds of activities. So we’ve

got to get to the heart of discrimination because it’s costing people

their lives.

Thank you.

Chairman SENSENBRENNER. The gentlewoman’s time has expired.

The gentleman from North Carolina, Mr. Coble.

Mr. COBLE. Thank you, Mr. Chairman.

Mr. Mfume, good to have you back on the Hill.

Good to have all four of you as panelists this morning.

As the gentlelady from Texas said, Mr. Chairman, you have been

on the forefront of this issue, and I commend you for that. I thank

you for having scheduled this hearing today.

Mr. Mfume, you just pointed out, I think, no race has a corner

on the bigot market. And I think when bigotry is practiced it’s

equally onerous, whether blacks, white, yellow or tan are guilty.

Fortunately, I think most of us are not, but the few who are—

strike that—maybe more than a few, those who are, are the ones

who are heard most consistently, and that’s what we’re trying to

address this morning, I think.

Mr. Harnage, let me ask you a question. How many Federal employees are nonunion? Or would it be easier to answer how many

Federal employees are affiliated with the union?

29

Mr. HARNAGE. The Federal Government is somewhere in the

neighborhood of 75 to 80 percent unionized.

Mr. COBLE. Okay. So the obvious majority of Federal employees

are unionized. Would the unions be responsible or should the

unions be responsible for protecting the rights of their members in

situations like we’re discussing here, A; and, B, has your union

been involved in some of these situations that we’ve just discussed

this morning?

Mr. HARNAGE. Yes, sir, we have. In fact, I believe we’re the only

union that has on its National Executive Council an elected member that is over what we call the Women’s and Fair Practice Department to make sure that we, as unionists, are sensitive to the

problems of discrimination as well as offering assistance to our

members who are encountering those types of problems. We handle

many discrimination cases, yes.

Mr. COBLE. Go into a little more detail. To what extent do you

think that the union should be responsible?

Mr. HARNAGE. We should be as responsible as the law will allow

us to be, and we should be as responsible as the employee wants

us to be. In a lot of cases, we do allow binding arbitration as a proceeding to try and expedite the EEO process. The EEO process, in

my opinion, is designed to wear the individual down and have them

give up before they ever get any justice; and so we do offer that

to them. But they have the—since there is the statutory appeal

rights they have the right to go out and hire their own attorneys

and sometimes follow a different route than the union contract.

Mr. COBLE. Assuming that the employee involved would want

your assistance, do you feel like you have been afforded an open

door or do you think there has been frustration or maybe both?

Mr. HARNAGE. Anybody that says there is not frustration in trying to process an EEO complaint has never processed one before.

I don’t care how good we may think we’ve got it, it’s still very frustrating and very time consuming in trying to get it to a final decision.

Mr. COBLE. I thank you again, panelists.

Mr. Chairman, I yield back my time.

Chairman SENSENBRENNER. The gentleman from Virginia, Mr.

Scott.

Mr. SCOTT. Thank you, Mr. Chairman.

I would like to thank our witnesses for appearing today, particularly our former colleague, Mr. Mfume.

I would like to ask a couple of questions.

Most of the major part of the bill requires the funding for the

suits not to be easier for the agency if they drag it out to litigation

rather than settle. If it’s settled, it’s out of their budget. If it’s litigated, it’s out of somebody else’s budget. It makes sense to remove

the disincentive. My question is whether or not that disincentive is

better removed by having all of the settlements paid out of the

judgment fund and none of it out of the agency. If it’s out of the

agency fund, they obviously have an incentive to fight it to save

their agency budget.

Mr. MFUME. Well, I’ve got kind of mixed feelings on that, and I

would offer one word of caution. One of the things that concerns

us at the NAACP is that, no matter how well-intentioned this legisVerDate 11-MAY-2000 11:24 Sep 28, 2001 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6601 G:\WORK\FULL\050901\72302.000 HJUD2 PsN: HJUD2
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lation is, there may be individuals who now or conceivably later in

the future might head an agency of the government who might say,

well, you know, I don’t want this out of my budget, and so I’m

going to send this over to the Justice Department and hope that

they play with it for 3 or 4 years, because then I’ll be off doing

something else. That’s the one caution I would offer here.

With respect to whether it’s paid out of one account or another,

I heard the concerns that were expressed earlier with respect to

payroll accounts. I would strongly urge that the money not come

out of payroll accounts. But my fear is that if it is only coming out

of the justice account then conceivably, again, there may not be the

incentive that I think Mr. Sensenbrenner, Ms. Jackson Lee wanted,

the kind of pressured incentive back on the agency to realize they

will be punished in a very real way with respect to their budget.

So I think it’s one of the things that we have got to settle on as

we go forward.

As I said, I have mixed emotions. I am very strong, however,

about the efforts that some might try to employ to skirt the intent

of the bill. I would offer, again, my objection, as was stated earlier,

to any money coming out of payroll accounts specifically that would

hurt employees.

Mr. SCOTT. You in your testimony refer to this as a positive step.

I assume you don’t mean by that it’s a solution. Does the NAACP

have a proposal on burden of proof, sanctions against those that

discriminate and more funding for EEOC as additional steps that

need to be taken?

Mr. MFUME. We do; and I’m glad you asked that.

As I referenced earlier, seated behind me is Leroy Warren, a

member of our national board, who has led our efforts through this

task force the last 3 years. There have been a number of other

things that have been developed.

This is a positive step, but, in saying it’s a step, we should point

out it’s a first step. There are many others that really have to follow because of the endemic and systemic nature of discrimination

in our government, and those ideas that you raised are issues that

we have proffered as things that we think are very important to

be continued with. We urge additional legislation, additional legislative activity to put in place those additional safeguards; and we

would hope that, in moving this bill forward, that as people look

at this issue they recognize that this is a beginning and that there

is a lot more to be done to protect Federal employees.

Mr. SCOTT. Are you concerned about the acronym for the bill?

Mr. MFUME. I hadn’t really thought about that. I need to know

if your aspect comes from the whistle-blower protections that are

part of it. I’m not particularly concerned with it, but we’ll give it

some more thought now that you have raised the issue.

Mr. SCOTT. I will yield the balance of my time to the gentleman

from Michigan.

Mr. CONYERS. Thank the gentleman from Virginia.

I wanted to thank Mr. Warren, too, for doing a good job on the

task force as chairman of the Federal sector task force.

But, Dr. Coleman-Adebayo, let’s put this on the table. You’re trying to retire or are you? Or do you want to discuss it? You don’t

have to. But, I mean, we don’t want to leave here with some secret

31

stuff going on in EPA that we didn’t know at the hearing. Now, you

can come back to work, you can work at home, you’re eligible for

a retirement. Those are simple options that everybody has.

Ms. COLEMAN-ADEBAYO. Thank you, Mr. Conyers. I actually

hadn’t planned for that question to be raised at this hearing, so I

have to think about that.

Chairman SENSENBRENNER. You don’t have to answer it if you

don’t want to.

Ms. COLEMAN-ADEBAYO. Let my say I have only worked for the

Federal Government for 10 years which, in many ways, I think, informs a lot of my discussion around this issue. Because, unlike

many people that I’ve met in the Federal Government who have

spent their entire career in the Federal Government, I have actually seen different systems at work in different places. So when I

came to the Federal Government, I was really astounded by the

openness of the discrimination in the Federal sector.

I think one of the reasons why you find me so passionate about

this issue is not only because I have been a personal victim of it,

but, because many of us have benefited so deeply from the civil

rights movement that when we’re confronted with this kind of racism and sexism we feel that there is a real obligation, as the next

generation, to really do something about it. So my passion for this

issue isn’t as much personal as it is almost generational, because

I’m also a mother, and I cannot imagine my children coming home

to me in 10 or 20 years and describing the same experiences that

I’ve had.

Mr. CONYERS. Well, thank you. Just put in your notebook Conyers is not prying, he’s protecting.

Ms. COLEMAN-ADEBAYO. You have been doing that for me for a

very long time. So I thank you very much, Mr. Conyers.

