“Show me a hero and I will write you a tragedy.” —F. Scott Fitzgerald
Midmorning in Fallujah, Iraq, and already it was 124 degrees. Factor in the body armor, the water bag on his back, and the loaded M-16 he held at the ready, and Jim Vigil was hauling 75 pounds of gear and felt as if he were tiptoeing through hell. The U.S. convoys of Humvees and tri-axle trucks packed with his fellow Marines rolled through the city, churning the desert into the air. Gritty and fine, the dirt covered everything, turning the air into a haze, making it that much more difficult to spot lurking mujhadeen, foreign fighters, insurgents, Al Qaeda, or whatever “bad guys” may have been out to kill American “infidels” like him on that day last July.
More from our October 2006 Issue
Only five months earlier, 37-year-old Vigil was home in Denver; walking the halls of East High School as a dean of students, he was on the lookout for class clowns, cheaters, and tardy teenagers—kids that reminded Vigil of himself when he was young and thought he knew it all. Now, the Marine reservist was on a combat patrol through one of the most unstable cities in Iraq’s most unstable province, Al Anbar; he was on the lookout for snipers and improvised explosive devices—like the one that had killed three Marines on the same stretch of road just the day before.
Over his head, attack choppers buzzed and fighter jets sliced through the cloudless sky. He could hear the crack of nearby gunfire. Nothing out of the ordinary; still, it wasn’t something Vigil would ever get used to. His heart thumped hard against the picture of his daughter taped to the inside of his armored vest. In the sweat-stained photograph, 14-year-old Jazmin held a slender finger over her lips, reminding him to be quiet while on patrol, reminding him to get home alive.
Taking a pull from his water bag, Vigil tasted the desert in his mouth; it muddied and swished between his teeth. There was no use trying to spit it out. Iraq had already found its way inside of him, even seeping into what used to be his dreams. He swallowed it all down and kept moving toward the objective. Chief Warrant Officer Vigil was assigned to the 5th Civil Affairs Group; the CAG was not a combat unit, rather its mission was nothing short of Nation Building. Comprised mostly of reserve officers who are doctors, engineers, lawyers, businessmen, and educators in their civilian lives, the CAG worked with Iraqis to establish an economy and elected local governments, and to create an overall infrastructure. It made sense that Vigil was tapped for the unit. After all, school administration was his thing. And on that morning his detachment was on its way to check on a school a few clicks outside Fallujah, in the town of Saqlawiyah.
In Marine-speak, Fallujah was “nonpermissive,” meaning there was still a very good chance of a Marine ending up in a body bag. Because the U.S. offensive had left the town in shambles and inflicted massive collateral damage, including the inadvertent killing of “innocents,” tensions between locals and Marines were high. Yet when Vigil and his Marines at last reached the school they received a friendly, if not celebratory, reception. The primary-school-age children, all chattering and giggles, ran to them. For a while the Marines mingled with the kids, handing out notebooks, pens, and pencils, and taking pictures. Afterward, the teachers took Vigil on a tour of the school. At first, their communication was perfunctory: Speaking through an interpreter, the faculty submitted a wish list of needs. In no time, though, the conversation became something more. Vigil and the Iraqi teachers began talking as colleagues, exchanging warm smiles and classroom stories.
More than a year has passed since that afternoon in Saqlawiyah, but it remains a touchstone memory for Vigil, conjuring up wildly disparate emotions. Recalling how those Iraqi teachers in that war-torn school embraced him with respect and gratitude, he cannot help but think that, regardless of the politics of the war and no matter what the latest opinion polls say, he risked his life for a noble cause. However, he also cannot help but compare that warm welcome to the way he was greeted by his own administrators back at East High, and that leaves him wondering if his seven-month tour was really worth it. Welcome back, Vigil’s principal told him, you’re fired.
Almost half of the U.S. force in Iraq is comprised of National Guard members and reservists like Jim Vigil. In the wake of Sept. 11, 2001, at least 560,000 “part-timers” have dutifully left their civilian jobs and families and risked their lives alongside the full-time troops—amounting to the largest mobilization of citizen soldiers since World War II. More than 460,000 of these reservists and Guard members have completed their missions and returned home just as anonymously as they left. Many of them are assimilating into their civilian worlds without unexpected hardship; thousands of others, however, like Vigil, are returning home to discover they’re suddenly unemployed. According to a 2005 Defense Department survey, up to 14 percent of reservists returning from active duty have had trouble reclaiming their jobs. Among all of the yellow ribbons and patriotic lip service, they’ve been demoted or even handed a pink slip and told they’ve been downsized, restructured, or whatever-ed out of their livelihood.
In many of these cases their employers are breaking the law. In 1994, Congress passed the Uniformed Services Employment and Reemployment Rights Act, or USERRA. Allowing for few exceptions, the law mandates that employers not only rehire their citizen-troop employees upon return from active duty, it also requires that the boss reinstate the employee into the same position or one comparable to it. What’s more, employers must honor the “escalator principle,” meaning the civilian-service member’s pay must reflect whatever raises he would have normally received. While inconvenient for business owners, the rationale behind the law is that when the nation goes to war, everyone, not just the men and women on the front lines, should sacrifice.
