(A.0) 3rd Amended Complaint in Diersen v. Walker (GAO)

Case 16:  (A.0) 3rd Amended Complaint in Diersen v. Walker (GAO)

David J. Diersen,
for himself and all others
similarly situated,

Plaintiff,

COMES NOW, the Plaintiff David J. Diersen (Diersen), for himself and all others similarly situated, and files this third amended complaint against the United States General Accounting Office (GAO), by and through its Chief Executive Officer, the Comptroller General of the United States of America, David M. Walker, and in support thereof, Diersen on behalf of himself and the class he seeks to represent, does hereby state as follows:

1. JURISDICTION AND VENUE

A. Jurisdiction:

This case is filed pursuant to a Federal question, i.e., the Age Discrimination in Employment Act of 1967, as Amended, 29 U.S.C. § 621, et seq. (ADEA) and 42 U.S.C. 2000e, et seq, (Title VII), for Diersen’s allegations on behalf of himself and all others similarly situated for discrimination in federal employment based upon age discrimination, reverse discrimination, and reprisal resulting from GAO’s creation of a prohibited preferred class or classes of young persons predominately gender and/or race preferred, which class preference adversely impacts all older protected persons similarly situated with Diersen.

The jurisdiction of this Court is invoked by Diersen, pursuant to (a) 28 U.S.C. §§ 1343(3) and 1343(4) which confer original jurisdiction upon this Court in a civil action to recover damages or to secure equitable relief under any Act of Congress providing for the protection of civil rights; (b) the Declaratory Judgement Statute, 22 U.S.C. § 2201; (c) ADEA; and (d) Title VII. This Court has jurisdiction over this action by virtue of 42 U.S.C. §§ 1981-1986, relating to intentional conspiratorial actions designed to violate the civil rights of American citizens.

B. Venue:

Venue properly lies in the District of Columbia pursuant to 28 U.S.C. § 1391(b) because GAO’s principal office is located in the District of Columbia and all of the policy decisions that violate federal law and underlie this lawsuit affecting Diersen’s individual claims and the class he seeks to represent were established, implemented, and enforced there. Venue in the District of Columbia is also proper for reasons of judicial economy, the convenience of the parties and witnesses, and the interests of justice because the largest single concentration of members of the class Diersen seeks to represent live and work in or around the District of Columbia, because the bulk of the witnesses to the claims of both Diersen and the class he seeks to represent are located there, and because the official personnel files for Diersen and for each member of the class he seeks to represent were at all relevant times during the execution of the acts complained of herein, both individually and for members of he putative class, maintained and administered in the District of Columbia. Moreover, on information and belief, the files supporting Diersen’s allegation of the intentional creation of preferred classes are located in the District of Columbia, on the seventh floor of the GAO building.

2. EXHAUSTION OF ADMINISTRATIVE REMEDIES

All prerequisites to the filing of this suit have been satisfied. Specifically, Diersen gave timely notice of intent to sue under ADEA and previously, GAO denied his claims of age discrimination and reverse discrimination. No previous consideration by any Court on the merits of Diersen’s claims has ever occurred. No defense of res judicata or collateral estoppel is applicable to any part of the claims asserted in this Complaint. Diersen exhausted Title VII administrative exhaustion requirements by filing a claim of reverse discrimination which GAO did not process in a timely manner during the 180 day statutory period of time. Also, Title VII requirements to exhaust administrative remedies do not apply in this case because this a mixed case in which both Title VII and ADEA claims have been asserted and relief in the administrative process against GAO, and its purported oversight agency, the General Accounting Office Personnel Appeals Board have been demonstrated in prior litigation to be a futile exercise. In addition, under ADEA, it is unnecessary to exhaust administrative remedies and GAO regulations do not require administrative exhaustion in ADEA cases.

3. CLASS ACTION ALLEGATION TIME PERIOD AND DEFINITION

All of the preceding paragraphs are incorporated by this reference.

A. Time Period and Definition:

Diersen brings this case on behalf of GAO Band II (GS-13 and GS-14) Evaluators and applicants for that position who were or became age 40 during the class time period and were denied equal employment opportunity and were damaged thereby as the result of GAO’s discriminatory policies and practices.

The class time period is dependent upon a factual determination by this Court which requires, under the applicable federal statute of limitations, a finding by this Court that the violations complained of were "continuing" in nature and not isolated incidents" and a separate finding that they were "intentional." If they are found to be continuing, as Diersen alleges, the class period is from 1989 to the present. If they are found to be non-continuing and unintentional, the class period is from September 30, 1995 to the present. If they are found to be non-continuing and intentional, the class period is from September 30 1994 to the present. Thus, the class definition Diersen proposes is:

All GAO Band II Evaluators and applicants for that position who were or became age 40 during the class time period and were denied equal employment opportunity by reason of their age, i.e., not hired or were denied work assignments; given unrealistic performance expectations; given unfair performance appraisals; denied bonuses; denied merit pay increases; denied promotions; and/or given actual or defacto adverse transfers, demotions, or discharge because of GAO’s discriminatory policies and practices which adversely impacted each such class member and which policies and practices were in effect during the class period of time, 1989 to present; said policies to include inter alia

A. Favoring equally or lessor qualified persons who were younger at the time of the relevant employment decision, female, and/or minority; and/or

B. Retaliating against persons who have complained about GAO’s policy and practice of favoring equally or lessor qualified persons who are younger, female, and/or minority.

