Tuesday, 27 July 2010 15:40 Written by Linn Washington Jr.
Last week’s right-wing botched slime attack on Shirley Sherrod brings to mind two folks whose situations share similarities to dynamics embedded in that spectacle.
Overreactions to this slime attack embarrassed the Obama administration, the national NAACP and hopefully mainstream media too eager to advance right-wing assaults.
But, typically, embarrassment does not exist within the right-wing dirt-balls driving the Sherrod onslaught — conservative blogger Andrew Breitbart and assorted Fox network talking-heads.
One of these two folks is a Philadelphian you’ve probably heard something about but don’t know by name while the other is someone you’ve probably heard about despite her racist dribbling by federal officials producing America’s first civil rights law of the 21st century.
One person is Jerry Jackson, one of two Philadelphia men at the center of what right-wingers proclaim as the New Black Panther Party (NBPP) Voter Intimidation Scandal.
The other person is Marsha Coleman-Adebayo, a MIT trained doctorate, who endured incredible retaliation during the Clinton administration after blowing the whistle about rampant racism within the federal Environmental Protection Agency, the same EPA now turning a blind-eye to toxic BP practices threatening more misery for Gulf Coast residents.
Jerry Jackson and Samir Shabazz intimidated voters, inclusive of one carrying a baton, during the November 4, 2008, presidential election where Obama defeated GOP candidate McCain, according to the flatulent narrative pushed by right-wing operatives, conservative media commentators and GOP congressmen.
Curiously this NBPP pair tagged with intent to intimidate voters only showed up in predominately Black North Philadelphia at a polling place inside a predominately Black elderly apartment building in a predominately Black/Democratic ward instead of menacing polls in predominately white communities located one mile east and/or one mile west.
Conservative ire extends beyond the alleged NBPP acts. The truly scandalous component for conservatives is the refusal of the Obama administration to prosecute charges filed against the NBPP by the then lame-duck Bush Justice Department in January 2009.
Conservatives claim Obama officials backed-off prosecuting the NBPP to placate Blacks dismissing Obama administration contentions that the case lacked required proof of election law violations — a point of relevance noted by Pa. state Rep. W. Curtis Thomas and others.
“I think the Obama administration acted correctly in not pursuing voter intimidation that did not take place,” Thomas said whose district office is located less than a mile from the North Philly polling place where conservatives proclaim NBPP members ran amuck.
Jackson said he and Shabazz (the baton carrier) went to that polling place to protect the elderly against threatened harassment from racist Skinheads — a fact suppressed by right-wingers desperate to morph this molehill into a mountain to score political points against Obama … who ironically is a frequent target of NBPP criticism.
“How are we intimidating somebody at 12th and Fairmount in our community?” asks Jackson, the man who media coverage routinely talks about but never talks to.
Persons familiar with Jackson say this employed homeowner often assists with protecting seniors, consistently attends community meetings and regularly volunteers whenever someone is needed to help in that community. “He’s good people,” one North Philly activist/entrepreneur said about Jackson.
State Rep. Thomas, D-181th, raises an important fact universally excluded from the conservative narrative and media coverage: improper conduct by white GOP operatives at that poll triggering a verbal ruckus with Jackson and Shabazz producing inflammatory rhetoric from the NBPP pair that drove that voter intimidation charge.
“Republican Party operatives showed up in the afternoon demanding admission to the poll when they should have come at 6:45 a.m. to be properly sworn-in. Jackson was familiar with the rules and wasn’t going to let them run rough shod,” Thomas said, adding the ruckus erupted when the Republicans questioned why the NBPP was at the poll.
“Those Republicans were the only ones intimidated by Jackson and Shabazz. They were intimidated by their appearance not what they did,” Thomas contends.
The telephone at the D.C. area home of Marsha Coleman-Adebayo began ringing non-stop after the Shirley Sherrod story broke early last week.
More than a decade ago, Coleman-Adebayo faced an onslaught from EPA officials because she exposed racism within the agency and EPA cuddling of a U.S. corporation whose mining practices were literally killing workers in South Africa.
Coleman-Adebayo sued the EPA and won. Her mistreatment incensed a conservative white congressman and a progressive Black congresswoman so much that this pair collaborated on passage of NOFEAR, legislation making federal agencies more accountable when found guilty of discriminating against employees or trying to silence whistleblowers.
Coleman-Adebayo raises concerns about the Sherrod affair.
“It’s a terrible mistake to treat the Shirley Sherrod matter as an isolated incident and that is what the media is doing,” Coleman-Adebayo said during an interview last week.
“Every day federal employees who stand up and speak out are shredded by the government. EPA whistleblowers exposing the agency’s cozy relationship with BP are facing loss of their jobs.”
Like many, Coleman-Adebayo is increasingly disenchanted with President Barack Obama’s reform promises.
Obama appointed former EPA head Carol Browner as his energy czar, the same Browner who sanctioned the Clinton-era beat-down of Coleman-Adebayo.
“The person found liable for racism, sexism and sustaining a hostile work environment in my case now sits at the table with President Obama,” Coleman-Adebayo said. “Appointing Browner was the first indication for thousands of federal employees that this administration had no commitment to justice.”
Linn Washington Jr. is an award-winning writer who teaches journalism at Temple University.
Racism, Shirley Sherrod and the Obama White House
The Shirley Sherrod controversy, like the Van Jones incident last summer, demonstrates the power of the right-wing media to rock the Obama White House when it comes to racial matters. On July 19, 2010, conservative blogger Andrew Breitbart, who has a long history of producing carefully doctored videos, posted a video clip on his Website, Biggovernment.org. That clip reportedly showed a black U.S. Department of Agriculture (USDA) employee stating that she had discriminated against a white farmer because he was white and arrogant. The employee, Shirley Sherrod, says in the two-and-a-half minute clip, that she did not give “the full force of what I could do” to help a white farmer who came to her for assistance. Her remarks were given at an event held by the NAACP in Douglas, Georgia. On Monday morning, July 19, the story was picked up by Fox News and began to rapidly spread to other news organizations and on the Internet.
Racial tensions were in the air because the previous week had witnessed a public scuffle between the NAACP and the tea party movement. On July 14, 2010, the NAACP passed a resolution at its annual convention that called for tea party leaders to denounce the racist behavior that had manifested at some of its events. The response of some tea party leaders and activists was to incorrectly accuse the NAACP of calling the entire tea party movement racist. The controversy was furthered intensified when one tea party leader, Mark Williams of the Tea Party Express, wrote a supposedly satirical letter from a black individual to President Lincoln using racist imagery and language. He wrote, “We Coloreds have taken a vote and decided that we don’t cotton to that whole emancipation thing. Freedom means having to work for real, think for ourselves, and take consequences along with the rewards. That is just far too much to ask of us Colored People and we demand that it stop.” He and the Tea Party Express were subsequently booted out of the 85 member and affiliated National Tea Party Federation. Tea party leaders from Sarah Palin to Michelle Bachman defended the virtually all-white movement against the NAACP mostly by not addressing the issue that had been raised but by accusing the NAACP of being racial hustlers or worse.
When the Sherrod story first broke, officials at the USDA panicked believing that the administration was about to be attacked for sanctioning reverse racism. Within hours, Sherrod came under intense pressure from high officials in the department including Secretary of Agriculture Tom Vilsack to resign without delay. At one point, Undersecretary Cheryl Cook caught up with Sherrod as she was driving. Sherrod stated that while she was attempting to explain her side of the story, she was asked to pull to the side of the road and immediately submit her resignation via text because the issue was “going to be on Glenn Beck” that evening. Sherrod did resign but did not go down passively. Meanwhile, the NAACP issued a statement denouncing Sherrod and applauding her resignation. It wrote, “We concur with US Agriculture Secretary Vilsack in accepting the resignation of Shirley Sherrod for her remarks at a local NAACP Freedom Fund banquet. Racism is about the abuse of power. Sherrod had it in her position at USDA. According to her remarks, she mistreated a white farmer in need of assistance because of his race. We are appalled by her actions, just as we are with abuses of power against farmers of color and female farmers.”
Suspicious of the source, some news organizations, in particular MSNBC’s The Rachel Maddow Show, the Atlanta Journal-Constitution, and CNN raised questions about the legitimacy of the tape and tried to locate Sherrod to interview her. As it turns out, by Tuesday morning, the clip was exposed to be entirely misleading and in fact Sherrod was using the story to tell how she overcame whatever prejudicial feelings she had realizing that people of all races needed help. In fact, the incident had occurred twenty-four years earlier when she worked for a local non-profit and not while she was working as an employee of the U.S. government. In the full version of the speech, she states, “God helped me to see that it’s not just about black people—it’s about poor people.” In speaking about her work helping the farmer in question, she stated, “Well, working with him made me see that it’s really about those who have versus those who don’t, you know. And they could be black; they could be white; they could be Hispanic.” She ended up playing a decisive role in helping the farmer, Roger Spooner, save his farm, a fact that he and his wife, Eloise, testified to in subsequent media interviews. Calls and emails began to flood into the White House and Agriculture Department demanding Sherrod reinstatement.
The cruel irony of the situation, in which a black USDA employee is accused of racism against a white farmer and is forced to resign, was that in the long history of struggle around black land ownership and fairness for black farmers, the USDA had never fired a single white employee for virulent, overt, and persistent racism against blacks and other people of color. That the USDA has a dishonorable record of racial discrimination is indisputable. In its long history of documented racism the USDA has denied loans to black and minority farmers, gave loans that were too late in the farming cycle, conducted excessive supervisions of loans that white farmers did not have to endure, ignored black famers’ claims of discrimination, disrespected individuals, and had a mostly whites-only hiring policy. In 1983, President Reagan eliminated the USDA Office of Civil Rights that would not be re-opened until 1996, but even then did little to address the concerns of farmers of color.
More generally, the racism that denied assistance to black farmers continually for more than 100 years has been a central factor in shaping the economic fortune of millions of African Americans resonating in the disproportionate levels of poverty that exist in the black community today. On January 16, 1865, General William Tecumseh Sherman issued Field Order 15 that promised 40 acres off the South Carolina Sea Islands and plantations from Charleston, South Carolina to Jacksonville, South Carolina, and a federal mule to those who had left slavery and were working with the Union army. This pledge was given further legal support when on March 3, 1865 Lincoln signed the Freedmen’s Bureau Act, which assigned “not more than 40 acres” to the freed to rent with an option to purchase after three years. Lincoln also had created the USDA in 1862 referring to it as the “people’s department.” Indeed, more than 40,000 African Americans had settled on confiscated land by June 1865. However, after Lincoln’s April 14th assassination, President Andrew Johnson rescinded the order in his effort to reintegrate southern rebels back into the nation. At the expense of African Americans, Johnson issued an amnesty order that included property restoration and blacks were subsequently forced off these lands. Despite the broken promise of the U.S. government, by 1900, African Americans owned 15 million acres of land mostly in the South. By 1910, this would grow to 16 million with a peak of 925,000 black farmers a decade later. This would represent a high point as discrimination and racism including by the USDA would reduce significantly this ownership over the next 100 years. By 2000, according to a statement made by Judge Paul Freidman in the successful lawsuit against the USDA by black farmers, there were only about 18,000 black farmers left on less than three million acres.