Of course, the law means nothing without enforcement. Reservists and Guard members who feel their USERRA rights have been violated can turn to a number of federal agencies—Department of Labor, Department of Justice, Department of Defense, and the Office of Special Counsel. However, military brass strongly encourages the rank and file to first turn to a Defense Department agency called Employer Support of the Guard and Reserve, or ESGR.
ESGR’s mission is to ensure that public and private employers support the men and women of the National Guard and Reserve. The 55 full-time civilian and military employees who staff the ESGR headquarters in Arlington, Virginia, spend much of their time managing ESGR branches that are located in every state, Puerto Rico, the Virgin Islands, Guam, and Europe. It is these local offices, and more specifically their volunteer “ombudsmen,” that handle ESGR’s most important duty: to prevent, resolve, or reduce employer and employee “problems and misunderstandings that result from National Guard or Reserve” service, by providing information and informal mediation.
In deployment briefings, troops are reminded of their USERRA rights and advised that if they have trouble reclaiming their civilian jobs they should contact their local ESGR office. They’re told an ombudsman will promptly evaluate their case and, if it has merit, bring the employee and employer together in mediation. Before a civilian troop calls in, say, the Justice Department, before it launches a time-consuming and taxpayer-funded investigation and perhaps legal proceeding, so goes the thinking behind ESGR, why not first simply try to talk things through and quickly get the civilian troop back to work.
In theory, ESGR ought to be a tremendous resource for our troops. In reality, however, it is a bureaucratic mess, mired in incompetence, undermined by conflict of interest, and accountable to no one. In reality, ESGR has inspired such a lack of confidence in our troops that, according to a survey conducted in 2004 by the Department of Defense itself, an astonishing 72 percent of reservists and Guard members with USERRA-based concerns don’t even bother contacting the organization. Here in Colorado, the ESGR office made available to Vigil and thousands of other civilian troops has earned a reputation for being especially worthless.
Jim Vigil doesn’t look anything like the Devil Dogs you see on the Marine recruiting posters. He’s petite, with short black hair graying at the temples, dark brown eyes, and smooth olive skin. I first saw him, last summer, on a small Marine base in Al Anbar, and thought he was one of the Civil Affairs Group’s Iraqi translators. I made the mistake of saying as much to my Marine escort, who promptly announced, “Hey, Vigil, the reporter thinks you’re one our interpreters.” Vigil smiled and flipped me the bird.
It was last August, one month after Vigil’s stint in Fallujah, and we were near Ar Ramadi, at the CAG’s headquarters. I was a journalist embed traveling with another detachment of Civil Affairs, and my Marine escort, knowing that Vigil and I both lived in Denver, introduced us. The HQ was nothing more than a few aluminum-sided trailers surrounded by sandbags, under camouflage netting. Inside, about a half-dozen officers sat at laptops tracking CAG operations. Because there wasn’t much privacy in the HQ, Vigil and I went outside under the desert sun to talk. Like Fallujah, Ramadi was nonpermissive, and that day had been especially nonpermissive. Before lunch two mortars hit the base. Even better, a fresh intel report warned of an imminent gas attack. “Ahh, it’s nothing to worry about,” Vigil said nonchalantly as we sat at a small table next to the HQ. “If the gas comes it’s probably not going to be lethal, more likely just tear gas, and it probably won’t happen. Those reports come in all the time.”
Vigil told me he didn’t enlist in the Marines to be anybody’s hero. It wasn’t about defending life, liberty, and the pursuit of happiness. It wasn’t even about looking like a stud in the dress blues. Truth was, when he enlisted in 1988 he was a 19-year-old “screw-up” who’d flunked out of Arapahoe Community College, gotten himself cut off from his parents’ financial support, didn’t see much of a future, and was just desperate enough to realize he needed direction. His father had served in Vietnam with the Marines, and Vigil decided if the Corps was good enough for his old man it was plenty good enough for him.
Vigil discovered he liked the Marine life and planned on making a career of the Corps, but by the time his three years of active duty were up he’d married his high school sweetheart and had his only child, Jazmin. He wanted to be home more. He cut back to the Reserves, tapped the GI College Bill, and enrolled in Metropolitan State College. While he worked part-time, pursued his degree full-time, and continued with the Reserves, it became evident to Vigil and his wife that they had irrevocably drifted apart. In the midst of the divorce Vigil graduated from Metro in 1998 with a B.A. in history and figured he had the stuff of a respectable teacher. He knew what it was like to be a teenager who thought he was too cool for school, and he figured he had the life experience to turn one or two of those kids around.
