(F) Diersen v. GAO:
Fourth Amended Complaint |
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(F) Diersen v. GAO:
Fourth Amended Complaint |
|
Case 16: (F) Fourth Amended
Complaint in IN THE UNITED STATES
DISTRICT COURT
FOURTH
AMENDED COMPLAINT OF Plaintiff, David John Diersen (Diersen), files this fourth amended complaint against Defendant, the United States General Accounting Office (GAO), by and through its Chief Executive Officer, David M. Walker, the Comptroller General of the United States of America, and states as follows: Nature of the Action 1. Diersen brings this action pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634, et seq. and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e, et seq. 2. Diersen claims that GAO’s practice of giving preferential treatment to its employees who are younger, minority, and female resulted in discrimination against him as well as other GAO employees who are older, white, and male. 3. Diersen claims that GAO knowingly and willfully retaliated against him, including forcing him into early retirement at age 49 on September 30, 1997, because he opposed GAO’s practice of giving preferential treatment to its employees who are younger, minority, and female and because he participated in a class action lawsuit against GAO that claims age discrimination resulted from that practice. 4. Diersen claims that GAO continues to knowingly and willfully retaliate against him, including sabotaging his job search, because he filed an administrative discrimination complaint on September 30, 1997, because he filed this lawsuit on July 30, 1998, and because he has posted his claims against GAO on the internet at http://www.adversity.net/c16_tbd.htm since April 12, 1999. Parties 5. Diersen has resided at all relevant times in the City of Wheaton, Township of Milton, County of DuPage, and State of Illinois. 6. GAO is a federal agency headquartered in Washington, DC. 7. GAO employed Diersen as an Evaluator (position title recently changed to Analyst) in its Chicago Field Office between January 27, 1980 and September 30, 1997. Jurisdiction and Venue 8. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 because it involves a federal question. 9. Judge James Robertson of the United States District Court for the District of Columbia determined that pursuant to 28 U.S.C. § 1391, proper venue for this lawsuit is in the United States District Court for the Northern District of Illinois, Eastern Division. Procedural Prerequisites 10. On September 30, 1997, Diersen filed a written discrimination complaint with GAO’s Civil Rights Office. 11. Diersen made it clear to GAO’s Civil Rights Counselor and its investigator that a) his complaint included class action and individual claims of age discrimination, reverse discrimination, and retaliation; b) the violations had continued for many years; c) the adverse employment actions GAO took against him were a linked series, cumulative, and part of a pattern; and d) his fear of suffering greater retaliation prevented him from filing a written discrimination complaint any sooner than he did. 12. GAO refused to investigate Diersen’s class action claims and any event that occurred before August of 1997. Diersen advised GAO of serious defects in its investigation on March 19, 1998. But GAO nevertheless denied Diersen’s complaint on April 29, 1998. 13. Attorney Walter T. Charlton filed this lawsuit on July 30, 1998 in the United States District Court for the District of Columbia. He withdrew after Judge Robertson dismissed Diersen’s class action claims (without prejudice) and transferred Diersen’s individual claims to this Court on April 11, 2000. AS AND FOR A FIRST CAUSE
OF ACTION Facts 14. No court has ever found that GAO’s Chicago Field Office discriminated against its Analysts because they were minority or female. 15. Even if GAO’s Chicago Field Office had discriminated against its Analysts because they were minority or female, Diersen was not responsible for any such discrimination and he did not benefit from any such discrimination. 16. Victims of discrimination should be made whole by those who discriminated against them and not by innocent third parties. 17. If an employer gives preferential treatment to one group, it is by definition discriminating against another group. If an employer gives preferential treatment to its younger employees, it is by definition discriminating against its older employees. If an employer gives preferential treatment to its minority employees, it is by definition discriminating against its white employees. If an employer gives preferential treatment to its female employees, it is by definition discriminating against its male employees. 18. Since at least the 1970s, employment statistics for GAO, and especially for its Chicago Field Office, show that it gives its Analysts who are younger, minority, and female disproportionately more leadership roles, higher performance appraisals, more frequent and larger bonuses and pay increases, and more frequent and faster promotions. 19. GAO routinely boasts that in terms of pay increases, bonuses, and promotions, its Analysts who are younger, minority, and female do better than its Analysts who are older, white, and male. Claims 20. GAO’s admission that it gives preferential treatment to its Analysts who are younger, minority, and female is an admission that it knowingly and willfully discriminates against its Analysts who are older, white, and male. 21. No justification exists for GAO’s discriminatory acts. AS AND FOR A SECOND CAUSE
OF ACTION Facts 22. GAO is the investigative arm of Congress and it exists to support Congress in meeting its Constitutional responsibilities and to help improve the performance and accountability of the federal government for the American people. 23. Nearly all GAO’s work is done at the request of the Chairmen and the Ranking Members of Congressional Committees and Subcommittees. 24. Since at least the 1970s, many Democratic Chairmen and Ranking Members of Congressional Committees and Subcommittees have advocated that federal agencies should recruit, retain, and promote as many young people, minorities, and females as possible, and especially GAO because its employment policies and practices often serve as models for other federal agencies. Many Republican Senators and Representatives oppose race and gender based preference giving, but those who have voiced their opposition have been called racists and sexists. 