Index

• Insight By Mike Causey: Demonstration Nation
• Obama Announces Input Process
• Lawmakers Gather Suggestions
• Union Says TSA Must Protect Employees
• Bill Would Eliminate Educational Assistance Penalties
• USPS Announces Early-Retirement Deadlines
• Informed Investor: Congress Suspends Required Minimum Distributions for 2009: Part II
• Ruling Roundup: Labor Employee Loses Removal
• You Be The Judge: Did DoD Auditor-Trainee Suffer Discrimination

Insight by Mike Causey: Demonstration Nation

For those of you who do not live in the Washington metro area (which is most people), we have a message of friendship: Come visit. Come see the sights. Unlike where you live, the museums, art galleries and monuments are free. That’s because you—with your tax dollars—paid for them.

You get to see all of the above on your family visit, spring break or perhaps when you have business at the headquarters of your agency or department. We, thanks to you, get to see them free all the time. Whatever the reason, enjoy. We love tourists. We are proud of the beauty and history of our city.

Just a couple of rules…

Please stand to the right on the subway escalators, and don’t hold family reunions in doorways, and we’ll get along fine. One more thing, for men only: Men, think what you are doing when you dress to go out on the streets of D.C. Think about what happens when you wear short shorts to the White House. Or the Jefferson Memorial. Have some consideration and respect for the place, and for your fellow human beings—from tourists and locals to diplomats and foreign spies—who didn’t come here to see you or yours.

I mention all this because of two incidents—one a rare display of stupidity and thoughtlessness, and the other an all-too-common occurrence.

Incident No 1: The Air Force One 747 that circled Manhattan and buzzed the Statute of Liberty. With two fighter jets in tow.

It turns out it was a PR stunt dreamed up by somebody in the White House (the military liaison guy took the fall). The idea was to show the majestic AF 1 circling our nation’s largest city. A similar flight had been done—and filmed—earlier over the Grand Canyon. The president was not on board either time.

In addition to being deceptive, the stunts were very costly and potentially dangerous. A 747 uses a lot more fuel than a Chevy Cobalt. And its per-minute operating cost would probably feed your family for a good while. To add insult to injury, New Yorkers still have horrible memories of 9-11, when two aircraft smashed into the World Trade Centers. At that time, there were only two fighter aircraft—based in Virginia—guarding the East Coast.

New York City Mayor Bloomberg was furious. So were a lot of New Yorkers (and visitors) who thought: “Here we go again!” Dumb move. Thoughtless. Next time tell somebody, OK? Starting with the mayor and the media.

Incident No. 2:  Last week we had a couple of demonstrations here. We have them all the time, and thereby hangs a tale.  One of these events was designed to force Congress (or somebody) to do more to help people with disabilities. The other was to force Congress (or somebody) to protect the environment. Don’t pollute. Something like that.

Frankly, I missed the point—as did lots of folks here, and almost certainly, members of Congress—because of the massive traffic jams they caused. Demonstrators blocked one of the bridges coming into the city, and gridlock took over. Pregnant women on the way to the hospital couldn’t get there. Heart attack victims were stuck. People dropping off or picking up kids at day care centers missed the opening or closing. And thousands of cars sat, engines idling for hours, while a group seeking a pollution-free atmosphere shut down the town.

As a friend pointed out, what if there had been a major fire or accident? And how many people maybe didn’t get a job because they didn’t—because they couldn’t—get to their interview promptly?

The right to protest, to petition Congress, is as American as Moon Pies. Great. But when does a peaceful, well-intentioned demonstration become dangerous, selfish and totally counterproductive?

Politicians who are the target of such things rarely see them happening. If they have to get somewhere—the airport or wherever—they get a taxpayer-financed helicopter or police patrol to take them. They aren’t inconvenienced much, if at all. Ever.

My suggestion: Have all the demonstrations you like. But do them in your own backyard. Wait until your senators or members of Congress are back home—they take a ton of vacation—and then organize a local event. Have it on Main Street. Or in front of their house. Or at the local college football stadium. That way, politicians will be confronted by the people who actually are eligible to vote for them. Here in D.C., we don’t have a member of Congress or even one senator.

