The NoPay Game: also used against FAA Whistleblowers

We survived ‘Shutstorm 2013!’

Or, then too, maybe Congress will put us through this again (again!) in a few more months. Gotta love the fact that today, ‘We the People’ have elected U.S. officials who increase their sway (and crisis-related fundraising) by strategically not doing their jobs.

After the first week of the shutdown, much of the mainstream news began to center on articles about the financial turmoil starting to appear at homes of furloughed Federal employees. Not many people these days can casually endure smaller paychecks, let alone absent paychecks, so household spending also began to ‘shut down’. And, the stress went beyond the employees to all members of their families: their children off to college, the elders they care for, their church/social communities, and on and on. Meanwhile, those whose inaction precipitated this mess … they are mostly millionaires anyway, so one doubts they felt any pain during the shutdown weeks.

The Public may not realize, this power to withhold paychecks is not something only Congress can abuse. Nor must it be done broadbrush. It can be done selectively and, in fact, it is routinely used to attack individual Whistleblowers. In any agency where managers are not held accountable for harming Whistleblowers (and, yes, that means essentially ALL Federal agencies) a rogue manager who dislikes or feels threatened by a Whistleblower can make up any garbage he/she wants and play the NoPay Game with that employee.

Create a little hell.

Or a lot.

Here’s an example showing just how big a mess the NoPay Game can create, when used against an FAA Whistleblower. This is just one example, and I have no doubt it pales in comparison to others. In the interest of accountability, names of FAA officials are included. And, so as not to discriminate, union officials are also named. A few key documents are linked; all other documents will be posted/linked on request…

…in my own retaliation case, the FAA manager at the control tower in Concord, CA, Jason Ralph, abruptly locked me out on the morning of February 16, 2007. I had no idea why; he provided no meaningful paperwork, and so I was uncertain as to my pay status week-to-week, and anxiously watching my bank account and the mailbox to try to figure out what was going on.

A couple weeks later, the first lockout paycheck showed he had placed me into a paid administrative leave status. That continued for a few more paychecks, while I remained away from work. It was all weird and troubling. I made many attempts to get an explanation, but all were rebuffed.

Two months after the lockout had commenced, in late April 2007, Jason Ralph sent me an email out of the blue. He advised that I needed to choose between using my sick leave or my vacation leave, and he declared his intention to apply that leave retroactively and into the indefinite future. A crazy, mindless, and obviously illegal proposal, but this is the kind of thing rogue federal managers can do.

Now, at the time, I had been receiving my paychecks. So, in my email reply, I did not select from his two choices; instead, I pointed out that I was away from work on his orders while he was trying to figure out what he was doing. I pointed out that FAA’s Regional Flight Surgeon, Dr. Stephen Goodman, had agreed to declare me ‘medically incapacitated’ based solely on Jason Ralph’s charges, and I added: “…it would not be appropriate for me to be compelled to use my sick leave to cover your arbitrary and hostile management actions.” PDF

A few weeks later, the first paycheck arrived showing me involuntarily using up my accumulated sick leave. By mid-August, I had exhausted all of my accumulated leave balance, and was suddenly seeing no pay. My NoPay status continued through the end of September.

Fortunately, a new District Manager, Andy Richards, had arrived at San Francisco in August and, in early September he telephoned me out of the blue. Andy then assisted* in correcting the pay status, which was restored to paid administrative leave effective the end of August. I saw the first pay restorations in early October. *Andy was helpful this time, but a year later, he did not help. In fact, FAA records show that he was apparently under orders from above to not assist, as he just ignored the process of firing a 22-year employee with a clean work history. Jason Ralph had been promoted to serve as Andy’s assistant, and it was Jason who sent the key emails to push the firing.

For the record, Andy’s boss had been Teri Bristol until early 2008. His new boss became Kathryn Vernon, starting in early 2008. However, both Ms. Vernon and Ms. Bristol relied heavily on Senior Advisor, Barry Davis to conduct all the real work.

Kathryn Vernon soon promoted to become Northwest Mountain Regional Administrator; Barry Davis soon promoted to become manager of the world’s largest TRACON, in Southern California; and, Teri Bristol promoted to become #2 in all FAA Air Traffic (she is Deputy under David Grizzle). All three of these high officials were deeply involved in the Lewis-FAA case and should be accountable for actions taken; all three have successfully dodged being put on the record. They all refuse to talk about the Lewis-FAA case, and FAA condones their refusal. A gross injustice, initiated by a rogue manager, is thus sustained.
I remained in a paid administrative leave status — paid to stay away from work, involuntarily — until I was eventually fired, on November 6, 2008, 21-months after the lockout had begun.

My ATC medical clearance (which had been improperly retracted in another Whistleblower retaliation, to justify the lockout) was fully restored by Dr. Goodman. I even received a letter from Andy Richards in late April, saying we would discuss my return to work. Glen Rotella (a Labor Relations specialist at FAA’s Western Pacific regional office, AWP) invited me to file a new grievance, so that I could be made whole for the improper NoPay actions imposed from April 2008 through August 2008, and so I filed that grievance on 5/1/08.

