Monday, January 15, 2018

The Greatest Demonstration for Freedom in our Nation

Five score years ago a great American in whose symbolic shadow we stand today signed the Emancipation Proclamation.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

With this faith we will be able to transform the jangling discords of our nation into the beautiful
sympathy of brotherhood.

Let freedom ring.

Sunday, January 14, 2018

Street Fighting Man

"Everywhere I hear the sound of marching, charging feet, boy." At a rally this year in front of the Supreme Court in support of voting rights as it heard a case based on Ohio's aggressive purging of its voter rolls disenfranchising thousands of citizens who didn't vote for two years and didn't read their junk mail.

"Because summer's here and the time is right for fighting in the streets boy." Voter suppression, that's what it is.

"But what can a poor boy do except to sing for a Rock and Roll Band."  For 40 years I never showed an i.d. to people who knew me by name in order to be allowed to exercise my right to vote, until now.

"Hey! Think the time is right for a Palace Revolution." We're coming for you in November!

Saturday, January 13, 2018

Settlement Agreement, the signature page.

And so, more than two years after the sub-standard evaluation of Satisfactory I received on August 26, 2015 that caused me to file a formal complaint of age discrimination, and more than a year after I amended my formal complaint with additional allegations of a hostile work environment which culminated in my involuntary retirement in May 2016, the settlement was entered. It was with irony that I signed the document exactly two years after my bogus review. The court entered it on September 20, 2017. My final review, the one we were arguing about for all that time, was changed to Outstanding in every category.

Most people don't pursue their righteous complaints to this degree, and that's what the system, be it government, private, corporate or institutional, counts on. It takes too long. It jeopardizes your livelihood. It's shrouded in secrecy. This agreement does not contain an NDA. I wouldn't have signed one that did. That's how the system beats down individuals, because they don't know who went before them and how it came out. The culture of deceit, impropriety and even illegality, is exposed when light is shined upon it and it may then change.

Why did I do it? "Mine honor is my life, both grow in one; Take honor from me, and my life is done." R2 I.i.182-3.

Below is a picture of me at the office on the day of my 25th anniversary of government service as an attorney. My friends threw a surprise party for me in my office and I was feeling proud about my work and good about my situation. A month later I received my bogus review based upon what I believed to be age discrimination, with in my opinion a generous helping of vindictiveness baked into it, and my two year battle with the system to have a proper review entered began. I persevered and prevailed. Read the settling document and tell me otherwise. I miss my friends at my former agency though, and wish them all good fortune.

Friday, January 12, 2018

Settlement Agreement, page 4 of 5

On the top of page 4 of 5, below, is the crown jewel of my settlement with my former agency and the most revealing paragraph of the Settlement Agreement, the 4th of 4 settling points. It requires all of my managers present in the division when I received my sub-standard review of Satisfactory in August 2015, which I believed was due to age discrimination, to "complete EEO and diversity training, including training addressing age discrimination." This is my legacy at my former agency, my attempt to right a wrong, to leave something behind that benefits those who follow me even though it cost me my job, because I have my honor to live up to, a reputation to uphold and a conscience to answer to.

A closer parsing of the top of p.4 reveals something I was told that my former agency had never done before. One manager who was present two years earlier when I received my sub-standard review and who I believe engaged in retaliatory behavior which culminated in my involuntary retirement in May 2016, left shortly after I did, quite suddenly and unexpectedly. I informally refer to the 2d half of subpart d, following the words "In addition," as his amendment. This is what I negotiated and it is apparently novel. If this former manager returns to my former agency at any time in any capacity within 5 years, he (and any other affected manager) will be required by the order to "receive the above-noted training."

Settlement is settlement, and it is supposed to resolve all existing, known issues. This settlement is no different. I have already laid out my 4 settling points, changing my bogus last evaluation to what it should have been, Outstanding; receiving an honorary Superior Service Certificate; being paid money to settle, and the imposition of required training for management in my former division at my former agency. My former agency's salient settling point, the only one that I can perceive beyond normal settlement discharge language, was for me to "withdraw all complaints" etc. (IX.a). Well, yeah, that's what settlement does, and I sent this Settlement Agreement to the ALJ as it is self explanatory, and called up the HR office at my former agency to tell them and offer to send them a copy but of course they knew all about it already and declined my offer.

Don't you think this settlement is self explanatory as to what went down in my case?

Thursday, January 11, 2018

Settlement Agreement page 3 of 5

The $5,000 in settlement money came from my former agency last week. That was one of the last things opposing counsel and I worked out in our five months of negotiations last spring and summer. Below is page 3 of 5 of the Settlement Agreement entered more than two years after my bogus low review of Satisfactory in August 2015, and more than a year after my involuntary retirement in May 2016, forced by what I perceived to be a a hostile work environment abetted by retaliation. The third (of four) settling points is "the FTC will pay Mr. Lamberton five thousand dollars ($5,000)" in January 2018.