In fact, if you do start demonstrating locally, probably a lot of people from here will come to your town on D-Day. It would be fun and a change of scenery to demonstrate, meet new people and tie up traffic someplace else.

We could use a break, too!

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Obama Announces Process for Federal Employee Input

In his weekly address, President Obama on April 25 said administration officials will soon establish a process for government employees who want to submit ideas on how their agency can save money and perform better.

It is part of the president’s pledge to eliminate federal waste and increase efficiency.

“We’ll look for ideas from the bottom up,” Obama said. “After all, Americans across the country know that the best ideas often come from workers—not just management.”

Obama said employees’ suggestions will be reviewed and the workable ones will be put into practice. Obama also promised to meet later this year with those who come up with the best ideas to improve the function of government.

Union representatives jumped on the speech as a sign of greater appreciation of employee input—and of hope for a better-functioning government.

“It’s a great idea—and such a refreshing change from the previous administration,” Diana Price, a procurement specialist with the American Federation of Government Employees (AFGE), told FEND. “The Bush administration early on issued an executive order that basically said that agencies could not partner with employees to come up with better ways of doing things.”

Price referred to President Bush’s Executive Order 13203, issued on Feb. 17, 2001, which revoked President Clinton’s Executive Order 12871 of Oct. 1, 1993, which had established collaborative councils to discuss ways to improve efficiencies.

“The Clinton-era councils weren’t really a way outside labor union relationships, but sort of in addition to them,” Price said. “It wasn’t a mechanism that was binding, but just a sort of ‘let’s sit down and talk about these things.’” The Bush administration’s order superceded the Clinton directive—and really served to say “sit down and shut up,” according to Price.

“Bush … disbanded any collaborative groups that existed, and it set a bad tone for employee groups and
employees,” she said.

She noted that soon afterward, the Bush administration pushed for contracting out much of the federal government—850,000 or more jobs.

“These jobs were all subject to private-sector competition from that point on,” she said. “Basically, that’s saying to half of your employees, ‘Hey, we might get rid of you at any time.’ It was very bad for morale.”

Price said that her union has long maintained that the most important efficiency-improving idea that federal employees can offer in the coming months and years is that those employees should do more of the government’s tasks, while contractors should do fewer of them.

But Price also noted that so far under Obama, there are still many agencies where government employees are “certainly not being asked for their input.” She mentioned specifically the Coast Guard, which is undergoing “a modernization program” she said is not responsive to employee input—at least so far.

How can employees give input to the government? “I think that if employees want to tell their employee representatives, we’d be happy to pass on their ideas,” Price told FEND. She added that many Web sites—governmental, journalistic and others—also accept suggestions.

Other unions also were positive. “I’m delighted to see the president recognize that the best ideas come from the expertise of federal workers,” NTEU President Colleen M. Kelley said last week. “The emphasis must be on doing the work better, not simply on cutting costs.”

“Given the serious declines in staffing levels at many agencies over the past eight years, there is a clear need not only to rebuild, but to refocus on their core missions,” Kelley said. Kelley echoed Price’s contention that, under the last administration, “employee ideas were ignored.”

To see more, go to: www.whitehouse.gov/the_press_office/Weekly-Address-President-Obama-Announces-Steps-to-Reform-Government-and-Promote-Fiscal-Discipline/

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Lawmakers Gather Suggestions For Revamping Federal HR

Federal, union and academic experts last month briefed House lawmakers on trends in the federal workforce—and suggested ways agencies might prepare the way for the adoption of more effective human resource management strategies. The testimony came at an April 22 hearing before the House Subcommittee on the Federal Workforce entitled “Public Service in the 21st Century: An Examination of the State of the Federal Workforce.”

Witnesses offered a broad range of advice. Donald Kettl, incoming Dean at the University of Maryland School of Public Policy, told the panel that the federal government needs to reduce procedural barriers to entry-level hiring, and make it easier for experienced professionals to transfer laterally into top-level government jobs.