A number of black farm organizations would rise over the years to fight back against the unjust and racist policies of local, state, and federal officials. This would include the Colored Farmers National Alliance and Cooperative Union, Black Land Fund, Black Farmers Alliance, Black Farmers and Agriculturalists Association (BFAA), and Federation of Southern Cooperatives (FSC) with whom Sherrod had once worked as a staff member. In 1997, black farmers filed a lawsuit, Pigford v. Glickman, against the USDA for discrimination. In 1999, the black farmers won over $2.3 billion in what has been called “the largest civil rights settlement in history.” However, there were many black farmers who were left out of the suit because it only covered those who had been discriminated against between 1981 and 1996. And some estimate that close to 90 percent of even those farmers were denied when they applied for restitution. That figure is probably accurate given that the Bush administration spent more than 56,000 office hours and $12 million fighting the claims made by black farmers. Duped Pigford II, first members of Congress and then the Obama administration won an agreement that included an additional payout to more than 65,000 black farmers who were excluded from the original suit.
Indeed, Vilsack himself stated soon after coming to office that “civil rights is one of my top priorities” and “[I] intend to take definitive action to improve USDA’s record on civil rights.” Obama proposed $1.25 billion in his 2010 budget to pay what is owed to the black farmers, a proposal that Republicans in Congress have repeatedly blocked as of August 2010.
It is also notable that Sherrod herself has been a critical actor in this history. As a child growing up in Georgia, she lived through the experience of having her father, Hoise Miller, murdered—shot in the back no less—by a white neighbor who suffered no punishment for his crime. Rather than leave the South, however, she decided to stay and try to bring about much needed social and racial justice. Her activism was enhanced when she married Charles Sherrod, a founder and leader of the Student Non-violent Coordinating Committee (SNCC) in Albany, Georgia. They both remained activists on issues of fairness and anti-poverty. She worked for a number of organizations and movements earning a stellar reputation as a strong, reliable, articulate, and committed leader of the region’s poor, traits that were revealed in her media interviews as the controversy unfolded.
Given this history and the discredited record of Breitbart, both the administration and the NAACP should have acted more cautiously before going after Sherrod. Vilsack and USDA officials clearly violated her right to due process let along simply giving her the benefit of the doubt as opposed to that of her accusers. At a minimum, they owed her the responsibility to do an investigation prior to initiating such strong action against her. So did the NAACP. The incident in question happened at the meeting of one of their chapters giving it immediate access to witnesses of the speech as well as videos of the event. In fact, once the leadership did look at the entire speech, it immediately issued an apology stating that it had been “snookered” by Breitbart, and called for her reinstatement.
Strong letters of support were sent from the FSC and BFAA. FSC Executive Director Ralph Paige in a blistering letter charged the USDA with not reviewing the facts before it acted and, in noting Sherrod’s “remarkable career,” argued that she deserved “to be honored” rather than persecuted. BFAA President Gary Grant also called Sherrod “honorable and hard working” Vilsack’s statement that the USDA does not tolerate racism “a complete lie.” Sherrod would later state, “It hurts me that they didn’t even try to attempt to see what is happening here, they didn’t care.”
Meanwhile, on Tuesday July 21, 2010 USDA officials vacillated even as the evidence mounted that Sherrod had been framed. Vilsack stated that regardless of the context, her comments—or more honestly the right-wing hysteria about them—“compromises the director’s ability to do her job.” In other words, conservative accusations of reverse racism whether true or not were enough to have someone dismissed from the employment in the Obama administration. However, Sherrod’s powerful interviews in the media, letters and emails from around the nation, and even a retreat by Breitbart himself, disingenuously claiming that he did not know the clip was incomplete, forced the administration to change its position. On Wednesday, both White House Press Secretary Robert Gibbs and Vilsack issued apologies. Gibbs stated, “On behalf of our administration, I offer an apology.” Vilsace remarked, “This is a good woman. She’s been put through hell. She was put through hell and I could have done and should have done a better job,” and even offered Sherrod a new position at USDA focused on civil rights. On July 22, Obama called Sherrod to apologize as well. Reportedly, he expressed his regrets about the whole situation and told her “this misfortune can present an opportunity for her to continue her hard work on behalf of those in need, and he hopes that she will do so.”
While Vilsack took personal responsibility for what occurred, Obama and the White House blamed the media environment for the rapid spread of the story and reactions of his administration. There is no argument that some in the media played a harmful role in the controversy, Fox News and conservative media outlets in particular. But many believe it was the fear of right wing media that created the milieu in which there is a knee-jerk reaction to even the slightest threat of bad news, particularly on the issue of race, which drives the administration’s actions. As some noted, it would be difficult to believe that the former Bush administration would have fired a staffer because of an unsubstantiated (or even substantiated) report that was going to be discussed on the left-leaning The Keith Olberman Show or Amy Goodman’s Democracy Now!. The incident revealed that the Obama administration gave undo power and influence to the likes of Glen Beck and Rush Limbaugh to shape their agenda. The embarrassing fact that the president himself had to express his regrets to Sherrod made it more likely that those in his administration who believe any discussion about race should be taboo will continue to hold sway against those who argue that pro-active words and actions are needed more than ever. It is possible, however, that the Sherrod incident represents a turning point where it is clear to the Obama White House that it must stand on principle and fight for racial justice and fairness regardless of the rantings of its opponents or even the political costs at stake.
Clarence Lusane is a Professor at American University and the former editor of the journal Black Political Agenda. He is author of several books, including a major work, The Black History of the White House forthcoming this fall in the Open Media Series by City Lights Books.
By LINN WASHINGTON, Jr.
The telephone at the DC area home of Marsha Coleman-Adebayo began ringing non-stop after the story broke recently about the hasty firing of U.S. Agriculture Department employee Shirley Sherrod on false charges of being a racist.
Outraged callers wanted not just to express sympathy over Sherrod’s mistreatment but also to offer continuing support for Coleman-Adebayo, whose epic battle with a federal agency over despicable employment discrimination and retaliation produced America’s first civil rights law of the 21st Century.
Over a dozen years ago Coleman-Adebayo, an MIT-trained PhD, faced an onslaught from officials at the Environmental Protection Agency because she had spoken out about racism within that agency as well as about the EPA’s coddling of a U.S. corporation whose regulation-skirting mining practices in South Africa were seriously injuring workers there.
The gross mistreatment of Coleman-Adebayo by EPA officials so incensed both a conservative white Congressman and a progressive black Congresswoman that this unlikely pair collaborated on passage of the Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002 (NOFEAR).
That legislation makes federal agencies more accountable when found guilty of discriminating against employees or of trying to silence whistleblowers.
While simple fairness should have protected Sherrod (USDA officials refused to allow her to rebut the false charges before they forced her to resign), NOFEAR could cost the USDA plenty, should decide Sherrod sue over her treatment (she has already announced plans to bring a libel suit against her initial tormentor, Andrew Breitbart, the maker of a deceptively edited video clip of her speech to the NAACP).
“What happened to Ms. Sherrod happens to thousands of federal employees daily,” said Coleman-Adebayo, whose NOFEAR Coalition is demanding an investigation into the Sherrod firing.
“Sherrod was a political appointee, so I think it’s unlikely that her firing was done without some consultation with the White House,” said Coleman-Adebayo, brushing off claims by USDA Secretary Tom Vilsack, a former Democratic governor of Iowa, that he alone had decided to pull the plug on Sherrod.
“How far did this firing go up the political chain of command? We think an investigation will find a cover-up,” Coleman-Adebayo said during a recent interview.
While the circumstances surrounding the firing of Sherrod and the bashing of Coleman-Adebayo differ, these two classic cases of workplace abuse over racial issues share similarities that give the lie to the ‘convention wisdom’ of conservatives regarding workplace discrimination complaints.
First of all, both Coleman-Adebayo and Sherrod sued federal agencies over charges of employment discrimination and won…Sherrod as part of a class-action lawsuit by black employees against the USDA, and Coleman-Adebayo as an individual against the EPA.
Courtroom success in employment discrimination lawsuits is rare, contrary to the vapid contention of FOX News talking-heads and Tea Party-types, who regularly make the false claim that so-called “activist judges” and/or “liberal-dominated” juries routinely dump bundles of dollars into the bank accounts of minorities who make allegedly trumped-up claims of workplace racism.
“Only two percent of federal employment discrimination complaints ever see the inside of a courtroom and far less than two percent prevail,” Coleman-Adebayo noted.
In another upending of conservative dogma–the claim that blacks only blame Republicans for racism–the abuse of both Coleman-Adebayo and Sherrod occurred under Democratic presidential administrations – that of Bill Clinton in the Coleman-Adebayo’s case and that of Barack Obama in Sherrod’s.
Meanwhile, there is one similarity in the two women’s cases: Just as in Coleman-Adebayo’s case, no EPA officials cited for racism/retaliation in her successful lawsuit were disciplined or discharged, so far no one at the USDA involved in the precipitous firing of Sherrod has received any public reprimand.
Embedded in the Sherrod firing over a false claim that she long ago had denied assistance to a poor white farmer, is an ugly irony: Her own father, a farmer murdered in Georgia by a white man who was never charged by the state’s all-white prosecutorial authorities, was one of thousands of black farmers who were routinely denied assistance by racist USDA officials.
The U.S. Senate meanwhile, just days after evidence had surfaced showing Sherrod had been the victim of a right-wing video fraud, once again refused to fund a long-resolved $1.2-billion court settlement awarded to black farmers ravaged by the USDA racism. It also failed to authorize funds for a $3.4-billion settlement in favor of Native Americans swindled out of royalties by the federal government.
“Shirley Sherrod was fired for allegedly discriminating against one white farmer (a false charge in the first place), when no one’s been fired for discriminating against 80,000 black farmers who are still awaiting payment from the settlement in our lawsuit,” said John Boyd, President of the National Black Farmers Association, during an interview on the syndicated radio program of civil rights leader Rev. Al Sharpton.
Typical of the codded treatment accorded racists within the federal government, in the Coleman-Adebayo case, her chief tormentors received not rebukes but promotions.
An action by President Obama compounded the insulting injury endured by Coleman-Adebayo. The president appointed former EPA head Carol Browner – the same Browner who had sanctioned the Clinton-era beat-down of Coleman-Adebayo – to be his Energy Czar. Browner had figured prominently as a defendant in Coleman-Adebayo’s successful lawsuit.
“The person found to be liable for racism, sexism and for sustaining a hostile work environment in here agency in my case now sits at the table with President Obama,” Coleman-Adebayo said angrily. Browner was also part of Obama’s transition team.