 

B. Rule 23(a) and Local Rule 203 (LCvR 23.1) Information:

The Federal Rules of Civil Procedure (FRCP), Rule 23(a), sets forth the prerequisites for certification of a class for purposes of pursuing legal action, which are met in the instant case in that: the class or classes are so numerous that joinder of all members is impracticable, as required by FRCP 23(a)(1); there are questions of law or fact common to the class which predominate over any questions affecting only individual members, as required by FRCP 23(a)(2); the claims of the representative party are common and typical of the claims or defenses of the class, as required by FRCP 23(a); and the representative party will fairly and adequately protect the interests of the class, as required by FRCP 23(a)(4).

(1) Numerosity: The class or classes of Band II Evaluators Diersen seeks to represent consists of members of the most numerous classification of professional level employees at GAO. GAO is a legislative branch federal agency, consisting of auditor, accounting, and other technically expert employees, most of whom are charged with performing GAO’s mission as the financial and investigative organ of Congress. GAO’s employees who do that work are classified as Evaluators. Band II Evaluators are the mid range of this professional level group and hence the most numerous. On information and belief, based upon existing statistics, at least 250 persons met the requirements of (A.) in the proposed class definition and at least 35 persons met the requirements of (B.) in the proposed class definition, and therefore, the numerosity requirement is met. The size of class is so large that joinder of all members is impracticable.

(2) Commonality: Numerous questions exist that are common to the class. The following common questions of law and fact predominate over any questions solely affecting individual members of the class: (a) Whether GAO’s statutory and regulatory mandates were violated by its actions; (b) Whether GAO adopted and maintained the age based and/or Title VII reverse discriminatory policies and practices complained of herein; (c) Whether GAO’s gender and race based discriminatory policies and practices caused a disparate impact and/or treatment of the members of the class; and (d) Whether, as a general practice, GAO retaliated against its employees who complained and intimidated members of the class causing an adverse disparate impact and/or treatment of members of the class.

(3) Typicality: Diersen is from the most numerous classification of professional level employee at GAO. Diersen is aware from published statistics that hundreds of employees in his classification have been similarly treated for at least the past 10 years. More than 150 have supported a related class complaint. Diersen’s claims and those of each member of the class include that for over 15 years, on a continuing basis, GAO maintained and continues to maintain a practice of favoritism for its younger Evaluators, especially those who are female and/or minority, in matters involving hiring, work assignments, performance expectations, performance appraisals, bonuses, merit pay increases, promotions, transfers, and separation from service. The result of that practice, which has been observed by Diersen and many others with whom he has maintained contact and which he avers in fact exists, includes the following: (a) Equally or better qualified persons who are older, male, and/or white are not hired, are denied work assignments, are given unrealistic performance expectations, are given unfair performance appraisals, are denied bonuses, are denied merit pay increases, are denied promotions, and/or are given actual or defacto adverse transfers, demotions, or discharge; (b) Since 1989, GAO has abused the flexibility in its broadbanding and pay-for-performance (PFP) systems to achieve the results in (a) above; (c) Virtually all promotions to Band II and to Band III in virtually all GAO’s divisions and offices during the class period were given to persons under the "magic age" of 43, an age younger than Diersen, and an age at which virtually all promotions stop. Virtually all exceptions to this rule of which Diersen is aware were females, minorities, and/or persons who have agreed to give preferential treatment to those groups; (d) This practice has been universal, in all divisions and offices and for all grade levels of employment involved, for the entire class period. Summary statistics now held by Diersen’s counsel for the early part of the class period verify these allegations; and (e) A recent report prepared by the GAO Personnel Appeals Board (PAB) verifies Diersen’s claims. The report, which has long been available in draft form, covers through 1995. Nevertheless, PAB, the agency charged by Congress with insuring equal employment opportunity (EEO) fairness at GAO, has not only failed to act during the class period to enforce equality, but continues to refuse to release the report that independently verifies the factual allegations of favoritism, discrimination, and reprisal complained of herein. The claims of this illegal pervasive pattern and practice are common and typical for each class member for the relevant time period. That number includes hundreds of individuals. Virtually no exceptions to the foregoing described pattern and practice have been noted by Diersen or by his counsel who has interviewed in sum over 100 persons similarly situated.

(4) Adequacy of Representation: Diersen has demonstrated his tenacity in pursuing the claims herein by filing a discrimination complaint and by filing litigation after GAO denied that complaint despite constant hindrance by GAO through forced retirement, repeated reprisals, misinformation, and obstruction of the flow of re-employment information to prospective employers. Diersen has obtained counsel with more than ten years experience in litigating class actions to completion in the federal administrative process and/or the federal court system. Additional class action experiences in the private sector cover a period of over 20 years. For more than 13 years the lead counsel for Diersen has been litigating a very similar case against GAO, Chennareddy, et al v. Bowsher, 935 F.2d 315, USDC Case No. 87-3538, in which many if not all of the facts alleged herein have been observed and documented statistically. Co-counsel’s ten years of practice includes approximately six years of general litigation experience, including two years of litigation in mass tort actions and experience with this and related class actions. Diersen and his attorney can and will fairly and adequately protect the interests of the class.

