Reservists and National Guardsmen returning from Iraq are guaranteed to get their civilian jobs back. But is Uncle Sam really looking out for our troops? Not in Colorado. Just ask Jim Vigil
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.