He was hired on to East beginning in the fall of 2002 as one of three deans of students. You name the teenage problem and he dealt with it. The teen pregnancies, the kids with STDs, the drug addicts, the abused, the depressed—and the ones, who like Vigil as a kid, took nothing seriously. Vigil loved the job and it showed. He earned above-average performance reviews, and in May 2004 received a handwritten note of gratitude from then DPS Superintendent Jerome F. Wartgow: “Thanks for your good work on behalf of…East High School! It is appreciated.” C.J. Jackson, one of East’s drug and alcohol counselors, nicknamed Vigil “Cricket,” as in Jiminy Cricket, because, as she put it, like Pinocchio’s diminutive guardian, “Jimmy is so tiny, always laughing, and there for the kids.”
“I miss East,” Vigil told me outside the HQ as he fiddled with the helmet in his lap. “I miss the kids.” Before he deployed, some students made him a scrapbook, with pictures and notes. “With all that these kids have going on,” he said, “with how distracted by their own lives they can be, it meant a lot to me that they would take the time and think enough of me to do that.”
Only a few yards away from where we were talking a detachment of Marines prepared to leave base on combat patrol. Most of them didn’t look old enough to legally drink a beer. Sweat dripping from their uncertain expressions, they checked one another’s gear and unlocked their loaded weapons. I asked Vigil if he ever considered that many of the Marines in his command weren’t much older than his students.
“All the time,” he said. “I’m not used to thinking of myself as the old man, but here I definitely am. I was in a Humvee on patrol and saw the driver was nervous. It was his first ride—I was in the passenger seat, which is usually the death seat if you hit a roadside IED. I told him, ‘Take it easy, Devil Pup, I’ve been on a hundred of these patrols. Just keep your eyes on the road and we’ll be fine.’ I was lying to him. I’d only been on three patrols like that”—Vigil smiled as he added—“but it’s what the kid needed to hear from the old man.”
Vigil returned to Denver from Iraq on Dec. 14, 2005. At Denver International Airport he rented a car and drove directly to the Rocky Mountain School of Expeditionary Learning, to surprise Jazmin. A faculty member welcomed him at the front desk, and a student went to get Jaz from class. Vigil had been in Iraq for seven months, but counting his training he’d been away from home for almost a year. He’d missed Jaz’s first day of high school, her first date, her 14th birthday, her braces coming off, and all of those moments in between. When he saw his daughter enter the hallway he was stunned by how she’d grown; just as he was thinking she’s not my little girl any more, she ran down the hall and leapt into his arms. Reuniting with Jaz was the high point of Vigil’s homecoming; the next day was his lowest.
The following morning Vigil reported to East anxious to return to work. “I’m really glad you stopped by,” he remembers Principal Kathy Callum telling him, “because we need to talk.” They stepped into her office. Vigil thought maybe she’d ask him about his tour, maybe ask him what day might be good for a little welcome-home party. Instead, what Vigil heard her say in a calm, matter-of-fact voice, was, “We don’t have a job for you here.” Vigil felt as if he’d left his body and was watching a film reel of someone else’s life. This can’t be happening. He thought back to the last faculty meeting he attended before deploying: Callum, in front of several staffers, assured Vigil that his job would be waiting for him. Now, standing in her office, he was too enraged to remind her; all he said was that he’d go talk to the Denver Public Schools human resources department.
An hour later he walked into DPS headquarters at 900 Grant Street. Finding a receptionist, he explained why he’d come. He got, “No one’s available right now.” From his cell phone, Vigil called the HR representative for East, Renee Barela, and briefed her. She was busy, she said, and would call him first thing tomorrow. At 1:30 the next afternoon Vigil called her.
Barela asked if he had any written evidence of Callum’s promise. He did not. Vigil figured he could trust the principal’s word. Sounding as if she’d read up on USERRA, Barela then told Vigil what he already knew: that the district did not have to reinstate him in his job as a dean, just a comparable position.
Barela now says she does not remember the rest of her conversation with Vigil, but, according to him, he asked her how his pay would resume and was told, “Don’t worry about that now. Come back after Christmas.” Audibly frustrated and emotional, Vigil said he didn’t want to wait until after the holiday. After all, he said, he’d reported back to his job, or at least what he thought was his job, the day before. On top of his normal bills, Vigil would have Christmas expenses, gifts for his parents and Jazmin. Barela instructed Vigil to come to DPS headquarters the next day and someone would figure out how to get him back on the payroll. As if she were talking to a petulant child, she added, “There’s no reason to get angry.”
Vigil’s patience had been exhausted. “I’m sorry,” he snapped, “I’ve just gotten back from Iraq; you can’t possibly fathom what I’ve been through. I come back and the week before Christmas I find out I don’t have a job. At what point am I allowed to get angry?”
“Well,” Vigil remembers Barela telling him, “that’s not my problem.”
The next day, Dec. 17, back at DPS headquarters, Vigil met with Joyce Fell of the HR department. She, too, paraphrased USERRA law and maintained that a comparable position “could be a middle school social studies teacher or a substitute.” In terms of salary, Vigil said, that might be correct—as dean he had been earning an annual salary of $34,000—but he correctly pointed out that neither of those jobs has the prestige of a dean, and therefore would not be on par, as defined by USERRA. “That’s not how we interpret the law,” Vigil remembers Fell saying, and she instructed him to begin reporting to East “until we can get this figured out.” Judging from the label Vigil found on his mailbox at East, the demotion was official. It read: Jim Vigil, Full-Time Sub.