C. Rule 23(b) and Local 203 Information:Under FRCP 23(b), the prerequisites for a class action have been satisfied as described above. The claims alleged by Diersen involve questions of law and fact that are common to all the members of the class he seeks to represent. His claims include that a flawed EEO system and standards of conduct at GAO have deprived him and the other members of his class of their rights under ADEA. Older persons are denied equal treatment in virtually all employment decisions because of preferential treatment given younger persons and a favored class of persons benefitted by the creation of preferred classes, said preference being on the prohibited basis of gender and race.

Because GAO operates many field offices and sub-offices in many judicial districts across the country, prosecution of separate actions by class members would create the risk of inconsistent and varying adjudications which would establish incompatible standards of conduct for GAO, create the risk of adjudications which would be dispositive of the interests of other members of the class who are not parties to the adjudications, and create the risk of adjudications which would impede the ability of other members of the class to protect their interests.

Therefore, under FRCP 23(b)(1)(A), the prosecution of separate actions by individual members of the class would create the risk of inconsistent adjudications which establish incompatible standards of conduct for GAO. Under FRCP 23(b)(1)(B), adjudications with respect to individual matters would, as a practical matter, be dispositive of or impair the interests of parties not party to the adjudications, because such adjudications may be res judicata with respect to the issue of GAO’s pattern and practice of administering EEO complaints. Under FRCP 23(b)(2), GAO has acted and refused to act on grounds generally applicable to the class. GAO has denied the facts alleged by Diersen and has refused several reasonable requests for statistics and details. These statistics, in GAO’s possession, will confirm the pattern and practice of which Diersen avers. This pattern and practice is contrary to both ADEA and the reverse discrimination provisions of Title VII. Therefore, injunctive relief and/or corresponding declaratory relief for the class is appropriate.

As required by FRCP 23(b)(3), a class action in this case is superior to other available methods for the fair and efficient adjudication of the controversy. The questions of law or fact in this case predominate over any questions affecting individual members. The common dispositive issues of law and fact relate to GAO’s general administration of its EEO system, and, as stated above, maintenance of individual actions would be impracticable. In addition, the interests of the individual members of the class will be adequately protected by Diersen.

A class action is superior to other available methods for the fair and efficient adjudication of the controversy because the only other alternative class members have is to use GAO’s PAB. However, PAB has proven itself to be totally inefficient and ineffective and nothing more than a tool of GAO for achieving and exceeding its illegal affirmative action and diversity quotas. Individually, all the members of the class can and will have an adequate role in controlling the prosecution of separate actions should that alternate course of action prove more practical and in the interests of justice.

It is desirable to concentrate the claims of the class in this particular forum because the claims involve both Title VII and ADEA, because GAO’s principal office is in the District of Columbia, GAO’s personnel policies are established in and directed from its principal office, and because approximately half of the members of the proposed class reside in and around the District of Columbia, and the remaining half reside in and around the many cities across the country in which GAO’s field offices and sub offices are or were located. While no unusual difficulties are expected in managing this class action, obviously, to the extent that GAO succeeds in delaying the proceedings, managing the case will be more difficult, especially as more and more class members leave GAO’s employ, retire, suffer declining health, and pass away.

For all of the foregoing reasons, this case should be approved as a class action and processed as such to completion by this Court to obtain the relief for Diersen and the class he seeks to represent.

D. The Quota System:

The hiring and promotion quotas GAO has set for itself favor its employees who are under age 40, female, and/or minority. No corresponding quotas exist for its age protected employees who are over age 40, male, white, or disabled veterans. The quota system has been in effect since at least the mid-1980s and every decision by every GAO manager involving hiring, work assignments, performance expectations, performance appraisals, bonuses, merit pay increases, and promotions has been and continues to be driven primarily by the mandatory nature of those quotas.

If members of GAO’s Senior Executive Service (SES) fail to meet the quotas set for them, they are downgraded, reprimanded, removed, or otherwise punished. These actions, should a SES member fail to comply, severely negatively impact each SES member’s career. GAO's SES system is controlled by these quotas and adherence to these quotas is the overriding and hence most important criteria, that is used when the performance of SES members is assessed for annual performance appraisals. Diersen alleges that the public interest and the very mission of the agency is adversely impacted by this ill-conceived policy and practice.

There has been, except in the far past, no valid reason for GAO to give preferential treatment to its female and minority employees, and there has never been a valid reason for GAO to give preferential treatment to its employees who are under age 40. In essence, since the early 1980s, GAO's quotas and preferences have been experiments in social policy unauthorized at law and prohibited by several separate but complementary provisions of federal law. Such provisions violated by GAO's practices include the constitutional concepts of due process and equal protection of the laws. Also involved is the concept of non-preference based upon age, gender, and race, which federal law prohibits as discriminatory in nature.