25. Charles Bowsher served as Comptroller General between 1981 and 1996, James Hinchman served as Acting Comptroller General between 1996 and 1998, and David Walker has served as Comptroller General since 1998. All three have advocated that GAO should recruit, retain, and promote as many young people, minorities, and females as possible. 26. For the GAO Analyst position, being under age 40, being a minority, and being female are not bona fide occupational requirements reasonably necessary to the normal operation of GAO’s operations. 27. GAO’s executives, managers, and supervisors frequently make positive comments about what younger, minority, and female Analysts bring to the agency. 28. GAO’s executives, managers, and supervisors rarely, if ever, make positive comments about what older, white, and male Analysts bring to the agency. In fact, all three Comptroller Generals have made statements that place the primary blame for GAO’s problems on its older Analysts, most of whom are white males. 29. At least since the 1970s, as part of its affirmative action and diversity programs, GAO has advocated that its employees should engage in an extremely high level of demographic consciousness. 30. GAO routinely provides its Analysts with written, oral, and visual information that encourages them to view other Analysts in terms of their demographics and that information is almost always positive toward young people, minorities, and females and neutral or negative toward older people, whites, and males. 31. As part of its ongoing affirmative action and diversity programs, GAO frequently reminds its Advisors of the Holocaust and Slavery. One speaker GAO invited stated that all those who immigrated to America before the Emancipation Proclamation did so primarily to take advantage of slavery. Diersen’s ancestors immigrated in the 1840s. 32. GAO’s Chicago Field Office routinely encourages its Analysts to disclose their demographic information to their superiors, coworkers, and subordinates. It routinely encourages its Analysts to share their beliefs about giving preferential treatment to those who are younger, minority, and female. In compliance with that encouragement, Diersen always fully disclosed his demographic information and his opposition to race and gender based preference giving to his GAO superiors, coworkers, and subordinates. 33. Substantially more public administration degree holders are minority and female than accounting degree holders. 34. Before 1981, GAO’s emphasis was on hiring, retaining, and promoting accounting degree holders (especially CPAs) and other business degree holders. After 1981, GAO’s emphasis was on hiring, retaining, and promoting public administration degree holders. 35. During fiscal year 2000, 86 percent of the Analysts GAO hired majored in public administration. 36. Analysts who hold accounting degrees and especially those who are CPAs are predominately older, white, and male. 37. Shortly after Charles Bowsher came to GAO from Arthur Andersen, GAO instituted a modified form of Arthur Andersen’s "up-or-out" practice for GAO’s Analysts. 38. GAO instituted what constructively is an "up-or-down" practice in that if you were not promoted to certain levels by certain ages (GS-13/14 or Band II by age 25, GS-15 or Band III by age 30, and Senior Executive Service (SES) by age 35), you were required to accept the fact that in all likelihood you would not receive any additional promotions, that you would receive constructive demotions and adverse transfers, and that you would retire as you became eligible. 39. In 1989, GAO instituted "Bands" by combining its GS-7, 9, 11, and 12 Analyst positions into Band I; its GS-13 and 14 Analyst positions into Band II; and its GS-15 Analyst positions into Band III. 40. Being ready, willing, and able to implement GAO’s practice of giving preferential treatment to younger, minority, and female Analysts is a requirement for promotion beyond Band II. 41. In 1989, GAO instituted Pay-For-Performance (PFP) and began giving Analysts PFP rankings primarily based on performance appraisals for purposes of granting pay increases and bonuses. 42. During the mid-1990s, Republican Senators and Representatives required GAO to suffer severe budget reductions. To cope with those reductions, rather than instituting a reduction-in-force or RIF for its Analysts, GAO offered early retirement to all its Analysts who had 25 or more years of federal service. 43. Diersen first became eligible to take early retirement on October 1, 1993 when he was 45 years old. 44. Analysts who were eligible for early retirement during the mid-1990s and who took early retirement, including Diersen, were predominately white and male. 45. Most Analysts become eligible to retire at age 55 and virtually all of those who GAO did not promote beyond Band II retire soon after they become eligible to retire. 46. The average age of Analysts in GAO’s Chicago Field Office is the lowest of all GAO’s offices and divisions. 47. While GAO has elaborate procedures in place to assure that minority and female Analysts are not discriminated against because of their race or gender, it has few if any procedures to assure that over age 40, white, male, or Republican Analysts are not discriminated against because of their age, race, gender, or political affiliation. The number of Republicans hired or promoted beyond Band II by GAO’s Chicago Field Office is extremely small. GAO Chicago Field Office managers condone if not encourage ridicule of Republicans. Claims 48. Since at least the 1970s, GAO has given preferential treatment to its Analysts who are younger, minority, and female because that is what many Democratic Chairmen and Ranking Members wanted GAO to do. 49. GAO’s affirmative action and diversity based demographic consciousness practices have resulted in age-based, race-based, and gender-based stereotyping that adversely impacted Diersen and other Analysts who are older, white, and male. 50. The primary reason GAO instituted its demographic consciousness practice was to help GAO achieve its goal of hiring, retaining, and promoting younger, minority, and female Analysts. 51. GAO’s shift in its emphasis to hiring, retaining, and promoting Analysts who hold public administration degrees adversely impacted Diersen and GAO’s other accounting degree holders because the shift fostered the erroneous perception that their education, professional certifications, and experience were no longer needed. 52. The primary reason GAO shifted its hiring, retaining, and promoting emphasis from accounting degree holders to public administration degree holders was to facilitate hiring, retaining, and promoting minorities and females. 