In accordance with Federal law, National Guard dual-status technicians are civilian employees of the Department of the Army or Air Force. As such, whenever a technician has one of these types of complaints they can seek remedy through the Equal Employment Opportunity (EEO) process available to all Federal employees under Title VII. NGB's request to change the law would force technician complaints to be dealt with via military channels, and would limit the appeals process to the Adjutants General level, allowing no further review by anyone, not even Federal courts.

 

Based on reports in the last few weeks, the Department of Defense is reeling from one sexual assault scandal after another. From General Officers vacating military jury verdicts to the head of the USAF Sexual Assault and Prevention Program being arrested for groping a woman in a parking lot, it's clear that the direction NGB should be headed towards is that of enhancing protections, not reducing employee avenues to have their complaints heard. NGB's request to change the law has shed new light on two EEO cases involving technicians of the District of Columbia National Guard (DCNG). Each of the cases was handled by Chief Master Sergeant (CMSGT) Christopher Martin, who at the time was serving as the DCNG State Equal Employment Manager (SEEM).

Chris Martin has been around the EEO and Equal Opportunity (EO) communities for quite some time now. During my brief 21 month-stint (March 2009 to December 2010) as the Labor Relations Specialist (LRS) for the Louisiana National Guard I can recall Martin assisting on two EEO cases. The reason we requested his input was because he was considered an "expert" in the field. And that's what's so puzzling about sworn affidavits which Martin submitted to the Equal Employment Opportunity Commission (EEOC) in Devine v. NGB, a case he handled as SEEM for the DCNG. Mrs. Devine was a technician who filed a complaint against the National Guard for sexual harassment. The circumstances surrounding her complaint were truly disappointing. She was repeatedly propositioned for sex in the most explicit of ways by coworkers, and was harassed to the point of being sent flowers to her house with sordid proposals. She filed a Formal complaint in October of 2010, and the National Guard did what it always does...nothing. The case made it all the way to the EEOC, and they issued a default judgment against NGB for their gross mishandling of the case, and for repeatedly ignoring their duties under the law. 

The Commission's ruling read, in part, that "the Agency was warned...it could face sanctions for failure to complete an adequate investigation in this case. Nonetheless, the Agency produced an incomplete investigative file...that did not include affidavits, except those (Devine) supplied herself...The complaint file the Agency produced was incomplete because the Agency never undertook any investigation of the case...Other than the reasons set forth in the (Agency's) Motion to Dismiss, most of which were rejected..., the only reason the Agency gave for this failure was that this was (Christopher) Martin's first civilian Formal Complaint, implying that he was unfamiliar with the civilian side EEO procedure." 

Mrs. Devine initially sought EEO counseling from Martin in March of 2010, and subsequently filed a Formal EEO complaint in October 2010. In July of 2011, NGB filed a motion to dismiss Mrs. Devine complaint. The EEOC eventually rejected the motion, and was not kind to NGB in their justification for the denial. In particular, they took serious issue with Martin's role in the mishandling of the case. They found that Martin provided Devine with "materially misleading advice," that he failed to advise her in writing of her Title VII rights as required by law and regulation, and that he "misled her into even thinking she had to make an election and could not go forward with both civilian side and military side complaints."

The fact that the EEOC found Martin to be "materially misleading" is a huge finding considering his "expert" credentials, not to mention all the other shortcomings they took issue with. However, the real story here is NGB's counter-argument that this was Martin's "first civilian Formal Complaint." This assertion, that Martin was inexperienced, is a bold faced lie, and directly contradicted what was reported in a human interest story released by the DCNG profiling Martin's accomplishments in the field of EEO during the Fall of 2010.

On October 7, 2010, right in the midst of the Devine case, the DC National Guard published an article about Martin receiving the Blacks in Government 2010 Meritorious Service Award. Ironically enough, Martin was being recognized for being "one of the best in his field" during the same time that he was grossly mishandling the Devine case. The press release claimed that Martin had been "long known for getting results," and for being an "expert at making lemonade from lemons." The article explained that "in addition to being the equal employment manager, Martin serves as the Joint Force Headquarters Sexual Assault Response Coordinator, Alternate Dispute Resolution Manager, Violence in the Workplace Manager, and Employee Assistance Manager." It further claimed that "not only does (Martin) hold a lengthy list of titles and the duties, he is sought after by units throughout the nation in assisting with the resolution of difficult disputes."

The article makes no sense when you consider NGB's testimony in front of the EEOC. How can NGB claim, on the one hand, that Martin was inexperienced in the processing of EEO complaints, yet turn around and present him with an award recognizing his "expert" EEO credentials? In fact, the article claimed that in the previous 2 years, Martin had mediated 146 disputes in 17 different states, and that his efforts helped NGB lead all other Federal agencies in mediation. How? Why would the DCNG and NGB rely on or recognize someone as inexperienced as Martin? And how can Martin be trusted to resolve any complaint when he so grossly mishandled the Devine case? In fact, Devine was but one of two cases that Martin was involved in during the same time period. In the other case (Rouleau v. NGB) he was also found to have mishandled the complaint.

Sadly, this is status-quo for the way NGB and the individual states handle EEO complaints. NGB lacks any respect for the EEO process, and their attempt to deny technicians their rights under the law should be investigated further. Martin is but one example of how NGB likes to resolve EEO complaints by providing employees misleading information, and by dragging the process out so long that complainants get discouraged.

You would think that Martin would have been disciplined or even fired. You would be even more inclined to believe that there's no possible way he's still around considering that his actions played a pivotal role in why NGB ended up paying out hundreds of thousands of dollars to both Devine and Rouleau. If you do, you would be wrong. Not only is Martin still around, he now works for NGB Complaints Management and Adjudication Division (CMAD), the office who's primary responsibility is to resolve and process EEO complaints for the entire National Guard, and the primary driver behind denying technicians their rights under the law.

There are serious concerns regarding Martin's current and previous position, and his involvement with the adjudication and processing, and even mediating, of EEO complaints. In fact, one has to seriously question whether any of the apparently hundreds, if not thousands, of complaints which he has been involved in need to be reviewed for legal sufficiency.

This problem is not going to go away anytime soon. NGB will continue to deny technicians their rights, especially those that are not aware of their entitlement to due process under the law. In the mean time, LIUNA will continue to fight for the rights of technicians, and make sure that NGB is held accountable.