E. Immediate, Irrevocable and Continuing

Harm to Class Members:

Diersen and the class of persons he seeks to represent have been suffered immediate, continuing, irrevocable and permanent harm. Those members of the putative class who remain at GAO continue to suffer such damage. For those who remain at GAO, the damage includes denied and reduced merit pay increases and stunted career opportunities that otherwise they would achieve, but for the preference of the preferred class in the quota system. The very nature of the offense lends itself to injunctive relief.

F. Existing Affirmative Action Plans Create Preferred Classes

in Violation of Law:

Throughout its reduction-in-force (RIF) which has been on-going for several years, GAO has openly stated its desire to maintain employment for its younger, female, and minority employees as opposed to older, male, and white employees. GAO's affirmative action plan for females has been sufficiently successful in recent years that GAO has, effective in 1995, been forced to officially change the underlying statistical quotas for females to diminish favoritism for that class of employees. Nevertheless, on information and belief, which will be supported by promotion statistics, that preference continues resulting in a de facto class of preferred persons to the diminishment of Diersen and the class he seeks to represent.

G. GAO Has a Duty to Follow its Own Regulations,

But Has Not Done So:

GAO had a duty to follow its own regulations and not engage in favoritism in work assignments, in promotions, and in any other term of employment. Where a RIF occurs, GAO has a duty to favor its employees who are long-term employees, veterans, and disabled veterans. GAO’s failures to meet these obligations are violations of federal law and prohibited personnel practices under GAO’s own regulations. As a matter of law, GAO is bound by the provisions of its own regulations. But GAO has not done that, thereby violating its own regulations. GAO has violated its own regulations for the express and admitted purpose of favoring its young employees, particularly young females and minorities, who were essentially all retained during the RIF. To accomplish its objectives, GAO has determined in violation of its own regulations to constructively discharge or require to retire all of its older employees, especially its Band II Evaluators who are male and white, because they do not conform to GAO's policy of creation of its preferred classes. This policy is a violation of older employees' vested employment rights at GAO, equal protection of the laws, Title VII, and ADEA.

4. DIERSEN’S INDIVIDUAL CLAIMS:

All of the preceding paragraphs are incorporated by this reference.

This is a suit by a former federal employee who was constructively discharged after an 18 year period of employment with GAO during which he experienced at every turn a constant and continuing pattern of discrimination because of GAO’s policy and practice to favor younger persons who were typically females and minorities targeted for promotion and retention over older better qualified employees. Diersen seeks injunctive relief to stop the illegal practices complained of which are in violation of federal law, restoration to his job after a constructive discharge, and to be made whole for the damages caused to his career by the practices complained of, and similar relief for each and every member of the class of persons similarly situated.

This lawsuit also alleges the fact that Diersen was well known by his managers to have participated, not as a class representative, but as an active class member, in a related case of age discrimination that has been pending for many years in this Court, Chennareddy, et al v. Bowsher, Civil Action No. 87-3538 JGP. As the result of that participation, his managers actively discriminated against him in violation of federal law by removing him from audits of IRS and other existing high-profile work assignments, denying him leadership roles on audits of IRS and other high profile work assignments, and substituting lower skill and lower profile work assignments, with the intent to deny him bonuses, merit pay increases, and promotions to which he was entitled as the most qualified and to force him out of the federal service, which actually happened.

The final events in the series which led to Diersen's complaint of discrimination occurred on September 30, 1997 and in the forty five days preceding that date. Those events included giving him an unfair performance appraisal and forcing him to accept either a constructive demotion or forced transfer. Those actions were highly prejudicial to his professional standing and his job and they were also well within the statutory period for filing an age discrimination claim. However, Diersen alleges that all of the events in this case are part and parcel of a continuing pattern and practice of intentionally causing emotional and professional harm to the careers of older persons for the purpose of creating vacancies. This is done to make space in the staff so that classes of preferred persons could be hired, given preferred assignments, and promoted at the expense of the class discriminated against, thereby meeting management’s gender and racial quotas.

Diersen filed an EEO complaint with GAO's Affirmative Action/Civil Rights Office. That complaint was not adequately investigated and essentially all of his claims were swept under the rug. GAO denied Diersen the due process that GAO regulations require. That denial was for the purpose of covering up the actual illegal events constituting age discrimination, reverse discrimination, retaliation, and illegal preferences given to younger employees, females, and minorities.

On at least five occasions since September 30, 1997, GAO willfully and repeatedly failed to follow its own procedures, including GAO Order 2294.3, for handling inquiries about former employees. GAO failed to respond to inquiries about Diersen’s GAO employment. GAO refused to acknowledge that Diersen was eligible to be rehired by GAO. GAO failed to keep its agreement with Diersen to respond to inquiries about his GAO employment in a manner that is consistent with its letter of recommendation.

5. FACTUAL ALLEGATIONS SUPPORTING THIS COMPLAINT:

All of the preceding paragraphs are incorporated by this reference.