Chairman SENSENBRENNER. I have one question. Mr. Mihm, I

have noticed that the law does not allow the Postal Service to dip

into the Justice Department, government, or judgment fund when

they have to pay judgments or settlements as a result of discrimination or retaliation. To your knowledge, has that impacted upon

the ability of the Postal Service to function properly because they

have to pay these judgments out of their own funds?

Mr. MIHM. We haven’t heard problems to that effect at the Postal

Service, Mr. Chairman. We’ve checked over there, in fact, as recently as yesterday afternoon where we were trying to make calls

over there to find out and get some information on this. But I

haven’t heard anything where it would cause a problem for them

in this regard.

Chairman SENSENBRENNER. You think you can stipulate that the

postage rate increase they voted yesterday is not being used to pay

judgments?

Mr. MIHM. We’ll supply that for the record, if we may, Mr. Chairman. No.

Chairman SENSENBRENNER. You may.

Mr. MIHM. Thank you.

[The information referred to follows in the Appendix]

Chairman SENSENBRENNER. Well, I would like to thank all of the

witnesses.

Ms. JACKSON LEE. May I have another question, please.

32

Chairman SENSENBRENNER. We’re about ready to get to a vote.

I want to say something.

Ms. JACKSON LEE. All right. Please do.

Chairman SENSENBRENNER. First of all, let me thank the witnesses for their very insightful testimony in pointing out for the

record and for the public how pervasive and extensive discrimination and retaliation are in the Federal Government and the need

for this bill. I recognize that this bill is not a panacea, but it’s a

start; and I would like to make the observation that we should not

fall into the trap of the perfect being the enemy of the good.

When this bill was introduced, it was referred to four committees, including this one. I deliberately redrafted the bill so that it

would fall in part in the jurisdiction of the Judiciary Committee so

that I could have this hearing, and let me give all of you a commitment that there will be a prompt markup in this Committee so

that we can file a committee report and keep the momentum going

in favor of it.

However, the bill is before the Government Reform, Energy and

Commerce and Transportation and Infrastructure Committees; and

this Committee is a pushover compared to the other three. So I

would just like to advise everybody that in—sometimes in this instance trying to ask for too much might end up preventing us from

taking the first step.

Representative Jackson Lee, I think, has correctly pointed out

that the notices are not as broad as they should be there, that all

anti-discrimination laws are not covered by this bill. When we do

mark up the legislation, I intend to propose a manager’s amendment to broaden the scope of the bill to include all anti-discrimination laws being a part of the notice so that nobody can make the

excuse, well, I read that poster on the bulletin board, and it didn’t

say that, so I didn’t know this was something that was prohibited,

even though common sense would probably have everybody reach

that conclusion.

So, again, I thank everybody for coming and participating in this

hearing. This is a first step in a long process. I will do my best to

keep the momentum going on this bill and also to try to get the

message to the other committees that this is an important bill and

they should not ignore this issue.

Because the sooner we address this issue, the better the morale

will be in the Federal work force. Everybody knows that productivity and high morale are one and the same; and if there is low

morale, the productivity goes down and the taxpayers aren’t getting their money’s worth. So we can give the taxpayers more of

their money’s worth from people who are in the Federal work force

by getting this bill passed and hopefully reducing discrimination

and retaliation.

The gentlewoman from Texas.

Ms. JACKSON LEE. I thank the Chairman very much.

First of all, let me thank you for that expanse of the manager’s

amendment. I appreciate it very, very much.

I just wanted to, one, Mr. Chairman, ask that my statement be

submitted in the record.

33

Chairman SENSENBRENNER. Blanket permission was given at the

beginning of the hearing for all statements to be included in the

record.

Ms. JACKSON LEE. Thank you, Mr. Chairman.

I just wanted to pointedly try to ask Dr. Coleman-Adebayo about

her medical condition with the cardiologist, just for the record. I

thank the Chairman and Ranking Member Conyers—and let me

thank him for his leadership and working with Chairman Sensenbrenner—I think this is a dynamic duo on this particular legislation. But your particular circumstance, please, so we can know.

I will conclude by simply saying that the Chairman is right. I

thank him for his expediency. Let us not be silenced as it relates

to our other friends on other committees. Let us work with them

so we can move this along rather quickly along with the administration.

Dr. Coleman, if you would. Thank you very much.

Thank you, Mr. Chairman, for this hearing.

Chairman SENSENBRENNER. Dr. Coleman, do you want to elaborate on this?

Ms. COLEMAN-ADEBAYO. Certainly I can. I certainly thank Congresswoman Sheila Jackson Lee and Congressman Conyers for

their concern, and I’m sure all the members here and my colleagues here. So I thank you very much.

At this point, my doctor has actually doubled the medication. I

was actually forced to return to my office, let me back up and just

say that on November 17th, by my managers, because of the harassment that I was subjected to in the office, my blood pressure

went into astronomical numbers, and my doctor pulled me out of

the workplace at that point.

My managers worked diligently to force me back into the workplace. I think it was a very conscious effort, and I think that we

cannot underestimate just how conscious the discrimination is, and

it’s also very surgical. They find out that there is a weakness,

whether it’s a physical or mental weakness, and they really begin

to target those areas. So this is very conscious and deliberate discrimination.

When my doctor would not relent in terms of his decision, the

agency actually hired—we call them doctors-for-hire—they actually

hired a doctor to contradict my doctor’s orders. That became the

agency’s own decision-making doctor of record. So the only doctor

that the agency listens to is the doctor that they paid for. And so

that doctor at that point instructed the agency to have me return

to work over my treating physician. So I’ve never seen this doctor.

He has never taken my blood pressure. I have no idea who he is.

But he made this life-and-death decision for me.

So last Monday—not this Monday but the previous Monday, I

was actually forced to go back into the office or else I would have

been considered AWOL. So after 3 days my blood pressure escalated, as my own treating physician said that it would, and in 2

days I was—my doctor told me that I should essentially go home

because my blood pressure was too high.

So these are very, very serious problems; and I raise that because in my last testimony, in October, I discussed a woman named

Lillian Peasant who had died from hypertension. And my sense is

34

that—and I don’t have any records on this, but I wouldn’t be surprised if her doctor had also sent in letters saying that she

shouldn’t be in the workplace and the agency ignored those letters.

[Laughter]

So, you know, let me just say that we talk about these macro

concepts of discrimination, but, we really have to talk about the

people who are being discriminated against. And those are the people like Anita Nickens, Phil Newsome and Cathy Harris who have

really suffered because of this process. So, one of the reasons why

we’re supporting this bill, so much, is because we believe that this

will really save lives.

Thank you.

Chairman SENSENBRENNER. Thank you very much.

Mr. Conyers would like to have a picture taken before we have

to run over and vote.

So there being no further business—. Mr. SCOTT. I have a unanimous consent request.

Chairman SENSENBRENNER. Would the gentleman state it?

Mr. SCOTT. The acronym of the bill is very similar to the acronym of another organization. I would like unanimous consent to introduce for the record the welcome page of that organization so

that, as you redo the bill, we may consider changing the acronym

so as not to confuse.

Chairman SENSENBRENNER. I see what the gentleman wants to

put in, and I don’t think that that’s relevant. It’s a page from

David Duke’s home page. You know there is no intention in making

the acronym of this bill to be any way supportive of this man who,

I would point out, has been kicked out of the Republican party.

Mr. SCOTT. I think we should note for the record that the name

of the organization is N.O.F.E.A.R.—N-O-F-E-A-R.

Chairman SENSENBRENNER. Yes, well, I think the acronym of the

bill was to try to prevent fear in these rather than having anything

to do with European American rights.

Again, I will make the statement very clearly that the No FEAR

acronym was done, you know, completely without the knowledge of

what Mr. Duke is up to—and, frankly, I don’t care what he’s up

to.

There being no further business to come before the Committee,

the Committee stands adjourned.

[Whereupon, at 11:33 a.m., the Committee was adjourned.]

(35)

A P P E N D I X

STATEMENTS SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

Let me state at the outset that I agree with Chairman Sensenbrenner that discrimination and whistle blower retaliation are pervasive in our federal agencies and

mandates Congressional attention.

One does not have to look very hard to find examples of government misconduct.