53. GAO’s Arthur Andersen style "up or down" practice adversely impacted Diersen and other Analysts who are older. The practice wastes the experience that Diersen and other older Analysts had -- it wastes a tremendous amount of human capital. The practice’s impact was especially severe on those Analysts like Diersen who were white and/or male because GAO applied the practice most vigorously to them. 54. The primary reason GAO instituted his "up-or-down" practice was to help it achieve its goal of hiring, retaining, and promoting younger, minority, and female Analysts. 55. Bands adversely impacted Diersen and other Analysts who are older, white, and male because GAO uses the flexibility in Bands primarily to constructively and literally promote Analysts who were younger, minority, and female and to constructively and literally demote Analysts who were older, white, and male. 56. The primary reason GAO instituted Bands was to give it more flexibility to achieve its goal of hiring, retaining, and promoting Analysts who were younger, minority, and female. 57. PFP adversely impacted Diersen and other Analysts who are older, white, and male because GAO used the flexibility in PFP to constructively and literally promote Analysts who were younger, minority, and female and to demote Analysts who were older, white, and male. 58. The primary reason GAO instituted PFP was to give it more flexibility to achieve its goal of hiring, retaining, and promoting Analysts who were younger, minority, and female. 59. Using early retirement offers rather than RIFs to deal with budget reductions adversely impacted Diersen and other Analysts who are older because it sent a clear message that GAO values "youth" far more highly than it values "experience." 60. The primary reason GAO offered early retirement rather that RIFs to deal with budget reductions during the mid-1990s was to help achieve its goal of retaining and promoting Analysts who were younger, minority, and female. 61. The primary reason virtually all white male Band II Analysts retire soon after they become eligible is age discrimination, reverse discrimination, and retaliation. 62. The primary reason why the average age of Analysts in GAO’s Chicago Field Office is the lowest of all GAO’s offices and divisions is that GAO’s Chicago Field Office engages in the highest level of age discrimination, reverse discrimination, and retaliation of all GAO’s offices and divisions. 63. The primary reason why older white male Band II Analysts do not complain more about age discrimination and reverse discrimination is fear of retaliation. 64. The aforesaid facially neutral employment practices encouraged GAO’s older white male Analysts to give up their aspirations for promotions, to more readily accept constructive demotions and adverse transfers, and to retire as soon as they became eligible or otherwise leave the agency. 65. GAO knowingly and willfully adopted the aforesaid facially neutral employment practices that have an unjustified adverse impact on Analysts who are older, white, and male to achieve its goal of hiring, retaining, and promoting Analysts who are younger, minority, and female. AS AND FOR A THIRD CAUSE
OF ACTION Facts 66. Diersen is an over age 40 white male. He was born on September 29, 1948. His political affiliation is Republican, his religion is Lutheran, and his national origin is 100 percent German. He is not a veteran and he is not disabled. He has always been a social conservative. He has been a contributing member of the Republican Party since 1976 and a Republican Precinct Committeeman since 1999. He has been married since April 1, 1978. His wife has always been gainfully employed and they do not have children. 67. Diersen earned a Bachelor of Science in Management from Northern Illinois University in 1970, an MBA from Loyola University in 1976, and a Master of Science in Accounting from DePaul University in 1980. 68. GAO officially encourages its Analysts to take job-related graduate courses. Because GAO assigned Diersen to audits of financial regulators in 1990, he began taking graduate courses at the Illinois Institute of Technology (IIT), and in May of 1997, he earned a Master of Science in Financial Markets and Trading. 69. The courses Diersen completed at IIT made him especially well qualified for audits of financial regulators and for leadership roles on such audits. 70. GAO officially encourages its Analysts to acquire professional certifications and to be active in professional associations. 71. Diersen passed the CPA examination on his first attempt in 1979, he passed the Certified Internal Auditor examination on his first attempt in 1981, he became a licensed CPA in Illinois in 1982, he became a Certified Fraud Examiner in 1990, he became a Certified Government Financial Manager in 1994, he became a Certified Financial Services Auditor in 1996, and he became a Forensic Accountant in 1997. 72. Diersen’s professional association memberships include the Association of Government Accountants (AGA) and the Illinois CPA Society. Diersen served on AGA Chicago Chapter’s executive committee between 1983 and 1996. He served on the Illinois CPA Society’s membership committee between 1989 and 1998. 73. GAO officially encourages its Analysts to apply the work experience they gained prior to joining GAO to their GAO audit assignments. 74. Diersen was employed by IRS as a GS-7, 9, and 11 Revenue Office in its Harvey and Joliet offices between 1971 and 1974, as a GS-12 Revenue Officer in its Chicago office between 1974 and 1976, and as a GS-12 Special Procedures Staff Advisor in its Chicago office between 1976 and 1980. 75. Diersen’s pre-GAO work experience at IRS made him extremely well qualified to work on audits of IRS and especially on audits of IRS’s Collection Division. 76. Diersen has always opposed GAO’s practice of giving preferential treatment to its Analysts who were younger, minority, and female and he participated in a class action lawsuit against GAO that claims age discrimination resulted from that practice. 77. On June 26, 1997, GAO gave Diersen a written "Feedback and Coaching Checklist" that stated he was exceeding performance expectations in all areas. 78. GAO’s early retirement offer expired on September 30, 1997. During the month of September of 1997, even though Diersen was meeting and exceeding his supervisor’s and his superiors’ legitimate performance expectations and performing his job satisfactorily, GAO gave him a very low performance appraisal and two alternatives if he did not retire by September 30, 1997 – accept constructive demotion or accept an adverse transfer. 