Spencer, et al., v. U.S. Department of Agriculture
CONTENTS:
FOREST SERVICE LOCAL LEVEL POLICY AND PRACTICE OF DISCRIMINATION
The Forest Service policy and practice of discrimination presents a dilemma and a challenge. Such discrimination has been obvious for decades in that African American employees are severely under represented, are clustered into non-mission type positions, and suffer from a high attrition rate. African American representation in the Forest Service is much less than in most of the other agencies within the USDA, and far below the national civil service average, and African American attrition is much higher than the rest of the workforce. Yet, the issue has never been rationally dealt with by Forest Service leadership, Civil Rights Directors, and Personnel Officers. Why is that? In 1995 Mr. Bob Bergland, former Secretary of Agriculture, stated on the PBS Frontline program that "The Forest Service is impenetrable. You can't get inside it". Mr. Bergland is right --- from the outside, understanding the Forest Service's policies and barriers to EEO are virtually impossible. Thus, it has been impossible for our elected representatives to be aware of the situation and therefore could not take any action to remedy the issue. It is also possible that Forest Service leadership is aware of the real problem, but only initiate "pretend" remedies, i.e, the 1990 "Towards a Multicultural Workforce", which virtually excluded African Americans.
What is the issue: The primary issue is the policy and practice that impacts EEO at the local level, Ranger Districts and Forest Supervisor's offices. These local levels have full authority, decentralization, autonomy, and absolute subjective authority to hire, promote, train, discipline, and terminate employees. This policy was established decades ago with a primary focus on natural resource decisions. Such a policy makes sense for natural resource decisions. Unfortunately, the policy includes administrative authority that allows managers to make subjective decisions that discriminate without being held accountable by the Equal Employment Opportunity Commission (EEOC) or the Washington, D.C. headquarters. Local managers can use administrative gimmicks such as budget to prevent hiring, promotion, training, and other factors that minorities need. They also use their subjective authority to terminate or force African Americans out of the agency. That is why we have such a high attrition rate for African Americans at the local level. Neither the EEOC nor the Forest Service headquarters have monitored, tracked, or provided oversight on actions at the local level. That has to be changed. If not, African Americans will never reach equitable representation in the Forest Service.
Forest Service officials have been acutely aware of the local level subjective authority from its inception almost one hundred years ago. An important question is: are the managers unaware of the discriminatory affects of having local level subjective authority without accountability regarding equal opportunity employment or, do they support the condition in order to perpetuate discrimination against African Americans?
The 2005 EEOC MD-715 report that the Forest Service submitted to the EEOC makes it obvious that the headquarters has absolutely no monitoring, tracking, and oversight at the local level. In the Forest Service MD-715 Report, the Forest Service showed that there are severe problems regarding local level authority and headquarters oversight. Yet, the Forest Service did not present any plan to fix the problem, and the EEOC did not follow up on the problem. Nor did the EEOC place any sanctions on the USDA for it's failure to monitor hold agency officials accountable.
What is the source of the problem? The source is due to the local offices serving the local communities and, in the western states, most of those communities consist of predominantly European Americans who continue to carry prejudices towards minorities. Thus, the local Forest Service managers tend to hire and promote their friends and relatives, which pleases the local community but categorically excludes minority persons. As long as the Forest Service caters to the local community, there is no way it can achieve diversity.
In the late 1980's the Forest Service launched a multi-million dollar national program called "Towards a Multicultural Workforce". The program was fully implemented around 1991, and was carried out through recent years. Even though the program purported great advances in achieving diversity, the fact is it was a total failure and African American diversity did not improve one iota. Why? It is simple: if the Forest Service caters to communities that are not interested in diversity, or are against diversity, then the Forest Service is also not interested in diversity or are against diversity. Thus, there is no way the Forest Service will achieve diversity without strong, effective, and reasonable class complaint settlement agreements.
Delegating subjective authority to the local level of a national federal agency clearly violated the Constitution of the United States and works against the intents of the Civil Rights Act of 1964. Additionally, it deprives minorities of the opportunity to benefit from the national public lands the Forest Service manages. It also contributes to preventing minorities the opportunity to work in specific geographic locations in the United States. The delegated authority also contradicts Executive Order 11478's requirement to "establish and maintain an affirmative program of EEO for all civilian employees". Making matters worse is the fact that the EEOC actually collaborates with the agency's anti-EEO policies.
Local level authority perpetuates the legacy of historical discrimination against African Americans in the United States. Just recently, President Bush, while speaking about the New Orleans disaster, made it clear that in this country we have historical discrimination that continues today, has cut off generations from opportunities in America, and must be dealt with and remedied. He stated that "That poverty has roots in the history of racial discrimination, which cut off generations from the opportunity of America. We have a duty to confront this poverty with bold action". Click here for the excerpt of his speech. The entire speech is available on the National Public Radio web site http://www.npr.org/templates/story/story.php?storyId=4850116.
