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Vets try to uphold
federal law
By Danielle Grossman
On-line Forty-Niner
The Vietnam era
veterans at Cal State Long Beach have been trying for eight
years to get the university to uphold a federal law that was
created in 1974.
Since 1993, the
veterans' battle has involved the president of the United
States, the U.S. secretary of labor, the governor of California,
the Department of Labor, the California Department of Veterans'
Affairs, the Office of Federal Contract Compliance Programs,
and many others.
After employee
layoffs in 1992 that seemed to target veterans, Raymond Renaud
wrote a letter to former President Clinton in 1993 regarding
the Vietnam Era Veterans' Readjustment Assistance Act of 1974,
otherwise known as VEVRAA. Renaud wanted to know more details
about the law, knowing it didn't exist at CSULB.
The president handed
the letter to the U.S. secretary of labor, who passed it along
to the Veterans Employment and Training Services, or VETS,
a division of the Department of Labor. The compliance of VEVRRA
did not fall under VETS. Further, VETS did not know whose
jurisdiction VEVRRA did fall under.
After much inquiry
and confusion, Renaud found that VEVRAA fell under the jurisdiction
of the Office of Federal Contract Compliance Programs, or
OFCCP.
Discrimination
complaint filed against CSULB
On Sept. 25, 1995,
Renaud filed a complaint of non-compliance against CSULB with
the OFCCP. The complaint was amended January 26, 1996, adding
21 veterans -- also campus employees -- to make it a class
action suit. It was also amended by the OFCCP, turning the
suit complaint from a non-compliance complaint into a discrimination
complaint.
Over a year after
the complaint was first filed on Oct. 25, 1996, the Notification
of Results of Investigation, or NORI, was issued. The NORI
listed the general complaint against the university, each
of the members of the class action and what their individual
complaints against the university were. It also stated that
five of the members had not self-identified with the university
as Vietnam era veterans, and therefore were ineligible for
any benefits. The findings of the NORI indicated that there
was "insufficient evidence to conclude that the contractor
has violated its obligation."
But, the veterans
knew that they had identified themselves as veterans with
CSULB. On Nov. 16, 1996, 12 veterans filed letters of appeals
-- included together with a cover letter written by Renaud
-- and sent them to the national Department of Labor office
in Washington, D.C.
It seemed to the
veterans that the OFCCP had relied upon the word of the university
instead of investigating thoroughly said John Whittaker, an
audio technician and discriminated veteran..
Walter H. Moore
Jr., another veteran and communicative disorders professor,
was able to obtain his personal file and found the questionnaire
that he filled out in 1979, from the personnel office at academic
affairs.
When a person is
hired by CSULB, they are issued a questionnaire. One of the
questions asks, "Are you a Vietnam Era Veteran?" Moore had
found that all five people had checked the box marked "yes."
"Dates of service" were also listed for all five people.
According to university
administration, once people identify as a veteran on the questionnaire,
they are transferred to another list, called the veterans
100 report, which is submitted to the government. However,
these five people were not transferred to this list.
"I think it was
a flaw in how we transcribed the information, " said Armando
Contreras, executive assistant to CSULB President Robert Maxson.
"We had to relook at how we did things."
Under the requirements
of VEVRAA, CSULB is obligated to issue an invitation to self-identify
that allows employees to identify as Vietnam era veterans,
allowing them benefits under the 1974 law. Whittaker wrote
a letter to Helene Haase, pacific regional director for the
OFCCP asking the difference between a self-identified veteran
and a veteran.
Haase replied a
week later, in a letter dated November 25, "Again, for your
information, the FOIA [Freedom of Information Act] does not
require this agency to provide answers to questions. The FOIA
only requires that we provide documents which may have relevance
to the questions. We therefore are not providing any answers
to your questions at this time."
According to her
letter, Haase legally had the right to refuse to answer Whittaker's
question, though she was supposed to provide him with helpful
documents. She did not.
Veterans take
action
A year after the
appeals were sent by the 12 veterans, on Nov. 4, 1997, Renaud
received a personal letter of rejection for the appeal from
the OFCCP. The other veterans were not mentioned in the letter,
nor did they receive any letters themselves.
Whittaker, unaware
that Renaud had received the rejection letter, wrote three
letters in 1998 to Congressman Steven Horn inquiring if the
appeals had been reviewed so that the case could be reopened.
During that time,
Renaud and Dave Nelson, a photographer for University Publications
and a discriminated veteran involved in the class action suit,
contacted Col. Joseph Smith, director of the Los Angeles Department
of Military and Veterans Affairs.
"My interest as
a veterans' advocate was to see that the law was being obeyed,"
Smith said.
A meeting was held
with Renaud, Nelson, Moore, Contreras, Barbara Franklin, interim
director of Equity and Diversity, and Smith in order to get
CSULB into compliance with VEVRAA. Two other meetings were
held, but, according to Moore, nothing resulted.
Smith also expressed
concern about the lack of activity from the meetings, despite
several suggestions he made to the university on more than
one occasion.