“Appointing Browner was the first indication for thousands of federal employees that this Administration has no commitment to justice,” continued Coleman-Adebayo.
A 2003 General Accounting Office report covering 1995-2002 (a period that includes much of Carol Browner’s tenure as EPA head) stated that the EPA did not have a specific process for determining whether managers involved in discrimination complaints did in fact discriminate and if so, whether those managers should be disciplined.
Problems with discrimination and retaliation persist at the EPA, according to federal records, despite reforms pledged by Lisa Jackson, Obama’s EPA Secretary and the first African-American to head that agency. Jackson was formerly head of New Jersey’s Department of Environmental Protection.
According to federal EEOC data, 81 percent of the EPA’s “Senior-Level Officials/Managers” are white as are 78.4 percent of the “Mid-Level Officials/Managers.”
In 2009, EPA employees filed 12 race discrimination, 16 sex discrimination, 13 age discrimination and 21 reprisal complaints with the EEOC.
“Everyday, federal employees who stand up and speak out are shredded by the government,” Coleman-Adebayo said.
“EPA whistleblowers exposing the agency’s cozy relationship with BP are facing loss of their jobs,” she added. “The EPA allowed BP to use dispersants that are banned in England and Europe. The EPA sides with industry more than with the community it is charged with serving.”
Coleman-Adebayo case raises a cautionary concern about the Sherrod affair.
“It’s a terrible mistake to treat the Shirley Sherrod matter as an isolated incident, but that is what the media is doing,” she warns.
Linn Washington is a founding member of the new collectively-owned, journalist-run online newspaper ThisCantBeHappening. His work, and that of fellow journalists Dave Lindorff, John Grant and Charles Young, is available at: www.thiscantbehappening.net
How the EPA Was Made to Clean Up Its Own Stain — Racism
Inside Marsha Coleman-Adebayo there’s a streak of Rosa Parks. Certainly, her decade-long struggle to clean up the racially toxic atmosphere at the U.S. Environmental Protection Agency could make history.
Thanks to her refusal to accept second-class treatment at the EPA, Congress will soon debate the first new civil rights law of the 21st century. NOFEAR — the Notification and Federal Employee Anti-discrimination and Retaliation Act of 2001 — would make federal agencies more accountable when they are found guilty of discriminating against their employees or trying to silence whistleblowers. It would make them more accountable by requiring them to pay the costs of discrimination and retaliation cases they lose out of their own budgets instead of a government-wide slush fund.
Its original cosponsors are one of the more unlikely political odd couples ever seen in Congress: ultra-conservative Wisconsin Republican James Sensenbrenner and hyper-liberal Texas Democrat Shiela Jackson-Lee. Though they rarely agree on anything, Sensenbrenner and Jackson-Lee say Coleman-Adebayo’s testimony at a congressional hearing last fall brought them together on the need for the law. Her story, says Sensenbrenner, made it abundantly clear that new laws “with teeth in them” were required to make the EPA clean up its act.
For Coleman-Adebayo, an MIT-trained political scientist who had held a string of impressive jobs at the United Nations and World Wildlife Fund, her first two years at the EPA during the administration of Bush the Elder were like laboring on a “21st-century plantation.” During her earliest days on the job, “I got a very clear sense that I wasn’t welcome,” she recalls. Just how unwelcome became clear two years later on the eve of Bill Clinton’s inaugural. A senior EPA executive told her that she could attend a routine staff meeting only because “we consider you an honorary white man.”
Racial pollution is allowed to fester
The gibe came as a terrible shock. “I was humiliated. I was embarrassed,” she says, still fuming about the incident. “I didn’t go to the EPA to be the butt of racially insensitive remarks.” But she thought those days were over when President Clinton in early 1993 selected Carol Browner, a noted liberal who had worked as an aide to Al Gore, as the EPA’s new administrator. “I was pleased to see a woman with a reputation for being sensitive to civil rights issues become administrator,” says Coleman-Adebayo, 48. “I thought she would start a dialogue about the abuses that were occurring inside the agency and try to correct them.”
That was not to be. Instead of cleaning up the agency’s racial pollution, says Coleman-Adebayo, Browner allowed it to fester. “She wasn’t at all sympathetic to complaints about civil rights abuses,” says Coleman-Adebayo. “We were treated like Negroes, to use a polite term. We were put in our place.” In Coleman-Adebayo’s case, that meant that even though her work as one of the EPA’s representatives to the United Nations conference on women held in Beijing in 1995 won praise from Hillary Clinton and Browner herself, she got neither a raise nor a promised promotion.
After learning that she had been the only person on the otherwise all-white professional staff of the Office of International Affairs who did not receive an outstanding performance evaluation or annual bonus, Coleman-Adebayo filed a discrimination complaint with the EPA’s office of civil rights. “And that,” says Coleman-Adebayo, “is when the ceiling fell down on my head.”
In short order, she says, her fulfilling work with the women’s conference was taken away. Her white supervisor told her in an annual performance evaluation that “people just consider you to be uppity.”
Then she was appointed executive secretary of a bilateral commission working group on environmental issues co-chaired by Vice President Gore and South Africa’s Thabo Mbeki, but not given the resources she needed to fulfill her duties. “The harassment really intensified,” says Coleman-Adebayo. “We couldn’t get any funding for projects. I couldn’t get permission to travel to South Africa to meet with my counterparts there. It got so bad that the South African government offered to send me a plane ticket because they needed me to be at some meetings.”
A large financial settlement
But for all the obstacles put in her way, Coleman-Adebayo couldn’t believe that a top official of an administration hailed for its sensitivity to blacks would countenance such misconduct. Her lawyer sent Browner a letter in March 1997, declaring that Coleman-Adebayo thought that Browner was being “deliberately kept out of the loop” about the “crude and ham-fisted” treatment she was receiving from a network of “good old boys” who dominated the agency’s middle management. She got back a letter from Browner’s chief of staff saying that since Coleman-Adebayo’s complaint was under investigation, Browner wouldn’t discuss it. Frustrated, Coleman-Adebayo went to court. Last summer a jury in Washington found the EPA guilty of discriminating against her and awarded her $600,000 in damages (since reduced by the judge to $300,000).
A considerable victory. But Coleman-Adebayo’s real triumph was in casting a spotlight on the bigotry that had festered inside many government departments under both Republicans and Democrats. For all Clinton’s public embrace of black concerns, his administration did not work more effectively to clean up the mess than its do-nothing predecessor.
And as word of Coleman-Adebayo’s case spread, scores of EPA workers came forward with tales of mistreatment at the hands of white supervisors. Among them was Anita Nickens, an EPA environmental specialist who tearfully described how, at a 1993 EPA event at which she was the only black employee present, she was ordered to clean up a toilet in anticipation of Browner’s arrival. To make matters worse, Nickens recalled, her white supervisor later bragged about it to others. An association of 150 aggrieved employees is exploring filing a class-action discrimination suit against the EPA similar to those that have already been aimed at the FBI, Secret Service, Agriculture Department and other agencies.
At last October’s congressional hearing, Browner, at times appearing close to tears, boasted that during her tenure minority representation in EPA’s most senior ranks had more than tripled. But she could not explain why the EPA managers who discriminated against Coleman-Adebayo were still on the job and in some cases had even been promoted.
If the new Bush regime is serious about reaching out to blacks, it should join Sensenbrenner and Jackson-Lee to push for NOFEAR’s enactment. The administration took a good first step earlier this month when the new EPA leader, former New Jersey governor Christie Todd Whitman, honored Browner’s pledge that the EPA would not fight the verdict in Coleman-Adebayo’s lawsuit.
That’s one way of ensuring that no one ever has to go through an ordeal like hers again.
Celebrating African American Month: Tribute to Marsha Coleman-Adebayo
The City of Gaithersburg, Maryland
In celebration of African American History Month the City of Gaithersburg’s Multicultural Affairs Committee is honoring the work and accomplishments of Dr. Marsha Coleman-Adebayo, a woman who continues to fight sexism and racism in the federal government.
Her story will be told at the February 5, 2007 Gaithersburg Mayor and City Council meeting, held at 7:30 p.m. in the Council Chambers, 31 South Summit Avenue in Gaithersburg. Throughout the month of February a showcase of Dr. Coleman-Adebayo’s accomplishments will be exhibited at the Activity Center at Bohrer Park, 506 South Frederick Avenue. Viewing hours are Monday through Saturday from 8 a.m. to 9 p.m., and Sunday from 8 a.m. to 5 p.m.
Dr. Coleman-Adebayo fought against a backdrop of severe racial discrimination in her U.S. Federal Government workplace, when she blew the whistle on U.S. corporate wrongdoing in South Africa, where miners were being poisoned with vanadium. At the time, Dr. Coleman-Adebayo was chair of the Sustainable Development and Environment Expert Group for the National Summit on Africa, serving as the Executive Secretary for the U.S./South Africa Bi-National Commission. She was relentlessly persecuted, but nonetheless persevered, winning a landmark discrimination court case in 2000. She went on to spearhead the first civil rights legislation of the 21st Century: the Notification of Federal Employees Anti-Discrimination and Retaliation (No FEAR) Act in 2002.
While still an employee at EPA, Dr. Coleman-Adebayo founded the No FEAR Coalition and the 501(c)(3) No FEAR Institute. The coalition is comprised of civil rights and whistleblower organizations that fight for increased legislative protections for federal employees. The institute is devoted to educating the American public about federal sector discrimination and the implementation of the No FEAR Act. In addition to protecting victims of race and sex discrimination, the No FEAR Act also provides protection to employees who expose waste, fraud and abuse.
Dr. Coleman-Adebayo is currently writing a book about her experiences, and she is the inspiration for a movie now in development by actor/activist Danny Glover. She was named Good Housekeeping Magazine’s Woman of the Year in 2003 and that same year was also named recipient of a federal sector civil rights award named in her honor.
For more information about the exhibit please contact the City’s Human Services division at 301-258-6395 or firstname.lastname@example.org.
The Washington Informer
By Joseph Young
WI Staff Writer
They call themselves the No FEAR 7 – Marsha Coleman-Adebayo, Matthew F. Fogg, Blair Hayes, Janet Howard, Dennis E. Young, Joyce E. Megginson and Zena D. Crenshaw – all federal workers who blew the whistle on various federal government agencies for discrimination against minority workers.
The No FEAR 7 held a press conference last week at the Cannon House Office Building, announcing the Notification and Federal
Employee Antidiscrimination and Retaliation Act (No Fear), which will be introduced in the 110th Congress next year by Rep. John Conyers (D-Mich.), who will chair the House Judiciary Committee when the Democrats take control of the chambers in January.
At the Capitol Hill press conference, Rep. Albert R. Wynn (D-Md.) said the No Fear Act of 2002 has loopholes, and it has not been effective in ending discrimination within the federal workplace. “It has not worked as well as we had hoped,” said Wynn. “The bill needs more teeth.”