Overall, he said, federal civil service needs an entire makeover. “It is no exaggeration to say that the federal workforce is at a crossroads,” Kettl said. The question, he said, is exactly what to do about “a system almost no one likes but which is rooted deeply in law and 120 years of political tradition…” Kettl pointed out that any changes should be driven by a desire to get the right people into the right federal jobs.

Kettl also said the Presidential Management Fellows Program ought to be revamped to create a category of “super-fellows” who would be hired from outside the government into the GS 11-13 ranks.

John Gage, president of the American Federation of Government Employees, told lawmakers that the government’s General Schedule pay system and its merit-based hiring practices get a bad rap these days. The real problem, he said, is the federal job applications process, which focuses on controversial “knowledge, skills, and abilities,” also known as KSAs.

“We believe that the problems with federal hiring are in no way a result of a scrupulous adherence to the merit system and veterans’ preference,” Gage said. “As such, we will continue to oppose proposals that evade these standards, no matter how compelling the arguments for expediency may sound.”

And the time is right for change, said Max Stier, president of the Partnership for Public Service. Stier told the panel that according to his group’s projections, the federal government will make more than 580,000 full-time, permanent new hires through 2012. Stier said this represents a “once-in-a-lifetime opportunity to revitalize our federal government.”

Stier also said agencies need to be more aggressive in recruiting college graduates. “Recruiters will be more successful if they can dispel myths about federal service and put a face on government, which is often perceived as overly bureaucratic,” Stier said. “Indeed, 53 percent of students cite bureaucracy as the reason they would not want to work for the federal government.”

Colleen Kelley, president of the National Treasury Employees Union, testified that agencies could improve retention if Congress would fully implement and fund the 1990 Federal Employees Pay Comparability Act—enacted to close the pay gap between federal workers and their private counterparts. Despite the act, Kelley said, there is still a 23 percent pay disparity between the public and private sectors.

The government’s top human resources officer, Office of Personnel Management (OPM) Director John Berry, told the panel that OPM already is addressing some of the hiring concerns. Berry cited OPM’s End-to-End Hiring Roadmap, introduced in September, which stresses that job announcements be written in concise, plain language and encourages agencies to stick to specific hiring timelines.

“Although there are many good things about working for the federal government, there is also much to be done to make the federal government a first-class employer,” Berry said.

“We need to review our human resources practices and policies to ensure that employees are treated in a fair and respectful manner.”

To see more, go to: http://federalworkforce.oversight.house.gov/story.asp?ID=2392.

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Union Says TSA Must Protect Its Workforce From Swine Flu

The American Federation of Government Employees (AFGE) last week criticized the Transportation Security Administration (TSA) for not doing enough to protect Transportation Security Officers (TSO) who screen passengers potentially exposed to swine flu.

The AFGE statement comes on the heels of an Office of Personnel Management (OPM) memo which detailed precautions federal workers should take if they encounter someone infected with swine flu. The memo, from OPM Director John Berry, suggested that federal workers be given N95 surgical masks if they must be closer than six feet to someone who is suspected of being infected. As always, frequent hand-washing is also a good idea, the memo said.

But in an April 28 statement, AFGE claimed some TSOs are being made to work with no precautionary measures as they screen passengers, and that requests for protective gear have been denied. In Denver and Miami, for example, AFGE said TSOs were told they could not be given masks for fear that it would cause public panic. However, at Dallas/Fort Worth Airport, baggage screeners were given protective gear, while checkpoint screeners—who come in direct contact with travelers—were denied the gear, AFGE said.

“TSA has an unfortunate pattern of inconsistent responses when it comes to issues of employee safety,” said AFGE President John Gage. “This is a perfect example of why collective bargaining in general, and one nationwide contract specifically, is needed at this agency. A measured and consistent response to emergencies at our nation’s ports is exactly what the creation of the agency was meant to achieve.”

Gage suggested that any TSO who wants an N-95 respirator be given one, as recommended by OPM.