I have been asked why I settled for so "little" money when what I was really was deprived of by my involuntary retirement, forced by what I perceived to be a hostile work environment brimming with nepotism, imbued with discrimination and abetted by retaliation, was a well-paying job which I was good at. That represented an actual loss of much more money than $5,000. But it was never about the money, rather, it was about what I left behind me, what my imprint was after more than 25 years of outstanding work in my 2d career. That discussion will come tomorrow when we look at the 4th settling point, on page 4 of 5. The first of three drafts I was presented with had much of what I perceived to be necessary; but it lacked money. I said there had to be money (the agency had to put skin into the game), and there was a money offer in the second draft. I said the money offer was too low. In the third draft the money offer was sweetened a little bit, and I finalized that draft by executing it because it had everything that I thought was necessary to justify my actions in filing my complaint, and in leaving when I did, and to try to put my former agency back on a fair footing for all the staff members who were still there, especially those at risk solely because of their age, and those who would follow.

The very 1st settling point is that "the FTC will issue Mr. Lamberton a performance appraisal, reflecting an overall "Outstanding" rating for the 2014-2015 rating period." This is as it should have been all along. My most influential manager, who used to call me The Closer and put me on cases where important and difficult settlement negotiations were happening or imminent, not only to settle the matter but also to teach inexperienced attorneys some of the various techniques of effective settlement. For instance, in the line of important and ground-breaking Auto Recall cases that I was a part of for the year that I received a sub-standard review, I am proud that I negotiated a favorable settlement for my former agency with one of the largest car dealers in the country which was represented by the former Associate Director of the division I worked for, who was legendary throughout the agency for his absolute mastery of the law and thorough knowledge of the agency and what it had done in the past on similar cases, and in addition he was a brilliant interlocutor. After my bogus review at the end of the affected rating period, I would have settled with that manager for just one more point in the rating formula (change just one of the three Satisfactory categories to Commendable, which certainly wouldn't have been a "gift," especially in light of my subsequent award). That alone would have changed my overall  Satisfactory rating to Commendable. Because I am reasonable, and my job and my paycheck would have tempered my pride and my notions of justice, we could have effected that compromise. But she was inflexible, or perhaps covering up or trying to shut me up, so once I no longer had a job, I had nothing to lose, really, and I negotiated exactly what I needed and could realistically achieve in pursuit of justification for me and fair play for those following.

The 2d of the 4 settling points was that I received "a Superior Service Certificate as an honorary performance award." This wasn't worth my job, and my receipt of it wouldn't necessarily change the management culture in my former division much less in my former agency, but it was nice to receive as an afterthought.

Wednesday, January 10, 2018

Page 2 of 5 of the Settlement Agreement

Page 2 of the 5-page settlement is below. It is mostly a recitation of the purposes and effects of the stipulated Settlement Agreement entered by the ALJ on or around September 20, 2017, settling the matter which had its genesis in the improperly low evaluation I received on August 26, 2015, which I believed was fatally flawed due to age discrimination. The matter was concluded via settlement over two years later but by then I was out of my job of 25 years due to my involuntary retirement because of what I considered to be a hostile work environment, exemplified by the bogus evaluation I received and marked by the retaliation that I suffered, in my opinion, in May 2016.

The legacy I left behind when I was involuntarily retired in 2016 after more than a quarter century of dedicated and outstanding work in government service, which included two trials, both won, much litigation involving frequent travel, and selfless passing on of my expertise to those who came after me, just like my two mentors, Steve and Dave, had passed on to me their wisdom and experience, was a final rating of Satisfactory. Sad.

Below is a closer look at the top of page 2 of the Settlement. The matter was investigated for another six months based upon my allegations of retaliation. A few short weeks after I left involuntarily, the manager who in my opinion had done what I considered to be retaliation left my former agency suddenly and unexpectedly. Hmmm. Following my departure in May, during the summer of 2016 I received a call from the HR office in which it was discussed with me that I could receive a Commendable, or possibly even an Outstanding, rating if I withdrew my complaint. I said that things had changed because now I was out of a job. The caller concluded by saying that he would put down (in his notes I guess) that I was unwilling to discuss settlement. I replied that that was incorrect, I was happy to discuss settlement but the situation had changed, an appropriate rating would be insufficient now and there was a problem at my former agency that I hoped to address in any settlement. That was the last I heard from my former agency about any potential settlement for almost a year.