We all remember the infamous tailhook scandal, when women in our armed forces

were forced to endure outrageous sexual taunting.

And of course, there was the notorious ‘‘good old boys’’ round up at the ATF, when

racial slurs and race baiting were in full display by our law enforcement. None of

us were surprised when the ATF was forced in 1996 to settle a class action lawsuit

paying 241 current and former black ATF agents in excess of $4.6 million in damages for illegally discriminating in its promotion practices.

Then in 1998, a District of Columbia Federal jury found that the Department of

Justice—the supposed protector of our civil rights—had illegally discriminated

against Matthew Fogg, and awarded him $4-million in damages, the largest monetary award ever awarded to a single Federal employee.

And last year a D.C. court found that the EPA had illegally discriminated against

Dr. Marsha Coleman-Adebayo on account of her race and sex to the tune of

$600,000.

And these are not isolated instances. Last year alone, federal employees filed

more than 24,000 discrimination complaints against their agencies. And they were

forced to pay a total of $26 million for discrimination complaint settlements and

judgments. The complaint process is so backlogged that on average a discrimination

takes more than 1,100 days to process.

I would have liked to think that our federal agencies would be the models for the

treatment of employees in America. But these figures indicate beyond a shadow of

a doubt that the agencies are miserably falling short of this responsibility.

I believe H.R. 169 is inadequate in and of itself to respond to this ubiquitous problem, and that we can and must do much more. Among other things, I believe we

should create a uniform standard for agencies to discipline managers who have committed illegal discrimination or whistle blower retaliation. We also need to encourage

the use of EEOC-based voluntary alternative dispute resolution at an early stage in

the process, and provide more funding to process the backlog of complaints. We also

need to examine the standard of proof required to prove illegal conduct, and any

other disincentives to employees seeking redress of their legal rights.

We are at the beginning, not the end of the legislative process. And I look forward

to working with the Chairman in developing a full and complete response to this

racism, sexism, and illegal retaliation by our own government.

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

Chairman Sensenbrenner and Ranking Member Conyers thank you for this opportunity to address job discrimination in the federal government. Chairman Sensenbrenner, I would like to commend you and thank you for allowing me to join with

you in this effort to fight on the job discrimination in the federal workplace.

We began this effort last Congress with hearings under the jurisdiction of the

House Science Committee, which you chaired. Today, this effort continues in the

107th Congress in the form of H.R. 169, which has been dubbed the ‘‘the first civil

rights legislation of the 21st Century.’’ However, I would only say that it is an atVerDate 11-MAY-2000 11:24 Sep 28, 2001 Jkt 000000 PO 00000 Frm 00039 Fmt 6601 Sfmt 6621 G:\WORK\FULL\050901\72302.000 HJUD2 PsN: HJUD2
36

tempt to reintroduce the subject of civil rights to the House Judiciary Committee

after much too long an absence.

I would also like to thank the members of the panel and all the courageous individuals and organizations, which have spoken out on the need for this legislation,

including the NAACP Task Force on Federal Sector Discrimination and other civil

rights organizations.

Mr. Chairman, I am in support of this bill for the very reason so many find it

controversial, the federal government should be the working example of the Constitutional values our democracy upholds. Unfortunately, the civil rights regulations

and worker rights regulations that government the federal workplace has not

brought about a commitment to equality and fairness in the workplace. Some how

a disconnect has developed between, what the federal government says is right, just

and fair in the workplace, and what it actually practices.

It is my believe, that the cost of practicing discrimination in the federal workplace

does not carry sufficient penalty for the abuser because their actions even when

proven through court action can still be hidden. It is possible to hide discrimination

in the federal workplace because no one is held accountable to victims, Congress,

or taxpayers.

I am a sponsor of this legislation because it will begin the process of creating accountability in the federal workplace as it relates to discrimination and intolerance.

It is my hope that what has not been achieved through training and policy directives regarding fairness in the federal workplace may be achieved through the requirements suggested by the legislation.

Career federal employees cannot have a comfort level regarding discriminatory action that they might engage in, but remain mindful that the behavior will become

part of their work history with the federal government.

Although the work that prompted the creation of the No Fear Act was based on

disturbing allegations that the Environmental Protection Agency (EPA). My thanks

and appreciation are extended to Dr. Marsha Coleman-Adebayo for her willingness

to share her story regarding discrimination and retaliation at the EPA. Her testimony told not only her story, but the story of thousands of former, and current federal employees throughout the government who have had to work in hostile work

environments without any lifeline to guide them to assistance and support to challenge their work conditions.

It has been alleged that other agencies: Department of Agriculture, Department

of Justice, Department of Treasury and other agencies have had to struggle with

overt and covert practices of intolerance, discrimination, and retaliation against

their employees.

Further, this legislation would allow those employees who feel that a wrong is

being committed by an agency to become whistleblowers with greater protection

being provided to them by this bill should it become law.

The work on this legislation began in the House Science Committee when a hearing was held in March 2000, over allegations that agency officials were intimidating

EPA scientists and harassing private citizens who publicly voiced concerns about

agency policies and science. During these proceedings, a number of African-American and disabled employees expressed similar concerns.

Under the Civil Rights Act of 1964, it is illegal to discriminate against federal employees on the basis of race, color, sex, religion, national origin, age, or disability.

In addition federal employees are protected from retaliation for filing complaints related to such discrimination as whistleblowers. Federal whistleblowers may file reprisal complaints with the Office of Special Counsel (‘‘OSC’’), the Merit Systems Protection Board (‘‘MSPB’’), and the Department of Labor’s Occupational Safety and

Health Administration (‘‘OSHA’’). Federal whistleblowers are protected under several federal laws, the primary one being the Whistleblower Protection Act of 1989.

One of the aggrieved employees of the EPA, Dr. Marsha Coleman-Adebayo, won

a $600,000 jury decision against EPA for race and sex discrimination under Title

VII of the Civil Rights Act of 1964. Furthermore, it is alleged that the EPA has

sought to retaliate against some of the employees and scientists that assisted the

Science Committee during its investigation by reassigning the employees to other

positions and transferring them to other offices. This is a very serious matter of discrimination, and of obstructing justice.

Mr. Chairman, since its introduction in the 106th Congress as H.R. 5516, the Notification and Federal Employee Anti-discrimination And Retaliation Act (No FEAR

Act) of 2000, has stood for the principle that federal employees should have ‘‘no fear’’

in reporting discriminatory behavior by their federal agency employers. Like its

predecessor, the legislation before us today, H.R. 169, demands that agencies be

held accountable for their misdeeds, but H.R 169 expands accountability throughout

the entire Federal Government.

37

Under current law, agencies are not held liable when they lose judgements,

awards or compromise settlements in whistleblower and discrimination cases. The

Federal Government pays such awards out of a government-wide judgement fund.

The No FEAR Act would require agencies to pay for their misdeeds and mismanagement out of their own budgets, as an incentive to scrupulously comply with nondiscrimination laws and policies, and to comply with internal administrative process

protocol. This makes good sense.

The bill would also require Federal agencies to notify employees about any applicable discrimination and whistleblower protection laws and report to Congress and

the Attorney General on the number of discrimination and whistleblower cases

within each agency. Additionally, each agency would have to report on the total cost

of all whistleblower and discrimination judgements or settlements involving the

agency. In all, this bill would make our agencies more accountable by creating incentives for them to monitor themselves.

We must not lose sight of the fact that discrimination and intimidation in the

workplace does not just exact a professional development toll, it also creates psychological wounds, and physical illness that diminish the health of the employee being

abused. It also efforts the productivity of the workplace and is harmful to the best

interest of the federal government in the pursuit of the work that the agency is

charged with by Congressional authority.

I believe that it is time for the Congress to state in no uncertain terms that discrimination and intolerance in the federal workplace will not be tolerated.

Mr. Chairman, we have come a long way towards eliminating the culture of discrimination and harassment that exists in our federal workplace. This legislation

takes us one step further towards our goal of equal justice and accountability under

the law.

Thank you.

PREPARED STATEMENT OF JOHN E. BERTHOUD, PH.D.