AFGE also recommended that:

• A respirator, gloves and hand sanitizer be provided any TSO who requests them;
• Shifts be rotated so that TSOs can wash their hands on a recurrent basis;
• Testing for swine flu virus be made available for TSOs who must escort suspected infectious people to isolated areas, or otherwise come in close contact (within six feet) of such passengers;
• Any TSO diagnosed with swine flu through exposure while on duty be provided a CA-2 form by TSA management;
• TSOs be afforded the same “human resources policies and flexibilities” as other federal workers if they become ill with swine flu, or must care for sick family members or children in the event of the closure of the child’s school or child care center; and
• TSOs who become ill due to their exposure on the job should not be forced to take their own sick or annual leave; they should be granted administrative leave.

At deadline, this strain of flu was suspected to have killed more than 150 people in Mexico. and had been confirmed in at least seven countries around the globe. The Centers for Disease Control and Prevention on April 29 reported the first American death from the disease: a 23-month-old child in Texas.

To see more, go to: www.afge.org/Index.cfm?Page=PressReleases&PressReleaseID=988 or www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2227.

Bill Would Eliminate Educational Assistance Penalties

Sen. Jim Webb, D-Va., last month introduced a bill that would—if signed into law—eliminate penalties for beneficiaries of Dependents’ Educational Assistance (DEA) who also accrue credits under other service-related Department of Veterans Affairs (VA) and DoD educational benefit programs. Currently, VA limits educational benefits under multiple programs to 48 total months of credit, which means that the DEA counts against additional GI Bill benefits that may be earned by these beneficiaries. The Webb bill, S. 847, eliminates the 48-month limit. “If a member of our U.S. armed services is killed or seriously disabled in the line of duty, the compensation the VA provides for spouses and dependents should not be counted against any educational benefits that a survivor has earned through his or her own service to our country,” said Webb. To see more, go to: http://webb.senate.gov/newsroom/record.cfm?id=311870&.

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USPS Announces Early-Retirement Deadlines

The U.S. Postal Service (USPS) announced new deadlines for eligible postal workers who want to apply for USPS’ latest Voluntary Early Retirement (VER) offer, according to a letter posted last month on the American Postal Workers Union (APWU) Web site. USPS says eligible employees—who wish to apply for VER retirement by June 30 or July 31—have until June 19 to file an application. Also, USPS has designated June 19 as the “irrevocable” date, which is the last day for those who have applied for June and July VER to change their minds and withdraw their request. Employees who wish to apply for VER effective May 31 must do so by May 15; which is also the irrevocable date for May 31 retirements. Carriers who are age 50 with at least 20 years of service, or any age with at least 25 years of service, may choose to take the option and may select one of three effective dates: May 31, June 30 or July 31, according to information posted by the National Association of Letter Carriers (NALC). Those covered by the Civil Service Retirement System who take the VER option must accept a permanent reduction in their annuities of 2 percent for each year they are under age 55 on the effective date of their early retirement, NALC said. There is no reduction for eligible carriers covered by the Federal Employees Retirement System who take VER, but those carriers would not receive the special supplemental annuity benefits payable to annuitants under age 62, NALC said. The Postal Service’s VER offer does not provide any financial incentives (such as lump-sums or special severance payments) to choose early retirement, said NALC. To see more, go to: http://apwu.org/news/webart/2009/09-048-veradeadlines-090423.htm or www.nalc.org/news/latest/index.html#VER.

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Informed Investor: Congress Suspends Minimum Required Distribution Rules for 2009: Part II

The “Informed Investor” of April 27, 2009, discussed the impact of the Worker, Retiree and Employer Recovery Act of 2008 (WRERA) on traditional Individual Retirement Accounts (IRAs) and on qualified retirement plans, including 401(k), 403(b) and 457 retirement plans.

WRERA suspends required minimum distribution (RMD) payments during 2009 for both owners and beneficiaries of these plans and accounts. This week the column discusses the impact of WRERA on Thrift Savings Plan (TSP) participants age 70.5 and older who have retired from federal service, and on beneficiaries of deceased TSP participants.

Affected TSP participants and beneficiaries should be aware that WRERA does not affect 2008 RMDs. Retired federal employees with TSP accounts who became age 70.5 in 2008 were still required to make a withdrawal election before April 1, 2009. Also, TSP participants who are age 70.5 and older and who are currently receiving monthly payments cannot stop their payments. But the TSP offers the opportunity for these participants to reduce or modify their payments.