On his second day back at East after Christmas break, while assisting the two deans of students, Vigil got a call from a female DPS HR employee, whose name he did not write down. She informed him that from now on he was a “long-term substitute;” each morning he would get a call from the district informing him where he was needed. Principal Callum advised Vigil to disregard that call and assured him that she was working with the DPS to keep him at East.
The following evening, Blair Richardson, the parent of an East student, threw a welcome-home party for Vigil at the Irish Snug bar and restaurant. Richardson is a politically connected businessman; his party guest was then Republican gubernatorial candidate Marc Holtzman. After Vigil told Richardson about his job hassles, he assured Vigil that he would bring it to the attention of his “friend,” DPS Superintendent Michael Bennet. Richardson advised Vigil to remain quiet and patient, that it would be straightened out.
While the teachers at the party, including Principal Callum, hit the buffet table and open bar, someone, unbeknownst to Vigil, began circulating a petition. It read: The undersigned staff members of East High School respectfully request that Jimmy Vigil be returned to his position as a full time Dean of Students at East High School. After ten months of serving in a combat zone on active duty in Iraq and being promised his job both verbally and by federal statute, this staff feels it is not only compassionate but the morally correct action to take. Forty-two faculty members, or about half of the East High staff, signed the petition. It hung in the school’s reception area awaiting more signatures until the next afternoon, when Callum had it removed.
For the next seven weeks Vigil heard rumors of an administrator working to get him fired, and generally he felt like an unwelcome burden in his own school. In May, as the academic year ended, he was still uncertain about his employment status, yet bearing in mind Richardson’s advice he remained hopeful that when the new school year began he’d have his job back. Then he got a letter from DPS: The Board of Education at its regular meeting held on May 18th, 2006, accepted the Superintendent’s recommendation to nonrenew your employment contract with the Denver Public Schools.…”
Vigil decided he’d been patient long enough. Talking to HR person after HR person down at DPS headquarters. Listening to the assurances of the principal who’d already broken her word and laid him off. Waiting for the well-intentioned Richardson to work the back channels with Bennet. And what had it gotten him? He’d been fired, rehired, and demoted, and now was looking at a letter that canned him, again—a decision that was approved by Superintendent Bennet himself. As far as Vigil’s reading of USERRA, the Denver Public Schools system had violated the law not once, not twice, but three times.
Vigil knew all about ESGR. He’d heard the official pitch in countless briefings. But there was no way he was going to call them. During his 18 years in the Marines he’d also heard the unofficial intel about ESGR, and in particular about the Colorado branch. And like just about every citizen-service member in Colorado, Vigil had been following the saga of Steve Duarte.
You get a sense of how honorably 53-year-old Steve Duarte served his country when you see the walls of his home office: They are covered with dozens of photographs and commendations commemorating his 29 years in the U.S. Marine Corps—beginning with his graduation from Officer Candidate School in 1977, and including his last overseas deployment, to Iraq in 2003. And you get a sense of how dishonorably his country served him after he returned from Iraq when you see the stacks of legal documents neatly piled on the office floor. “When you’re over there in Iraq,” Duarte says on this late-summer afternoon, “you think about your family and keeping yourself safe. You don’t think about your job. You’re assuming, well, our government and country will take care of us. I still don’t believe it.”
In November 2002, Duarte, a Marine Reserve officer employed by Denver’s Agilent Technologies Inc., was called up for a nine-month deployment to Kuwait and Iraq. The war was in its first phase, and Duarte was just behind the front lines, supporting a group of Navy Seabees. The Seabees are engineers; their job was to rebuild, or replace entirely, bridges, roads, and runways destroyed during the initial battles. While the Seabees knew their way around a blueprint, they needed a refresher on combat tactics, and Duarte and his group handled that training. It became clear to Officer Duarte that he was very much in the shit on the second day of the war, when an Iraqi missile hit only 200 meters from his HQ.
Duarte returned to Colorado and to his job at Agilent in July 2003. By then, he’d worked for the company for more than 19 years. He had helped design the payment structure for the company’s worldwide sales force. But upon his return from Iraq he was assigned a “special project”—to investigate how other companies pay their sales forces. Duarte suspected he’d intentionally been sent on a Mission Impossible. The fact of the matter was, companies consider their payment structures proprietary information and rarely share such information. His suspicions were confirmed on Monday, Nov. 10, when his boss fired him over the phone. Only four months after returning from a war zone to a job he’d had for almost two decades he was instructed to have his office cleared out by the end of the week.
The severance package of $54,821 didn’t ease Duarte’s anxieties. What would he, his wife, and his youngest of their three children do about health insurance? And then there was the more frightening uncertainty: During his many years at the company Duarte had reached an annual salary of $88,800. Where now would a middle-aged man find a job—that is, if he found a job—that would pay him comparably?