A. Class Action Allegations:

GAO discriminated against its older Band II Evaluators and applicants for that position in hiring, job assignments, development and leadership opportunities, performance expectations and appraisals, bonuses, merit pay increases, and promotions. The individual acts of discrimination against those individuals, including Diersen, are part and parcel of GAO's illegal policy of maintaining quotas for hiring, promoting, and retaining young, female, and minority employees at the expense of older employees. As described herein, Diersen is just one example of and individual who was harmed by this illegal quota system. GAO’s senior managers, members of the SES, on information and belief, are essentially and effectively bound to commit the discriminatory acts complained of herein or be themselves subjected to reprimand, sanctions or removal from their positions. This forced adherence to an illegal quota system is enforced by and through the mechanism of threat of termination of SES contracts absent strict compliance. High GAO officials have admitted that those contracts are subject to yearly mandatory review with a specific mandatory requirement for each SES member to adhere to age, gender, and minority preference quotas given them by very high GAO management. The annual quotas effectively establish preferred classes of GAO employees who receive preferential treatment on criteria based primarily on age, gender, and race and represent a policy of adverse impact upon older white males, including Diersen. The detailed claims of Diersen are specified as follows and are hereby incorporated by this reference.

B. Diersen’s Individual Claims:

(1) Diersen’s Individual Prima Facie Age Discrimination Claims:

Diersen, who was 49 years of age when he retired on September 30, 1997, began his GAO employment in 1980, and as a person over 40 years of age is a member of a protected class of persons, and as such an employee protected from age based discriminatory acts. Diersen, by virtue of his qualifications and expertise, was at least equally qualified for each work assignment, leadership role, bonus, merit pay increase, and promotion that he did not receive. GAO employees who were either younger than Diersen, female, and/or minority and less qualified received higher profile assignments, bonuses, larger merit pay increases, and promotions. But for the discrimination complained of herein, Diersen would have received the assignments, leadership roles, bonuses, merit pay increases, and almost all of the promotions.

Diersen alleges that a prima facie case exists as well as that a continuing pattern of action exists of age discrimination, reverse discrimination, and retaliation. Those patterns resulted in his constructive discharge. Pursuant to GAO’s illegal policy and practice of giving preferential treatment to younger employees, GAO discriminated against Diersen because of his age since he became 40 years old on September 29, 1988. Adverse employment actions GAO took against Diersen because of his age include denying him job assignments, denying him leadership roles, giving him unrealistic expectations, giving him unfair performance appraisals, denying him bonuses and merit pay increases, discouraging him from applying for promotions, assigning him as subordinates problem employees, and encouraging the making of and making false extremely negative statements about him both before and after his constructive discharge. (2) Diersen’s Individual Prima Facie Reverse Discrimination Claims:

In addition to discriminating against Diersen because of his age, GAO also discriminated against Diersen because of his gender and race because of its illegal policy and practice of giving preferential treatment to females and minorities. Adverse employment actions GAO took against Diersen because of his gender and race include the same actions GAO took against him because of his age. His prima facie claim of reverse discrimination under Title VII is also a contributing factor in the overall pattern of GAO's discriminatory acts.

Diersen’s prima facie case of Title VII reverse discrimination includes the fact that (a) he is a white male; (b) he was equally or better qualified for the work assignments, leadership roles, bonuses, merit pay increases, and promotions which he was denied; (c) less qualified persons of the preferred classes of females and minorities received almost all of preferred work assignments, leadership roles, bonuses, merit pay increases, and promotions that he was denied; and (d) but for the discrimination complained of herein, he would have received those assignments, bonuses, merit pay increases, and promotions. (3) Diersen’s Individual Prima Facie Retaliation Claims:

In addition to discriminating against Diersen because of his age, gender, and race, GAO retaliated against him because it is GAO’s illegal policy and practice to retaliate against its employees who complain about age discrimination and reverse discrimination and Diersen had complained about such discrimination and had supported the Chennareddy class action age discrimination lawsuit. Adverse employment actions GAO took against Diersen because of retaliation include the same actions GAO took against him because of his age, gender, and race and resulted, finally, in his constructive discharge.

Since his forced retirement on September 30, 1997, Diersen has engaged in many protected activities that demonstrate his opposition to age discrimination, reverse discrimination, and retaliation at GAO. Those activities include filing a discrimination complaint, filing this lawsuit, writing elected officials and the media, and causing information to be posted on the Internet. Diersen claims that notwithstanding the fact that the activities he has engaged in were protected, GAO has retaliated against him and for engaging in those activities and continues to do so. GAO’s retaliation includes sabotaging his efforts to find professional work by refusing to respond to inquiries from prospective employers about his GAO employment in accordance with GAO Order 2294.3, in a timely manner, and in a way that is consistent with its July 23, 1998 letter of recommendation. Despite Diersen’s extensive efforts to find professional work, his efforts have not been successful.

Evidence of the causal link between his protected activities and GAO’s retaliatory actions include five reports issued by three disinterested third parties that document that on five occasions between July 2, 1998 and July 14, 1999, GAO willfully and repeatedly failed to follow its own procedures and failed to keep promises it had made to Diersen when it failed to respond to inquiries about Diersen’s GAO employment, when it failed to respond to such inquiries in a timely manner, when it refused to acknowledge that Diersen was eligible to be rehired by GAO, and when it did not respond to inquiries about his GAO employment in a way that is consistent with its letter of recommendation.