79. Diersen retired "under protest" on September 30, 1997 because of the adverse employment actions GAO took against him throughout his GAO career and especially because of the adverse employment actions GAO took against him during September of 1997. 80. Diersen filed an administrative discrimination complaint on September 30, 1997. 81. Shortly after Diersen retired, GAO replaced him with Analysts including Patrick Ward and Barry Kirby who were substantially younger and substantially less qualified; gave leadership roles that Diersen should have received to Analysts who were substantially younger, minority, and female; and assigned Diersen’s highly visible office to a substantially younger minority female who is an outspoken advocate of affirmative action. GAO rehired Patrick Ward shortly after Diersen retired. Patrick Ward’s wife was, is, and remains an Analyst in GAO Chicago Field Office. GAO was extremely concerned that she would leave GAO unless GAO rehired her husband. 82. In affidavits taken during the investigation of Diersen’s discrimination complaint, Diersen’s superiors made extremely negative statements about Diersen which Diersen claims are false. 83. On March 19, 1998, Diersen cited serious deficiencies in GAO’s investigation of his discrimination complaint, but GAO took no action to correct them. 84. GAO never recommended Diersen to prospective employers "very highly" as it had promised Diersen to induce him to retire. 85. To Diersen’s detriment, GAO failed to comply with its own policy (GAO Order 2294.3) when prospective employers made inquiries about Diersen’s employment. 86. Diersen’s attorney filed this lawsuit on July 30, 1998. 87. Within 12 months after Diersen retired, GAO’s Chicago Field Office hired five Analysts, all of whom were under age 40, minority, and or female; it promoted to Band II seven of the office’s 16 Band I Analysts – all seven were under age 40, minority, and/or female and gave many of them leadership roles, but failed to promote any of the five who were over age 40, white, and/or male; and it promoted an under age 40 female to Band III. 88. Cecile Trop was Diersen’s immediate supervisor between 1993 and his retirement on September 30, 1997 and she was one of his superiors since 1990. Trop is female, younger than Diersen, and a Band III Analyst. Stewart Herman, who was one of Diersen’s superiors since 1980, is male, older than Diersen, and a Band III Deputy Manager. Leslie Aronovitz, who was one of Diersen’s superiors since 1989, is female, younger than Diersen, and a SES Manager. Patrick Dolan was Diersen’s immediate supervisor between 1989 and 1993. Pete Konjevich was his immediate supervisor during 1989. Thomas Venezia was his immediate supervisor between 1986 and 1988. Since 1986, Diersen’s higher level superiors included Richard Stana, Thomas McCool, John Finch, John Luke, Joan Dodaro, Charles Bowsher, and James Hinchman. 89. Since April 12, 1999, Diersen has posted his claims against GAO on the internet at http://www.adversity.net/c16_tbd.htm Claims 90. Diersen is a member of a protected class. 91. Diersen was equally or better qualified in terms of job performance, education, professional certifications, and pre-GAO work experience than the younger, minority, and female Analysts who GAO hired, retained, and promoted over him as well as those who received job assignments, leadership roles, pay increases, and bonuses that he was denied. 92. GAO took adverse employment actions against Diersen, including forcing him into early retirement, because he engaged in protected opposition and he participated in a class action age discrimination lawsuit. 93. GAO replaced Diersen with Analysts who were substantially less qualified than him, substantially younger than him, minority, and/or female. 94. GAO took additional adverse actions against Diersen after he retired, including sabotaging his job search, because he filed a discrimination complaint, he caused this lawsuit to be filed, and he posted his claims against GAO on the internet. 95. Diersen has established a prima facie case of age discrimination, reverse discrimination, and retaliation. 96. Diersen has established a causal connection between his protected opposition and participation activities and the adverse employment actions GAO took against him. 97. The severe criticisms GAO made of Diersen’s performance during September of 1997 and in affidavits submitted during its investigation of his discrimination complaint were a pretext. 98. Even if GAO’s criticisms of Diersen’s performance were valid, they did not justify the very low performance appraisal GAO gave him let alone forcing him to accept constructive discharge or adverse transfer if he did not retire. AS AND FOR A FOURTH CAUSE
OF ACTION Facts 99. Just as Diersen had done at IRS, shortly after he transferred to GAO at age 31 in 1980, he advised his superiors, coworkers, and subordinates that he opposed giving preferential treatment to employees because of their age, race, or gender because giving preferential treatment to one group meant that another group was discriminated against. Very few of Diersen’s superiors, coworkers, or subordinates voiced any similar such opposition for fear of retaliation. 100. Soon after Diersen transferred to GAO, certain of his superiors, coworkers, and subordinates made it clear to him that GAO considered him to be too old to have a successful GAO career, especially in light of his other demographics and his opposition to giving preferential treatment to Analysts who are younger, minority, and female. 101. Throughout Diersen’s GAO career, certain of his superiors, coworkers, and subordinates reminded him that his career prospects at GAO were extremely limited because of his demographics. 102. Throughout Diersen’s GAO career, certain of his superiors made false and extremely negative statements about his judgment, motives, and abilities and they encouraged his supervisors, coworkers, and subordinates to share these derogatory statements. 103. Certain of Diersen’s superiors, coworkers, and subordinates have stated or implied to Diersen and to others that his educational achievements were not relevant and/or merely a distraction, that his professional certifications and activities were not relevant and/or merely a distraction, and that his knowledge of IRS was stale and/or he could not be objective about IRS. 104. Diersen did not consider the aforesaid derogatory statements to be "stray remarks." He believed that they were designed to encourage him to leave GAO. 105. GAO does not permit such derogatory statements to be made about its younger employees, minorities, or females. 