Adhering to the recommended military protocol, the Monday he was fired Duarte called his commanding officer. Marine Corps Reserve Col. George Aucoin tried to reassure Duarte that all would work out; after all, Aucoin said, there’s USERRA and ESGR. He advised Duarte to immediately do two things: First, e-mail a copy of USERRA to his bosses and gently inform them that they were breaking the law—that after his return they were required to keep him employed for one year; and second, Aucoin instructed him to call ESGR.
Within 24 hours of sending the e-mail to his Agilent superiors Duarte received one in response that, as he puts it, was, “We’re going to do this and we can do it.” The Tuesday morning after he was fired, Duarte called the Colorado ESGR; a representative said the organization’s chairman would contact him shortly, and that meanwhile he ought to contact the Department of Labor. “They’re the ones,” he was informed, “charged with helping you out.” Duarte spoke with two Labor Department representatives; both told him that unless he heard somebody say they were firing him for military service he didn’t have a case.
Weeks and then months passed without Duarte hearing again from ESGR. “When I made the call to ESGR,” Duarte says, “I thought, well, their name—Employer Support of the Guard and Reserve—they are there to support us. In the Marines, you rely on one another. It’s you’ve got my back, I’ve got yours, and I thought that’s what ESGR was about. It didn’t take me long to figure out they’re not even close. I was desperate.”
In his civilian life, Duarte’s commanding officer, Aucoin, is an attorney. He was no labor lawyer, but he became so outraged by what he heard from his Marine that he began to research USERRA law. He was stunned to discover that there was not much legal precedent for it in the United States courts and that not a single USERRA-based suit had come to a verdict in Colorado. Aucoin was convinced Duarte had a case strong enough to be the first, and Duarte agreed. In February 2004, two months after he’d been fired, Duarte filed suit in the Colorado U.S. District Court. Agilent hired one of Denver’s largest and most respected law firms, Holland & Hart. The trial would be nothing short of an unprecedented court battle between a corporate Goliath and the civilian-troop David, with more than just Duarte’s rights at stake.
One way or the other, the case would establish legal precedent for all USERRA civil claims that would follow; perhaps it would even discourage any further claimants. The trial began on March 7, 2005, under Chief Judge Lewis T. Babcock. Agilent argued that Duarte was fired “for cause.” Under USERRA, termination for cause is permitted, provided the employer can demonstrate the cause. Agilent claimed it had been downsizing for months because of hard financial times—both accurate claims—and that Duarte’s performance was underwhelming and thus sufficient cause. The trial ended a mere three days later with the judge finding in favor of Duarte.
“I do not question [Duarte’s superior’s] motives while acting under budgetary stress,” Babcock wrote in his decision. “But Duarte paid a steep price for his military deployment during his employment with Agilent. Specifically, he was seriously disadvantaged as a result of his military deployment and the corresponding diminished status and responsibilities assigned to him upon his return. This is the harm USERRA was enacted to prevent.”
Based upon calculations offered by Aucoin’s expert economics witness, Babcock awarded Duarte $383,761. The math behind the dollar amount was back pay of $114,500 plus front pay of $324,082, minus the $54,821 severance package. Agilent was required to pay all court costs and attorney fees, including Aucoin’s billable hours.
Duarte officially retired from the Marines last March, but unofficially Marines never retire. He still carries himself like an officer who expects at any moment to be called to attention or dispatched into battle. Now, just after a jog, clad in olive-colored running shorts and T-shirt, he’s seated in his office, ramrod straight, hands clasped in his lap, against the backdrop of the wall covered with his Marine photos and commendations.
“This case really wasn’t worth all that much money,” he says, in a soft, barely audible voice. “But it was never about the money for me. We’re not rich, but we do OK, and George [Aucoin] and I did a lot on a shoestring. Really, I kept thinking about the lance corporals and privates out there, who are coming back and running into the same issues, and they might not have the resources to take on a big company or a big law firm. The sad fact is many reservists have to say, ‘I should have my job back, but I’ll take whatever small severance I can get and I’ll just try to go work someplace else.’ I kept thinking that’s not right.”
Duarte eventually heard back from the Colorado ESGR. By the time the state chairman, Fred Fletemeyer, got around to calling him back, it was four months after Duarte had filed suit, and a full seven months after Duarte had first reached out to the organization. When Duarte told Fletemeyer about the suit, the ESGR honcho told him good luck and said that, considering it had become a legal matter, there was nothing ESGR could do for him.
In the fall of 2005, while Duarte was in the midst of his lonely legal battle and Vigil was among the tens of thousands of other reservists and guardsmen in Iraq praying they would make it home alive, the Government Accountability Office—the investigative watchdog of the U.S. Congress—published an 81-page report entitled, “Federal Management of Servicemember Employment Rights Can Be Further Improved.” After an extensive examination of the agencies responsible for fielding and resolving USERRA complaints, the GAO found, “Agency abilities to efficiently and effectively address servicemember complaints…are hampered by incompatible data systems, a reliance on paper files, and a segmented process that lacks visibility.” Translation: When it comes to enforcing USERRA, the Department of Justice, the Department of Defense, the Department of Labor, and the Office of Special Counsel are an alphabet-soup of a mess and are accountable to no one. Featured frequently and unfavorably in the damning report was the Defense Department’s chief USERRA organization, ESGR.