Below is a closer look at the bottom of page 2. In late November 2016, I received two boxes of reports and exhibits, the result of the HR office's investigation into my case. Many people were interviewed, myself included, and offered sworn testimony. Now I had a choice of submitting the report to the Director of my former agency's HR office for a resolution, or to submit it to the regional office of the EEOC to initiate an Administrative Law case, which could be a de novo review with further discovery and  extended litigation. Based in part upon my less-than-confidence-building interaction with the Director that I mentioned earlier, I chose the latter option and filed the case in court on December 27, 2016. Nine more months of silence from the court concerning my case followed, except that as related previously, I established contact with my former agency's GC's office in May 2017 and meaningful settlement discussions finally started, nineteen months after the occurrence that started the case actually happened, my improperly low evaluation.

Tuesday, January 9, 2018

Page one of five of the Settlement Agreement

A lot happened during the two years between my sub-standard personnel review of Satisfactory (less than Commendable and much less than Outstanding, which are the commonplace evaluations) that I thought was based upon age discrimination, and the Settlement I signed after about 5 months of negotiations with the GC's office at my former agency. Below is page one of that 5-page agreement, which basically covers the findings of fact. There's a formula to ratings, and I was one single point away from a Commendable rating in these highly subjective, carefully crafted and reverse engineered evaluations. I would still have disagreed with a Commendable but I wouldn't have informally complained about it because I was a go-along guy in the division, I know how subjective these evaluations are, and realize that managers protect their pets with elevated ratings. But the Satisfactory (barely above Minimally Acceptable) assigned to me was outrageously and pointedly low, unjustified, and I felt I was being singled out due to my age plus I was nobody's pet and all of my managers were a full generation younger than me. So I followed the avenues laid out as necessary for redress in the Administrative Manual, which processes are mostly a huge stall tactic in my opinion. I went and discussed the improperly low evaluation informally with the manager who gave it to me and asked her to change it after giving her my reasons. She smilingly said No. I filed a grievance, which was a waste of time because it was ruled upon by one of the very managers who signed the very evaluation I was complaining about. There was no recourse or oversight to the disparaging, and wrong, opinion he wrote. That left only the informal complaint process to the HR office, based upon my assertion of ageism in my evaluation, which had months in which to try to reach a resolution before I could file a Formal Complaint.

Below is a closer look at the top of page 1, the Findings of Fact agreed to by the two parties to the Settlement Agreement. To continue my tale about the time-suck that complainants about ageism and other improprieties at federal agencies run into is that my improperly low evaluation was done on August 26, 2015. The informal complaint I filed with the agency's HR office about it, based on age discrimination, went to December with no discernible progress at all. Then the HR office negotiator in effect threw up her hands and said sorry, they (the tightly banded-together four managers) won't budge, there's nothing I can do. I was given my options, to either let it go or file a Formal Complaint with the agency's HR office, which would then be investigated over the course of six more months. I chose to do the latter, but I still wasn't any closer to an actual resolution in front of an impartial arbiter (a court, you know) as 2015 slipped into 2016. But the formal complaint process did carry with it assurances that I would not be subjected to retaliation because, or perhaps only during the pendency, of my formal complaint. This assurance sounded very high-minded.

Below is a close-up of the text of page one of the settlement. The negotiations included the exchange of three drafts of the final agreement, which were always crafted by the GC's office at my former agency, after extended discussions. This page incorporates our agreed to findings of fact, including the fact that "On May 27, 2016, Mr. Lamberton amended his formal complaint with additional allegations of a hostile work environment, which culminated in his involuntary retirement in May 2016." That's how it was, I felt that I was retaliated against at the end of May during the pendency of the investigation into my Formal Complaint by a manager who in my opinion had engaged in retaliation before. I felt compelled to retire suddenly on Memorial Day in 2016 rather than to continue in a hostile work environment such as I was apparently in. My involuntary retirement had definite drawbacks. My income was suddenly and immediately slashed by well over 80%, ruining all my financial plans for the future. The further allegations of retaliation near the end of the original six-month investigation into my formal complaint of ageism added another six months to the investigation. There hadn't been a single word of credible settlement discussion so far.

At this point, it had been about nine months since my complained-about evaluation. Notably, in the fall of 2015 I received a team award for my work in the important auto-recall line of cases. The receipt of this award had obviously not been taken into consideration during my evaluation in August, which lacked one single point of pushing my rating from the sub-standard Satisfactory rating to the more acceptable and commonplace (but still too low) Commendable rating. I believed that this subsequent award for notable and significant work I had done during the same exact period that the evaluation had covered was exactly the later-surfacing evidence that would improve my rating, obviously. Or was this award that everyone on the team received, signifying all of our excellent work in this fully successful and ground-breaking field, merely a feel-good fillip that means nothing? I think that the rest of that excellent team would dispute that, and I was not a dog amongst thoroughbreds on it. But the reaction of the management team responsible for my unjustifiably low evaluation to this newly uncovered and hitherto unknown evidence in my favor was nil. So now I was prematurely out of a job, with a pint-sized horse statue, the symbol of my former agency, as my supposed full reward for a quarter-century of dedicated and excellent work, along with a left-behind bogus Satisfactory final rating.