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news
Vets continue
fight, gain some ground
Editor's note:
The two part
series of last week's story, "Vets try to uphold law"
continues this week with a second and final installment. Last
week's story covered a law known as the Vietnam Era Veterans'
Readjustment Assistance Act, which the veterans are trying
to get the university to uphold, allowing them to receive
benefits from the state. A discrimination complaint was then
filed against Cal State Long Beach by the group for reasons
that the university did not recognize some of the veterans,
which entitled them to gain benefits under the 1974 VEVRAA
law. The veterans then tried to take action in a series of
meetings, which according to the them, established no results.
By Danielle
Grossman
Summer On-line Forty-Niner
On Oct. 12, 1998,
veteran Walter H. Moore Jr., frustrated with the Cal State
Long Beach'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 [Notification of Results Investigation],
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, 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 land
? to put pressure on the Office of Federal Contract Compliance
Programs 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,
veteran John Whittaker contacted the OFCCP after Helene Haase,
OFCCP Pacific regional director, denied all three of Whittaker's
requests for copies of the appeals letters filed three years
previously.
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 Raymond 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.
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.
In August, Whittaker
wrote letters requesting an investigation against Haase and
also requested 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 accused 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, Col. Joseph Smith, director
of the Los Angels Department of Military and Veterans Affairs,
Woody Gilliland, deputy regional director of the OFCCP, and
a representative from the California Department of Veterans
Affairs. Moore, Renaud, Whittaker and veteran Dave Nelson,
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 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 did not mention the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, did not 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 occurred, monitored by the California
Department of Veterans Affairs. 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."
Armando Contreras,
executive assistant to CSULB President Robert Maxson, 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.
At the second meeting
on Jan. 18, 2000, Undersecretary Bruce Thiesen attended, and
promises were made by CSULB to rectify the November 1999 invitation
to self-identify no later than Feb. 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 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.
NORI 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.
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.
OFCCP found evidence
that CSULB violated its obligations and discriminated against
Renaud, Steve Hutchinson, a former professor now working in
Arizona, and Whittaker. It 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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