The Lead Agent of Spencer I has also thoroughly informed Forest Service leadership about the historical legacy that establishes De Facto Segregation In Today's Forest Service.
There is no doubt that the Forest Service must remedy its local level discriminatory EEO mismanagement. All of the past programs, i.e., "Towards a Multicultural Workforce" have failed miserably. The problems of programs like that, plus the new programs under contract with the Kaleidoscope Group, LLC, is they do not understand the reality, depth, and severity of discrimination against African Americans at the local level as compared to White Women and various "ethnic" and "cultural Groups". The Lead Class Agent has thoroughly informed the Forest Service leadership and the Kaleidoscope company about their exclusion of African Americans by presenting an in-depth Written Statement analyzing the Forest Service diversity programs and the exclusion of African Americans.
The only way to deal with this problem is through a Class Complaint Settlement agreement that has strong requirements, oversight, and special features to deal with the problems, i.e., monitoring hiring and other EEO factors, recruitment outside the local area, special cultural training for African Americans prior to their entering a hostile local community or Forest Service office, intense oversight from the agency and the Class, etc,. etc.
AN EXAMPLE OF LOCAL LEVEL DISCRIMINATION AND PERSPECTIVE ON DIVERSITY
The Stanislaus National Forest, which caters to the local community and the city of Sonora, California, is a typical example of how the Forest Service catering to local communities sustains the under representation of minorities.
During the week of April 18, 2004, the local newspaper published three articles that opposing the Forest Service reaching out to recruit Hispanic employees. The worst article was very demeaning and, at the end of the article the newspaper threw in the words "Let me just say that federal law prohibits us for discriminating against any queen candidate for race, national origin, age or odor".
The articles are related to the local community discrimination. The articles are: demeaning local community newspaper article related to Hispanic settlement agreement; April 19, 2004 journalist report; and on the same day as the Senorita Grosita article, April 21, 2004, and Opinion article that attacks the Forest Service for its attempt to comply with the Brionez class settlement agreement. All of the articles were publised during the same week.
BTW: In late August the Lead Class Agent of the Spencer class visited Sonora California and found the confederate flag prominently displayed on the main street.
AFRICAN AMERICAN STRATEGY GROUP (AASG) SUPPORT FOR REPRESENTATION IN THE FOREST SERVICE
The African American Strategy Group )AASG) strongly supports improving the state and condition of African Americans in the Forest Service. The AASG has existed for many years in the Forest Service. It is a Forest Service authorized activity that is authorized to communicate with all employees, analyze and make recommendations regarding the state and condition of African Americans in the Forest Service, and provide in-depth advice to the leaders of the Forest Service on how to remedy the barriers that African Americans are faced with in the Forest Service.
During the previous year and the current year, the AASG has been doing exactly what its mission is. The AASG's August 6, 2004 Position Statement makes it very clear that the Forest Service is failing regarding representation of African Americans.
The current FY-2006 Assessment of Under representation of African American Employee’s in the Forest Service makes it clear that the Forest Service must stop fooling around with fluffy programs that are not effective. Strong commitments and leadership is required, and the Forest Service must also enlist the assistance of the AASG, the few African American staff and line officers in the Forest Service with mission oriented Ranger District and Forest Supervisor's office experience, professional outside resources, among other resources.
It is now up to the Forest Service leadership to act on the AASG's recommendations.
AN HONORABLE OPPORTUNITY EXISTS FOR FOREST SERVICE LEADERS
It is now clear that the discriminatory policy and practice of delegating subjective authority to ground level units is the primary reason for African American under representation and attrition in the Forest Service. This new knowledge provides Forest Service leaders, from the Ranger Districts to the Chief in Washington, D.C. headquarters, and to Mark Rey the Undersecretary for Natural Resources, with an opportunity to take action and remedy the historical legacy that has prevented African American representation in the Forest Service; it will also create an opportunity for African Americans to benefit from their public lands that the Forest Service manages. This will fit with what President Bush recently said about the historical affects of discrimination. It will be a noble and honorable thing to do. It will fit perfectly with what our country is supposed to stand for. The Class sincerely hopes the Forest Service will take this opportunity. Thank you.
FOREST SERVICE DIVERSITY PROGRAM CONTRACT WITH KALEIDOSCOPE CORPORATION
In 2004 the Forest Service entered into a contract with the Kaleidoscope, LLP organization. At that time Ms. Barbara Weber, Associate Deputy Chief for Research & Development, was the primary coordinator and manager of the contract. Recently Ms. Weber retired from the Forest Service and is now employed by the Kaleidoscope, LLP organization. On September 19, 2005, Ms. Sally Collins, Associate Chief, distributed a Kaleidoscope Letter and Questionaire along with sample answers to Regional Foresters, Station Directors, Area Director, IITF Director, and WO Staff.