106. GAO required Diersen to accept a downgrade to GS-9 and therefore, a reduction in pay of approximately $6,000, to transfer to GAO as an Analyst from IRS in 1980 even though he had been a GS-12 at IRS for 5 1/2 years. Subsequently, Diersen learned that GAO did not require similarly qualified minority and female IRS employees to accept downgrades to transfer to GAO as Analysts. 107. GAO did not promote Diersen back to GS-11 until 1981 and not back to GS-12 until 1982. GAO did not promote Diersen to GS-13 until 1986, over 12 years after he had been promoted to GS-12. 108. Throughout Diersen’s GAO career, because of the low performance appraisals GAO gave him, he felt as though GAO did not want him to apply for promotions and he advised his superiors, coworkers, and others of that. 109. GAO gave Diersen only one leadership role and that was during 1987 and 1988. 110. Before accepting GAO’s job offer, the GAO Chicago Field Office Staff Manager and his assistant assured Diersen that he would soon be assigned to audits of IRS, that he would soon be given leadership roles, and that he would be promoted rapidly. 111. In GAO’s Chicago Field Office, prior to 1980 and continuing through 1997, audits of IRS and especially leadership roles on audits of IRS’s Collection Division were preferred high-visibility assignments. Subsequent to Diersen’s transfer to GAO, he learned that GAO made every effort to give those assignments and roles to its Analysts who were younger, minority, and/or female. 112. Throughout his entire GAO career, Diersen requested his superiors to a) assign him to audits of IRS’s Collection Division so that he could apply the knowledge of IRS that he had gained from working there for almost 9 years and b) give him leadership roles. However, between 1980 and 1986, GAO did not assign Diersen to any audits of IRS and instead, assigned him to audits of various federal agencies and programs. While GAO did assign Diersen to two audits of IRS’s Criminal Investigation Division between 1986 and 1988, GAO never assigned Diersen to audits of IRS’s Collection Division. 113. GAO denied Diersen assignments on audits of IRS even though many of Diersen’s superiors, coworkers, and subordinates acknowledged that Diersen could contribute the most to GAO on such audits and especially on audits of IRS’s Collection Division. 114. GAO requires its supervisors to give preferential treatment to their subordinates who are younger, minority, and/or female. While such preferential treatment helps those who receive it, it typically comes at the expense the supervisor who gives it. GAO assigned Diersen many Analysts to supervise during his 18 years with the agency. Virtually all the Analysts Diersen supervised were younger, minority, female, and/or had a disability. 115. GAO makes every effort to avoid requiring its younger, minority, and female Analysts to supervise Analysts with performance problems. During 1987 and 1988, GAO required Diersen to supervise a young white male GS-11 Analyst with a disability and serious performance problems. Diersen’s superiors made it clear to him that he had to give that Analyst "accurate" performance appraisals because his previous supervisors had failed to do so. The situation was extremely difficult and time consuming. 116. Diersen’s superiors had tremendous flexibility in setting performance expectations for him. The higher that expectations are set, the easier it is to be critical of the recipient’s performance. Diersen frequently complained to his supervisors that the performance expectations they set for him were unrealistically high. He also frequently complained to his supervisors that they set performance expectations for younger, minority, and female Analysts that were lower to facilitate giving those Analysts higher performance appraisals. 117. Diersen frequently complained to his superiors that they were abusing the subjectivity in GAO’s performance appraisal system to give him unfair performance appraisals, to deny him pay increases, to discourage him from applying for promotions, and to delay and deny him promotions. 118. Diersen always met or exceeded the legitimate performance expectations his supervisors and superiors gave him. 119. Diersen’s superiors, and therefore his coworkers and subordinates, frequently unfairly blamed him for things that went wrong during audits including missed deadlines. As a result of that unfair blame, with rare exception, the performance appraisals that Diersen’s superiors gave him were lower than those they gave their younger, minority, and female Analysts. 120. The lower performance appraisals GAO gave Diersen resulted in him receiving smaller or no pay increases, delayed promotions, and lost promotion opportunities. 121. GAO’s Chicago Field Office retaliates severely against its employees who complain. The stronger one complains, the more severely GAO retaliates. Claims 122. Between 1980 and 1988, GAO, took the following adverse personnel actions against Diersen in retaliation because he opposed giving preferential treatment to younger, minority, and female Analysts: 123. Permitted if not encouraged Diersen’s superiors, coworkers, and subordinates to make derogatory statements about him thereby permitting if not encouraging the creation of a hostile work environment for Diersen; 124. Delayed Diersen’s promotions to GS-11, 12, and 13 and discouraged him from applying for additional promotions; 125. Denied Diersen leadership roles; 126. Denied Diersen assignments to audits in which he could contribute the most to GAO; 127. Assigned Diersen Analysts who limited if not harmed his career advancement; 128. Gave Diersen unrealistic performance expectations; 129. Gave Diersen unfair performance appraisals; and 130. Gave Diersen smaller pay increases. 131. The aforesaid adverse employment actions were retaliatory, a linked series, cumulative, and part of a pattern. 132. Fear of suffering greater retaliation prevented Diersen from filing a written discrimination complaint until September 30, 1997. 133. The four most favorable events in Diersen’s GAO career were his being offered employment in 1980, his being assigned to two audits of IRS between 1986 and 1988, his being promoted to GS-13 in 1986, and his being given a leadership role in 1987. However, none of those events would have occurred were it not for the actions of one of Diersen’s superiors -- Bill Schad. Sadly, GAO forced Mr. Schad into early retirement in 1987 and Diersen claims that a primary reason why GAO did that was because he refused to discriminate or retaliate against Diersen and employees like him. AS AND FOR A FIFTH CAUSE
