TESTIMONY OF ALLEN P. SPENCER
Lead Agent for Spencer, et al., v. Ann Veneman
For the Record of the September 25, 2002, U.S. House Committee Hearing: Department Operations, Oversight, Nutrition and Forestry
State of California, County of Tuolumne
I, Allen Patrick Spencer, age 64, race African American, make this statement freely and voluntarily for the record of the September 25, 2002 United States House Committee on Agriculture Hearing. I understand this statement is not confidential and may be shown to interested parties. I have been employed by the U. S. Department of Agriculture since 1976. I was a participant in the 1987 Black Class Complaint against the Department's Forest Service. I am currently the Lead Agent for the Spencer et al. v. Veneman, an employee class complaint. My address is 17885 Blue Bell East, Sonora, California 95370, email spencer@xusda.com
I hereby inform the Committee that clear and evident racial prejudice, discrimination, hostility, and reprisals against African Americans are rampant in the Department of Agriculture. It has caused many complaints by farmers, ranchers, and the employees of the Department of agriculture. This discrimination is universal: it exists in every agency of the Department and in every state in our nation. When discrimination against African Americans occur, and when African Americans file individual complaints, they are met with extreme resistance as they raise their complaints up through the bureaucratic organizational levels of the Department. Additionally, procedures, criteria, and administrative barriers developed by the discriminators over many decades make it virtually impossible for the complainant to "prove" their case. It is virtually impossible because the criteria of "proof" were designed by the discriminators and for the discriminators. In an attempt to assist these employees in their quest for justice, the Spencer, et al., v. Ann Veneman employee class complaint was filed on May 13, 1999.
The Department immediately used extreme and extraordinary prejudice against Spencer. Within two months after Spencer was filed and, while Spencer was still in the pre certification stage of the administrative process, the Department's Office of General Counsel instructed all agency Civil Rights officials to hold in abeyance all African American complaints that are similar to the basis and issues in Spencer. The Department held up approximately 200 African American individual complaints. This was a terrible impact to African American employees, most trying to survive in an hostile environment, having been bypassed in promotion, received unfair disciplinary punishment, etc. When African Americans exercise their citizen's right to file a complaint, the Department holds their complaints in abeyance --- stonewalled. Most egregious of the Departments behavior is: the Department had never done such a thing to other employee group's class complaints in the pre-certification stage of the administrative process, neither before or after Spencer. The Department's stonewalling and holding in abeyance the African American individual complaints is a clear case of disparate treatment of African Americans.
The Department's holding approximately 200 complaints in abeyance proved the commonality, numerosity, and typicality of Spencer for certification. But, the Department continued to excessively and deliberately pour resources into extreme efforts to block Spencer from certification, and they partially succeeded by forcing Spencer into appeal. In the meantime, other employee group's class complaints were certified, e.g., Sedillo v. Veneman and Basu v. Veneman. The excessive dumping of taxpayer money into preventing Spencer from being certified is very telling of where the Office of General Counsel and the Office of Civil Rights have their head
It is true the Office of General Counsel consists of lawyers, and lawyers defend their clients. However, as federal civil servants lawyers have a higher duty --- to advise the Secretary of Agriculture on legal matters where the outcome is fair and equitable. The Office of General Counsel does the opposite of what is expected of civil servants in a compassionate and democratic nation. The Office of General Counsel is, figuratively, a mob of assassins and mercenaries.
The Department's Office of Civil Rights works closely with the Office of General Counsel in opposing employee complaints. Such a team supports vindictiveness, effectively prevents justice and fairness and, as shown above, they focus their vindictiveness on African Americans. This has been shown in the Office of Civil Rights picking and choosing, at their whim and will, whose complaint they will process, who they will discuss settlement with, and with whom they will not.
Recently Mr. Tom Beaumont, of the Office of Civil Rights, explained that the Department can and will choose who they work with at their whim and will. He showed that the Department would rather force a complainant into litigation rather than engage in discussions and Alternative Dispute Resolution. He has done that in spite of the Equal Employment Opportunity's strong encouragement that agencies discuss settlement at all stages of a complaint. It is the Department's choice to not discuss settlement. Resistance to discussions shows the unacceptable Department’s arrogance. Currently Spencer is on appeal at the Equal Employment Opportunity Commission, and has been sitting there for over two years. In the meantime, the Department is holding up African American complaints and refuses to discuss settlement, even though the Equal Employment Opportunity Commission encourages agencies to discuss settlement. Of course, the Department has entered into settlement discussions with non African American class complaints, while it continues to stonewall and refuses to discuss settlement with Spencer and the African American employees.