NOTE: it was not sent to Forest Supervisor's and District Ranger offices (local level management). That means the persons responding to the questionnaire most likely will not have experience or understanding of the local area management or local communities.Some of the example in the questionnaire, suggests and, in effect, recommends that the Forest Service "Establish partnerships with local [emphasis added] minority organizations". What minority organizations? In most local communities, especially in the western states where most of the Forest Service action takes place, there a very few if any minority organizations in the local communities where there are Ranger Districts and Forest Supervisor offices. The questionnaire illustrative example recommends that the Forest Service "Meet with local community leaders to encourage acceptance of diverse employees." Ha! Most local communities, especially in the western states where most of the Forest Service action is, have absolutely no interest in diversity other than for White Women and their friends and relatives.
The Kaleidoscope, LLP approach to diversity, similar to the farcical "Towards a Multicultural Workforce" does not take into consideration the local communities long standing discriminatory attitude towards African Americans and how African Americans are affected much more severely than other groups. Thus, the Kaleidoscope, LLP diversity contract will accomplish nothing regarding the state and condition of African Americans in the Forest Service.
The Kaleidoscope, LLP and the Forest Service leadership have been thoroughly informed about the specific factors that must be implemented to remedy the historical and de facto segregation of African Americans in the Forest Service. It makes one wonder if the leadership just do not understand or are they deliberately perpetuating discrimination against African Americans.
On the other hand, the Kaleidoscope, LLP is a very modern and well staffed organization. It is possible, if Forest Service leadership will do the right thing, the Kaleidoscope, LLP could provide some excellent assistance in the Spencer I class complaint settlement agreement, i.e., they could do a study regarding orientation of African Americans to the wild west local community culture and behavior so African Americans will be prepared to enter such local communities without going into culture shock. It would also assist in lowering the high attrition rate of African Americans. Coming out of that study would be the opportunity for social professionals and persons with local level community experience to be trained and then provide orientation and training to African Americans. Additionally, the African American Strategy Group (AASG) along with African American staff and line officers who have District and Forest Supervior's office experience can help with the study and implementatation of the training. The CIA, Peace Corps, and other federal agencies provide such training to their employees when they are going to enter a different cultural environment. The Forest Service must do that for for the overall good of the Forest Service.
DISMISSAL OF SPENCER I CLASS COMPLAINT
JULY 19, 2005 EEOC INITIAL DISMISSAL OF SPENCER I
On July 19, 2005 the EEOC Administrative Judge informed the parties that the EEOC decision is to dismiss the Spencer I class, including the part that is focused on the USDA-Forest Service. Click here to view the July 19, 2005 EEOC Dismissal Decision.
The EEOC Document makes it clear that "[a]lthough complainant alleges a discriminatory pattern and practice of facially neutral policies, the record contains no evidence that a centralized decision-making authority effected the claimed actions or that the same policies were applied by numerous management officials."
The agency made it clear in their briefs and in their MD-715 report to EEOC that they had a policy and practice of giving full subjective authority to the local levels (Ranger Districts and Forest Supervisor's offices) without appropriate monitoring, reporting, or accountability in regards to EEO and representation. . Thus, the discriminatory policy and practice that has defeated African American representation in the Forest Service for the last one hundred years is very CLEAR. The Forest Service revealed it's discriminatory pattern and practice through affidavits and briefs submitted to the EEOC in opposition to the Spencer I and
What is the discriminatory policy and practice? It's the delegation of subjective authority to local level managers whose action in personnel affairs and equal employment opportunity are never appropriately monitored, tracked, or measured by the Forest Service. Thus, the local level officials have been free for many decades to subjectively manipulate administrative processes, budget, and other means to discriminate against African Americans. The "local" is the place where almost all high level agency officials start their mission oriented careers. Additionally, the great majority of Forest Service employees are employed at Ranger Districts and Forest Supervisor's offices.
This issue is comprehensively covered above under the subject of "FOREST SERVICE LOCAL LEVEL POLICY AND PRACTICE OF DISCRIMINATION "
AUGUST 9, 2005 OFFICIAL EEOC DISMISSAL ORDER FOR SPENCER I
On August 9, 2005 the EEOC issued its official order dismissing the Spencer I class complaint, including the part that is focused on the Forest Service. Click here to view the August 9, 2005 EEOC Dismissal Order.
NOTE: Documents submitted by the Class and the Agency are not included in the machine scanned order. Those documents amount to almost 300 pages, many of which are faded, blurred, and cannot be machine scanned.