Interestingly, FAA emails (obtained years later, via FOIA) show that there was NO PROPOSAL to fire me until just one week after I had filed a grievance. That grievance sought a full restoration of all lost pay, as well as a return to work. The proposal to fire me arrived out of the blue: a FedEx overnighted envelope was stuffed inside my screen door on July 16, 2008 … seventeen months after I was locked out! (and, yes, three months after that 4/17/08 letter from Andy Richards saying we would discuss a return to work)

So, in this particular example, FAA managers are seen to have the authority to just do whatever they want to arbitrarily destroy careers, including playing the NoPay Game. But, that is just the half of it: the larger half of the hell is experienced on the backside, when the damaged employee tries to restore the pay that was arbitrarily withheld. In my case, progress was delayed for years due to sloppy paperwork and outright lies by people like Jason Ralph and Dan Castrellon (who was acting manager at AWP-16, thus Glen Rotella’s boss, during the process of my firing). Eventually, multiple pay audits had to be performed by FAA’s outsourced pay contractor. The first small pay restoration was a block of 72-hours of pay improperly withheld in April 2007, and it was not fully restored until May 2009 … two months after I had been forced to ‘retire’ (manipulated* by MSPB and FAA’s Regional Counsel, Naomi Tsuda and Don Bobertz, to retire at earliest eligibility). The deal was, if I wanted to collect the pension I had earned, I had to ‘voluntarily retire’. *The ‘manipulation’ was easily accomplished, in that all FAA had to do was not produce the evidence. They knew that MSPB would NOT pressure them to produce, so FAA Counsel simply hid everything. All the emails and other requested records that showed the many documented slanders against me (mostly by Jason Ralph, a few also by Dick Fossier, another Labor Relations specialist), as well as clear failures by Dan Castrellon to change course when his subordinate, Ros Marable, pointed out to him that Jason Ralph had provided false information.

They also hid the fact that the final deciding official, FAA manager Marc DePlasco, had written in his ‘Douglas Factors’ analysis (drafted five months AFTER the removal  proposal letter, no less!): “…Mr. Lewis was asked to consider a medical retirement but he refused.” This he wrote nine months AFTER Dr. Goodman had fully restored my ATC medical clearance (which never should have been rescinded in the first place).

In August 2008, Andy Richards lied when he emailed me, claiming he did not have a key email declaring I had already been admonished (thus a fresh new firing proposal was a second disciplinary action where discipline had already happened). This key document was hidden by Counsel; in fact, Naomi Tsuda told MSPB outright that I had not been previously admonished, which was a flat-out lie.

I obtained these copies — and evidence of all the improper concealment during MSPB Discovery — years later, through a series of FOIA requests. (if you are curious, here is a deeper analysis of those concealed records: aiR-Link)
As for the other (and far larger) pay restoration, the process dragged out for three more years.

The very grievance that triggered my firing, which I had filed on 5/1/08, eventually went to a grievance arbitration scheduled for mid-February 2012. I had worked intensively producing records and communicating the need to fully arbitrate, and shared this with a long string of NATCA officials (the union): Mike Hull, Ham Ghaffari, Kevin Sills, Mark Wilson, Anna Jancewicz, Barry Krasner, Jay Barrett, and David Caldwell. But then, at the last minute, NATCA’s arbitration team (Jay Barrett and Mark Wilson) accepted FAA’s settlement offer that paid me at 40-cents on the dollar; what should have been nearly $50K was instead under $20K.

Even more importantly, though, the NATCA decision denied me the opportunity to have a hearing. I had made it VERY clear to all NATCA officials that the hearing was far more important than any cash payout, PDF that the hearing was my one opportunity to put these managers (as well as a few involved union officials, including Ham Ghaffari, David Caldwell, Bill Marks and James Swanson) under oath to create a record. In other words, the arbitration was my final opportunity to use the grievance system as we are all supposed to use it — to assure we are afforded real Due Process, which I had clearly been denied.

So, when NATCA arbitrarily caved in at the last minute, they killed that critical opportunity. That this was an arbitrary (and damaging) decision by NATCA is shown by the larger record of FAA-NATCA arbitrations: as presented in this webpage aiR-Link showing all FAA-NATCA arbitrations at AWP for a relevant 18-month time period, NATCA has routinely taken many marginal cases through full arbitration, including minor cases such as single-day suspensions, and clearly unwinnable cases.

<< <><<>> <> >>

So, what can we gain from all of this? Well, it may help to recognize that we as citizens are learning right now, about how broken our Congress can be, and the problems that flow out of that dysfunction. But, we also have an opportunity here, to become a bit more familiar with how badly Whistleblowers are maltreated.

The latest rounds are behind us now (for a short while), but we all found it troubling as we heard the news and then began to learn how Shutstorm 2013! caused so many problems for so many people, but imagine having to endure this hell all alone.  A Whistleblower — the woman who speaks up about a safety issue, or the guy who refuses to stay quiet about a fraud — gets singled out by her/his boss, a corrupt official who is arbitrarily acting to destroy careers (and thus families). And the agencies condone this corrupt and damaging behavior!

Imagine the hell of today’s Shutstorm 2013! mess, then imagine it against you and you alone. That is the intensity of what we Whistleblowers endure. That is the reason we must have real and effective laws that protect Whistleblowers. And, that is why we must repair MSPB and OSC and other entities that are failing to do their protective duties.

We need to shut down the NoPay Game, permanently.