Rev. Walter Fauntroy lends his support to the No FEAR Coalition campaign for a law
to protect government whistleblowers.
Wynn was joined by religious leaders including the Rev. Walter E. Fauntroy, former aide to the Rev. Dr. Martin Luther King Jr. and congressional delegate for the District of Columbia from 1971 to 1991. Fauntroy said the bill is asking for stronger penalties.
The septet is being led by Coleman-Adebayo, a senior policy analyst in the Office of the Administrator at the US Environmental Protection Agency (EPA), who won a $600,000 award in a race and sex discrimination suit against the EPA in 2000.
Coleman-Adebayo said the new bill will call for tougher penalties for managers who discriminate, noting that since the first No Fear Act passed no managers have been fired or disciplined.
She also said the new bill will “not treat discrimination as a civil action” but as a criminal offense and “will hold managers personally accountable for breaking the law by being fired and force to repay their victims for abuse.”
“The [new bill] that we envision will have an independent organization training federal government employees … not the managers or potential defendants who are part of the problem,” said Coleman-Adebayo in a statement.
Matthew F. Fogg, a U.S. Marshall since 1978, said he has been harassed by coworkers since he filed racial discrimination complaints. He explained the group’s name as meaning “we will not back down.
(July 10, 2006 – page A15)
Coming Soon: A Tale of Whistle-Blowing at the EPA
Film to Portray Long Legal Battle With the Agency
By Darryl Fears
Washington Post Staff Writer
Monday, July 10, 2006; A15
She sold the story of her battles with the Environmental Protection Agency to Hollywood, and actor Danny Glover is preparing a movie about how she blew the whistle against the agency and successfully sued for race and gender discrimination.
But Coleman-Adebayo is no star at the EPA, which has described her as a bad employee who refuses to work with others. She was allowed to work at home for five years because of a medical condition, but when she resisted coming back in April, the EPA took away her pay.
“They are really trying to break me, financially, emotionally and everything else,” Coleman-Adebayo, 53, said in a recent interview.
The tense, stressful, dramatic and sometimes-ugly relationship between employer and employee is the stuff of movies. But the case involves larger issues about how the government treats employees who feel they are being retaliated against. Coleman-Adebayo and others say it amounts to corruption.
Her career at the EPA took a bad turn after she complained that the agency stood by in 1996 as a U.S. chemical company mined a deadly substance in South Africa. She won a $600,000 discrimination judgment against the agency in 2000.
“Adebayo’s case is interesting because the issues of whistle-blowing and retaliation in federal government are larger than any one employee, particularly in the wake of Sept. 11,” said Joslyn Barnes, a New York screenwriter who is working on the screenplay.
The EPA declined to discuss Coleman-Adebayo’s complaints because a second lawsuit she filed against the agency is pending and because her case is a personnel matter.
“EPA will not comment on the specifics of the pending litigation except to deny that EPA has discriminated or retaliated against Dr. Coleman-Adebayo,” EPA spokeswoman Jennifer Wood said in a prepared statement last month.
The agency’s opinions of Coleman-Adebayo are revealed in court documents and recent e-mails that she provided. In one e-mail, a supervisor, Rafael DeLeon, dismissed her complaints of “hostile workplace events” and a “pattern and practice of harassment.” They are not medical facts,
he wrote. They “merely represent your self-serving and baseless version of events.”
Court records show that the EPA includes one white supervisor who referred to Coleman-Adebayo, who is African American, as “an honorary white person,” and another supervisor who allegedly referred to her as “uppity,” a segregation-era word for black people who do not accept the
notion that they are inferior. The supervisors were never reprimanded.
The federal workplace is rife with complaints by whistle-blowers of retaliation, often involving threats of job loss. Such complaints usually play out in an arcane equal-opportunity process, rarely seeing
the light of day.
Coleman-Adebayo’s case stands out because her crusade against what she calls “government corruption” won her powerful allies, such as President Bush and House Judiciary Chairman F. James Sensenbrenner Jr. (R-Wis.), who recently wrote a letter to the EPA on her behalf.
Sixteen years ago, Coleman-Adebayo was a promising hire, having graduated from the Massachusetts Institute of Technology with a doctorate in African studies. Her work was generally commended.
But when Coleman-Adebayo traveled to South Africa as part of a U.S. delegation focusing on the environment in 1996, her career took a turn for the worse.
She became a whistle-blower after discovering that a U.S. chemical company was mining a deadly substance in South Africa called vanadium pintoxide. Exposure often turns the tongue blue, causes nosebleeds, kidney and liver dysfunction, and sometimes cancer.
When the EPA did not react to her complaints, she took the issue to non-government interest groups. The EPA finally reacted — against Coleman-Adebayo. Her evaluations worsened, and she said her requests for promotions were denied as white men with far less experience rose above her pay grade.
Coleman-Adebayo sued, and her court battle in 2000 played out like a war. EPA managers said they were upset over the South Africa incident.
“She disagreed with me and made criticisms of the way the agency, of which she was a part, was doing its job,” William Nitze, an EPA supervisor who worked in South Africa, testified in 2000. “You have to understand that when we try and organize and manage a program at EPA, we
tried to do it as a team.”
The agency said the men who rose to positions above Coleman-Adebayo’s did so because they were better fundraisers and got along better with others.
Coleman-Adebayo’s lawyers said race was also a factor. Witnesses said a white assistant administrator, Alan Bruce Sielen, motioned Coleman-Adebayo into a meeting of mostly white people and said it was all right because she was “an honorary white person.”
Sielen denied the claim, but one of the witnesses, a black man, said he confronted Sielen after he also called him an honorary white person. Later in testimony, Coleman-Adebayo said Sielen told her she was denied a promotion because another supervisor said she was too “uppity.”
The supervisor, Alan Hecht, a deputy administrator, denied the claim. The EPA fought back, enlisting psychiatrist Christiane Tellefsen to assess Coleman-Adebayo’s mental state. Tellefsen said in testimony that Coleman-Adebayo was a self-centered, narcissistic woman who “tended to
speak in a dramatic way.”
In explaining how Coleman-Adebayo was “passive-aggressive,” Tellefsen said she was uncooperative, even when asked to provide her children’s names. But in cross-examination, lawyers showed that Coleman-Adebayo did provide the children’s names, but the doctor believed the African names were made up. Coleman-Adebayo’s husband is Nigerian.
The testimony of Jon T. Grand, who had been an EPA manager, offered evidence that Coleman-Adebayo’s discrimination claim had merit. Grand, who is white, recalled that a white manager privately told him that they called her “Rosa Parks of the EPA” behind her back.
Years later, Grand’s career at the EPA would free-fall. The agency had him prosecuted, and he was sent to jail because he did not report the EPA’s mistake of overpaying him when he worked for the agency in Denmark. Grand said that he did report the error, but a secretary failed to act. Facing a long prison sentence, he pleaded guilty and was sentenced to four months in jail.
“I do actually believe that had I not testified, this would never have happened,” Grand said.
Another Fight, Another Suit
Coleman-Adebayo won her case but was later found to have uncontrollable hypertension. The EPA asked her to resign, but she refused, saying the men who discriminated against her were allowed to stay.
The agency agreed to temporarily allow Coleman-Adebayo to work from home. But her telecommute lasted for four years as her illness worsened. During that time, she helped form the No Fear Coalition to protect whistle-blowers and worked with Congress to make the No Fear
(Notification and Federal Employee Anti-Discrimination and Retaliation) Act into law in 2002.
Good Housekeeping magazine presented her in 2003 with its Women in Government award for courage. Later that year, Coleman-Adebayo filed a second lawsuit, alleging retaliation by the EPA.
A year later, she was reassigned from a specialist job to a lower analyst position, effective Dec. 1, 2004. Eight days later, the agency placed her in yet another post.
The EPA sent a letter saying the new job would be “done in an office setting.” Coleman-Adebayo read it at the cluttered desk in her kitchen, surrounded by numerous bottles of medication prescribed for hypertension and glaucoma.
For a year, Coleman-Adebayo and the EPA traded letters like punches. She continued to telecommute until the agency ordered her into the office this April. After complaining of dizziness, she left in an ambulance. The EPA placed her on family leave, without pay.
Coleman-Adebayo’s response seemed worthy of a line in the screenplay.
“They want me to make a choice between my life and my job,” she said.
© 2006 The Washington Post Company=
Controversy over No FEAR continues
By Clarissa Spasyk
cyberFEDS® Washington Bureau
WASHINGTON — Already critical of the Office of Personnel Management’s proposed regulations on penalties for managers who harass their subordinates, some civil rights advocates are now questioning how public comments were gathered.
From Jan. 25 through May 1, the agency accepted e-mailed, faxed or mailed remarks on its proposed rules for the Notification and Federal Employees Antidiscrimination and Retaliation Act of 2002. Many minority leaders immediately slammed the OPM’s recommendation to expand the definition of “discipline” — normally reserved for adverse actions such as demotions and removals — to include oral reprimands.
However, some opponents of the measure became more outraged when a federal employment attorney claimed his e-mailed comments, sent twice to the address provided in the regs, didn’t make it to the OPM because they were blocked.
“We’re suspicious,” said Marsha Coleman-Adebayo, chair of the No FEAR Coalition. “It’s a very serious situation.” The major concern, she said, is whether others’ e-mailed feedback got lost in cyberspace.
In a statement issued to cyberFEDS®, the OPM’s acting general counsel said she was unaware of any difficulties.
“We have no reason to believe there was a significant problem with e-mails being delivered,” Kathie Whipple said. “Comments were encouraged via mail, fax or e-mail.”
April 27, 2006
Proposed anti-discrimination rule draws fire
By Karen Rutzick
Federal employee minority groups convened a town hall meeting earlier this week to decry recently proposed regulations for implementing a 2002 anti-discrimination law.
The groups said the regulations suggested by the Office of Personnel Management are too weak because they allow federal managers to orally reprimand those who have violated the Notification and Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act.
“This rule is really an affront to all of us, to think that they would slip under the door a verbal reprimand,” said Marsha Coleman-Adebayo, a senior policy analyst at the Environmental Protection Agency and one of the driving forces behind the No FEAR Act.
OPM’s Jan. 25 proposed regulations state that the agency is “considering expanding the range of disciplinary actions reported to include unwritten actions such as oral admonishments.”
Oral reprimands are an insufficient response to cases of discrimination, groups participating in the town hall meeting said in a statement.
“The issuance of oral reprimands for civil rights violations is in sharp contrast to the traditional written reprimands or firing for serious offenses,” the statement said. “The OPM proposal would allow managers to escape genuine punishment and send precisely the wrong message of tolerance and no accountability.”
OPM extended the period for comments on the proposed regulations from mid-March to May 1 in response to requests from the No FEAR coalition and members of Congress.
“OPM is seeking input from the public on expanding the definition of discipline to a broader reach, including unwritten actions such as oral reprimands,” said Kathie Whipple, the personnel agency’s acting general counsel, in a statement. “We have provided an extended comment period in part for this reason.”