"It was difficult
to get them to take the initiative to do those things required
by the law," Smith said.
Before one of these
meetings, in May 1998, Franklin asked Gale S. Baker, university
counsel, Office of General Council, for a copy of CSULB's
obligations regarding VEVRAA. Baker responded to her inquiry
in a letter dated May 20, and provided Franklin with a copy
of the act, though by law, the office of Equity and Diversity
is required to have a copy of all obligations relating to
affirmative action programs available upon request.
Moore files
non-compliance complaint
On Oct. 12, 1998,
Moore, frustrated with the university's lack of compliance,
filed a non-compliance complaint -- separate from the original
discrimination complaint -- with the secretary of labor, against
the university.
"When we got back
the original NORI, it said that CSULB was in compliance,"
Moore said, "I said, 'that's nonsense.'"
Moore went through
the regulations and, in his non-compliance complaint, he cited
all the areas CSULB was not in compliance and provided evidence.
Moore later went on to request the help of a few representatives
from California and Alabama -- the state where Moore owns
a lot of land -- to put pressure on the OFCCP to open the
investigation.
The OFCCP regional
office did not receive the complaint until December 9. A meeting
was held Jan. 19, 1999 discussing the investigation of the
complaint. However, the OFCCP wrote in the NORI that the investigation
started February 19.
Veterans requested
that a neutral party be assigned to the case because of several
complaints against William Smitherman, Los Angeles district
office director, who supervised the original investigation
of discrimination. The investigation falsely stated that five
people were not Vietnam era veterans. Victor Martinez, district
director for the San Diego office, was named supervisor of
the investigation.
Appeals remanded
for investigation
On March 23, 1999,
Whittaker contacted the OFCCP, after Haase denied all three
of Whittaker's requests for copies of the appeals letters
filed three years previously, in November 1996.
Whittaker was transferred
to Carla Johnson, chief enforcement of OFCCP. Johnson found
out and informed him that the appeal was denied because the
national office sent only Renaud's cover letter to the district
office in Los Angeles, therefore the appeal was denied based
on the cover letter and not the actual 12 appeals. She told
him that the actual appeals could not be located, however.
In June, three
months after Johnson informed Whittaker of the mistake, the
OFCCP said that they had found several or more appeals at
the national office.
On July 5, 1999,
the appeals were remanded for investigation to Haase: the
same person who had denied requests for the documents and
refused to answer any questions to Whittaker regarding how
to get them.
"She was totally
incompetent, in my opinion," Moore said. "It's our view that
she obstructed justice."
In August, Whittaker wrote letters requesting an investigation
against Haase and also requesting that the investigation be
transferred to another regional office. On Aug. 20, 1999,
12 veterans sent a letter to Haase demanding her to hand over
the case to someone else and accusing her of obstruction of
justice.
Approximately two
weeks later, Whittaker received a call from Johnson who told
him that Harold Busch, division director of the OFFCP, was
travelling to Los Angeles to discuss the case.
Investigations
are enjoined
On Sept. 16, 1999,
a meeting was held at the Los Angeles district office of the
OFCCP. In attendance were Busch, Smith, Woody Gilliland, deputy
regional director of the OFCCP; a representative from the
California Department of Veterans Affairs; and a representative
from the Department of Labor's Veteran's Employment Training
Services. Moore, Renaud, Nelson, and Whittaker, who, at this
point, were considered the action committee of the veterans'
group at CSULB, were also in attendance.
Though the appeals
had already been remanded, Busch said that he was remanding
the entire original investigation and enjoining it with Moore's
non-compliance complaint.
Busch also informed
them that the day before the meeting, Haase had taken an early
retirement, and Gilliland took her place as regional director.
"I thought I had
gotten her fired," Whittaker said.
Whittaker was named
the official spokesperson to the Department of Labor for the
class action veterans, and Smitherman, whom the veterans had
already complained about from the original investigation,
was put in charge of the now enjoined investigation.
"We didn't like
it, but we knew there wasn't a whole lot we could do about
it," Whittaker said.
Veteran's adviser
position created
In November 1999,
the university sent out an invitation to self-identify in
an attempt to come into compliance. According to Moore and
Whittaker, the letter was invalid, by federal regulations,
because it didn't mention VEVRAA, it didn't have an invitation
to self-identify, and the date of return was prior to the
date of mailing.
On Dec. 14, 1999,
the first of four meetings, monitored by the California Department
of Veterans Affairs, occurred. Maxson appointed Troy Johnson
as the new special adviser to the president on veteran's issues.
"My position was
created so that a member of the veteran's community could
communicate with the president regarding veteran's issues
at CSULB," Johnson said. "It has been beneficial to the president
and the university."
Contreras approved
of Johnson as the president on veteran's issues.
"He is a Vietnam
era veteran, he is highly decorated, and he's a well-respected
faculty member," Contreras said about President Maxson's selection
of Johnson for the position.