This week’s column focuses on the RMD rules as they apply to the TSP for three groups: (1) annuitants age 70.5 or older during 2008 who have been receiving monthly payments; (2) annuitants who become age 70.5 during 2009; and (3) beneficiaries of deceased TSP participants who are required to make withdrawals from their inherited TSP accounts.

To review briefly, TSP participants who retire or separate from federal service prior to age 70.5 are not required to withdraw any monies from their TSP accounts until they reach age 70.5 . TSP participants who retire or separate from federal service after age 70.5 are required to start withdrawing monies from their accounts no later than April 1 following the year they separate from federal service.

If a participant is receiving a series of monthly payments from his or her account at the time the participant is age 70.5, the monthly payments will be used to satisfy the RMD. If the total amount of the monthly payment does not satisfy the RMD requirement, the TSP will issue in December a supplemental payment for any remaining required withdrawal.

Participants who are 70.5 or older during 2008, separated from federal service, and are already receiving monthly payments, must continue to receive these payments. As previously mentioned, during 2009 the TSP is giving TSP owners two options in regard to the amounts of these monthly payments:

• Changing a monthly payment based on life expectancy to a fixed dollar amount that is not less than $25 per month. Participants who make this change for 2009 will be permitted to revert to monthly payments based on life expectancy starting in January 2010.
• Changing a fixed monthly payment amount to a smaller amount of no less than $25 per month—but only for 2009. Those who choose his option can revert to a higher payment amount for 2010 by making that election before Dec. 15, 2009.

To make a change in monthly payments, a participant must fill out form TSP-73, Change in Monthly Payments. In choosing a different monthly payment for 2009, a participant should write “2009 RMD Special Process” in the left-hand margin in Section II of the form.

Participants who became age 70.5 during 2008 already should have received their 2008 RMD. The TSP notified these individuals that they are not required to make a RMD for 2009. If they request monthly payments, the RMD rules will apply beginning in January 2010.

The TSP requires participants who become age 70.5 during 2009 to make a withdrawal election by April 1, 2010. Before the passage of WRERA, the IRS would have required these individuals to satisfy their first-year RMD by April 1, 2010, as well. If these participants request monthly payments, they will be subject to the 2010 RMD rules beginning in 2010.

Spousal and non-spousal beneficiaries of TSP accounts have several options with respect to their inherited TSP accounts. A TSP beneficiary may request a full lump-sum payment that is penalty-free, but subject to federal and in many cases state income taxes in the year of receipt. A spousal beneficiary can request a rollover or transfer to the spouse’s traditional IRA. A non-spousal beneficiary can transfer the inherited TSP account to an inherited IRA.

WRERA may affect TSP beneficiaries who have chosen to transfer their inherited TSP accounts to traditional IRAs. Non-spousal beneficiaries of TSP accounts can choose to have their inherited TSP accounts transferred to an inherited IRA. They must start withdrawing funds from their inherited IRAs starting the year after the monies are transferred. They can withdraw the monies over their remaining life expectancy, but they must make a withdrawal each year, except during 2009.

Additional information concerning the suspension of RMDs for TSP participants may be obtained from the TSP Web site at www.tsp.gov.

Tax and Legal Advice Disclaimer: Please note that neither Multi-Financial Securities Corporation nor any of its agents or representatives give legal or tax advice. For complete details, readers should consult with their tax advisor or attorney.

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Rulings Roundup: Labor Employee Loses Removal Appeal

James Vena, a Department of Labor employee, recently lost an appeal of his removal from his job. Vena, a GS-4 Office Automation Clerk with the agency, was alleged to have “used language and physical gestures against a customer that were insulting, offensive and intimidating,” according to official documents in the case. Managers subsequently issued a removal order, and Vena was fired.

Vena appealed by seeking arbitration under his collective bargaining agreement. At a hearing, he offered argument and evidence, but the arbitrator found that the agency had “proved the charge.” The arbitrator further concluded that “the penalty was reasonable, and the appellant failed to prove his affirmative defenses of harmful procedural error and disability discrimination.”