People wishing to comment are encouraged to e-mail their thoughts to email@example.com, Whipple said.
Matthew Fogg, a vice president of Blacks in Government, said the regulations backpedal from a victory his group thought it won in 2002. “When the bill passed, we … believed that we were making a difference,” he said.
Fogg said oral reprimands devalue the spirit of this legislation, and also undermine employees’ ability to have a clear paper trail to use if they decide to take legal action.
The No FEAR act requires agencies to keep close tally on the number of civil rights violations.
In a sample letter produced in reaction to the OPM regulations, the No FEAR coalition also said including oral admonishments in this count will make it less credible by misrepresenting “the disciplinary actions taken by agencies and [inflating] the actual number of credible punitive measures used to discourage and eliminate discrimination and retaliation.”
This document is located at http://www.govexec.com/dailyfed/0406/042706r1.htm
Coleman-Adebayo Back at EPA After Losing Disability Bid
By Lisa Troshinsky
cyberFEDS® Washington Bureau
WASHINGTON — An Environmental Protection Agency employee who was instrumental in the passage of major equal employment opportunity and whistleblower protection legislation — the Notification of Federal Employees Antidiscrimination and Retaliation Act of 2002 — has lost her bid for disability retirement and has been ordered back to her office.
A U.S. District Court dismissed Marsha Coleman-Adebayo‘s application in November and she returned to work at the agency on Dec. 29, an EPA spokesperson said. She had been teleworking from home after suffering health problems following her successful claim against the agency for racial and gender discrimination.
Whistleblower protection and how agencies deal with equal employment opportunity claims are gaining more attention as activists seek to pressure Congress to strengthen laws. In addition, federal agencies are under pressure to give federal employees greater opportunity to telework.
Also on cyberFEDS®:
- President urged to support telework (11/18/05)
- EPA whistleblower sentenced to prison on financial charges (08/09/05)
- OPM extends comment period on No FEAR discrimination training (05/26/05)
- Lawmakers, activists lambaste poor response to No FEAR Act (03/16/04)
- President signs NO FEAR Act into law (05/15/02)
- Whitman will accept jury verdict in Coleman-Adebayo case (02/05/01)
Following her successful suit against the agency, in which she was awarded $300,000 in compensatory damages, Coleman-Adebayo claimed to have been harassed and threatened with violence.
Coleman-Adebayo told cyberFEDS® her work does not require her physical presence in the office. Since she started working at home, her blood pressure, which had risen as a result of the harassment, has returned to normal, she said.
“There is escalation of retaliation [for EEO complaints] throughout the federal government,” she said. “[The EPA] wants to set an example for other federal government workers who speak out against injustice. I assume their plan is to entrap me.”
The EPA spokesperson declined to discuss the case in detail. “EPA does not comment on confidential personnel matters,” she said.
In early 2006, the NO FEAR Coalition, an advocacy group that backed Coleman-Adebayo, plans to seek introduction of NO FEAR II, which would subject individuals guilty of harassment to sanctions and fines. The current NO FEAR Act requires only that the responsible agency reimburse the Treasury Department’s Judgment Fund, while individuals are protected under sovereign immunity. Agencies that claim financial hardship may postpone their Judgment Fund payments. The proposed legislation also might require agencies to reimburse 10 to 20 percent of their fines to the Judgment Fund immediately, set up a repayment schedule, and not allow agencies to apply for payment extensions, Coleman-Adebayo said.
Another group, the National Security Whistleblowers Coalition, also plans to push for legislation, which would:
- Hold an individual responsible for harassment with civil and criminal liability.
- Remove those exempted from NO FEAR, including agencies claiming financial hardship, government contractors, and cases the government says fall under “state secrecy privilege.”
- Create a whistleblower retaliation accountability commission that would be more independent and have more enforcement than the Office of Special Counsel and the Merit Systems Protection Board.
- Have Congress request annually or biennially a Government Accountability Office report on the number of retaliation cases and cost of retaliation for the government.
Walter Fauntroy, president of the National Black Leadership Roundtable and former D.C. Democratic delegate, sent EPA administrator Steve Johnson a letter of protest on Coleman-Adebayo’s return to work and hopes to meet with him in person to discuss the situation.
January 3, 2006
Copyright 2006© LRP Publications
EPA Orders Death and Rape Threat Victim to Return to EPA Office against Doctors Orders
For Immediate Release
EPA Administrator Steve Johnson has ordered Dr. Marsha Coleman-Adebayo, to return to EPA Offices after receiving death and rape threats while she pursued an EEO complaint. Dr. Coleman-Adebayo’s historic jury verdict sparked a national debate on retaliation and harassment in the federal workplace ending with President Bush signing the first civil rights act of the 21st century – the Notification of Federal Employees Anti-discrimination and Retaliation Act of 2002 – NO FEAR.[see picture below]
However, since President Bush signed the law and Congress bestowed upon Dr. Coleman-Adebayo, congressional whistleblower protection, she has continued to be the target on unmitigating retaliation, harassment and racial discrimination. A federal jury determined that Dr. Coleman-Adebayo workplace at the EPA was a “hostile environment” and awarded her $600,000 in compensatory damages. However, the passage of a federal law and congressional support has not deterred EPA from continuing its “march to insanity” to set an example of how whistleblowers are treated at the Agency.
The Honorable Walter Fauntroy, Washington, D.C. Delegate to Congress for 20 yeas, served as Dr. Martin Luther King, Jr.’s personal representative to presidents John F. Kennedy and Lyndon Baines Johnson, and currently the President of the National Black Leadership Roundtable has written to EPA Administrator Steve Johnson:
“I served on the Committee that reviewed the assassination of Dr. Martin Luther King, Jr. and investigated government abuse of US citizens called COINTEL. I am cognizant of our nation’s history that has allowed citizens that challenge the status quo to become the target of both internal and external forces that threaten their lives–one only has to remember the unfortunate death of Karen Silkwood and other whistleblowers. Your decision to once again place the life and health of Dr. Coleman-Adebayo in jeopardy, when she has successfully worked at her home office for over four years, under your leadership before becoming Administrator of the EPA and currently as the head of the Office of the Administrator- her current duty station, is suspicious at best and perflexing at worst.
On the eve of her return to what a US Federal Jury called a “hostile work environment”, the civil, human rights and whistleblower communities put you on notice that you will personally be held accountable for any adverse consequences of your decision. We would appreciate your personally assurance that Dr. Coleman-Adebayo’s life and health will not be placed in jeopardy on your watch and that you will accept any and all consequences of your action to return her to what a federal jury called “ a hostile work environment.”
Dr. Coleman-Adebayo’s plight with the EPA will be the subject of a major motion picture entitled: No FEAR: the Marsha Coleman-Adebayo story.
For more information go to: http://groups.msn.com/nofearcoalition
The Journey to “No Fear”
Texas African American newspaper:
FEAR Institute, a non-profit oversight organization, issued a report card in which selected federal agencies were graded on how well they implement the first civil rights law of the 21st century: the Notification of Federal Employees Anti-discrimination and Retaliation Act of 2002 [No FEAR]. The majority of agencies received a grade of “F” in the three criteria categories with three agencies, the Department of Labor, the Department of Justice and Agriculture posting data so inaccessible or non-existent that grading was rendered impossible. The public expects the federal government to set an example for the private sector, but data issued by the various agencies reveal a chilling environment of discrimination, harassment, retaliation, and abuse. The law went into effect on Oct 1st, 2003.
The No FEAR law requires federal agencies to use their own budgets to reimburse the Department of Treasury Judgment Fund to pay for successful discrimination claims. Thus, these agencies will begin to feel the pain of protecting and shielding discriminating managers in their pocketbooks. In addition, the No FEAR law requires federal agencies to notify its employees of their legal protections under law and to report to Congress the disciplinary actions taken against discriminating managers. In accordance with the No FEAR law, agencies must provide statistical information on discrimination and whistle blower complaints. The results of the report card could suggest that some federal agencies do not establish a system of accountability or transparency that should be the hallmark of a “federal government.”
For example, according to the US Environmental Protection Agency (EPA)/No FEAR data, in the first quarter of FY 04 the processing time from the filing of EEO complaints until final action is taken was, on average, 838 days – by law these investigations are suppose to be completed (with the exception of extensions) in 180 days. EPA also reported that there were three findings of discrimination and apparently not a single manager was disciplined or fired for breaking civil rights laws. According to a June 26, 2003, GAO report, a report Congresswoman Jackson Lee requested, EPA has not disciplined any manager or employee for discriminatory conduct since 1995.
The No FEAR law certainly has its critics. Bill Bransford, counsel to the federal government Senior Executives Association (SEA) said recently in a Federal Times article that his organization would fight any action by Congress or the Administration that would mandate disciplinary actions against a manager for workplace discrimination, “It’s a real concern that the No FEAR act is the first step to hold managers out as scapegoats…merely because a jury has ruled in favor of a plaintiff.” The SEA represents 6,000 career executives across the country. The reality is that managers in the federal government have historically not had to fear disciplinary actions for breaking civil rights laws. For these managers, jury verdicts have neither meaning nor substance. This actually alludes to another problem that we face in America – tort reform and the diminution of the juror’s role in civil actions.
The civil juror is widely perceived as suspicious and even dismissive of victims and their grievances. Critics who have assumed or asserted the ignorance of jurors may have overlooked what jurors know well: everyday realities and everyday people. Plaintiffs are sometimes threatened, because jurors believe that they understand what reasonable persons will or should do. Tort reform law that threatens to strip civil juries of compensation award authority in demographic areas that have a majority of minorities demonstrates a discriminatory effect. Not only would such law fly in the face of Democracy, the underlying intent of this legislation violates the equal protection clause of the U.S.
Until the passage of the No FEAR, discriminating federal managers were not only shielded by the federal system but given promotions despite claims of misconduct. Without oversight from the Legislative and Executive Branches, this situation only bred uncomfortable, unsafe, and hostile work environments. This confidence is rooted in the knowledge that discriminating managers had little to fear from the lack of oversight, confirming that Bransford’s view is correct. Discriminating managers in the federal government have operated above the normal standards of democracy. Under the No FEAR law federal agencies must report the disposition of disciplinary actions by agencies against discriminating manager to Congress.
Despite federal law, agency heads have repeatedly refused to acknowledge that civil rights laws are being violated in their agency. A January 22, 2004 press release on the issuance of No FEAR regulations cites the Office of Personnel Management (OPM) Director as deeming claims for the violation of civil rights law “inappropriate reactions.” If the Director of OPM defines such behavior as simply “inappropriate reactions,” how can the American public expect the OPM to translate the intent of Congress and the President into guidance for the federal government?
Government must become more responsive and accountable to the public, particularly those who have suffered at the hands of discriminating managers and a dysfunctional EEO system.