OF ACTION Facts 134. Between 1988 and Diersen’s retirement in 1997, GAO continued to permit if not encourage Diersen’s superiors, coworkers, and subordinates to make derogatory statements about him; to discourage him from applying for promotions; to deny him leadership roles; to deny him assignments in which he could contribute the most to GAO; to assign him Analysts who limited his career advancement; to give him unrealistic performance expectations; and to give him unfair performance appraisals. 135. In 1988, Diersen disclosed to his superiors, coworkers, and subordinates that he had become an active participant in Chennareddy, et al v. Bowsher, Case No. 87-3538, a class action age discrimination lawsuit against GAO that continues to be pending before Senior Judge John G. Penn in the United States District Court for the District of Columbia. 136. Throughout the remainder of Diersen’s employment at GAO, his superiors, coworkers, and subordinates frequently asked him about the status of the litigation. 137. Diersen continues to be one of the most active participants in that lawsuit. Very few of Diersen’s coworkers disclosed their participation in Chennareddy for fear of retaliation. 138. During 1989, GAO assigned him to an audit of the DOD ammunition budget request and an audit of a Railroad Retirement Board program. Between 1990 and his retirement in 1997, GAO assigned Diersen to audits of financial regulators. 139. GAO gave Diersen his lowest performance appraisal in June of 1989 for the DOD audit and GAO refused to change that appraisal even though he filed a grievance. That performance appraisal was the first one that GAO gave Diersen after he had a) became age 40, b) complained to his superiors that he had been taken off IRS audits so that GAO could give preferential treatment to younger Analysts, and c) advised his superiors of his participation in Chennareddy. 140. The PFP rankings GAO gave Diersen between 1989 and 1997 (Acceptable in 1989, Commendable 1990-1994 and 1996-1997, and Meritorious in 1995) placed Diersen in the bottom 5 percent of all Analysts. 141. GAO makes every effort to avoid requiring its younger, minority, and female Analysts to supervise Analysts with performance problems. Between 1995 and his retirement, GAO assigned Diersen an older minority female Band II Analyst with serious performance problems (See Poole v. Hinchman, Docket No. 98cv3977). Diersen’s superiors made it clear to him that he had to give her "accurate" performance appraisals because her previous supervisors had failed to do so. The situation was extremely difficult and time consuming. 142. On February 21, 1997, Diersen shared his complaints about discrimination and retaliation in an 8-page single-spaced letter with Charles W. Woodward, the Chairman of GAO’s Mid-Level Employee Council, and sought his help. 143. GAO’s Chicago Field Office retaliates severely against its employees who complain. The stronger one complains, the more severely GAO retaliates. Claims 144. Between 1988 and 1997, GAO, took the following adverse employment actions against Diersen in retaliation because he opposed giving preferential treatment to younger, minority, and female Analysts and because he participated in Chennareddy, a class action lawsuit against GAO that claimed age discrimination resulted from that practice: 145. Permitted if not encouraged Diersen’s superiors, coworkers, and subordinates to make derogatory statements about him thereby permitting if not encouraging the creation of a hostile work environment; 146. Discouraged Diersen from applying for promotions; 147. Denied Diersen leadership roles; 148. Denied Diersen assignments to audits in which he could contribute the most to GAO; 149. Assigned Diersen Analysts who limited his career advancement; 150. Assigned Gwen Poole to Diersen to harm his career advancement; 151. Gave Diersen unrealistic performance expectations, especially in 1989, 1996 and 1997; and 152. Gave Diersen unfair performance appraisals and PFP rankings, especially in 1989, 1996, and 1997; and 153. The aforesaid adverse employment actions were a linked series, cumulative, and part of a pattern. 154. Fear of suffering greater retaliation prevented Diersen from filing a written discrimination complaint until September 30, 1997. AS AND FOR A SIXTH CAUSE
OF ACTION Facts 155. On June 26, 1997, GAO gave Diersen a written "Feedback and Coaching Checklist" that stated he was exceeding performance expectations in all areas. 156. If Diersen did not accept GAO’s offer which expired on September 30, 1997, he would not be eligible again to retire for six years or until he became 55 years old on September 29, 2003. 157. During September of 1997, Diersen’s superiors gave him a very low performance appraisal that was unfairly critical of his written communication and teamwork skills, told him they would not change it no matter what additional information he might provide, and failed to offer Diersen any training to correct his alleged performance deficiencies. 158. During September of 1997, Diersen’s superiors made it clear to him that they had made many false and extremely negative oral statements about his character and job performance and that if he did not retire, they would make additional such statements about him that would be even worse. 159. During September of 1997, Diersen’s superiors gave him only two alternatives if he did not retire – accept a constructive demotion or an adverse transfer. They told Diersen if he did not retire and if he did not accept an adverse transfer, he would spend the rest of his career working for Analysts who he formerly supervised -- Analysts who were substantially less qualified than him in terms of education, professional certifications and activities, and work experience. Given his education, professional certifications and activities, and work experience, if Diersen had accepted either alternative, it would have been devastating for him. 160. During September of 1997, Diersen told his superiors that their words and actions were illegal discriminatory and retaliatory acts and that they should immediately retract them, but they refused. 161. During September of 1997, Diersen’s superiors never told him that his understanding of the alternatives they had given him was not correct. 