At the second meeting
on January 18, 2000, Under Secretary Bruce Thiesen attended,
and promises were made by CSULB to rectify the November 1999
invitation to self-identify no later than February 7, 2000.
The other two meetings
were held on March 6 and March 20. On the last meeting, a
five-paragraph draft of an invitation to self-identify was
handed out. In addition, Chief Glen Halsey, Veterans Services
Division, who had monitored all four meetings, declared an
impasse.
"We felt abandoned
by the government," Whittaker said.
CSULB submits
affirmative action plan
In April 2000,
an issue of "The Veteran" newsletter was distributed.
It said that CSULB had sent a letter to the Department of
Labor, saying, "The university has created a separate affirmative
action program for covered veterans. A copy of the plan accompanied
the letter to the Department of Labor."
In May 2000, Johnson
handed out a three-paragraph invitation to self-identify at
a meeting with veterans. Many veterans were angered at the
"take-back" form, since a five-paragraph form had been distributed
on March 20, Moore said. Johnson and other veterans said that
they had not received that particular form at the meeting,
and Johnson agreed to amend it.
Two weeks later,
on May 17, an eight-paragraph invitation to self-identify
was mailed out, though Moore once again argued that it did
not meet regulations.
"The university
has never, ever come out with a correct self-identification
form," Moore said.
Veterans began
to ask the OFCCP about the affirmative action plan that CSULB
was said to have submitted to the Department of Labor. On
July 5, 2000 Gilliland replied to Whittaker's concerns in
a letter that said, "The OFCCP is well aware of the nonexistence
of an acceptable [affirmative action program] for veterans
at CSULB."
According to Whittaker,
CSULB had lied to the veterans, since "The Veteran" said it
had established an affirmative action plan with the OFCCP.
Yet, three months after it was published, the OFCCP said it
did not exist.
The official submission
of the invitation to self-identify was sent to the Department
of Labor and dated Aug. 17, 2000, four months after "The Veteran"
said to have sent it in.
Notification
Of Results Of Investigation are released
On Aug. 11, 2000,
six days before CSULB's official submission of the invitation
to self-identify, the NORIs for both the discrimination complaint
from 1996 and Moore's non-compliance complaint from 1999 were
released separately, despite the fact that the case was enjoined.
The original NORI
stated that all members still part of the class action were
Vietnam era veterans, and therefore eligible for the benefits
of VEVRAA. The complainants alleged that CSULB failed to implement
an affirmative action program for veterans and failed to take
affirmative action to hire, promote and train them. In addition,
because CSULB was not in compliance with VEVRAA, the veterans
had been retaliated against, harassed, and intimidated (under
VEVRAA, veterans are supposed to be protected from retaliation
and harassment).
CSULB's position
was that the complainants had not been discriminated against
based on their status, and that an affirmative action program
did exist for veterans.
According to the
OFCCP, the investigation and interviews indicated that CSULB
has an affirmative action program, but it did not meet the
requirements of regulations. There was evidence that contents
of VEVRAA had not been updated since 1994, and the VEVRAA
portion of the affirmative action program did not contain
the most recent amendments affecting the rights of veterans.
In addition, the
class action had been reduced to 11 veterans: four had withdrawn,
four did not respond, and two were not Vietnam era veterans.
Evidence was found
by the OFCCP that CSULB violated its obligations and discriminated
against Renaud, Steve Hutchinson, a former professor now working
in Arizonia, and Whittaker. It was also found that CSULB knew
of the class members concerns, yet, they were largely unresponsive.
There were also
adverse effects from veterans who did not want to be retaliated
against. The NORI said: "Review of records and interview statements
from veterans further indicate reluctance by some veterans
to consider or apply for promotional opportunities or seek
individual remedies from the university for fear of retaliation,
harassment, and intimidation."
The conclusion
of the NORI stated that CSULB had violated obligations by
failing to have an affirmative action program and failing
to ensure veterans' rights and benefits under VEVRAA. CSULB
had violated obligations by discriminating against the three
members mentioned above by "acts of retaliation and/or disparate
treatment."
The NORI for Moore's
non-compliance complaint essentially stated that CSULB had
violated obligations under VEVRAA. However, the second NORI
listed 21 individual violations that CSULB had made.
Conciliation
Agreement signed
On Jan. 19, 2001,
Maxson signed a Conciliation Agreement between the U.S. Department
of Labor and the OFCCP. The agreement stated the violations
of CSULB, but also said that it did not constitute an admission
of guilt by CSULB. The remedy included back pay, with interest,
to Whittaker, Renaud, and Hutchinson. It also provided $2,000
for lack of training and benefits to the other 15 veterans,
including the ones that had withdrawn or did not respond.
"We didn't select
who would get money, how much, or what," Contreras said about
the monetary awards. "We accepted every recommendation that
the Department of Labor made."
The remedy also
stated that CSULB would provide the OFCCP with update reports.
CSULB would also be required to provide training for all head
positions about VEVRAA and its benefits. More importantly,
the remedy stated that an invitation to self-identify would
be distributed "upon immediate execution of this agreement."
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