The Spencer class is not an adversary. Spencer is a reasonable and feasible way to remedy the Department's discrimination against African Americans. In fact, Spencer has offered constructive ways to cure the discrimination, i.e., a Memorandum of Understanding with the Department and the USDA Coalition of Minority Employees for a forensic study of the state and condition of African American employment in the Department. The Department always refuses to consider everything that would lead to eradication of discrimination and remedies for African Americans.
It is obvious that racial prejudice and the state and conditions of African Americans in the Department are due to current and historical discrimination. As a Cabinet agency, the Department is obliged to provide remedies and not let historical prejudice continue. The legacy of slavery, corrupt Reconstruction measures, Plessy v. Ferguson, Jim Crow, and other discriminatory factors, caused the present situation: African Americans are at lower grades, clustered into nonfunctional non mission support positions, are geographically clustered in Washington, D.C. and, also clustered in other metropolitan areas. What this boils down to is manifest exclusion, absence, and disparity of African American employees in positions, grades, and locations.
Data from the Office of Personnel Management indicate African Americans are not proportionately benefiting from the public lands. Using the Department's Natural Resource mission area, which is the largest mission area, as an example, a map of the public lands in the United States shows the great majority of public lands are in the west. Unfortunately, due to historical and current discrimination, the demographic map of the United States shows that the vast majority of citizens living near the public lands are disproportionately White citizens and White employees of the Department. Oftentimes the White employees in those areas behave as if they have an inherited aristocratic right to exclude African Americans from benefiting from public lands. It is on those public lands that an employee can get the mission oriented experience that is needed to progress into higher positions. Department offices in those areas are a discriminatory roadblock to African American’s advancement and civic influence on the mission areas of the Department.
The reason for the disparity is clear: The legacy of slavery, corruption during the reconstruction period, legislative actions, Jim Crow rules, and Plessy v. Ferguson prevented African Americans from situating in proximity of the public lands. It was not just a matter of getting there --- the barrier was and still is a matter of White dominance and racial discrimination. Additionally, equal protection was not afforded to African Americans. The geographic and occupational clustering, which equates to "exclusion" of racial groups is a serious barrier to African American's right to "…life, liberty, and the pursuit of happiness". It also poses future issues and impacts that could adversely impact our democratic nation. We must remedy this situation before it is to late.
Even though the USDA Coalition of Minority Employees and the Lead Agent of Spencer has offered USDA reasonable means for resolving this condition, USDA has always refused to accept those offers. The Coalition and Spencer has offered recruiting and retention plans. Most important was the offer of a Memorandum of Understanding that would accomplish a sound forensic economic and statistical analysis of the state and condition of African Americans in USDA. The problems are severe, but the Department will not even discuss them. It is no wonder there has been so many complaints.
The Department has shown obvious discriminatory and desperate treatment of African Americans: both farmers and employees. The only answer to the discrimination in the Department, along with reparations, is to conduct the suggested forensic analysis. The analysis must also examine the organizational structure of the Department, because the structure allows discrimination to take place without accountability. Over the decades racially prejudiced officials have developed shields to protect them from being held accountable for their discrimination. This protection is rooted in the highly complex organizational structure and delegation of authorities in the Department.
The Department of Agriculture is a large and highly decentralized organization that has delegated subjective authorities to all levels of the Department. Such subjective decisions impact the civil rights of employees and customers, especially farmers. The myriad rules, regulations, prejudicially constructed criteria, and procedures tend to support unfettered and abusive subjective decisions while protecting the officials from being held accountable for their underlying discriminatory motives. This system is further complicated by the multitude of organizational levels that make it virtually impossible to hold officials accountable. The Secretary, Assistant of Secretary, the pending appointment of an Assistant Secretary of Agriculture for Civil Right, Undersecretaries, the Chief's of various sub agencies, and state and regional management do not and cannot hold anybody accountable. Besides having no control, they typically do not know what goes on at various levels and agencies. When top-level officials attempt to examine the programs and internal affairs of the various agencies and organizational levels, they meet strong resistance that is difficult to overcome.
The Department can remedy and cure its entrenched and protected racial discrimination. It can be done by providing top-level officials with a means of revoking and redistributing the delegated subjective authorities. The immediate and practical means of curing the Department's discrimination against African Americans is to conduct the forensic statistical analysis that was recommended by Spencer and, the Department must come to the table for settlement discussions with Spencer, et al., v. Ann Veneman. I request that the Committee take action to implement these cures and remedies. It is incumbent upon all of us that we remedy the adverse impacts of current and historical discrimination against African Americans in the United States Department of Agriculture.