The National Taxpayers Union and its 300,000 members strongly support the passage of H. R. 169, the ‘‘Notification and Federal Employee Anti-discrimination and

Retaliation Act of 2001’’ (No FEAR Act). This legislation, which has been introduced

by Representative Sensenbrenner, will provide for a more responsible and accountable federal government, which translates into big savings for taxpayers.

Under current law, federal agencies found guilty in discrimination and whistleblower cases are not required to pay for their own mistakes. Instead, awards and

settlements are paid out of a separate government (and taxpayer-funded) judgement

account. The No FEAR Act will hold individual government agencies financially responsible for judgements they lose by requiring that financial settlements be taken

from a particular agency’s budget, rather than using a slush fund of taxpayers’ money.

By attacking the purse strings of these offending government agencies, the No

FEAR Act can create a more fiscally responsible federal government. Agencies will

now have to act more responsibly or else risk serious financial consequences.

The No FEAR Act will not only make agencies more financially accountable, but

it will create incentives to improve relations with workers. This is good news for

the workers as they shouldn’t have to tolerate discrimination or face retribution for

whistle-blowing. This is also good news for taxpayers. An unhappy federal workforce

makes for less efficient and more expensive government. And federal employees

should never feel intimidated to step forward and expose waste, fraud or abuse

where they see it occurring.

The No FEAR Act promotes the virtues of fiscal responsibility and accountability

in government, and the National Taxpayers Union urges Congress to enact this legislation.

PREPARED STATEMENT OF THOMAS DEVINE

Thank you for inviting written testimony from the Government Accountability

Project (‘‘GAP’’) on H.R. 169, the Notification and Federal Employee Anti-Discrimination Act. It is an essential building block for federal employee rights in reality

to reflect the rhetoric of merit system principles.

GAP is a non-profit, nonpartisan public interest law firm that specializes in protection for genuine whistleblowers, employees who exercise free speech rights to

challenge institutional illegality, abuse of power or other betrayals of the public

trust they learn of or witness on the job. GAP has led the public campaigns for passage of the Whistleblower Protection Act of 1989 (‘‘WPA’’)(federal employees); MiliVerDate 11-MAY-2000 11:24 Sep 28, 2001 Jkt 000000 PO 00000 Frm 00041 Fmt 6601 Sfmt 6621 G:\WORK\FULL\050901\72302.000 HJUD2 PsN: HJUD2
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tary Whistleblower Protection Act (armed services members); numerous related statutes for private industry sectors such as nuclear weapons and nuclear power; and

numerous state whistleblower laws. We also have published numerous law reviews

on the provisions and impact of these laws, as well as The Whistleblowers Survival

Guide: Courage Without Martyrdom, the lessons learned from over 2000 cases during our first two decades.

We are especially pleased to review a bill that addresses the civil service impact

of discrimination on a holistic basis, rather than fragmenting Equal Employment

Opportunity (‘‘EEO’’) and whistleblower violations. In our experience, simultaneous

intolerance for both EEO and whistleblower rights coexists as the rule, not the exception. Abuse of power seldom is limited to one merit system category or the other.

GAP commonly represents whistleblowers dissenting against racial and sexual

bigotry. For example, Customs Inspectors personified by Cathy Harris in Atlanta

blew the whistle on arbitrarily detaining black women up to four days in alleged

drug searches, going beyond privacy violations to strip them of human dignity. They

were held incommunicado, barred from contacting either family or counsel. Without

any evidence to justify the searches and regularly without anything to show for it,

the government agents systematically groped all body organs within physical grasp,

and subjected them to hospital laboratory tests for all the rest. Whistleblowing on

civil rights violations can make a difference. Thanks to the courage of public servants like Ms. Harris, the agency modified its policies. Now random suspects can only

be held incommunicado for four hours, instead of four days.

Federal employees should appreciate three significant concepts in H.R. 169 that

are necessary to fill merit system gaps. Most fundamentally, the bill requires collection of data on disputes alleging violations of employee rights law, including discipline of offending agency officials. As the General Accounting Office (‘‘GAO’’) confirmed in its testimony, that data simply does not exist on a systematic level. Based

on our own research, we also can confirm an analogous vacuum of statistical data

for decisions on the merits of whistleblower rights. This includes Whistleblower Protection Act (WPA) cases adjudicated by the Merit Systems Protection Board and

labor-management arbitrators, as well as witness protection statutes administered

by the Department of Labor. We recommend a provision specifying that the new

pool of mandatory statistical data include the results of all employee protection statutes, specifically disclosing won-loss records on the merits.

Second, the law requires agencies to post employee rights. As the U.S. Office of

Special Counsel reported and the GAO confirmed, agency heads have not respected

the mandate of 1994 amendments to the Whistleblower Protection Act, holding them

responsible to educate all staff of their duties and rights under these good government laws. We recommend that the bill extend mandatory notification to include

mandatory training on implementation of covered statutes. This investment will pay

for itself by preventing avoidable litigation.

The third reform concept is the most significant—establishing institutional accountability. Under H.R. 169, agencies would have to pay for relief to compensate

victims of merit system violations. Today the costs generally are paid by a Judgment Fund for the entire Executive branch, without affecting individual agency

budgets. That means agencies have nothing to lose from discrimination or free

speech repression. By imposing liability, H.R. 169 would create an institutional deterrent effect to prevent merit system abuses.

We recommend fine tuning the bill, however, to prevent agencies from punishing

all employees when compensating for violations of individual rights. Some organizations have expressed concern that financial penalties will be financed by cutting

bread and butter benefits, or funding for programs to implement and administer the

merit system. The bill should outlaw this tactic wherever it can be proven. Most significant, the bill can structurally prevent vulnerability by restoring personal accountability that has largely vanished since passage of the Civil Service Reform Act

of 1978. Today bureaucratic bullies also have almost nothing to lose on the personal

level by doing the dirty work of retaliating against minorities, women and whistleblowers. In fact, they frequently receive cash awards in the aftermath of serving as

hatchetpeople to harass whistleblowers. H.R. 169 will be much more significant if

it is financed through personal, rather than institutional liability.

Finally, we have two structural suggestions. H.R. 169 is necessary, but not sufficient for merit systems rights to regain legitimacy. First, we agree with the American Federation of Government Employees that merit system rights should be extended to government contractor employees. All too often, contracting out government functions means canceling employee rights. The primary reason for the merit

system is protecting the public. It should apply wherever taxpayer funds are spent

for public service.

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Most fundamental, Congress must restore a fighting chance for employees to win

when they assert merit system rights. As summarized in the attached April 5 open

letter from six good government organizations to the President and a corresponding

April 30 Washington Times editorial, whistleblowers no longer have a fair chance.

As currently mangled by that activist, hostile court, those who assert their anti-reprisal rights are virtually guaranteed a formal legal endorsement of the harassment

they challenge. Without the chance for a fair day in court, posting employees rights

could create a Pied Piper syndrome—creating more victims than are helped by leading employees into a trap that finishes off their careers.

We urge all the members of this committee to consider cosponsoring this session’s

version of legislation introduced last year by Representatives Morella and Gilman

to restore the Whistleblower Protection Act’s legitimacy. That legislation and the No

Fear bill are both indispensable for federal workers to be public servants instead

of bureaucrats. It is unrealistic to expect first class service from federal workers if

they have second class rights.

PREPARED STATEMENT OF MATTHEW FOGG

Good morning ladies and gentlemen of the House Judiciary Committee. First, I

give honor to my LORD and SAVOUR by stating, may the words of this statement

and the meditations of my heart be accepted in THY sight. LORD, you are my

strength and my redeemer, Amen.

On behalf of all the supporters gathered here today, I want to recognize and applaud the monumental efforts of Committee Chairman, F. James Sensenbrenner, Jr.

for introducing the Notification and Federal Employee Anti-discrimination and Retaliation Act of 2001 (No FEAR) [H.R.169.HI] in the House of Representatives.

Thank you for establishing procurement accountability in terms of judgment awards

against agencies and their officials who are found guilty in Title VII claims and the

Constitutional laws of this great nation. My testimony shall not only depict me, as

victim of gross negligence in the federal workplace, but it will reflect my expert

opinion as in the field of Equal Employment Opportunity (EEO) and Title VII procedures. I truly support your efforts to make this H.R. 169 hear after referred to as

‘‘No FEAR’’ a legislative reality for the unheard voices of thousands of dedicated employees of the United States Government.