The appellant took his case next to the Merit Systems Protection Board (MSPB). He argued that the arbitrator had “erroneously” found that he had conducted himself inappropriately. He also counter-charged that the agency had violated his procedural rights—and had discriminated against him for a partial disability, bipolar disorder.

MSPB has jurisdiction over arbitration decisions under some circumstances, as outlined in 5 U.S.C. § 7121(d). Specifically, the appellant must allege discrimination by an employer and the arbitrator must already have issued a final decision in the case. (The board cited a key precedent decision, Hardison v. Department of the Treasury (1982) in making this point.)

The board noted that it must pay “a greater deference” to an arbitrator’s decision than to an initial decision made by an MSPB administrative judge (Weaver v. Social Security Administration, 2003). Here, the board stated that it must strictly defer to the arbitrator unless it finds “legal error” in the arbitrator’s decision.

Vena told the board that the agency failed to prove its charges against him—after all, only he and his accuser were in the room and “witnessed the events” outlined in the charges, he said.

But on this point, MSPB rejected Vena’s claim, noting that two additional witnesses stated that Vena “yelled insults” at the person in question, and also “made boxing motions,” adding to the misconduct. Accordingly, on this point, MSPB found the arbitrator made “no legal error” in the case.

Vena also alleged that the arbitrator made a “harmful error” in procedure by failing to take into account that supervisors at the agency had brought up alleged incidents from the past to buttress their case against him in the present—and that in considering those past incidents, the agency had failed to take into account his bipolar disorder or note the disorder as a “mitigating factor.”

But here, too, MSPB found that the arbitrator had considered this potential legal problem in the agency’s prior management of Vena, yet, MSPB found, the arbitrator here had properly weighed matters and concluded that “removal was a reasonable penalty for the proven misconduct.”

Finally, with respect to Vena’s disability, the arbitrator concluded that the appellant “did not prove that he was disabled in any major life activity” by his disorder—and, besides, no federal law immunizes any federal employee from punishment due to misconduct at work. The board found no legal fault with the arbitrator’s findings.

MSPB sustained the arbitrator’s judgment, and Vena’s removal stands.

(Vena v. Department of Labor, MSPB CB-7121-08-0024-V-1, 4/23/09)

U.S. Marshal Wins Removal Appeal

Eric Smart, who served as a Deputy U.S. Marshal, won a recent appeal of his removal from that position.

Smart had applied for and received a career appointment to the job on June 9, 1991, contingent upon completing a one-year probation.

But in August 1991, Smart was terminated. The agency removed him due to alleged “unacceptable performance and conduct,” according to official documents in the case.

The letter advising Smart that he had been removed also contained information on his limited Merit Systems Protection Board (MSPB) appeal rights as a probationary employee, and on his right to appeal under federal equal employment opportunity (EEO) laws.

In early 1992, Smart filed an EEO complaint—stating he had suffered race discrimination. But two years later, the Equal Employment Opportunity Commission found against Smart, judging that the appellant failed to prove his discrimination claim.

The appellant later charged that he should not have been treated by any agency as a probationary federal employee, because he had worked for more than 13 years straight as an employee for the IRS.

In 2008, Smart filed a claim on this point with the MSPB. But the board determined that there was incomplete documentation of Smart’s claim of 13 years of IRS employment.

However the board also noted that, at the time of his earlier appeal, “the appellant did not receive explicit information from the administrative judge as to how he could show that his prior service can be ‘tacked’ to his probationary period”—a move that could have resulted in his winning full competitive service rights before MSPB and a possible victory in his removal appeal.

The board accordingly vacated the earlier decision, and remanded Smart’s case to an administrative judge for readjudication.

(Smart v. Department of Justice, MSPB Docket No. SF-315H-08-0709-I-1, 4/21/09)

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You Be The Judge: Did DoD Auditor-Trainee Suffer Discrimination?

I thought that America was the land of the free—for everyone,” said Paul Agu,* a naturalized U.S. citizen employed as an auditor-trainee at DoD. “I thought discrimination in government, at least, was well on its way to extinction.