162. During September of 1997, Diersen asked his superiors that if he accepted a transfer rather than retiring, that it be to GAO’s Office of Special Investigations (OSI) where he could use his Certified Fraud Examiner certification and the knowledge he gained during three years of auditing IRS’s Criminal Investigation Division, but they refused. 163. During September of 1997, as an inducement to retire, GAO Chicago Field Office Manager Leslie Aronovitz offered to give Diersen a strong letter of recommendation and to recommend him very highly to prospective employers. Diersen relied on that inducement to his determent. 164. On September 30, 1997, at age 49, Diersen retired but noted on final timecard that he was doing so "under protest." Claims 165. During September of 1997, Diersen’s superiors, especially Cecile Trop, Stewart Herman, and Leslie Aronovitz, took many actions that made him believe that he had no real choice but to retire by September 30, 1997. 166. During September of 1997, Diersen understood from his superiors’ words and actions as described above that if he did not retire, they would assure that the rest of his GAO career would be a "living hell." Nothing GAO has subsequently done has indicated that Diersen’s understanding was not correct. 167. During September of 1997, Diersen’s superiors gave him every reason to believe that if he did not retire, they would soon terminate him and cause him to lose his retirement benefits. Nothing GAO has subsequently done has indicated that Diersen’s belief was not correct. 168. The timing of the adverse employment actions GAO took against Diersen during September of 1997 is extremely suspicious and evidences GAO’s intent to force Diersen into early retirement. 169. The alternatives GAO offered Diersen during September of 1997 as a condition of continued employment were onerous, intolerable, and demeaning and constituted a constructive discharge. 170. The adverse employment actions GAO took against Diersen, especially during September of 1997, were a mere pretext to force him to accept early retirement. 171. The severe criticisms GAO made of Diersen’s performance during September of 1997 were a mere pretext. 172. Even if GAO’s criticisms of Diersen’s performance were valid, they did not justify the very low performance appraisal GAO gave him let alone forcing him to accept constructive demotion or adverse transfer if he did not retire. 173. A primary reason GAO did not force Diersen to retire sooner than September 30, 1997 was that GAO had been under a self-imposed agency-wide hiring freeze since October 1, 1992 that it knew it would lift on October 1, 1997. If Diersen left before September 30, 1997, GAO could not replace him until after October 1, 1997. 174. The aforesaid adverse employment actions were retaliatory, a linked series, cumulative, and part of a pattern. 175. Fear of suffering greater retaliation prevented Diersen from filing a written discrimination complaint until September 30, 1997. AS AND FOR A SEVENTH CAUSE
OF ACTION Facts 176. Immediately after Diersen retired, GAO dissolved its Chicago Field Office group that did audits of IRS and transferred its manager, Thomas Venezia who had led the group since the 1970s, to the group Diersen had been assigned to. Mr. Venezia is an over age 40 white male who played a major role in keeping Diersen off GAO’s audits of IRS. 177. On September 30, 1997, Diersen filed an administrative discrimination complaint with GAO’s Civil Rights Office and GAO retained an outside contractor to investigate it. 178. Diersen made it clear to GAO and its investigator that his fear of suffering greater retaliation prevented him from filing a written discrimination complaint any sooner than he did. 179. GAO sent its investigation report to Diersen on February 19, 1998. In his March 19, 1998 letter to GAO, Diersen cited numerous deficiencies in the investigation and asked that they be corrected, but GAO refused. GAO denied Diersen’s complaint on April 29, 1998. 180. In connection with GAO’s investigation of Diersen’s September 30, 1997 discrimination complaint, Leslie Aronovitz submitted affidavits concerning Diersen dated November 10, 1997 and December 8, 1997, Stewart Herman provided a similar affidavit dated December 2, 1997, and Cecile Trop provided a similar affidavit dated December 8, 1997. 181. GAO never did recommend Diersen "very highly" to any prospective employers. While GAO subsequently provided Diersen with letters of recommendation on October 28, 1997, October 30, 1997, and July 23, 1998, it did so only reluctantly and none of the letters contained a "strong" recommendation. 182. On July 30, 1998, Diersen filed this suit. 183. Since April 12, 1999, Diersen has posted his claims against GAO on the internet at http://www.adversity.net/c16_tbd.htm 184. On at least five occasions since September 30, 1997, GAO knowingly, intentionally, and willfully failed to follow its procedures set forth in GAO Order 2294.3 for responding to inquiries about its former employees. GAO failed to respond to inquiries about Diersen’s GAO employment, it refused to acknowledge that Diersen was eligible to be rehired by GAO, and it failed to keep its agreement with Diersen to respond to inquiries about his GAO employment in a manner that is consistent with its letters of recommendation. Claims 185. GAO and its investigator did not fairly or fully investigate Diersen’s September 30, 1997 administrative discrimination complaint. 186. GAO and its investigator wrongly refused to investigate Diersen’s class action claims of age discrimination, reverse discrimination, and retaliation. 187. GAO and its investigator wrongly refused to investigate Diersen’s claim that the discriminatory and retaliatory violations had continued for many years and that the adverse employment actions GAO took against him were a linked series, cumulative, and part of a pattern. 188. GAO and its investigator wrongly ignored the support for Diersen’s claims that four retired GAO Band II Analysts provided in affidavits, refused to correct serious deficiencies in its investigation, and issued a report that was biased and a pretext thereby denying Diersen the benefit of due process in the administrative processing of his complaint. 189. The affidavits submitted by Cecile Trop, Stewart Herman, and Leslie Aronovitz contain extremely negative statements about Diersen that are false and were knowingly and willfully made to retaliate against Diersen for filing an administrative discrimination complaint. 