Some of what the GAO concluded about ESGR was: “Ombudsmen were not always available to field servicemember phone calls.… The ESGR did not have good data to determine the effectiveness of its outreach and mediation efforts.… It will be several years before the ESGR can identify any meaningful trends in informal complaint numbers because the ESGR has only 1 full year of informal complaint data in its central database.” These 2005 findings came three years after, “Our 2002 report reviewed the ESGR’s effectiveness and found that the ESGR did not have an accurate count of the complaints handled by its ombudsmen. We found that reporting by ombudsmen had been sporadic and some states had gone an entire year without reporting any complaints at all.”
To compile its ’05 report, the GAO sent surveys to 831 ombudsmen that ESGR said were active. Of the 618 ombudsmen who responded, 52 reported that they were in fact inactive and unavailable to handle complaints. Too bad for whatever reservists and guardsmen may have been waiting to hear back from those folks. According to the information provided by the active ESGR ombudsmen, as of April 6, 2005, ESGR had “handled” a total of 37,684 complaints. Yet because of ESGR’s shoddy or nonexistent record keeping, there is no way of knowing how that number breaks down annually, and even more troubling, there is no way of knowing how those complaints were handled exactly. How many of the complainants who came to ESGR had their cases actually resolved and how many of them were handled like Duarte is, quite literally, anyone’s guess.
The Colorado ESGR office is in Centennial. In April, I e-mailed ESGR Program Support Specialist Stephanie Masura, hoping to get information about how productive and effective the state branch is. I requested to talk with military personnel that the local ombudsmen had assisted. Masura wrote back that she’d spoken to the “ombudsman case manager for ESGR (in D.C.)…and will look for service members that you might be able to talk to.” Masura thought she could provide the information in a few days.
Instead, I got a call from Colorado ESGR ombudsman John Lowrie. He said he volunteered his time to the organization because, while he’d graduated from the United States Naval Academy and served his five years, as Annapolis grads are obligated to do, he wanted to continue to serve the military in some way. Lowrie said there were a “few” Colorado ombudsmen and that he was one of the busier volunteers, mediating about four to six cases each month. He refused to discuss how, or if at all, those cases were resolved, and he refused to ask any of the civilian-troop employees or their employers that he’s worked with to talk with me.
He offered two reasons. First, he maintained that ESGR’s volunteers didn’t have the time to go through the files and relay my request to the parties involved. When I informed him that Masura had indicated that such a request shouldn’t be a problem he cited another reason: privacy of the troops and their employers. He said this despite the fact that neither the civilian troops nor their employers sign any agreements that seal the mediation. “Let’s say,” Lowrie said, by way of explanation, “I put you in touch with a reservist who tells you a story about his terrible employer and the employer doesn’t want to talk to you. That doesn’t seem fair to the employer.” Lowrie made a point of stating that sometimes the military claimant doesn’t have a legitimate USERRA grievance and is just trying to take advantage of the employer. I asked Lowrie what line of work he was in. He’s a lawyer with Ford & Harrison. He represents corporations in labor and employment law. He counsels corporate clients in USERRA matters. I asked Lowrie whether he saw this as a conflict of interest with his ombudsman role. He did not.
Minutes after my phone conversation with Lowrie, I received a call from his ESGR boss, Fred Fletemeyer, the chairman who spoke with Duarte. Fletemeyer is a businessman, the owner of a contracting outfit in Colorado Springs. He likened ESGR’s role in employee-employer disputes to managing children on an elementary school playground. “Somebody comes to me and says, ‘Somebody did something to me.’ I say, ‘OK, I explain the rules and say you’ve got to work this out.’” Although ESGR’s directive clearly states part of the group’s responsibility is “mediation,” Fletemeyer insisted, “We do not mediate. We give information.” Because the employers ESGR often deals with are corporations with legal counsel, Fletemeyer said, he welcomed Lowrie’s service to ESGR. Chairman Fletemeyer did not see any conflict of interest between Lowrie’s law practice and his ESGR role. Then again, according to Fletemeyer, Lowrie was not a mediator.
Fletemeyer, too, refused to put me in contact with any of ESGR’s clients. “Sounds to me that it’s not in the best interest of what we do,” he said. “When there has been a misunderstanding, those are taken care of without making a public thing of them.” Citing Lowrie’s conflict of interest, I reiterated that I’d like to talk directly with the military personnel and employers who’ve dealt with Lowrie and the Colorado ESGR. Fletemeyer’s voice was now raised: “I’m not going to give you any information or call anybody for you. Not in my state. Tell you what, I’m giving you the opportunity to be a real hero here and circumvent me. Go to the national office and ask them, maybe they’ll give you the information you want. We’re done here.”