In 1978, I joined the oldest federal law enforcement department in America

known as the US Marshals Service (USMS). The USMS operates under the direct

supervision of the US Department of Justice (DOJ). My distinguished career

achievements will show that I served the USMS above and beyond the call-of-duty.

My professional accolades include the USMS Directors Award and the US Attorneys

Award for Meritorious Services to the citizens of the District of Columbia. Several

of my success stories were featured in the National Chiefs of Police publication, The

DEA World Wide magazine, on the national television show ‘‘Americas’ Most Wanted’’ and I provided expert commentary to the Cable News Network (CNN) following

the successful seizure of Elian Gonzalez.

In 1985, I initiated my first Equal Employment Opportunity (EEO) complaint

against the USMS following blatant acts of race discrimination and reprisals from

a high ranking management official. This same manager would retire seven years

later, as a GS-15 Chief Deputy US Marshal, with an unblemished record. It was

not until 1998, that a US District Court Jury would find him as one of many discriminating officials in my EEO case.

I’m truly sad to say that my career destruction did not end with that manager;

I became the victim of many reprisals. I was forced to continuously file new claims

with separate case numbers for each act of discrimination taken against me over

a 13 year period. No one was held accountable until I entered the US district courtroom on April 4, 1998 (Fogg v. Reno 94–2824–TPJ).

It is even sadder to say that today, my sixteen year Title VII journey to justice

is not over. My judgment alone involves five federal judges (including one who testified), three USMS directors, over fifty government witnesses ranging in grades from

GS-9 to Senior Executive Service (SES), eight government attorneys, five plaintiff

attorneys, a 25 day jury trial and a pending appeal.

Yes, this is the same federal agency that I honorably served and, on several occasions, literally placed my life on the line in the line-of-duty. I will never forget words

spoken to me by one highly publicized federal prisoner who escaped while serving

a life sentence for murder. I apprehended him before he could draw his loaded

weapon. As he was being handcuffed, he told me, ‘‘Man, you must have had a lucky

horseshoe in your back pocket.’’ Ironically, his capture was an awful twist of fate;

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it would be those who worked beside me within the rank-and-file of the U.S. Department of Justice that would ‘‘gun down’’ my career.

On the morning of April 28, 1998, a federal jury here, in our Nation’s Capital,

rendered a landmark verdict after deliberating over a mountain of evidence. They

found the DOJ violated my Civil Rights in 14 of 15 separate interrogatories placed

on the verdict form. The jury awarded me four million dollars, the rank of Chief

Deputy US Marshal, and found the entire USMS to be a racially hostile work environment for all African American deputy US Marshals nationwide. This verdict is

the largest jury award to a single federal employee in the history of Title VII.

Presiding judge, the honorable Thomas Penfield Jackson (known from the famed

Microsoft trial), validated the jury findings in part, by stating in his written opinion

on the verdict; ‘‘the jury obviously inferred from the evidence of the endemic atmosphere of racial disharmony and mistrust within the USMS that all explanations

were suspect, and that occult racism was more likely the reason than any other for

Fogg’s misadventures within the Marshals Service hierarchy.’’

Judge Jackson also reduced the verdict to three hundred thousand dollars, indicating a 1991 amendment to the 1964 Civil Rights Act that other Judicial Circuits

have interpreted, that Congressional intent was to allow federal employees to only

recover up to $300.000 per case, instead of on, a per claim basis.

Surprisingly, Jackson also refused to expunge my USMS termination of record,

even though the jury verdict specifically found it in violation of my Civil Rights. I

have contested both issues; they are now pending a written decision from the US

Circuit Court of Appeals in the District of Columbia, NO#-00–5138 where oral arguments were concluded on March 19, 2001.

Today, I am utilizing my EEO and Title VII training, experience, expertise, and

personal success as the Executive Director of a non-profit civilian organization

known as the Redstone Area Minority Employees Association (RAM) in Huntsville,

Alabama and a law enforcement group called, Congress Against Racism and Corruption in Law Enforcement (CARCLE) augment the continuous call for Civil Rights

in Government.

Both organizations were created to assist federal, state, local and private-industry

employees who have filed EEO complaints and are seeking advise on the EEO process and Title VII Litigation. Both RAM and CARCLE support the NAACP, Blacks

in Government, national minority police organizations and other organizations with

similar missions in the civilian and law enforcement communities across America.

In Huntsville, Alabama, I currently represent over fifty employees in various

stages of the Administration process at the National Aeronautics and Space Administration (NASA)—Marshall Space Flight Center, the multiple US Army commands

and other tenant agencies on the Redstone Arsenal. My representation in these matters encourages support of the provisions of No FEAR that are essential to government oversight and accountability. I had the opportunity to hear a GS-15 civilian

management official for the US Army’s Aviation and Missile Command testify under

oath on three separate occasions that a black female engineer with a Ph.D. degree

in Systems Engineering could not get promoted or transferred because she had been

‘‘blacklisted’’. Initially, I was shocked at the boldness of his statement and the obvious lack of concern for any consequences from his superiors. He even described it

as an actual list similar to what banks use to avoid certain areas of town. In talking

to other employees and local AFGE union president in that area, it appears the

term blacklisting is a common language and an accepted practice for reprisal in the

Redstone Arsenal federal workplace. This is a clear example that federal management officials realize that they are not being held to the same accountability standards as are enforced on private industry.

It is without question that I believe the USMS, as supervised by the DOJ, would

not have pushed Fogg v. Reno into a 16 year multi million misadventure with taxpayer dollars if the litigation expenditures and monetary awards were being extrapolated from the USMS budget plan. I think we all understand the popular American

belief that states, ‘‘if you hit them in the pocket then you will get their attention’’.

Immediately following Judge Jackson’s ruling and his decision for Equitable Relief

in February 2000, he signed an order for the government to immediately pay my

attorney $300,000 in legal fees, which they did.

Again, we observe an outrageous process where the DOJ simply challenges each

dissatisfied outcome and extends an already long litigious process because, they

know legally that monetary payments in Title VII will be extracted from a special

US Treasury fund not accountable to the real violators of our great Constitution.

No FEAR is fair because current laws permit our government to personally charge

plaintiffs who do not prevail in Title VII claims with court cost and litigation fees.

Therefore, in like manner No FEAR will levy real damages against discriminating

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agencies and their officials who, do not prevail in Title VII claims and capture a

record that will always expose a pattern of all illegal activity involving Title VII.

There are individuals who are concerned that if this HR 169 becomes law, particular agencies found in violation of Title VII and must pay monetary awards to

cover the judgments, will in turn cut their hiring of minorities due to budget shortfalls. First, this would be another illegal act comparable to racial and sexual

profiling and certainly would not deter discrimination if that is the actual intent of

the agency heads. At the very least, what HR.169 will do is make agency heads accountable to their budgetary expenditures. Clearly, if the budget is reduced because

of illegal activity under their watch, disciplinary actions up to and including removal shall be in order.

I understand that it was not the intent of Congress to allow the federal government to be bankrupted by large extraordinary damage awards. Therefore, a Cap on

damages is apropos with respect to each specific claim (not Case) of Civil Rights violation. But, today private industry and public institutions are at a disadvantage because, they do not have the luxury of a giant and nebulous slush fund that is full

of federal taxpayer dollars to always draw from whenever they decide to violate federal laws. Certainly they can understand why federal managers have no incentive

to not repeat Civil Rights crimes.

I must revert to a moment in my Title VII trial when the United States Marshal

and presidential appointee, Herbert M. Rutherford III, stated on the witness stand

that ‘‘if Fogg had been white, this would not have happened.’’ Judge Jackson followed up with a question to Rutherford asking ‘‘Marshal Rutherford, are you telling

me that because Matthew Fogg is African American that the USMS ‘dug it’s heels’

in on his EEO claims?’’ Rutherford answered, ‘‘Absolutely!’’