(4) Diersen’s Individual Constructive Discharge Claims:

Diersen’s retirement was a direct result of (a) the adverse employment actions that GAO took against him because of his age, gender, and race as described above; (b) GAO’s retaliation against him for complaining about discrimination as described above; and (c) the additional adverse employment actions that GAO took against him during September of 1997. Those adverse employment actions included giving him an extremely unfair performance appraisal and forcing him to accept either a constructive demotion or adverse transfer. He was told that for the rest of his GAO career, he would likely have to work for junior members of that group. Those members, were younger, female, and/or minority and were less qualified than Diersen for leadership roles in terms of relevant experience, education, and professional certifications. The justifications that GAO have given for the preferential treatment it gave others and for the adverse employment actions it took against Diersen, including allegations that he could not be objective on IRS audits and that he had serious performance problems, are false, demonstrably so, and a mere pretext for GAO's discriminatory actions in accordance with its agenda of giving preference to younger females and minorities. GAO's investigation of Diersen's EEO complaint and the alleged facts that GAO relied on to take its adverse employment actions against Diersen was itself biased and a pretext, thereby denying Diersen the benefit of due process in the administrative processing of his complaint.

Diersen became eligible for GAO's first early retirement offer on October 1, 1993 when he was 45 years old and he became eligible for GAO's second early retirement offer on October 1, 1995 when he was 47 years old. Diersen accepted GAO's second early retirement offer under protest on the last day it was offered, September 30, 1997, one day after his 49th birthday. The primary reason for his forced retirement was the continuing pattern of discrimination making his employment status untenable and excruciatingly painful as a highly trained professional auditor.

(5). Detailed Acts That Support Claims of Discrimination
and Constructive Discharge:

On September 10, 1997, Diersen's supervisor told him that she was going to attempt to kill the next job that he was in line to do, a job in which he would have been the EIC. On September 17, 1997, which was several days after GAO Chicago Field Office managers had finished using Diersen to bring about the separation of an over age 40 female minority who had serious well-known performance problems, Diersen's supervisor told him that:

(a) Serious problems existed with his performance, especially in the written communication and teamwork job performance dimensions even though on June 26, 1997 she had rated him as "exceeded expectations" in those dimensions as well as all five other dimensions (She attributed Diersen's alleged recent dramatic decline in performance to an alleged inability to cope with stress, much of which she alleged was self-induced.);

(b) She was going to give him "fully successful" check marks in the written communication and teamwork dimensions on his 1997 performance appraisal and that she would not change those marks no matter what additional information he might provide her (The average appraisal in GAO contains approximately half "outstanding" and half "exceeds fully successful" marks. Given the well-known rating inflation that exists throughout GAO, a fully successful mark is viewed in GAO as constructively being a "needs improvement" mark. Receiving even one fully successful mark is a clear message that you will receive a low PFP ranking and that GAO wants you to leave.);

(c) Diersen would never have an EIC role in her group (financial markets and institutions) unless he could find a headquarters manager to work for (Finding such a manager would have been highly unlikely given her extremely low opinion of the Diersen's performance.);

(d) If Diersen wanted to stay in her issue area but failed to find a headquarters manager to work for, he would have to agree to work for other members of her group for the foreseeable future (Accepting such conditions to stay in her group would be a constructive acceptance of a demotion because with only one exception, all the other members of her group were younger than Diersen and significantly less qualified for EIC roles than Diersen in terms of experience, education, and professional certifications.);

(e) If Diersen could not agree to her conditions, he would have to try to transfer to another issue area (Transferring to another issue area at this stage of his career under those conditions would be a constructive acceptance of a demotion because all the expertise he had gained from being in the same issue area for almost 8 consecutive years and acquiring a graduate degree directly related to that issue area would be lost and he would have to start all over again building expertise in another issue area. An extremely strong presumption exists in GAO's Chicago Field Office that one leaves an issue area only if one has serious performance problems, especially in the areas of teamwork and working relationships.);

(f) The professional association and issue area related educational activities Diersen had undertaken had been a "distraction;" and

(g) Diersen had created all his own problems and she would raise new and far more serious allegations concerning his character and performance if he complained about anything.

All of the aforesaid statements made to Diersen, which are quoted virtually verbatim forgoing, were false and/or unjustified. Such statements and the performance appraisal Diersen subsequently received clearly conveyed a false and/or unjustified assessment of his performance and were a mere pretext for covering up and adherence to GAO's policy of giving preferential treatment to younger employees, females, and minorities; of discriminating against employees who share Diersen's demographics; and of taking reprisal against those who complaint about such discrimination. Diersen understood his supervisor's statements as described above to mean that she would make the rest of his career a "living hell" unless he retired by September 30, 1997 or left her group. Diersen told his supervisor that her statements and actions had the effect of forcing him to retire and that her motivation for forcing him to retire was his demographics, especially his age. Diersen informed GAO Field Office managers of what had transpired and that her actions represented illegal discriminatory acts. He requested that they require his supervisor to retract what she had said and done, and if they would not do that, transfer him to GAO’s Office of Special Investigations (OSI). Because of Diersen's experience and professional certifications, especially his 3 years experience auditing IRS's Criminal Investigation Division and his being a Certified Fraud Examiner since 1990, arranging a transfer to OSI would have been the most logical, appropriate, and fair transfer that GAO Chicago Field Office managers could have arranged.