The man in charge of the national committee of ESGR is retired Marine Gen. Bob Hollingsworth. Immediately after Fletemeyer ended our phone call, I called Hollingsworth and was told he was unavailable. Days later, I received a voicemail from a NCESGR spokesperson saying the organization wouldn’t be able to process my request to speak with military claimants and their employers because of privacy issues.
John Lowrie has conducted USERRA seminars for corporate counsel and private-practice attorneys in the business of representing companies in labor disputes—in other words, he has advised lawyers who may one day soon, if they have not already, set out to quash a reservist’s USERRA claim. And he markets his expertise by identifying himself as an ESGR ombudsman. In the beginning of a seminar Lowrie taught via webcam and that is now sold on CD by a business called Celesq, a Florida-based company that sells continuing-education classes to attorneys, Lowrie says:
“I am going to provide some very significant detail along the way. In my role as an Ombudsman for ESGR…I have been handling a number of cases, about five cases a month on average for the last two years, servicemembers who are either called away or are coming back to their employer and basically having issues arise under USERRA. And I’ve been assisting these individuals, not as a lawyer, but as an ombudsman and working as kind of go between—between employer and the servicemember. So I have dealt with, in these cases, just a tremendous number of issues under USERRA and I’ve seen a whole lot of things and it’s something I’m going to get into detail during my presentation.”
Lowrie was not paid for conducting that Celesq seminar, but according to the company’s spokesperson the value in teaching that sort of class for Lowrie is that “it’s a good way for him to generate referral business. It’s a good way for him to get clients.”
Early last year, according to a former ESGR member who requested anonymity for this story, the source was alerted to Lowrie’s private-practice extracurricular activities. Outraged, the source says, he went to Fletemeyer to discuss the “clear conflict of interest” and request that “something be done. We can’t have an ombudsman giving advice to corporations on how to beat the law and military men and women this organization is supposed to assist.” Fletemeyer, the source says, refused to have any such discussion with Lowrie and suggested the source apologize for saying such a thing.
George Aucoin, the Marine reservist and lawyer who represented Duarte, is not surprised by what he describes as Lowrie’s “gross conflict of interest.… I know Bobby Hollingsworth,” Aucoin says. “He’s a Marine, a decent guy, but I think ESGR has been undermined by the business community. Instead of serving on behalf of the reservists and Guard members, they have become the first line of intelligence gathering for businesses with regard to disgruntled employees who happen to be in the Reserves or Guard. USERRA is a strong law, and I think with ESGR business has figured out what they need to do to turn this thing off. This example of [Lowrie] on the phone for ESGR telling you he represents corporate clients, this is a gross example of it.”
What Aucoin means by intelligence gathering, he says, is this: “Let’s say you represent somebody in a personal-injury case. When an insurance agency calls your client, you don’t tell your client to tell them everything because you know the insurance agency is recording everything. Same thing with ESGR. As a plaintiff’s lawyer I would say don’t open up to the ESGR, you’re giving away information. If an employer is looking for cause to terminate, and that’s the only thing that can stop this…maybe the questions are: Well how do you get along with your employer? Were you there every day? Did you really notify your employer before you left? [Lowrie] can get to the heart of prima facie facts. This is so unethical. If a service member thinks he’s talking to an unbiased mediator when he’s talking to a corporate lawyer who could be gleaning inside knowledge, I think it’s a violation of the ethical responsibilities of an attorney, and I think the American Bar Association would agree with me.”
It is possible that Lowrie is an ombudsman who mediates fairly. The records he and the Colorado ESGR have kept—if any were kept—presumably would provide the information to know for sure. Because the Colorado ESGR refused to supply any of this information, on June 2 5280 magazine filed a Freedom of Information of Act request to obtain all “notes, minutes, and memoranda related to any and all USERRA-based claims/cases mediated by ESGR in the state of Colorado from 2004 to the present.” Federal law requires that a government agency respond to any FOIA requests it receives by providing the information requested or an explanation of why, legally, the agency cannot, within 20 working days of receiving the request.
Early last July, a little of over month after ESGR received my request and still had not yet provided any of the requested documents, the 2002 ESGR Ombudsman of the Year, Fred Samuelson of Maryland, informed me that he’d just received an e-mail that was, as he put it, “a blanket notice” sent to “all state ESGR committee Chair[men]” instructing them to destroy their files. Samuelson said he had spoken to ombudsmen in New Jersey, Massachusetts, and Michigan, and they, too, had received similar e-mails. Samuelson provided a copy of the e-mail. It cited the Federal Privacy Act and stated, in part, “All ombudsmen (and Committee members) are advised to immediately delete or destroy any old files you have retained but have already reported as closed to [ESGR headquarters in Arlington.] The e-mail was dated June 14, 2006—12 days after my FOIA request.