Federal government victims endure a cycle of retaliation and harassment. Lives and livelihoods are destroyed. Families and communities are torn apart as a result of the years of stress resulting from workplace discrimination. The merit protection system does not work when civil rights are suppressed. The cost for the victims is prohibitive. Attorney retainer agreements can cost upwards of $30,000. Alternatively, the government provides, free of cost, attorneys to managers to defend them against civil rights victims. The vulnerable are at the mercy of the mighty.
The US Environmental Protection Agency’s Director of Civil Rights, Karen Higginbotham, in a March 10, 2004 letter to the National Treasury Employees Union Chapter 280, admitted that two years after the passage of the No FEAR Act, EPA still does not have procedures in place to discipline discriminatory managers. The lack of action by federal agencies to discipline racist and sexist managers, could either be construed as negligence or a willful disregard for congressional mandates and for the law.
Congress has done its part and the President is to be commended for doing the right and noble thing and signing the bill into law. Federal agencies, however, are dragging their feet on the implementation of No FEAR. It seems that they are more concerned with protecting the scofflaws than carrying out the letter of the law.
The fight for the integrity and effectiveness of No FEAR is a battle that America cannot afford to lose. Federal workers who have been silent and others who also value justice, equality and human dignity must join this battle. I ask you to join this struggle.
|Thursday, September 23, 2004|
No Fear Whistle Awards
Issue awards of shame
By Kenneth Mallory
AFRO Staff Writer
Federal employees who have taken a stand against discrimination within the agencies they work for were recently commended at a ceremony held on Capitol Hill.
Those commended for their willingness to fight the government included John Boyd and Tom Burrell, Black farmers who have alleged racial discrimination against the Department of Agriculture, Matthew Fogg, chief deputy U.S. Marshal, who says he won a $4 million discrimination lawsuit against the U.S. Marshal Service, and Cathy Harris, the author of a book documenting her account as a whistleblower while working for U.S. Customs Department. Also applauded were Carin Memmer, a legally blind woman who asserted the Environmental Protection Agency discriminated against her disability, and Richard Levernier, who said he was demoted after blowing the whistle on the Department of Energy.
“My brothers and sisters, we have come here today because there is injustice in the federal government and we intend to clean it up,” said Dr. Marsha Coleman-Adebayo, an EPA employee who won 2002 lawsuit. Her lawsuit spawned the Notification of Federal Employees Anti-Discrimination and Retaliation (NO FEAR) Act of 2002, which provides sanctions against federal agencies heads who treat their whistle blowing employees unfairly. Additionally, Coleman-Adebayo has established the NO FEAR Institute, which has recently issued a “Report Card on Federal Government Discrimination,” giving failing marks to federal agencies that are not in “compliance” with the act signed by President Bush.
The ceremony also provided an opportunity to issue “No Fear Whistle Awards,” which are awards of shame, to those federal agencies who are not in compliance. The awardees included the U.S. Customs Department, the Environmental Protection Agency, the Equal Opportunity Commission, the U.S. Departments of Agriculture, Justice and Energy, and the Office of Personnel Management.
Rep. Sheila Jackson-Lee (D-Texas), one of the politicians in Congress responsible for introducing the NO FEAR legislation, told the audience, “We come today to say that we will not give up. We will not forget and we will do this every single year that there is pain amongst our employees who are crying out and suggesting that discrimination occurs.”
The congresswoman asserted that discrimination occurring in federal agencies was not merely “a color thing,” implying that African Americans were not the only group charging they have been the victims.
Of special concern to many at the Whistle awards was the United States Department of Agriculture. Jackson-Lee cast aspersions on the USDA, stating it was “one of the most notorious violators and abusers of the backs, and toiling and the work of so many.”
The Black Farmers and Agriculturalists Association (BFAA) agree. According to documents provided by BFAA, which represents about 70,000 Black farmers nationwide, the group is suing the USDA for discrimination through “denying and delaying loans and credit to Black farmers and other offenses. They allege that White farmers are given preference in USDA’s loan programs.
Ed Lloyd, spokesman for the USDA said that he could not comment on the pending litigation. “The USDA has developed a very positive record on ensuring that we enforce all of our nation’s civil rights laws,” Lloyd said, adding that USDA is “fully compliant” with the NO FEAR Act.
No FEAR Whistleblowers Receive Awards
By Bruce Branch
Thursday, September 23, 2004
Awardees accept Whistle Awards from Congresswoman Sheila Jackson-Lee, former D.C. Congressman Walter Fauntroy and Dr. Marsha Coleman-Adebayo (far right). Photo by Roy Lewis
They are official badges of shame given to government agencies for what No Fear Institute officials call “egregious” violations of civil and human rights against government officials and the general public.
Government agencies cited at the first No Fear Whistle Awards press conference held on September 14 at the Rayburn House Office Building at the U.S. Capitol included the U.S. Department of Agriculture, Department of Justice, Department of Energy, Environmental Protection Agency and Equal Employment Opportunities Commission and Office of Personnel Management.
Civil rights stalwarts Congressman John Conyers (ranking member of the House Judiciary Committee), Congresswoman Sheila Jackson Lee (co-chair of the Congressional Black Caucus), former D.C. Congressman Walter Fauntroy and the original whistleblower Dr. Marsha Coleman-Adebayo, president of the No Fear Institute and mother of the No FEAR law that protects public and private employees in the workplace.
The awards are given in categories that include race discrimination, color discrimination, sex discrimination, disability discrimination and whistleblower discrimination. Each of the agencies cited were invited to attend the press conference and respond to the charges and announced corrective changes, but none did.
“Human rights violations by our government damage our government’s credibility both at home and abroad,” Coleman-Adebayo said. “The No Fear Institute will continue to blow the whistle and expose the racism in the federal government until the federal government lives up to its promise of providing civil rights and protection for all people.”
Among those cited for 2004 awards:
Race Discrimination. Black Farmers John Boyd and Tom Burrell and minority employees Lawrence Lucas of the Department of Agriculture, who protested that Black farmers failed to benefit from a consent decree that was supposed to remedy years of a “sophisticated, race-based system of intentional discrimination” that encouraged government officials to discriminate against Black farmers by obstructing, then denying the efforts of Black farmers to obtain loans and other programmatic assistance.
Color Discrimination. Chief Deputy U.S. Marshall Matthew Fogg. In 1991, Fogg, as the United States Marshals Service’s supervisory inspector, confronted two of ‘Americas Most Wanted’ fugitives, heavily armed and ready to kill. When Fogg turned and looked for his White colleagues to help him in the planned arrest, they had conveniently left, intentionally placing Fogg and the lives of his remaining back-up in grave danger. Fogg was later awarded $4 million landmark civil rights verdict and judgment.
Sex Discrimination. Cathy Harris and women travelers by the Customs Department. In 1998, Harris bravely reported the denigration inflicted against African-American and Hispanic travelers especially African-American women to the American public and Congress. She vividly described the violations carried out by corrupt Customs, officials such as the demoralizing pat-downs and strip searches, intrusive cavity searches, improper detentions, monitored defecation and targeted intimidation by drug-sniffing dogs. Governmental reports and investigations by the U.S. Congress, the U.S. Senate and the media validated Harris’ allegations. As a result of her bravery, new legislation and enhanced reform has been introduced to protect the American public.
Disability Discrimination. Carin Memmer, a blind woman denied accommodations by EPA. In compliance with Executive Order 13164, the EPA Intern Program actively recruits candidates with certified disabilities. As a result, in 2001 Carin Memmer, who was over the age of forty, was hired by the EPA with a known severe “targeted” disability of legal blindness. Under the Rehabilitation Act, federal agencies are to provide appropriate access technology, which makes it possible for employees with disabilities to perform their jobs.
Whistleblower Discrimination. Richard Levernier by the Department of Energy and Robert J. Martin, the national ombudsman for the Environmental Protection Agency.
Richard Levernier is a nuclear security specialist who worked for the U.S. Department of Energy (DOE) for 25 years. In June 2000, Levernier sent an unclassified DOE Office of the Inspector General Report to a newspaper that disclosed DOE and Los Alamos National Laboratory (LANL) had inflated security ratings for two years and pressured inspectors to overlook serious problems, failed to investigate cheating on critical performance tests;and then destroyed inspection records attempting to cover-up the inflated rating.
When DOE learned of Levenier’s actions, they unlawfully reassigned him to administrative duties and stripped him of his security clearance. Levernier filed a Whistleblower Disclosure and Reprisal Complaint with the U.S. Office of Special Counsel (OSC). Levernier was ultimately vindicated by OSC and his Whistleblower Disclosure sent to the Secretary of Energy for investigation. Despite his legal vindication, Levernier’s security clearance was never reinstated because of a judicially-created loophole in the Whistleblower Protection Act and his 25 year security career is ruined.
Robert J. Martin served as the National Ombudsman for the United States Environmental Protection Agency for nearly ten years. His independent Ombudsman position was eliminated by EPA Administrator Christine Todd Whitman in 2002. Following a court battle to preserve his ability to speak directly with Congress, his office was entered by two dozen agents of the EPA Inspector General and his files confiscated, locks changed and independent position description eliminated.
Agencies Obstructing and Hindering The Implmentation of No Fear. The Equal Employment Opportunities Commission and Office of Personnel Management because they have attempted to obstruct and hinder the intent of Congress regarding the implementation of No FEAR. Both Agencies have refused to allow public participation or provide transparency in the No FEAR regulatory process. The EEOC refused the request to convene town hall meetings in selected sites in order to encourage public dialogue on No FEAR regulations. Similarly, OPM has missed all deadlines regarding No FEAR regulations and refused to issue regulations regarding disciplinary actions against managers who violate Title 7 of the Civil Rights Act and the No FEAR Act of 2002.
Burrell said the No Fear Award is important in the public campaign to eradicate injustice by government officials. “Warriors do not wear awards or metals, they wear scars,” he said. “Even more, the war has just begun and our enemies, the Bush Administration, USDA, Veneman, Parker, Bryson and other top USDA officials are determined to steal our land and break our resolve toward victory. We will no longer be depressed, suppressed, oppressed, ignored and denied.”
The No Fear Institute Whistle Awards will be used to educate the American public about civil and human rights violations committed by federal agencies against government employees and the general public. The “Award” will highlight the importance of implementing the Notification of Federal Employees Anti-Discrimination and Retaliation Act (NO FEAR) of 2002. The No FEAR Act of 2002 was the first civil rights act of the 21st century. The No FEAR law was signed by President George W. Bush on May 15, 2002. The NFI acts serve as a government “watchdog” for the No FEAR Act.
Jackson said the awards will be an annual means to educate America on civil and human rights violations suffered by millions of employees on a daily basis. “Transparency, accountability, and responsibility must be our priorities in implementing No FEAR,” she said.
