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?

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.

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.

2017 in Review, 2 of 3

I had filed my Complaint alleging age discrimination in my 2014-2015 Evaluation, and a Hostile Work Environment subsequently that caused me to retire involuntarily in May of 2016 during the investigative phase of my original formal complaint, with the Regional Office of the U. S. Equal Employment Opportunity Commission ("EEOC") in December of last year.  When May rolled around and I had not received a single confirmation from that office, no docket number issued by the Administrative Law Judge ("ALJ") there or even acknowledgement of receipt, I contacted the General Counsel's office ("GC") at my former agency, my adversary, to inform them that I would be contacting the EEOC office to inquire about the filing in order to make sure I wasn't sleeping on my rights and thus be dis-enfranchised by inactivity, and that call got the settlement discussions rolling for the first time.  That led to lengthy negotiations about settlement that resulted in a Stipulated Settlement Agreement ("Settlement") later in the summer, more than two years after the original incident that triggered the Complaint.  The Settlemet was the most significant event of the year for  me, because it totally validated my Complaint, brought meaningful relief and was an open document, not sealed by the improper and oft-used device of a Non-Disclosure Agreement ("NDA"), in effect silencing the successful complainant and imposing a shroud of secrecy upon the matter.   My Settlement can and does serve as a warning to other violators of the law and a potential blueprint for individuals struggling by themselves against the formidable array of lawyers in their agency's GC office and the oppressive process of the bucking the system and waiting out the interminable passage of crushing time while seeking to prosecute their valid complaints about discrimination.  I did find the time during the month to donate double red blood cells, my 117th lifetime donation. (Notice that this Order of Dismissal of the Complaint I mailed in on December 27, 2016, is dated September 20, 2017.  This was the first and only court-issued document that I received in the case, the first indication I ever received from the ALJ office that it had even received the Complaint.  Also notice that the Agency number assigned is 2016-2, indicating that only two cases were filed with the EEOC office during the entire previous year, attesting to the obvious reluctance of many persons to keep pursuing the long, drawn out system  of protesting agency discrimination in the workplace.)

In June, as settlement negotiations dragged on (it's a long, slow, strategic dance that I'm not unfamiliar with), I went to Nationals Stadium two days in a row, once to see the Nationals, those proverbial losers, play the Braves and the next day for an inspirational intramural baseball game where the Congressional Democrats played the Congressional Republicans shortly after a crazy man shot some Republican congressmen and staff members at their practice field.  We were all at the stadium to cheer on and be inspired by the small Capitol Police contingent that immediately engaged the assailant at the practice field and prevailed although massively outgunned.  The injured Capitol Policeman David Bailey, though on crutches, threw out the first pitch in honor of his force and his wounded partner.  That pretty much summed up the month.  (A true hero.)

Settlement discussions during July got into the same arena for both adversaries, pointing towards a distant yet foreseeable successful outcome, if both parties remained reasonable.  The opposing counsel I was dealing with at the GC's office was always courteous, professional and truthful, not character traits that are present in all lawyers.  I watched the July 4th celebration from my back stoop.  I visited a sick neighbor twice who had been clapped into the hospital for tests, and I was soon to discover just how fragile life can be.  (Happy Fourth!)

Early in August the phone by my bed rang at 6 a.m., never a good sign.  My neighbor and friend, a man younger than me, had died suddenly overnight in the hospital.  A few days later, for the first time that I remember, I attended a Catholic memorial service in his honor, and it was beautiful service with beautiful, tear-inducing singing.  I noticed that I was instructed by the presiding priest, along with all other Protestants and, I guess, fallen Catholics, not to participate in taking communion.  The faux total eclipse of the sun came and went without my noticing it despite my constant attention to homebuilt eclipse viewer in my driveway (I didn't have a government jet at my disposal to fly to Fort Knox accompanied by a trophy wife bedecked in designer clothes she had to tweet to us "adorable people" about to view the bonafide total eclipse).  On August 26th, exactly two years after my faux evaluation at work that started my ageism complaint, I mailed back to my former agency the final draft of the Settlement, signed by me, for their signature.  I hoped they wouldn't notice or object to the lack of an NDA, which the three drafts of the document had always lacked and had never been the subject of discussion.  Its lack in the document was very important to me, for the reasons stated above.  Almost two weeks went by without me hearing back from my former agency whether or not they, in fact, would execute it.  It was an anxious time for me, because the Settlement I had signed contained everything I could realistically hope for and aligned very well with my principles as a man.  (Farewell, my friend.)