Finally, I must state one more incident in my trial that clearly verifies the USMS

and the DOJ fostered an obvious attitude of no concern for accountability in a obvious no-win situation. On Friday, April 24, 1998 Judge Jackson persuaded both parties to attempt to reach a settlement, with a ‘‘Consent Decree’’, before presenting

evidence to the jury. Jackson indicated that there was overwhelming direct evidence

that a racial hostile environment did in fact exist in the USMS. All parties met and

utilized a full trial day to create a comprehensive agreement that would foster an

environment conducive to a non-discriminating atmosphere and eradicate disparate

impact to all African Americans in the USMS.

Shockingly, on Monday, April 27, when trial resumed, the government told Judge

Jackson, to his dismay, that USMS officials no-longer wanted to participate in a

Consent Decree. Judge Jackson allowed the trial to go forward but, insinuated that

overwhelming evidence was stacked against the government.

Ladies and gentlemen, this was the final act of defiance with very wasteful behavior by USMS and DOJ officials. It is direct evidence in support of the NO FEAR

bill. Certainly, the USMS and DOJ top officials considered and knew that they

would not be accountable to an obvious oncoming judgment that would involve a

substantial monetary award and legal cost against them. Judge Jackson did everything legally possible to make that point known to the government. On March 19th

2001 the same USMS and DOJ were served a notice of ‘‘Class Complaint’’ involving

some of the same African American witnesses in Fogg v. Reno. Again the overwhelming evidence is already on the record and road has been paved for a no-win

situation for the government.

In closing, I submit that these existing attitudes by agency heads are simply fostered by non-accountable monetary Judgments. And this is the primary reason why

Title VII claims such as Fogg v. Reno, Coleman V EPA, HUD, Agriculture, Commerce, NASA, USMS V DOJ, FBI V. DOJ, USSS V Treasury, DEA V. DOJ, FAA,

US Army and many others are thriving and pending in the federal government

today. I submit to you that HR 169 may be one small step in total government oversight but, it is one giant step for agency oversight and it’s procurement accountability.

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PREPARED STATEMENT OF KRIS J. KOLESNIK

Mr. Chairman, members of the committee, thank you for the opportunity to submit my testimony for today’s record in support of your bill, H.R. 169. Those who

advocate strong rights for federal employees who demonstrate credibility when they

blow the whistle salute your leadership in advancing this legislation.

Prior to becoming executive director of the National Whistleblower Center, I spent

eighteen years working in the United States Senate for Senator Charles E. Grassley

of Iowa. Senator Grassley has had a long history and developed a reputation as the

Senate’s champion and protector of whistleblowers.

Over the years, we literally saved the taxpayers hundreds of billions of dollars,

and forced reforms of numerous agencies and departments following disclosures of

gross mismanagement. Some examples of reforms include: the way the Pentagon

purchases weapons; the way those weapons are tested; instituting integrity into the

FBI crime lab. Each of these fixes followed big public scandals. I staffed that work

for him. But none of this was possible without whistleblowers.

One thing is always certain: Despite the major contributions whistleblowers make

on behalf of the public, management invariably retaliates. The choice managers face

is, send the bad news up the chain of command and risk looking bad to the boss,

or silence the messenger. Usually, the latter is the preferred option.

Congress has recognized the importance of protecting whistleblowers. And so you

have passed laws to do so. Some of them work well, some don’t. The best protections

for whistleblowers are contained within the six environmental statutes identified in

H.R. 169. These laws have effectively blocked EPA managers from destroying the

careers of loyal scientists who have questioned EPA ‘‘science.’’

EPA has failed to implement the whistleblower provisions of the laws they are

required to enforce. As a result, the National Whistleblower Center filed a formal

request with the Administrator of EPA, seeking a review of their whistleblower

practices. The review was assigned to the EPA Office of Inspector General (OIG).

A report was issued by OIG that recommended that EPA employees be informed of

their rights under the six statutes. Incredibly, EPA has overridden the advice of

OIG, and continues to mislead its employees about their rights as whistleblowers.

It is for this reason that the National Whistleblower Center strongly supports

H.R. 169. We believe that legislation is required if employees are to be fully informed of their rights.

The Center also supports the provision in the bill that requires reporting to Congress. There are very few statistics on discrimination and whistleblower cases. This

data is important because, for Congress, it can be a warning system as to whether

protections are working properly.

Just as important are the statistics revealing the number of those who are disciplined for discrimination, retaliation or harassment. This would be a good first

step. Even more important is for Congress, through oversight, to determine who was

not disciplined and demand that the agency hold those parties accountable.

Accountability is the one true deterrent against discrimination and retaliation.

Without it, managers feel it is open season on employees. Whistleblowers often need

to bring not just one case, but two or three. One such case is that of Dr. William

Marcus, the renowned EPA toxicologist and a Senior Science Advisor.

The Department of Labor found that EPA had, through a pattern of isolating and

repressive activity by many supervisory personnel, retaliated against Dr. Marcus for

engaging in protected whistleblowing activity. In fact, EPA fired Dr. Marcus and

stripped him of his federal pension because of his whistleblowing activities. It was

only after a costly two-year legal battle that Dr. Marcus was fully vindicated, ordered reinstated and awarded compensatory damages. None of the wrongdoers in

the Marcus case was ever held accountable.

The failure of EPA to take any action to discipline the wrongdoers only made the

problem worse. After reinstatement, Dr. Marcus was subject to an illegal campaign

of isolation and bad- mouthing. After yet another two-year legal battle, Dr. Marcus

again won before the Labor Department, and again obtained a large compensatory

damage award. But EPA’s pattern of misconduct continued. None of the three managers responsible for the second round of retaliation against Dr. Marcus was ever

held accountable.

Let there be no mistake, accountability is the key to successful long-term protection of whistleblowers because, without it, there is no incentive for retaliation to

stop.

In conclusion, Mr. Chairman, it is my hope that this committee will recognize the

importance of H.R. 169, and the need to strengthen protections and rights for whistleblowers. The Center stands ready to lend its support in any way possible. I would

only add that, should the legislation pass, oversight by Congress is still needed to

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hold officials accountable for their wrongdoing. That is how any law is best rendered

effective.

Thank you again, Mr. Chairman, for the opportunity to submit this statement for

the record.

PREPARED STATEMENT OF DAVID L. LEWIS

Dear Mr. Sensenbrenner:

I would like to express my personal support for the NOFEAR ACT and provide

your Committee with examples from my own personal experiences at to why this

ACT is beneficial to all Americans.

I have worked as a microbiologist for the US Environmental Protection Agency

in Athens, Georgia for over thirty years. In one of my recent research projects, I,

and other scientists working with me, discovered that microorganisms are affected

by environmental changes in such a way as to dramatically affect the impact of pesticides and other environmental pollutants. Our report of the discovery was published in the British science journal Nature in October, 1999.

Because the research uncovered potentially serious flaws in some of EPA’s regulations, managers at EPA headquarters in Washington, D.C. were not happy. Simply

stated, the results of objective scientific research did not square with their political

agenda. EPA Assistant Administrator Norine Noonan, who headed the Office of Research & Development during the previous administration, fired off a number of emails saying that she was so mad at my director, Dr. Rosemarie Russo, for approving the article that she could ‘‘spit nails.’’ She ordered that Dr. Russo be removed

from her position in Athens, a directorship that she had held for over 16 years, and

that she be transferred to Washington, DC. According to Norine Noonan’s sworn testimony, the only person she consulted with prior to taking this action was Deputy

Assistant Administrator for Management Henry Longest, who supported the decision.

After investigating for nearly three months, the Department of Labor (DOL) held

that the Noonan/Longest decision to remove Dr. Russo was illegal and had violated

employee protection provisions of federal environmental statutes. Afterwards, it was

revealed during House Science Committee hearings that the Noonan/Longest decision to remove Dr. Russo had also not followed proper government personnel procedures.

DOL also found that another manager directly reporting to Noonan, Dr. Gary

Foley, had also retaliated against Dr. Russo when he refused to nominate her for

a special act award. Dr. Foley is the Director of the National Exposure Research

Laboratory. He took this adverse action even though he admitted that Dr. Russo

had earned the award for outstanding performance.

