Plaintiffs upset by GAO refusal to submit evidence in lawsuit

In a class-action lawsuit pending before the District Court for the District of Columbia, the Government Accountability Office (GAO) and the agency’s Personnel Appeals Board (PAB) refused to submit evidence that the plaintiff alleges could demonstrate that recent personnel actions were discriminatory and unjust.

Although few have access to the depositions, the information they contain is believed to have been key in a recent settlement with 12 GAO employees who contested a 2006 agency restructuring that split analysts into two different pay grades, capped salaries and denied cost-of-living increases.

Last month, all 12 of those employees received promotions and back pay with interest.

“The information contained in the six depositions of GAO executives and support staff led to the settlement of the claims of 12 persons who had exactly the same factual claims as those of Moses, and the same filing schedules, albeit in a different form,” an attorney for the plaintiffs, Walter Charlton, wrote to the court Monday in response to the GAO’s refusal to submit the materials. A GAO analyst, James Moses, who filed a case in October 2006, is claiming that the agency discriminated against older employees. He prevailed with regard to part of his claims when he was given a promotion and his back pay with interest in April.

“[The] testimony is believed [to] demonstrate the non-candid nature of GAO’s management’s response to valid and relevant inquiries by plaintiffs/complainants, inquiries by this Court in hearings, and the Congress itself, to whom GAO is
ultimately responsible,” Charlton’s letter said.

However, if successful, the class-action lawsuit would give more than 300 employees promotions and retroactive pay. For the 300 employees involved, a cost-of-living increase alone would cost the GAO nearly $1 million, according to a basic calculation by The Hill.

The GAO has filed a motion to dismiss the case, claiming that Moses did not exhaust administrative requirements before filing suit and filed his case too late for it to be considered.

Charlton contests the GAO’s claims and has filed for an emergency hearing for the court to consider information he requested from the GAO.

On April 30, the subpoena required the production of deposition transcripts from Comptroller General David Walker, Chief Operating Officer Gene Dodaro, Chief Administrative Officer Sallyanne Harper, former Special Assistant to the Comptroller General Susan Kladiva, former Managing Director of the Human Capital Office Jesse Hoskins and a number of managing directors who led the teams of 12 Band IIs, as well as any person at the GAO Office of Inclusiveness (OoI) who was deposed, believed to include Ron Stroman and one other OoI employee.

The GAO listed three reasons for withholding the information. First, the GAO said it did not want to spend money to produce documents for a case that may be dismissed. Second, the agency said the material had to do with an unrelated case, which does not involve discrimination. Finally, the GAO said that there is no need for an emergency hearing regarding the subpoenas because there is no emergency.

Charlton told the court that he has offered to cover the costs of obtaining the information and that the case should be considered promptly because the agency’s “obstruction and delays” and a motion to dismiss have brought the proceedings to a standstill.

In addition, while the case settled with the 12 employees did not mention discrimination, the plaintiffs in the class-action suit contested that the employees and Moses questioned the same underlying actions by the agency. The response stated the plaintiffs believe the PAB was ordered by GAO management not to consider age violations.

Asked for comment, Walker stated, “[Charlton’s] assertions have no merit. We’ll deal with this matter in the normal course.”

The plaintiffs’ reply stated that, under law, the material should be public information, and the fact that it is not being made available demonstrates the “damaging nature” of the withheld files.

“GAO, in its response to the subpoenas, has proffered false, even obviously specious reasons for the otherwise unsupported denial of this important evidentiary material,” the response to GAO’s objection continued. “To fail to require the immediate production of the public information requested, and denied, is nothing less [than] intentional obstruction of justice, mislabeled as a ‘discovery dispute.’ It is no such thing, but rather simple dishonesty on the part of this important government agency, the purported ‘watchdog’ for Congress. Congress needs to train its ‘watchdog,’ and so should this court.”

In 2006, the agency used a Watson Wyatt Worldwide study as grounds to split its 1,200 analysts into two groups: 800 analysts went into Band II A, with a lower pay rate, while 400 analysts were placed in Band II B, with a higher pay rate.

More than half of the 1,500 analysts recently filed a petition to hold a union election. Union representatives have cited changes to the pay system, the employees’ classification and discrimination issues as grounds for initiating a union.

Additionally, 226 employees filed a petition Wednesday with the GAO’s Personnel Appeals Board General Counsel’s Office for cost-of-living increases, back pay and other benefits.

Several lawmakers have begun to investigate. Tuesday, the House Oversight and Government Reform Committee’s Federal Workforce, Postal Service and the District of Columbia subcommittee and the Senate Homeland Security and Governmental Affairs Oversight of Government Management, the Federal Workforce and the District of Columbia subcommittee will hold a joint hearing on the GAO.