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
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.”