After the DOL issued its findings against EPA, I understand that the adverse actions against Dr. Russo were subsequently reversed, thereby vindicating findings by

the Science Committee and the Department of Labor. Mr. Longest, however, the decision-maker involved in retaliating against Dr. Russo, was elevated to Acting Assistant Administrator. He currently maintains this high-level position over EPA scientists in the Office of Research & Development. Moreover, the other manager involved in the retaliation has also remained in his high-level position.

Actions taken against Dr. Russo by top EPA managers first began in 1996 when

Nature published a commentary of mine questioning the impact of politics on

science at EPA. Retaliations against me by Mr. Longest and Dr. Foley came fast

and furious. It was alleged (falsely, I may add) that my writings were unethical and

that my positive references to the opinions of Republican Congressmen constituted

a criminal violation of the Hatch Act. Dr. Russo testified under oath that she was

asked by Dr. Foley whether or not I have a ‘‘death wish.’’ Other Athens managers

testified that they were told to ‘‘put a muzzle’’ on me.

The Labor Department investigated and found that EPA managers had wrongly

accused me of ethics and Hatch Act violations. EPA wrote a letter of apology, clearing me of the unwarranted charges; but, the pace of retaliation only intensified.

The Labor Department investigated yet again and found that EPA officials had

denied me a promotion in a retaliatory and discriminatory manner. To settle the

case, EPA offered me a four-year detail to the University of Georgia under the Intergovernmental Personnel Act (IPA) and insisted that I resign my job at EPA by no

later than May 28, 2003. It was clear that Mr. Longest and Dr. Foley were not going

to allow me to continue doing scientific research that may not be supportive of EPA

policies. I thought that, under the settlement, I could at least get in a few years

of unhindered research at the university and be able to find other opportunities to

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pursue a career in science and support my wife and two children. How naive I was

to think that my ordeal was over.

When I began my IPA, Mr. Longest removed Dr. Russo’s status as my Deputy

Ethics Official. All personnel actions regarding me had to be approved by Mr. Longest and Dr. Foley. They then used this authority to prevent me from accessing public databases needed in my research and to deny me permission to collaborate with

other EPA scientists. The IPA, as it turned out, was a just a means for removing

me from my EPA research project and placing me where I could not conduct environmental research any longer. With a track record of no productivity in my field

for four years, it would be unlikely that I could find employment as an environmental scientist upon leaving the EPA.

At the Athens laboratory, EPA scientists continue to feel intimidated by EPA’ s

practice of retaining and promoting managers who retaliate and discriminate. Over

recent months, a number of scientists have confided in me about very serious ongoing problems with those who remain in direct control above the Athens laboratory.

I am truly shocked at some of the things I am hearing, and have urged them to

report the problems. Because of fear, however, they are afraid to file any formal

complaints or talk about the problems publicly.

The naming of the NOFEAR ACT, therefore, is so appropriate. If asked what the

most damaging consequence to come out of my situation is, I would have to say it

is fear. I speak of fear among scientists and front-line managers that developed

after witnessing that even scientists of good reputation supported by the Labor Department and some of the best lawyers in country cannot keep their jobs when targeted by managers who retaliate and discriminate.

I call the Committee’s attention to these matters to point out that a legislative

response is clearly needed. Something must be done to stop federal agencies from

retaining and promoting managers who retaliate and discriminate against employees. Without the NOFEAR ACT, we will be left to depend on top Administration

officials to inform employees of their rights under employee protection provisions of

federal environmental statutes. Yet, the EPA refuses to inform its employees of

these rights. Without the NOFEAR ACT, we will be left to depend on top Administration officials to rid their organizations of those who violate employee rights. Yet,

there exists no system for reporting violations to the Administrator and no requirement that any action be taken.

In conclusion, I would like to thank you and all of the Members of the Committee

for giving me an opportunity to express my feelings about the NOFEAR ACT and

the important role it stands to play in protecting employees. With regard to the

EPA, I am sure that taxpayers want an Agency that hires scientists to protect public health and the environment, not one that hires them to protect government policies and policymakers.

PREPARED STATEMENT OF GERALD R. REED AND RAWLE O. KING

Chairman James Sensenbrenner, and distinguished members of the Committee,

thank you for holding today’s most important hearing on H.R. 169, ‘‘The Notification

and Federal Employee Anti-Discrimination and Retaliation Act (the NO FEAR ACT)

of 2001.’’ We thank the chairman for his leadership in this vital area of public concern. Blacks In Government (BIG) strongly supports the passage of H.R. 169.

BIG was organized in 1975 and incorporated as a non-profit organization in the

District of Columbia in 1976. We are a professional development association comprised of Federal, State, and local public servants in eleven regions nationwide. BIG

is committed to promoting equity, excellence, opportunity, and a workplace free of

discrimination and retaliation.

SYSTEMIC DISCRIMINATION IN GOVERNMENT AGENCIES

The significant monetary losses suffered by the Federal Government in recent

class-action lawsuits point to systemic and systematic patterns of race and sex discrimination in many Government agencies. It has become clear that these agencies

have retaliated against complainants for standing up for their rights. Under current

law, agencies are held harmless when they lose judgements, awards, or compromise

settlements in whistleblower and discrimination cases. The NO FEAR ACT would

help hold agencies responsible to protect Federal employees from discrimination and

retaliation when they exercise the rights available to them under Federal laws. H.R.

169 would ensure accountability throughout the entire Federal Government—not

just the Environmental Protection Agency (EPA).

Discrimination Costs American Taxpayers Billions

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The constitutional framework of the United States Government asserts a commitment to equal justice for all, and to remedying injustice when it is found. Within

this framework, the laws governing Federal employees have stipulated certain

rights and privileges. However, far too many Federal executives, managers, and supervisors violate those laws, and are able to use the cover of their authority to evade

responsibility and accountability. We estimate the cost to American taxpayers to be

billions of dollars, but almost no responsible parties have been disciplined for what

amounts to massive mismanagement of public funds.

What results is harm to employees subjected to maltreatment, harm to the morale

and productivity of the rest of the workforce, and harm to the public, which pays

the costs and loses the benefits of effectively administered programs. The privileges

and freedoms of American citizenship are damaged and eroded.

In the case of Cook v. Billington, the Library of Congress racial discrimination

class action lawsuit, first filed in 1982 and decided in 1993, the Government paid

the aggrieved parties $8.5 million, and their lawyers more than $1.5 million, for a

total of about $10 million. In the case of Hartman v. Albright, the Voice of America/

U.S. Information Agency class action sex discrimination lawsuit, the Federal Government is now committed to pay 1,100 aggrieved women some $508 million, plus

at least another $12 million in legal fees for a total of at least $520 million. In the

case involving the black farmers versus the Department of Agriculture the Government is committed to paying out billions for the injustices of unscrupulous managers.

If someone stole over a billion dollars from the Government, they would be imprisoned for a very long time. In the above cases, no managers have been disciplined

to the extent that it would send a message of the Government’s commitment to a

non-discriminatory work environment. It is fiscally irresponsible and patently unfair

to support outright thieves who steal public money. If we are going to let the Title

VII offenders go free and pay their legal costs, we should let others who raid the

Federal coffers go free and pay their legal costs, as well. Or, they should all be held

accountable. Title VII violations that result in losses of Federal money of any

amount should be treated just like other criminal acts, and the offenders should

have to pay substantial fines and/or go to jail. If this systemic injustice is permitted

to continue, there will be a continuing stream of litigation adverse to the Federal

Government, costing the taxpayers ever more massive amounts of money.

Equally important, the extent and intensity of racial discrimination/profiling in

Federal employment is obscured by the nature of the complaint procedures and by

the cost of litigation, which is a major deterrent to would-be complainants.

SUMMARY OF H.R. 169

H.R. 169 would:

• require that each Federal agency to send an annual report to Congress and

to the Attorney General listing the number of employees disciplined for discrimination, retaliation, or harassment, and the number, severity and disposition (i.e., monetary settlement amounts) of discrimination and whistleblower

cases involving the agency;

• require agencies to pay for any judgements, awards, or compromise settlements in whistleblower and discrimination cases out of their own budgets,

rather than the Government-wide fund;

• require Federal agencies to notify employees about any applicable discrimination and whistleblower protection laws; and

• require the President to establish a list of all statutes covered by the NO

FEAR ACT that prohibit discrimination.