CORRELATION OF SPENCER I DISMISSAL WITH DISMISSAL OF BLACK CLASS COMPLAINT OF 1985
The Supervisory Administrative Judge that supervises and controls the EEOC office that dismissed the Spencer I class is Mr. Thomas Cosentino. Interestingly, Mr. Cosentino is the same EEOC Administrative Judge that dismissed the 1985 Black Class complaint against the Forest Service. Back in 1985 the USDA clearly admitted that the Forest Service violated it's settlement agreement regarding the 1985 Black Class complaint. In addition, the EEOC administrative judge, Mr. Cosentino, in effect said the Forest Service has its head where the sun does not shine when it comes to dealing with the concillatory intents of the Civil Rights Act of 1964. Yet, Cosentino went ahead and dismissed the 1985 Black Class complaint. The Forest Service claimed that the 1985 Black Class complaint was in conflict with the Bernadi class complaint. The Bernardi class was essentially for White Women and spouses of Forest Service officials. There really was no conflict, and there was no logical reason for Cosentino to dismiss the 1985 Black Class complaint. A detail history of the 1985 Black Class complaint is available at http://www.xusda.com/ Class_1985_Body.html.
If you wish more information about that 1985 Black Class complaint, please contact the Lead Agent of Spencer I, II, and III at spencer@xusda.com
USDA FINAL AGENCY DECISION (FAD)
On October 3, 2005 the Lead Agent of Spencer I received the agency's Final Agency Decision (FAD). The agency accepted all of the EEOC's decisions on all issues. The Class has 30 days from receipt of the FAD to file an appeal with the EEOC-Office of Federal Operations (EEOC-OFO). Click here for the Final Agency Decision (FAD).
CLASS OPTIONS REGARDING DISMISSAL OF SPENCER I
With the dismissal of Spencer I, many options exist. For the Forest Service portion of the class, the options are extremely favorable and clearly have the advantage of achieving a strong settlement that will remedy the under representation and attrition of African Americans in the Forest Service.
Some of the options are:
NOTE: Dropping all of the issues is an option, but that will not happen! The Forest Service focus will expand and be dealt with through increased force and strength from the Class.
EEOC PROCESS STANDARDS --- AGENCY/CLASS POTENTIAL RESPONSES
Following are the processes and time frames for processing the Official EEOC Decision Order:
DISPARATE HOLDING OF AFRICAN AMERICAN INDIVIDUAL COMPLAINTS IN ABEYANCE NOT REVIEWED BY THE EEOC
The EEOC is required by regulations to review and make a decision on process issues where the complainant and the agency are in disagreement. In Spencer I the significant process issue was the agency holding African American individual EEO complaints in abeyance while Spencer I was only a potential uncertified class. With other class complaints, the agency did not hold class members complaints in abeyance until after the class was certified.
The agency did request an opinion for an EEOC "attorney of the day". However, the agency sand-bagged the EEOC attorney by simply asking if they should hold cases in abeyance without ever mentioning the factors of when to hold them in abeyance and the fact that they had treated the Spencer I class different from other classes. That sand-bagging was done by the USDA Office of Civil Rights. The Spencer class was able to acquire the agency letter through a Freedom of Information Request.
The Lead Agent of Spencer I made it clear to the agency that the abeyance must be addressed. The agency did submit the issue to the EEOC. However, the EEOC did not analyze or make a decision of that issue. This raises a major problem.
Spencer I non-agent members complaints were held in abeyance almost immediately after being filed and before any hearing or certification took place for the Spencer I class. Other classes that were filed before and after Spencer were not treated that way.
The Sedillo class (Hispanic class) was filed in 1998; Spencer I was filed in 1999; the USDA held Spencer I complaints in abeyance beginning on July 8, 1999 --- only two months after Spencer I was filed and prior to any hearing or certification. USDA did not hold any Sedillo class members individual complaint in abeyance until AFTER the Sedillo class was certified on August 7, 2002. See Letter from Thomas Mills, Deputy Chief for Business Operations.
USDA did the same thing with the Basu class (Asian class), which was filed AFTER Spencer I, and did not hold Basu non-agent class member complaints in abeyance until AFTER the Basu class was certified. Sedillo, Basu, and other classes were never impacted by abeyance the way the USDA impacted Spencer I.In addition to USDA's disparate treatment of African Americans in holding their complaints in abeyance, the USDA moved ahead and inconsistently settled or disposition almost all the class agents and class members individual complaints. Yet, for certain individuals they stonewalled them and refused to deal with them. This inconsistency and disparity is a very shameful USDA attribute!
Documents relevant to this issue are:
This issue also falls under the Spencer II class complaint. See Spencer II Disparate Application of Alternative Resolution (ADR)class complaint.
Email suggestions, comments, criticism, questions, etc., to spencer@xusda.com.
For further information, see archives on the Class Complaint WebsiteAllen P. Spencer
Lead Agent, USDA African American Spencer Class Complaints
Email: spencer@xusda.com
Class Complaint Web Site: http://www.xusda.com