TESTIMONY OF HAROLD CONNOR

Before the Senate Committee on Agriculture,

Nutrition, and Forestry

Tuesday, September 12, 2000

Good morning. My name is Harold Connor, and I would like to thank the Committee for the opportunity to testify today. As an African American employee of the U.S. Department of Agriculture, I have experienced racial discrimination in my employment, and I have experienced firsthand the shortcomings of USDA's Office of Civil Rights as it is currently structured. In addition to sharing some of my personal experiences with USDA's Office of Civil Rights, I hope also to offer some insight into ways in which those problems could be addressed.

I live in Upper Marlboro, Maryland, and I work for the USDA Farm Service Agency (FSA) as the Deputy Director for FSA's Price Support Division. In this position, I share responsibility with the Director for setting administrative policy for several programs, including the Marketing Assistance Loan and Loan Deficiency Payment (LDP) programs. Programs assigned to the Price Support Division for the 1999 crop year provided approximately $15 billion in financial assistance to the nation's farmers.

I began my career with FSA in 1971 as a supply clerk, when FSA was still known as the Agricultural Stabilization and Conservation Service (ASCS). I graduated from the University of Missouri in 1974 with a Bachelor of Science degree in Business Administration, and in 1975, I was hired as the first African American ASCS County Executive Director in the State of Missouri. In 1983, after seven and a half years of successful service at the county level, I applied for a position in Washington, D.C. and was selected to fill that position. It was right here in Washington, D.C. that I first experienced significant discrimination at FSA. As you are well aware, it was FSA that recently reached a multimillion dollar settlement with the Black Farmers after years of discriminating against them by denying them farm operating loans. I first filed an EEO complaint to oppose discrimination in 1989, but decided to drop that complaint after being warned by my friends and co-workers, both black and white, that I would probably be marked for retaliation and never be promoted. However, in 1991, with discrimination still continuing, I filed another EEO complaint which was settled in 1994, but not before the discrimination I had experienced had severely and permanently damaged my health and marriage.

In 1996, while I was serving in my present position, I applied for a GS-15 position as the Director of the Audits and Investigations Group in FSA. I was well qualified for this position, particularly in light of my experience with audits as a program specialist and because I was already a GS-14 manager with over 12 years of management experience at that time, including 7 ˝ years managing a county office. However, the white selecting official selected a less qualified white employee, who was a GS-13 with no management experience, no county office experience, and no college degree. I pursued this complaint before the Equal Employment Opportunity Commission as a named member of the Herron v. Glickman class action, which represents African American managers at the Farm Service Agency at grades GS-12, GS-13, and GS-14 who have been discriminated against in being denied promotions. On December 14, 1999, an EEOC Administrative Judge found that I had been discriminated against, and the USDA Office of Civil Rights accepted the EEOC Judge's recommended decision in its Final Agency Action in my case, which I received on June 5, 2000.

As relief in my case, USDA's Office of Civil Rights first ordered that I either be promoted in my current position from a GS-14 to a GS-15, or that I receive a position substantially equivalent to the position of Director of the Audits and Investigations Group, which has been abolished. USDA's Office of Civil Rights also ordered FSA to award me back pay retroactive to June 9, 1996; $10,000.00 in compensatory damages; and attorney fees.

Immediately after the EEOC Judge made her finding that I had been discriminated against, the Secretary of Agriculture's spokesman Andy Solomon falsely told the Washington Post that I had already been promoted. See Black USDA Managers Lose Round in Bias Complaint, The Washington Post, December 18, 1999, at A11, copy attached. I still have colleagues at USDA who come up to me and congratulate me on my promotion. The truth is that nine months after the EEOC Judge's finding that I had been discriminated against in 1996, I have yet to receive a promotion, and USDA has yet to begin processing the back pay that it awarded me as a result of the unlawful discrimination I experienced.

The USDA Office of Civil Rights should never have allowed the Farm Service Agency, after it had been found guilty by EEOC and USDA of discriminating against me, to choose what position to offer me. I am currently in a supervisory position with major program responsibilities, and the GS-15 position that I was denied because of discrimination, Director of the Audits and Investigations Group, was a supervisory position with major program responsibilities. When FSA was ordered to offer me a promotion and make me whole, it created a non-management, non-supervisory staff aide position that reports to a schedule C political appointee, on the eve of a Presidential election.

Because the position that FSA offered me was clearly not comparable either to the position I now occupy or to the position I was denied, I declined the offer and filed a noncompliance complaint with USDA's Office of Civil Rights. I also asked the Office of Civil Rights to require USDA and FSA to process my back pay award. The Office of Civil Rights did not even reply to my complaint of noncompliance within the time required by the EEOC's regulations, and so I have had to appeal USDA's effective denial of my noncompliance complaint to the EEOC's Office of Federal Operations. I am confident that I will prevail on this clear-cut complaint of noncompliance, but I realize that it typically takes as long as two years before the EEOC's Office of Federal Operations issues a decision. That will be two more years I have to live with the damage to my career, health, and pocketbook from discrimination that USDA's Office of Civil rights found the Farm Service Agency had perpetrated and ordered it to remedy. I believe the Office of Civil Rights and the Farm Service Agency, in full knowledge of the consequences of their actions, have colluded to deny me the remedy that USDA itself ordered.