For Immediate Release
Contact: Dana J. Thompson
September 14, 2004 (202) 225-3816
Congresswoman Sheila Jackson Lee Helps No FEAR Institute Bestow “Whistle Awards” for Civil and Human Rights Abuse
DAILY BRIEFING August 30, 2004
Discrimination issues on the agenda at EEOC conference
By Amelia Gruber
The Equal Employment Opportunity Commission on Monday kicked off its annual conference looking at challenges the agency faces in handling discrimination complaints filed by federal employees.
The four-day conference in Las Vegas features discussions of several issues high on interest groups’ agendas, including implementing a law to hold managers more accountable for discrimination. Union representatives and
civil rights advocates said they hope EEOC also will use the meetings as a forum to discuss staffing problems, funding shortfalls and flaws in the case processing system.
One agenda issue is implementation of the 2002 Notification and Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act. Agencies haven’t put the law in place as intended, in part because the EEOC hasn’t given them adequate guidance, said Marsha Coleman-Adebayo, the law’s author. The act, which took effect last fall, requires agencies to use their own funds rather than a general Treasury account to settle discrimination and whistleblower lawsuits. No FEAR also requires agencies to report on the volume, nature and resolution of complaints.
The EEOC is in charge of giving agencies instructions on writing No FEAR reports, but has yet to issue final guidelines. Draft guidelines published in late January fail to establish a standard format for submitting No FEAR data, making comparisons across agencies difficult, said Leroy Warren, chairman of the Federal Sector Task Force of the National Association for the Advancement of Colored People. “The reporting is baffling,” Warren said of the information published to date. “The [EEOC] needs to go back and deal with that.” In the draft instructions, the EEOC also failed to ask agencies to report on informal harassment allegations, Coleman-Adebayo said. “That’s when we begin to lose [track of] a lot of complaints,” she said. The EEOC has several workshops on No FEAR scheduled for Wednesday. But Coleman-Adebayo said more attention may be needed. She said she would like the EEOC to host hearings and town hall meetings around the country to gather input on the law.
Civil rights advocates also said they’d like to see EEOC officials come up with a strategy for convincing lawmakers to grant adequate funding for fiscal 2005. Congressional appropriators have yet to settle on a final funding package for the agency, but have expressed reluctance to grant the Bush administration’s request for $350.8 million. In fiscal 2004, the agency received $328 million, $7 million below the requested level.
The agency needs money to hire more investigators and staff for field offices, said Gabrielle Martin, president of the National Council of EEOC Locals No. 216, part of the American Federation of Government Employees.
EEOC officials should consider abandoning plans to establish a national contact center to handle customer inquiries, and devote more money to new hires, she said. Under current staffing levels, the EEOC is too often forced to dispose of cases using summary judgment, Warren said. Personnel problems also have sometimes forced the agency to transfer cases to field offices far removed from where they originated.
Stephen Spitz, an attorney at Kalijarvi, Chuzi & Newman, a Washington firm specializing in employment law, noted that the EEOC has transferred cases from the Cleveland and Washington, D.C., offices to an office in San
Antonio, Texas, which holds some hearings over the phone rather than in person. “It’s really impossible to assess the credibility of somebody over the phone,” Spitz said. “Communication in person is very different than
communication over the phone.”
Jorge Ponce, co-chairman of the Council of Federal EEO and Civil Rights Executives, said EEOC officials should use this week’s conference to rethink a controversial plan to expedite hearings. The plan, unveiled in April at the EEOC’s Washington field office, allows two officials to review complaints and place them on one of three tracks: “red” for dismissal, “yellow” for summary judgment in favor of one party, or “green” for a hearing. All complaints, Ponce said, should at least get to go through the discovery process, where lawyers representing each side can question and gather evidence from the other. This document is located at http://www.govexec.com/dailyfed/0804/083004a1.htm
The Washington Post
Worker Takes EPA to Court — Again
Retaliation for Discrimination Suit Alleged
By Darryl Fears
Washington Post Staff Writer
Monday, May 10, 2004; Page A23
On a recent balmy Monday, Marsha Coleman-Adebayo walked into a federal courtroom to fight the Environmental Protection Agency.
The two sides argued, not over the environment, but the working environment: At issue was whether Coleman-Adebayo should be allowed to continue working out of her Bethesda home rather than at the agency’s downtown offices in the District.
The arguments came in a lawsuit Coleman-Adebayo filed against her employer of 14 years. She believes that the EPA has been trying to force her out of her job since she took the agency to court for discrimination six years ago and won a $300,000 judgment. She alleges that the EPA is also retaliating against her for testifying before Congress that the agency targets whistle-blowers and other employees who buck the system.
“My story is the story of so many people in government,” said Coleman-Adebayo, a senior policy analyst at the agency. “If you file a discrimination complaint, your career is over. What that means is that the 1964 Civil Rights Act is a joke in federal cases.”
EPA spokeswoman Cynthia Bergman said the agency is transferring Coleman-Adebayo to a position for which she is better suited.
Stephen M. Kohn, chairman of the National Whistleblower Center, said Coleman-Adebayo’s discrimination case evolved into a whistle-blower case after she testified against the EPA at congressional hearings in 2000 and 2002.
“There is still widespread hostility toward whistle-blowers” at the agency, Kohn said. “EPA has had a lot of whistle-blower cases that have been found to be valid.”
Workers who complain about discrimination in the federal bureaucracy, or retaliation by managers, rarely receive public attention. But Coleman-Adebayo’s testimony in her 1998 court case and her subsequent activism pushed her troubles at the EPA into the spotlight.
She testified that a superior referred to her as an “honorary white man” during a staff meeting in 1990 and said during a performance evaluation that white co-workers were uncomfortable around her because she was “uppity,” as in “uppity Negro.”
When Coleman-Adebayo, a Massachusetts Institute of Technology graduate, was later passed over for a promotion, the same manager mentioned her pregnancy at the time, according to the transcript of her testimony.
“You’ve just come off maternity leave. . . . I find it difficult to understand how women think they can get pregnant, have children and still compete with a man,” she quoted the manager as saying. The manager disputed her recollection of those conversations.
The jury found in her favor. According to a 2003 report on EPA management practices by the General Accounting Office, her manager was never disciplined. But Coleman-Adebayo said her career went into a free fall, and she is fighting in court to keep her job.
Reps. F. James Sensenbrenner Jr. (R-Wis.) and Sheila Jackson Lee (D-Tex.) rallied behind her cause, launched an investigation of EPA and other agencies and pushed a new anti-discrimination law called the No Fear Act through Congress. The bill, formally the Notification and Federal Employee Anti-discrimination and Retaliation Act, was signed by President Bush in 2002.
“If I committed an act that cost taxpayers money, I would pay the price for that at reelection,” said Sensenbrenner, a former chair of the House Science Committee, which monitors the EPA. “The fact that the manager hasn’t been disciplined shows that the culture at EPA is to protect their own even when they’re wrong.”
The No Fear Act requires agencies to settle discrimination complaints brought by employees out of their general funds. Between 2001 and last year, federal agencies paid $656 million to settle discrimination complaints, according to a report last month by the GAO.
Karen Higginbotham, director of the EPA’s Office of Civil Rights, said Sensenbrenner’s assertion is unfair. The agency polices discrimination vigorously, she said, and most managers have undergone civil rights training. EPA established a staff last year to intervene in disputes.
As a result, she said, the agency reduced the number of complaints filed by workers from 104 in 2002 to 74 last year, sliced its backlog of cases from 171 to 160, and cut the $1.1 million cost of processing complaints in 2002 by more than half the following year.
Higginbotham also said the EPA is a favored place to work.
In a survey of federal employees conducted in 2002 by American University’s Institute for the Study of Public Policy Implementation and the Partnership for Public Service, the EPA ranked fifth among 28 federal agencies as one of the best places to work. Minority employees also ranked the EPA in the top five.
“Look at the progress we’ve made,” Higginbotham said. “I think that’s also a story.”
Coleman-Adebayo, noting that the EPA was established in 1970, or about 32 years before the reforms Higginbotham cited, said she would not rank the agency so high.
At least two doctors have written the EPA on her behalf, saying that exposure to her superiors, some of whom played a role in defending the agency from her lawsuit, could raise her hypertension to dangerous levels. Coleman-Adebayo also suffers from glaucoma, doctors have said, and should work at home.
The EPA disagreed, saying Coleman-Adebayo should come to work. In December, she was reassigned against her will from her job as senior policy adviser to director. So she sued the agency again this year.
“Their defense against me is more vigorous this time,” she said. “I think the reason they are going after me is they want to make an example of my case.”
Higginbotham said she could not comment further on a personnel matter, especially one that is pending before a court.
Bergman, the EPA spokeswoman, said in a statement: “We feel that we’ve created a position where [Coleman-Adebayo] can provide critical and meaningful work for the Agency. We hope she will give this new position, and a new management team, a chance to work.”
Meanwhile, Coleman-Adebayo continues her campaign against alleged abuse by managers in the federal workplace. She co-founded the No Fear Institute, which monitors how government agencies handle civil rights complaints. It recently gave failing grades to four agencies for their lack of speed in investigating discrimination complaints to their equal opportunity offices.
“I think what I’m doing with the No Fear Institute is very important,” Coleman-Adebayo said. “I think I’m really making a contribution. I’m trying to make a difference in making sure the federal government abides by the rules.”
© 2004 The Washington Post Company
- Discrimination reports need polishing, analysts say (02/18/04)
- EEOC guides agencies on new anti-discrimination reports (01/26/04)
- OPM issues long-awaited anti-discrimination regulations (01/22/04)
- OPM to issue rules on new anti-discrimination law by Oct. 1 (08/28/03)
- Anti-discrimination campaigner wins public service award (06/18/03)
Anti-discrimination law may be hard to enforce
By Amelia Gruber
If history is any indication, the Treasury Department will have difficulty enforcing a key provision of a law designed to hold federal agencies accountable for discrimination and retaliation against employees.
The Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act requires agencies to use their own funds, rather than a general Treasury account, to settle discrimination and whistleblower lawsuits. The law, which took effect in October 2003, is intended to provide agencies with a strong incentive to curb employment discrimination.
But Treasury may have trouble collecting money from agencies, according to a new General Accounting Office report (GAO-04-481). GAO based its prediction on agencies’ low rate of compliance with a 26-year-old law that has a similar requirement: the 1978 Contract Disputes Act.
That finding is troubling to Marsha Coleman-Adebayo, the Environmental Protection Agency policy analyst who shepherded No FEAR into law. “No FEAR is all about consequences,” she said.
Under the Office of Personnel Management’s draft guidelines on implementing No FEAR, Treasury has continued to pay initial settlements from the general fund, but agencies must pay Treasury back, or make arrangements to pay, within 45 business days. Each year, Treasury’s Financial Management Service must publish on the Internet the names of agencies that are out of compliance.
But Treasury officials have no power to collect from disobedient agencies. The 45-day limit suggested by OPM is not a hard-and-fast deadline. Agencies can ask for extensions if they claim that they cannot afford to reimburse the general fund without dipping into money needed to fulfill their responsibilities.