ANALYSIS

H.R. 169 is basically sound. The essence of the bill is to require agencies to pay

the costs of their own unlawful acts in violation of employee rights, to report annually to Congress and the Attorney General on the incidence of cases and discipline

of perpetrators, and to notify employees about applicable laws. The President is required to establish a list of all statutes covered by this Act. The power of the act

rests upon the public exposure of wrongdoing and the necessity of reporting it to

Congress. But it could be strengthened by filling three lacunae:

1. It would allow guilty parties to penalize innocent parties by passing on the

costs of discrimination in the form of reductions in employment, employee

compensation, or program benefits intended for the public.

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2. It would leave to the discretion of the President which laws are or are not

included under its coverage.

3. It would maintain a separate status for civil rights laws as if they were inferior to other Federal laws.

RECOMMENDATIONS

BIG fully supports the purposes and intent of this bill. However, we would recommend changes which would ensure that the purposes and intent are properly carried out. We urge the Committee to add the following provisions:

1. A prohibition on using expenditures required by settlement of any employee

rights claim to reduce employment, benefits, or compensation of any employee not found culpable for the violation of rights.

2. A stipulation in the law itself that all laws governing Federal employee

rights shall be identified and listed by the President as covered by the Act.

3. A specific requirement that all Federal employees are expected to report violations of listed laws as they would violations of any other Federal law, and

to testify or provide evidence fully, fairly, and honestly as to their knowledge

of violations.

4. Federal agencies are required to submit data by fiscal year on discrimination

and whistleblower cases. Many of these agencies are just beginning to submit the required data in a credible format. Federal agencies are funded on

a fiscal year basis. In the interest of consistency and the minimization of administrative costs, we recommend that the reporting requirement should be

to submit quarterly data, as compared to the annual calender year data now

stipulated in the bill.

CONCLUSIONS

In conclusion, it is very clear that discrimination and retaliation in Federal agencies too often go unchecked. If these injustices are allowed to continue, the economic

base of the many African Americans and other minorities who work for the public

sector will be further eroded. This condition has become untenable and we all must

take a stand so that justice once again can prevail.

While Government scientists must be allowed independence and protection, it is

even more critical for employees in job series performing oversight functions to be

protected and allowed independence. We are referring specifically to the contracting,

engineering, accounting, and auditing series employees who are responsible for dayto-day fiscal responsibility and compliance within Federal agencies. The agencies

with specific relevant data comparable to EPA include the Department of Energy,

Library of Congress, Department of Defense, and others as specified in the NAACP

Task Force Report.

PREPARED STATEMENT OF STEVEN M. SPIEGEL

Dear Chairman Sensenbrenner and members of the Judiciary Committee,

Until recently, I was an attorney in EPA’s Office of Enforcement. I am submitting

this statement for the record for the May 9, 2001 hearing on discrimination and retaliation at the Environmental Protection Agency and the continuing need for the

NO FEAR legislation to hold such agencies accountable.

I was one of the EPA employees who, along with Dr. Coleman-Adebayo, met with

the House Science Committee in October 1999 about discrimination and retaliation

at EPA. We were then subjected to retaliation by EPA for meeting with your committee staff.

I reported to your Committee that I have observed EPA engage in all manner of

discrimination, and that EPA often further retaliates against its employees using

any excuse as a pretense. I have been subjected to disability and religious discrimination and retaliated against for pursuing legal redress. This retaliation continued

until EPA fired me under the pretense of poor performance for the time they knew

I was very ill and required surgery. After meeting with the Committee, EPA retaliated with AWOL charges for sick leave that had already been taken over the prior

two months. EPA only withdrew the AWOL after I submitted additional medical

documentation and Chairman Sensenbrenner wrote to Administrator Browner.

However, shortly thereafter, EPA placed me on performance probation after having

confirmed my illness and the need for surgery. Rather than accommodate my ill

health, EPA sought to deliberately exploit my medical condition to fire me. Even

though EPA had specifically inquired if I had medical condition affecting my ability

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to perform, they disregarded the documentation of my serious illness without any

explanation or discussion. When I informed them of the date of my surgery, they

prematurely ended the performance probation and fired me after a twenty year career on that basis. When my several doctors supplied medical documentation for my

termination proceedings, EPA again ignored them. EPA has consistently disregarded its responsibilities as a government agency and disregarded the facts

throughout my ordeal in order to continue engaging in discrimination and retaliation.

Despite the scrutiny of the Congressional Committees, EPA has continued to routinely disregard its civil rights responsibilities under the Civil Rights laws and regulations administered by the EPA and the Equal Employment Opportunity Commission. There are three important ways the EPA abuses its authority and responsibilities in the EEO legal process to prejudice the rights of employees who have been

subjected to discrimination and retaliation.

First, EPA has continued to routinely fail to even investigate EEO complaints as

required by law. This deliberate inaction renders the legal process meaningless and

thwarts the rights of the employees it has discriminated against by preventing the

legal process from going forward as Congress and the EEOC intended.. The employee cannot pursue their rights while EPA wastes six months time doing nothing

when the law requires an investigation to document facts and move the case to conclusion.

Second, EPA then compounds this misconduct by dismissing complaints without

any stated reasons at the end of the six month investigation period, further

perverting the legal process and punishing its employees. This then places the employee at a disadvantage of either having to choose the expense and delay of appealing the improper dismissal to the EEOC in order to purse the administrative process, or the great expense of having to go to court. These two forced options are the

opposite of what Congress and the EEOC intended for this legal process.

Third, when EPA does conduct an investigation, it routinely perverts the Civil

Rights legal process by improperly narrowing the scope of the investigation in order

to not find any violations. The EEO process requires agencies to investigate the

claims presented by the complainant. EPA routinely attempts to illegally dismiss

those claims by unnecessarily rewriting those claims into a narrow statement of

issues so the real claims presented by the employee are simply disregarded. This

action perverts the Civil Rights process because the claims are effectively dismissed

without due process of law and the right of appeal, while preventing the claims from

being properly investigated and resolved. This improper course of conduct by EPA

is contrary to the EEOC regulations and directives, and takes place even where the

EEOC has ordered the EPA to investigate.

EPA has forced me to file three formal complaints. All of these complaints could

have been resolved during the informal resolution periods, but EPA did not attempt

to resolve the complaints. The complaints are supposed to be accepted or dismissed

within thirty days. Then an investigation is supposed to be completed within six

months of the filing of the formal complaint. In all three cases EPA failed to initiate

investigation. In the two cases for which the six months elapsed, EPA then dismissed the cases without any stated reasons. Both of those cases were appealed to

the EEOC. In both cases, about a year later, the EEOC found the complaints stated

claims and ordered the EPA to investigate within thirty days. In both cases the EPA

failed to begin to take any actions for about six months. In one case, after the EEOC

ordered the reinstated case investigated, the EPA attempted to improperly narrow

the investigation to exclude the claims ordered to be investigated by the Commission. When EPA was requested to correct the scope of the investigation, they simply

suspended the investigation altogether, without even providing written notice.

Throughout this period that Congressional Committees have been looking into the

situation at EPA, its Administrators have protested the accusations of irresponsibility while pledging to correct the situation. Despite these public statements, the

agency has continued to engage in the same misconduct. My attorney has even written letters to Administrators Browner and Whitman requesting that the agency look

into resolving my case as they publicly pledged, yet both letters have simply gone

unanswered.

EPA has engaged in widespread discrimination and retaliation against its employees. EPA has then compounded its transgressions by deliberating perverting the

EEO Civil Rights process into another weapon its uses to punish its employees. EPA

has continued in this misconduct without any effective oversight and without any

consequences for its actions. There is a stark difference between the EPA’s public

statements and its actions regarding carrying out its responsibilities under the Civil

Rights laws. The oversight and protections of the NO FEAR bill continue to be sorely needed.

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Respectfully submitted,

Steven M. Spiegel

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