190. GAO knowingly and willfully sabotaged his job search to retaliate against him for filing an administrative discrimination complaint, for filing this lawsuit, and for posting his claims against GAO on the internet. 191. GAO took the above adverse personnel actions against Diersen in retaliation because he opposed giving preferential treatment to younger, minority, and female Analysts, because he participated in Chennareddy, because he filed an administrative discrimination complaint, because he filed this lawsuit, and because he posted his claims against GAO on the internet. 192. The aforesaid adverse employment actions were retaliatory, a linked series, cumulative, and part of a pattern. Damages Diersen Claims He Has Suffered 193. Because of GAO’s discriminatory and retaliatory acts against Diersen, he has suffered, is suffering, and will continue to suffer tremendous economic damages and tremendous irreparable emotional and psychological damages. 194. Those damages began when GAO forced him to accept a downgrade and an approximate $6,000 reduction in pay in 1980 as a condition of allowing him to transfer to GAO from IRS. 195. Those damages grew each time GAO delayed or denied Diersen’s pay increases, bonuses, and promotions. 196. Those damages grew each time GAO ignored or denigrated Diersen’s education, professional certifications and activities, and pre-GAO work experience. 197. Those damages grew each time GAO gave Diersen unrealistic performance expectations, denied him assignments on audits of IRS, denied him leadership roles, gave him unfair performance appraisals, and allowed his superiors, coworkers, and subordinates to make false and extremely negative statements about his abilities, performance, and character. 198. Economic damages Diersen suffered during the 18 years he was employed by GAO easily exceeded $300,000. 199. Because GAO forced him to retire at age 49 in 1997 instead of allowing him to work for 6 more years until the normal retirement age of 55 in 2003, his income during those 6 years will be at least $40,000 less for each year totaling at least $240,000 in damages ($40,000 X 6). 200. If GAO had not delayed and denied his pay increases and promotions, both Diersen’s $72, 460 salary when he retired and his salary during the 3 years before that which was used to calculate his pension would have been substantially higher. 201. Further, because GAO forced Diersen to retire 6 years before the normal retirement age of 55 in 2003, he was forced to suffer a substantial early retirement penalty for the rest of his life. Because of that, Diersen’s pension will be at least $14,000 less each year for the rest of his life. Resultant economic damages Diersen will suffer between after 2003 and 2033 will total at least $420,000 ($14, 000 X 30). 202. Diersen has taken reasonable efforts to mitigate damages by seeking employment commensurate with his education, professional certifications and activities, and work experience, by becoming a NASDR arbitrator, and by offering his services as a consultant. 203. Because GAO refused to promote Diersen beyond GS-13 and because GAO forced him into early retirement, Diersen’s prospects for finding employment commensurate with his education, professional certifications, and work experience are extremely poor. That problem is aggravated by GAO’s refusal to agree to either mediation or settlement negotiations. 204. To pursue this litigation, Diersen has paid substantial attorney fees and related costs and he has devoted substantial amounts of his personal time. 205. GAO’s retaliation against Diersen and especially its sabotage of his job search continue to cause Diersen’s unemployment. 206. However, as great as the tremendous economic loss is that Diersen has suffered, is suffering, and will suffer because of GAO’s discriminatory and retaliatory acts against him, the emotional and psychological damages that he has, is, and will suffer are far greater. Count I: Age Discrimination 207. Diersen realleges and incorporates paragraphs 1-206. 208. Diersen claims that his age was a determining factor that motivated GAO to take the adverse employment actions as set forth above, especially during September of 1997. 209. Diersen claims that GAO knowingly and willfully discriminated against Diersen on the basis of his age in violation of ADEA. Count II: Reverse Discrimination 210. Diersen realleges and incorporates paragraphs 1-209. 211. Diersen claims that his race and gender were determining factors that motivated GAO to take the adverse employment actions as set forth above, especially during September of 1997. 212. Diersen claims that GAO knowingly and willfully discriminated against Diersen on the basis of his race and gender in violation of Title VII. Count III: Retaliation 213. Diersen realleges and incorporates paragraphs 1-212. 214. Diersen claims that GAO violated ADEA and Title VII when it knowingly and willfully retaliated against him while he was employed by GAO as set forth above because he opposed GAO’s practice of giving preferential treatment to its employees who are younger, minority, and female and because he participated in a lawsuit that claimed age discrimination resulted from that practice. 215. Diersen claims that GAO violated ADEA and Title VII when it knowingly and willfully retaliated against him after he left GAO as set forth above because he filed an administrative discrimination complaint, because he filed this lawsuit, and because he posted his claims against GAO on the internet. Relief Sought Wherefore, Diersen respectfully requests the following relief: 216. Preliminary and permanent injunction against GAO to stop its retaliation against Diersen including its sabotage of his job search; 217. Entry of judgment in favor of Diersen and against GAO; 218. Back pay; 219. Reinstatement, or in the alternative, front pay; 220. Liquidated damages of not less than $300, 000; 221. Reiteration and restoration of benefits; 222. Punitive damages; 223. Attorney’s fees and costs; and 224. Other such relief as may be appropriate to effectuate the purposes of ADEA and Title VII. Jury Demand 225. Diersen hereby demands a jury trial for those claims for which jury trial is allowed under present law. Dated: February 27, 2001 Respectfully submitted: __________________________ David John Diersen, Pro Se Certificate of Service I certify that on February 27, 2001, I personally served a copy of this fourth amended complaint on counsel of record. Jack Donatelli Click the Menu choices at the left to browse the GAO/Diersen documents. END Case 16:
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