The Contract Disputes Act has a similar reimbursement requirement, except Treasury does not post the names of offending agencies. In the past three years, agencies paid Treasury back only one of every five dollars they owed under that law, GAO found. At least 18 agencies still had outstanding debts to the general fund in each of the last three fiscal years. Most commonly, agencies claimed they could not afford to pay without adversely affecting mission-critical work.
“According to Treasury, while its No FEAR Act collection efforts are just beginning, reimbursement rates under the act may be as low as under [the Contract Disputes Act] because the No FEAR Act, like CDA, does not impose reimbursement deadlines on agencies, and Treasury has very little authority to enforce reimbursement,” GAO said in the report.
Coleman-Adebayo and lawmakers considered this potential problem while drafting the legislation. “I suppose we hoped that agencies would do the right thing,” Coleman-Adebayo said. But she added that members of Congress pledged to address the problem if a “clear pattern of misconduct” emerged.
Loopholes in the current law should be addressed through “congressional or regulatory action,” Coleman-Adebayo said. “The specter is that right now, if things continue the way they’re going, we’re not going to get compliance.”
Rep. Sheila Jackson Lee, D-Texas, who introduced No FEAR along with Rep. James Sensenbrenner, R-Wis., said she will watch to ensure that agencies do not abuse the law. She will keep an eye out for agencies that are “misrepresenting the idea that they can’t [pay].”
The provision allowing deferment is meant as a “simple proposition of fairness,” Jackson Lee said. “We certainly wanted agency missions to go forward.”
When agencies fail to comply, the Bush administration should use the “bully pulpit” to force reimbursement, Jackson Lee said. President Bush signed No FEAR, the first major civil rights legislation of this century, she added, and should help enforce the law. Lawmakers may also hold hearings to further investigate agencies owing money to Treasury’s general fund, she said.
At the request of Coleman-Adebayo, OPM in late March extended the comment period for its No FEAR regulations by roughly a month, to April 26.
For Immediate Release Contact: Dana J. Thompson
March 10, 2004 (202) 225-3816
Congresswoman Sheila Jackson Lee Helps Expose Lack of Implementation of the No FEAR Act
CONGRESSWOMAN SHEILA JACKSON LEE TALKING POINTS: “NO FEAR ACT OF 2002
PRESS CONFERENCE: MARCH 10, 2004, 2:00 P.M., RHOB 2141
Washington, DC – Congresswoman Jackson Lee, First Vice Chair of the Congressional Black Caucus (CBC), Member of the House Science Committee and Judiciary Committee, has worked with the No FEAR Act. Today, the Congresswoman and other Memberss of Congress will join the Coalition to highlight the slow, or sometimes failed, implementation of the No FEAR Act at some agencies.
Congresswoman Jackson Lee was a primary coauthor of the Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002, or “No FEAR” Act, that was signed into law by President Bush on May 15, 2002, codified as Public Law 107-174. “This legislation was passed in order to bring immediate relief to federal government employees who have suffered from civil rights or other abuse in the workplace. If its implementation is slow or ineffective, we need immediate transparancy and exposure of the problems,” said Congresswoman Jackson Lee.
On January 22, 2003, OPM published an interium final regulation to implement the No FEAR Act requirement that agencies reimburse the judgement award fund for payments concerning violation claims arising from such laws. However, despite concerns by labor groups that the regulation is inadequate and processing times are too long, it has been reported that the OPM Administrator has refused to meet with members of the No FEAR Coalition to address the issue.
Congresswoman Sheila Jackson Lee concluded, “The federal government has, for years, been thought of as a great place to work and one of the least hostile places of employment. If the findings that have been brought to our attention today are accurate, there needs to be immediate redress and disciplining of offending managers, in order to restore integrity. As we approach the two-year anniversary of No FEAR-the first civil rights legislation of the 21st Century-I call on my colleagues in the House to excersise our Congressional oversight to ensure that the Agencies are properly implementing the law that we created, and that the President signed.”
The Washington Post, Report Is Bleak For Whistle-Blowers
Whistleblowers… Washington Post 3/10/04
Report Is Bleak for Whistle-Blowers
By Darryl Fears
A watchdog group issued a report card yesterday that gave failing
grades to several federal agencies for allegedly allowing repeated
verbal abuse, retaliation and harassment of employees by superiors who
were the targets of discrimination complaints.
The No Fear Institute, a Washington-based organization that was formed
to monitor treatment of workers after President Bush signed the No Fear
Act of 2002, said the law has had little effect on the federal
workplace because the administration has not enforced it.
“Tens of thousands of people are discriminated against on the basis of
race, sex and because they are whistle-blowers,” said Marsha
Coleman-Adebayo, who chairs the institute. She said agencies are too
slow to process complaints, investigate them and discipline managers
“We demand that agencies punish and fire managers who break the law,”
The institute based its report on data the agencies posted on their Web
sites. But an Office of Personnel Management lawyer said the law did
not go into effect until last October and does not require agencies to
supply data until April 2005. The OPM is charged with collecting data
from agencies to help enforce the law, formally titled the Notification
and Federal Employee Antidiscrimination and Retaliation Act of 2002.
“It did not create any new employee rights or protections,” said Mark
A. Robbins, OPM general counsel. “All the No Fear Act did was force the
agency to reimburse their budgets for judgments based on discrimination
and whistle-blower complaints.”
Under other regulations, federal agencies are required to file
information about how complaints are processed to the Equal Employment
Opportunity Commission, but they often do not.
“I share their frustrations,” Robbins said of employees. “Clearly,
there’s a problem that Congress is trying to fix. Some of these
agencies aren’t complying the way they should. Congress tried to hit
the agencies where it hurts, in their budgets. Only time will tell
whether the law helps. I’m confident that it will work.”
Members of the No Fear Institute are not as confident. The group graded
six agencies in its report card, saying that they were the worst
The Environmental Protection Agency and the departments of Agriculture,
Commerce, and Health and Human Services received failing grades for the
way they handle complaints regarding equal employment opportunity.
The departments of Justice and Labor received incomplete grades because
they did not produce enough data for a score, Coleman-Adebayo said.
In 2000, it cost $1 million to settle judgments at Commerce alone,
according to the institute. “These actions are costing taxpayers tens
of millions of dollars,” Coleman-Adebayo said.
Robbins said that after next year, Commerce will have to pay for such
judgments. The law needs time to work, he said.
“We have no idea of knowing . . . whether the No Fear Act is working or
not,” Robbins said.
Workers at the institute’s news conference said their lives and
livelihoods are at stake. Karen Leperi, an assistant in the USDA’s
animal and plant health inspection services section, described her
workplace as “a living hell.”
Leperi said a manager who used an epithet when saying he would not
sleep with her “if I were the last woman on earth” was not disciplined
when she filed a complaint. She filed a lawsuit against the USDA, which
Matthew Fogg, a Justice Department employee and a member of Blacks in
Government, said Commerce employees were outraged when a white deputy
division chief repeatedly referred to an African American employee as
Rep. Sheila Jackson Lee (D-Tex.), a member of the institute’s board,
said she will work with other members of Congress to hold hearings so
that workers can voice their complaints.
February 18, 2004
Discrimination reports need polishing, analysts say
By Amelia Gruber
A number of federal agencies recently posted on their Web sites reports required by an anti-discrimination law, but these reports will require some fine-tuning before they will be of much use to analysts and the public, civil rights advocates said on Wednesday.
Under the Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act, which took effect on Oct. 1, 2003, agencies must publish quarterly data on the volume and nature of discrimination complaints they have received, as well as their methods of resolving those complaints. The reports should give the public a feeling for how effectively various agencies address allegations of discrimination, said Marsha Coleman-Adebayo, the senior Environmental Protection Agency policy analyst who shepherded No FEAR into law.
But the information agencies have provided to date is incomplete and is not presented in a format that facilitates meaningful analysis, Coleman-Adebayo said. Agencies have provided a hodge-podge of statistics in a variety of formats, making it nearly impossible to compare data across the government, she explained. In addition, no one is checking to make sure that the statistics posted are accurate.
The Equal Opportunity Employment Commission, charged with issuing guidelines for No FEAR reports, is aware of these potential problems, said Gary Hozempa, a senior staff attorney in the EEOC’s Office of Legal Counsel. Over the coming months, EEOC officials will gather public input and determine how, or if, they should refine reporting guidelines proposed in late January, he said.
The EEOC’s draft guidelines asked agencies to post initial No FEAR reports on their Web sites by Jan. 31, 2004. These reports were to cover the first quarter of fiscal 2004, which ended on Dec. 31, 2003, and were to include: number of employment discrimination complaints filed and type of alleged discrimination; number of employees filing more than one complaint; average time spent investigating complaints; number of complaints dismissed; and number of discrimination findings.
Because the draft regulations, published in the Federal Register on Jan. 26, gave agencies less than a week to compile the first reports, the EEOC informally extended the deadline by a month, Hozempa said. Many major agencies have now posted the quarterly statistics required by No FEAR on their Web sites, but the preliminary reports are not consistent with one another and are in differing stages of completion.
For instance, the Agriculture Department’s report includes a section on disciplinary actions taken against employees found guilty of discrimination, though the section currently contains no data. The Environmental Protection Agency’s report does not have a corresponding section on discipline.
The Labor Department’s first report includes a glossary with definitions of legal terms, but other agency reports simply relay numbers or percentages with little explanation of what the statistics mean.
EEOC officials are waiting until the end of the month to begin looking over the reports that agencies have posted, Hozempa said. But he added that he would not be at all surprised to see inconsistencies. In a push to post information on time, some agencies may have based their initial No FEAR reports on draft guidelines that EEOC officials passed around in August 2003, rather than the rules officially proposed in January.
The EEOC is open to the idea of imposing a uniform format for No FEAR reports, Hozempa said. Some civil rights advocates have suggested that this would make it easier to compare statistics across the government. If the EEOC were to dictate a format for reports, officials would likely draw ideas from agencies’ initial postings.
“Everyone’s getting hands-on experience with the [draft] regulations as they’ve been published,” Hozempa said. “I think that if people are having problems, they’ll let us know during the comment period and then we can fine-tune [the guidelines].” EEOC will likely extend the comment period 30 days, allowing the public a total of 90 days to offer suggestions, he added.
In addition to weighing the need for a consistent reporting format, EEOC officials will tackle the question of which agency, if any, is responsible for enforcing No FEAR’s reporting requirements and ensuring that the statistics presented are accurate.
“Congress gave EEOC the authority to direct the time, form and manner of the posting,” Hozempa said. “There’s nothing there that says what we can do if agencies don’t comply.”
The EEOC and agencies will need time to sort out these details and refine No FEAR reports to the point where they will be useful to analysts, said Jorge Ponce, co-chairman of the Council of Federal EEO and Civil Rights Executives. In the meantime, it is a “very, very positive” sign that many have already attempted to post data.
“Things are falling into place,” Ponce said. “Now we are dealing with fine-tuning.”
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