On September 18, 1997, GAO Chicago Field Office managers told Diersen that they had spoken to his supervisor about what had transpired, including the conditions that she had placed on him to remain in her group, that his supervisor had every right to say what she had said and do what she had done, that they fully supported her actions, and that Diersen's request to be transferred to OSI was denied. The reason they gave Diersen for denying his request for transfer to OSI was that allegedly, OSI was "not interested" in him and even if it was, there was not enough OSI work in GAO’s Chicago Field Office for him to do.

Except for one offhanded assertion that his supervisor treats all her subordinates poorly, at no time during this process was Diersen told by GAO Chicago Field Office managers that he had misunderstood any of his supervisor’s statements or actions or that his perception of reprisal and discrimination was based upon incorrect facts. Diersen advised his GAO Chicago Field Office managers that because of their total support for his supervisor's actions, he was being forced to work in a discriminatory work environment, take a compulsory de facto downgrade or adverse transfer, and as a consequence, he felt that he had no alternative but to retire. In response, and as a further inducement to make him retire, GAO Chicago Field Office Manager Leslie Aronovitz made the false representation that if he did retire, she would recommend him very highly and provide him with whatever letters of recommendation he might need.

On September 19, 1997 GAO Chicago Field Office managers gave Diersen the aforesaid performance appraisal which contained two fully successful marks. On September 24, 1997, Diersen made the following notation on his final time card – Retiring "under protest" - see Form 51 (GAO's EEO Complaint Form) and submitted that time card to GAO Chicago Field Office managers. On September 30, 1997, Diersen filed an EEO complaint and retired as the only practical alternative. Because he was forced to retire and not allowed to work for the next 6 years to his normal retirement age of 55, his income will be at least $40,000 less each year for the next 6 years, and after that, his pension will be at least $14,000 less each year for the rest of his life.

GAO Chicago Field Office managers took the aforesaid adverse personnel actions against Diersen because of his demographics, because of the complaints he had made about discrimination, and because they intended to and did use the harm caused by these actions to force him to retire.

(6). GAO Took Additional Discriminatory And Retaliatory Actions Against Diersen:

Additional discriminatory and retaliatory actions GAO took against Diersen include the following: GAO

(a) Ignored and denigrated Diersen's advanced professional achievements even though GAO officially encouraged such achievements;

(b) Denied Diersen work assignments in which he could contribute the most toward accomplishing GAO’s mission;

(c) Denied Diersen leadership roles even though he was better qualified for such roles in terms of his education, professional certifications, experience, and demonstrated performance;

(d) Expected Diersen to meet unrealistic performance expectations that it did not expect its younger employees, females, and minorities to meet;

(e) Used the subjectivity in its performance appraisal system to give Diersen unfair performance appraisals;

(f) Gave Diersen no bonuses and either no or minimal merit pay increases even though he had contributed as much or more than many younger employees, females, and minorities who were routinely given bonuses and large merit pay increases;

(g) Discouraged Diersen from applying for promotions and routinely gave promotions to younger employees, females, and minorities who were less qualified in terms of education, professional certifications, experience, and demonstrated performance;

(h) Assigned Evaluators who GAO had identified as poor performers to Diersen to supervise when younger employees, females, and minorities were allowed to avoid such supervisory assignments;

(i) Encouraged Diersen's supervisors, coworkers, and subordinates to make false extremely negative statements about his abilities, performance, and character;

(j) Made, by and through its managers, false extremely negative statements about Diersen’s abilities, performance, and character; and

(k) Ignored support that four retired GAO employees provided for Diersen’s charges and GAO refused to correct serious deficiencies in its investigation of Diersen's September 30, 1997 discrimination complaint.

(7). Personnel Actions GAO Took After Diersen Retired Show Its Discriminatory and Retaliatory Motives:

Three GAO Chicago Field Office managers, two of whom are female and younger than Diersen, took many actions after Diersen retired that evidence that the adverse employment actions they took against him while he was employed by GAO were motivated by discrimination and retaliation and that the justifications they proffered for their actions were a mere pretext. Within 12 months after they forced Diersen to retire on September 30, 1997, on information and belief, GAO Chicago Field Office managers:

(a) hired five Evaluators, all of whom are under 40, female, and/or minority;

(b) promoted to Band II seven of the office's 16 Band I (developmental and full performance level and level and equivalent to GS-7, 9, 11, and 12) Evaluators -- all seven were under age 40, female, and/or minority and gave many of them EIC roles, but failed to promote any of the five who were over age 40, male, and/or Caucasian;

(c) promoted an under age 40 female to Band III;

(d) gave disproportionately more and larger merit pay increases to Evaluators who are under age 40, female, and/or minority;

(e) assigned two significantly less qualified under age 40 Evaluators to the issue area that Diersen had been assigned to;

(f) gave the EIC role on the job Diersen was in line to do next to an Evaluator in GAO headquarters who is under age 40;

(g) dissolved the issue area group that did IRS audits and transferred manager who had led it since the 1970s, an over age 40 white male who had played a major role in keeping Diersen off IRS audits, to the issue area that Diersen had been assigned to; and

(h) gave the highly visible and preferred office that Diersen had been in since 1990 to a Band II Evaluator who is an under age 40 female minority and an outspoken advocate of affirmative action.