One reason I believe USDA's Office of Civil Rights is consciously acting to protect FSA management's interests by delaying or denying me any remedy, even when management has been found guilty of discrimination, is its Final Agency Action on the complaint of my colleague and fellow class member Harry D. Millner. Whereas in my case the Office of Civil Rights abetted management's interests through inaction, in Mr. Millner's case it decided a reprisal claim against him that had never been investigated and for which there was no record. Clearly, the Office of Civil Rights should not be deciding claims against employees in absence of any record or investigation. The Office of Civil Rights' action or inaction clearly seems to depend solely on which course will be most favorable to the USDA Agencies at the expense of employees, even when it has been found that the Agency is guilty of racial discrimination.

The costs of not vigorously enforcing the discrimination laws and the laws against reprisal for EEO activity at the Department of Agriculture are significant. One example I wish to call to your attention is the obstacles that my Director and I have faced for two years in trying to make loan deficiency payment applications available to farmers over the Internet to make possible the kind of on-line transaction mandated by Congress when it passed the Freedom to E-File Act, Public Law 106-222, on June 20, 2000. The Director of my Division, who is also African American, and I have tried for two years to obtain the cooperation of the Agency to put this program on-line so that farmers have the option of obtaining these LDP's over the Internet without being required to come to the FSA office but we have received no cooperation from our white supervisors. Vindictiveness against African American employees who protest discrimination is not a valid reason to deny program services to the nation's farmers.

The same white official who has consistently prevented the Price Support Division from making LDP's available on-line has also:

• •verbally instructed key people under his supervision not to talk to me, my immediate supervisor, who is also African American, or to the chief of the Price Support Division Automation Branch;



• •asked what could be done about people who file multiple EEO complaints at a monthly meeting of FSA managers; and



• •refused to authorize my written request to purchase software that would allow the Price Support Division to upgrade and maintain an existing web-based process that can display the daily posted county price for commodities eligible for LDP's for any county in the United States.

In addition, since my complaints were filed, I have observed unfair treatment of other employees in my Division, including the following determinations by FSA's Human Resources Division:

• •a recommendation in 1998 that a white Branch Chief, my subordinate, be temporarily promoted to Acting Director of my Division in the absence of the Director, even though my job description specifically states that I act as the Director's alter ego;



• •a refusal to delay implementation of FY 2000 quality step increases for two PSD employees, even though Human Resources had granted a similar request for an employee in another division.

These are just a few of the many retaliatory actions that the Price Support Division has suffered.

There are positive steps that USDA could take to address the problems and improve the performance of its Office of Civil Rights. First, instead of giving responsibility for the enforcement of its decisions to the very Agencies that have been found guilty of discrimination, the Office of Civil Rights should have the authority and the responsibility for seeing that its Orders are carried out. For example, in my case, the Office of Civil Rights should have ordered the Farm Service Agency to offer me a specific position, rather than leaving it up to the discriminating agency to decide what position to offer. Similarly, the Office of Civil Rights should have taken responsibility for seeing that my back pay award was processed in accordance with its Orders. As it stands, my back pay award has not been processed, and neither has that of the lead complainant in the Herron class action, Dr. Clifford J. Herron, whom EEOC and USDA also found to have been the subject of unlawful discrimination.

My second recommendation is that the Office of Civil Rights, rather than the USDA Personnel Office, should have a more active role in overseeing the keeping of statistics related to race and promotions at Agencies. The EEOC Administrative Judge in the Herron v. Glickman class action roundly criticized the statistical information provided by the Agency to the three expert witnesses in the case, including the expert that she independently appointed to analyze the data. The Judge stated as follows:

[the EEOC expert] opined that the format of the data provided by the agency imposed excessive and unnecessary burdens on the parties in that it failed to provide standard computer documentation describing how the print files were prepared, the meaning of the variables used, etc. AJ-Ex.2 at 3. He noted that the variables supplied were not designed to facilitate efficient data processing and that important sources of information, usually analyzed in promotion cases, were missing or not available. For example, the agency did not provide applicant flow data or machine readable data on the vacancy announcements or on the successful candidate's prior position.

Findings and Conclusions, Herron v. Glickman, EEOC No. 100-98-7658x (December 14, 1999), at 6-7. USDA's Office of Civil Rights should ensure that the USDA Personnel Office and Agencies are keeping complete and accurate data in the form usually used to assess discrimination.

Third, I am aware of at least one situation in which a member of the Office of Civil Rights was sent to defend an Agency manager in a deposition in an EEOC discrimination case. This practice again shows OCR's bias against employees who bring discrimination complaints. If Agency employees are to be able to trust the Office of Civil Rights with their complaints of discrimination, this practice should be stopped.

Finally, I would like to suggest that the Office of Civil Rights should take a more active role in settlement negotiations. At present, the only parties involved on the Agency's side are the Agency and a lawyer from the Office of General Counsel, who typically defers to the Agency's wishes. This was our experience in the Herron class action, a case in which we had several settlement conferences. To ensure that the law and policy against discrimination are being properly considered when cases are being settled, the Office of Civil Rights should have an active role in negotiating and approving settlements.

Thank you again for giving me the opportunity to testify, and I will gladly answer any questions that you may have.