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
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.”