6. IMMEDIATE IRREPARABLE AND CONTINUING HARM

Diersen and each and every person of the class he seeks to represent have been irreparably damaged. Many in the class have been defacto or constructively terminated from GAO employment without notice and forced as a practical matter to take early retirement in admitted deference to persons unprotected by the ADEA and persons who are unprotected except for GAO's discriminatory practices of preferring younger females and minorities. Particularly because of their age, those persons so discharged have a very limited market for their unique training and skills and for their specialized knowledge of how government agencies function. Once termination from federal employment becomes an accomplished fact, money damages will never repair the psychological harm, lost opportunities, and substantial federal benefits of which they were deprived by these actions.

The nature of the immediate and irreparable harm is that age protected persons have been denied work assignments which lead to bonuses, merit pay increases, and promotions. Many have been actually or constructively given adverse transfers, given demotions, and forced to retire while at the same time, younger, less experienced and less qualified persons have been retained and promoted. GAO has admitted these illegal and improper preferences as alleged herein. Termination from employment, especially long term employment such as Diersen's 29 years of employment with the federal government, can never be fully compensated by mere monetary recoupment.

8. THE ACTIONS COMPLAINED OF HEREIN JUSTIFY INJUNCTIVE RELIEF

It is the very nature of employment discrimination universally recognized in case law that injunctive relief for illegal employment discrimination creates immediate and irrevocable harm justifying injunctive relief. Diersen and the class he seeks to represent herein seek preliminary and permanent injunctions and a declaratory judgment ordering GAO to cease and desist from the illegal preferences which have occurred; to make whole those persons over age 40 who have been denied bonuses, merit pay increases, and promotions and who were equally or better qualified than the preferred class members who received unwarranted bonuses, merit pay increases, and promotions; to restore those persons constructively terminated and thus removed from the employment records of GAO; and to require GAO to adhere to the vested employment seniority rights as provided by GAO regulations.

COUNT I

(Discrimination in Employment In Contravention of ADEA)

9. All of the preceding paragraphs are incorporated by this reference.

10. WHEREFORE, Diersen and all others similarly situated pray for relief pursuant to the Age Discrimination and Employment Act of 1967, as Amended, including front pay, back pay, reiteration and restoration of benefits, and reiteration and restoration to the employment rolls of GAO and for injunctive and such other relief, including damages in a sum not less than forty five million dollars ($45,000,000.00), as will make Diersen and all others similarly situated whole, including attorney's fees and costs of this action, and for such other relief as this Court or a jury will deem just and proper. COUNT II

(Discrimination In Employment In Contravention of Title VII

Coupled With ADEA)

11. All of the preceding paragraphs are incorporated by this reference.

WHEREFORE, Diersen, and all others similarly situated pray for relief pursuant to the Age Discrimination and Employment Act of 1967, as Amended, coupled with violations of Title VII, as reverse discrimination, and violations of the Federal Regulations applicable to GAO, said damages to include reiteration and restoration of benefits and restoration to the employment rolls of GAO and for injunctive and such other relief, including back pay, front pay, damages in a sum not less than forty five million dollars ($45,000,000.00), as will make Diersen and all others similarly situated whole, including attorney's fees and costs of this action and such other relief as this Court or a jury will deem just and proper.

COUNT III

(Injunctive Relief)

12. All of the preceding paragraphs are incorporated by this reference.

13. Wherefore, Diersen demands injunctive relief for himself and the class in the nature of restoration to his job, and the cessation of acts of reprisal in the prevention of his obtaining equivalent employment, and preliminary and permanent injunctions for himself and all others similarly situated, to cease the quota system applicable to himself and members of the class, and such other relief as will render himself and members of the class whole, including front pay, back pay and such injunctive actions as a court or a jury shall award in the interests of justice.

GENERAL DEMAND APPLICABLE TO ALL COUNTS:

14. Diersen hereby demands a jury trial for those claims for which a jury trial is allowed under present law.

Respectfully submitted,

/s/ Walter T. Charlton
D.C. Bar #186940
230 Kirkley Road
Annapolis, Maryland, 21401
Phone: 410-571- 8764

Email: Charltonwt@aol.com

Attorney for David J. Diersen
and all other persons similarly situated

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on September _____, 1999, I served a copy of the foregoing Third Amended Complaint by first class mail, postage prepaid, on the following: 

Eric M. Jaffe
Assistant United States Attorney
Judiciary Center Building, Room 10-407
555 Fourth Street, N.W.
Washington, D.C. 20001

/s/ Walter T. Charlton

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