In order to ensure that the Colorado office, if it received the same e-mail directive, would not destroy all of the information I had requested about Lowrie and the Colorado ESGR, 5280 filed a motion for a temporary restraining order in federal court. The magazine asked the court to order the Colorado ESGR to cease and desist destroying documents. In response, ESGR, through the U.S. Attorney’s Office, maintained that it did not receive the e-mail directive Samuelson and others did, and that the documents requested are being prepared for mailing. As of late August, almost three months after 5280 filed the FOIA, ESGR has not provided a single document.
Today, Steve Duarte is again seeking employment, yet he remains optimistic about his prospects. His last deployment before he retired from the Marines was to New Orleans, just before Hurricane Katrina hit. While he was there, a general was preparing for a speech to the local ESGR and asked Duarte if he had any ideas. “I put my thoughts on paper for him, but basically what I wrote was, if I were going to give any reservist or guardsman advice on where to start if he’s been fired, I’d tell them don’t bother with ESGR, get yourself a lawyer.”
Since winning the Duarte case, George Aucoin has been inundated with calls from reservists and Guard members. “Right now,” he says, “I’ve got six USERRA cases filed in five different states, and I’m expecting I’m going to win every one of them. I believe the facts and the law are on our side. And I’ll tell you this: Every one of those plaintiffs came to me after first going to ESGR. So what does that tell you about ESGR?”
This October, Fred Fletemeyer is stepping down from his position as chairman of the Colorado ESGR. He is pleased with his choice of successor. The new state chair is John Lowrie. And Lowrie may not be the only attorney with conflicts of interest providing ESGR mediation. The 2005 GAO report broke down the professional backgrounds of ombudsmen. Fifty-six percent of them were employed in the private sector. Many identified themselves as being in the legal profession, with positions ranging from paralegals to state supreme court judges. The GAO report did not indicate how many ombudsmen were corporate lawyers or private-practice attorneys that represent corporate clients in labor law.
Fred Samuelson, the 2002 Ombudsman of Year and a military veteran, has long believed that because of his ESGR volunteer work he’s been one of the “highest-paid government employees in the nation. I know I’m not paid,” he adds, “that’s not what I mean.” Samuelson has mediated resolutions in approximately 980 cases. His goal has been to reach 1001 and then retire from his ESGR work. He was profiled in the Washington Post as a volunteer who personifies all that ESGR can and should be. After receiving the e-mail directive to shred and delete his files, Samuelson called the ESGR office in Arlington and refused. In response, ESGR fired him and then, upon reflection, shortly thereafter brought him back on board. “I’m sick about all this,” Samuelson says. “This lawyer in Colorado, it blows me away. What it tells me is that ESGR needs to sit down and think about who it allows to be volunteers. What it tells me is we need some kind of screening process.” If ESGR does go back to the procedural blackboard, ESGR insiders suggest it also, once and for all, come up with a clear records-keeping policy.
Jim Vigil remains uncertain about his job—or rather the job he used to have—with the Denver Public Schools. His situation has become even more complex and frustrating. Last May, when the school board accepted the superintendent’s recommendation to “non-renew” his employment contract, Vigil was not in town. He was in Africa. While Superintendent Bennet decided that Vigil was not worth keeping on at East High School, the Marine Corps tapped Vigil to be the highest-ranking American official on Sao Tome, an island off the Nigerian coast. Because the island has lucrative oil supplies and about half of nearby Nigeria’s population is Muslim, the U.S. government fears it may become a fertile pocket for Al Qaeda, and it has dispatched Vigil to the island to make sure that doesn’t happen. Working closely with the U.S. embassy in Nigeria, he oversees all facets of the country—its military operations, its government, its economy, and, yes, even its education system.
In mid-July, while in Africa, Vigil received an e-mail from the DPS HR department. It reads, in part: It has been brought to my attention that your employment contract with Denver Public Schools was nonrenewed.… You have been put on military-leave status. There was no “sorry for the inconvenience” and no explanation of what that new “status” means for Vigil. In August, I contacted DPS Superintendent Michael Bennet to discuss Vigil; I got a conference call with DPS General Counsel Walter Kramarz, Chief Operating Officer Andre Pettigrew, and Chief of Staff Sarah Hughes. After the hour-plus conversation, which at Hughes’ request was off-the-record, Pettigrew provided a written statement expressing “regret” that Vigil was “misadvised” by the district and for any “distress or inconvenience” DPS may have caused him. Pettigrew wrote that the “incident” has “resulted in additional training within the district.”
As far as Vigil’s concerned, the statement is little more than words on a page. “I was never advised or ‘misadvised’ by the district,” he says. “Instead, I was forcefully told, bullied, threatened and reprimanded by [DPS employees]. I was told on several occasions that my actions and persistence were unwarranted and would not look well for me. … ‘Inconvenience’ is a shameful understatement for what I have been subjected to by DPS. It remains to be seen if DPS will follow through with their promise to reinstate me as a Student Advisor at East High School. I’ve been promised that before. … I just want to be the dean of students at Denver East—the job I had when I left. I don’t think that’s unreasonable.”