“I found out otherwise, first-hand,” he continued. “My managers mistreated me due to my race and home nationality—and, because I speak English with an accent, they ordered English lessons as punishment. Then they fired me for refusing their insulting demands, and I am appealing!”

“Mr. Agu is wrong to think that his removal was a result of discrimination,” Jim Stephens, a lawyer for DoD said. “His managers simply recognized a need to improve this employee’s English to do his job. He refused to cooperate in this and other areas, and naturally they had let him go.”

FACTS: In May 2000, Nigerian-born Paul Agu was hired on a probationary basis as an Auditor-Trainee for DoD’s Defense Contract Audit Agency (DCAA) in Oklahoma City, Okla.

The Oklahoma City location was a suboffice of the larger Richardson, Texas-based DCAA facility. Some time into Agu’s employment with the agency, the chief of the Richardson office met with him. At that time, the chief “expressed concern about [Agu’s] accent and suggested that he take an English class,” according to official documents.

DCAA’s policy was, according to the documents, “to encourage managers to offer an English class to employees for whom English was a second language.”

In response to the chief’s concerns, Agu disputed the policy’s applicability to his case, and further conveyed that “the failure of the others to understand his accent resulted from their lack of exposure to people with accents, and that they would get used to it.”

Some time later, in September 2000, Agu’s two closest managers interviewed him, at which time the appellant stated that he had not taken the English class.

At that point, according to Agu, the two managers “became hostile.” One of the two, according to Agu, from that meeting forward only provided him with “vague” work orders—and furthermore “refused to clarify them.”

In November 2000, Agu talked about Nigeria with an outside contractor in the presence of his managers, who in turn criticized Agu for holding the discussion. When Agu later requested a slot at a “training seminar,” managers instead gave it to a “white, native-born” American woman instead.

Over the course of his tenure, managers documented his allegedly “poor work” in A-3 standard forms—while they failed to document at all the work of three other employees in the office.

On Feb. 26, 2001, in light of his work record and reported English problems, DCAA removed Agu from his job. Specific charges include: “frequent failure to follow up on or correct errors noted by his supervisors; too many repetitive errors in reports and working papers; failure to follow instructions of supervisors; and excessive use of the telephone for personal calls and use of a government computer for nongovernment work.”

In August 2001, Agu filed a discrimination lawsuit in federal district court—under Title VII of the Civil Rights Act of 1964—alleging that he was mistreated and fired due to race and origin, and, in a related claim, that he had suffered on-the-job retaliation for complaining about the discrimination.

DCAA asked for summary judgment to deny Agu both of his claims. The court granted the agency summary judgment on the retaliation charge—but would not do so on the discrimination claim.

Agu offered testimony from another black employee who elected not to pursue similar claims. Agu also requested that the court issue an instruction to the jury to permit its members “to infer discrimination [took place] from comments made by [managers] about his accent.” The court denied both requests—and the jury found against Agu on all issues.

Agu appealed both the retaliation and discrimination components of his case to the U.S. Court of Appeals for the 10th Circuit.

Was Agu unfairly discriminated against on the job?

DECISION: The court first examined Agu’s retaliation claim, made under 42 U.S.C. § 2000e. The court noted that Agu “bears the initial burden of establishing a prima facie case of retaliation.”

The court found that Agu established some elements of his case—but his case ultimately failed because, in essence, an employer cannot be found to have retaliated against a protected action unless the employer knew the employee had taken a protected action. That is to say, the court clarified, Agu may have believed he had taken such a “protected action”—refusing to take English because the agency’s request that he do so was discriminatory—but the agency did not see the managerial request in this way, and therefore in a legal sense could not have “retaliated.”

As for the excluded testimony, the court found that Agu failed to establish the basis of his witness’s testimony—or even that the witness possessed any of the legally required “personal knowledge” of his case.

Agu’s removal stands.

(U.S. Court of Appeals for the 10th Circuit, Docket No. 07-6173, 3/17/09)

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*Names and dialogue are fictitious, but details are based on a real case.

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Maxine Lunn, General Manager
Phil Piemonte, Managing Editor
Nathan Abse, Staff Writer
Frank Klimko, Contributing Writer
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