UNITED STATES OF AMERICA

 MERIT SYSTEMS PROTECTION BOARD

 ATLANTA REGIONAL OFFICE

 

CAMERON W. SEAY,                 )
                                                        )
                   Appellant,                    )
                                                        )
                v.                                     )                 DOCKET NUMBER
                                                        )                 AT-0752-97-0386-I-1
DEPARTMENT OF                      )
TRANSPORTATION,                  )
                                                        )
                Agency.                          )

AFFIDAVIT

STATE OF GEORGIA

COUNTY OF FULTON

CAMERON W. SEAY, being duly sworn and deposed, hereby states as follows:

1. I am over the age of eighteen (18) and subject to no infirmity which would preclude me from recollecting or recounting the information set forth in this Affidavit.

2. I am the Appellant in the case of Cameron W. Seay v. U.S. Department of Transportation, MSPB Docket No. AT-0752-97-0386-I-1. This Affidavit is being submitted in support of that appeal and to provide evidence demonstrating that the MSPB has jurisdiction over that appeal.

3. I was first employed by the U.S. Department of Transportation, Federal Railroad Administration, as a Computer Specialist, GS-334-7, in Atlanta, Georgia on March 23, 1992. I was promoted to Computer Specialist, GS-334-11 in August 1994. During the period I worked for the Federal Railroad Administration, I always received excellent performance appraisals and prior to October 10, 1996, had never received any formal or any informal discipline in my job.

4. I am an African American. Since commencing work with the Federal Railroad Administration (FRA), I have perceived that FRA management has treated myself and other African American employees less favorably than white employees. The management of the Agency in the field is totally white and I believe that I have been denied promotion and subjected to less favorable job assignments, training opportunities, advancement opportunities and to overall harassment on the job because of my race. Because I believe that I had been the victim of illegal race discrimination, in July 1996, I filed two formal complaints of discrimination under 29 C.F.R. §1614. One was filed as an individual and the second as a class action complaint. I secured the support of several of my African American coworkers in the Atlanta Region of the FRA for the class action complaint.

5. After I filed the formal discrimination complaints, I detected that my supervisors began to treat me in a harsher and more confrontational manner. I attempted to ignore this and perform my job duties to the best of my abilities, but I repeatedly encountered an increasing level of difficulty in many routine areas. In my perception, I believed that management was retaliating against me for filing discrimination complaints.

6. I am a candidate for a Ph.D. in instructional technology from Georgia State University. This degree has a heavy concentration in computer science. I have been attending GSU since 1990. Management knew about my educational activities and had provided some level of financial support and encouragement as my studies enhanced my proficiency as Computer Specialist.

7. On Friday, September 20, 1996, I met with my supervisor, Leon Smith, Deputy Regional Administrator, in the Regional Office. At that time, I brought up the recent denial of my application for tuition reimbursement for some of my Ph.D. courses which I considered job related. I advised Mr. Smith that I was angry that my application for educational reimbursement for a course falling well within the repayment guidelines had been denied. I told him that I perceived this denial as further retaliation and discrimination against me. While I may have raised my voice during that meeting, I did so in response to my perception that I was being subjected to illegal discrimination and retaliation. While I may have used some vulgar and explicit language in that meeting, this was undertaken to vent my anger. Besides, I have heard other employees use vulgar and explicit language comparable to that of which I had been accused, in fact the exact same words, on a regular and recurring basis. I do not believe that anyone has been subjected to any disciplinary action for such language. None has been removed for using it, except me.

8. I have been vocal in my opposition to perceived discrimination within the Region. I have contacted the Administrator of the Agency in its Office of Public Affairs to voice my opposition to perceived improper treatment. I did this in response to statements management had made directly attacking me and in efforts to correct the improper treatment that I perceived African American employees were receiving.

9. Management never counseled me against making such complaints. I have never engaged in any physically violent or threatening conduct in the workplace or elsewhere. I view management's assumption that I may have posed a threat of violence as evidence of racial stereotyping and discriminatory attitudes on their behalf.

10. On or about October 10, 1996, I received a Notice of Proposed Removal, a copy of which is attached hereto as Exhibit A. I vigorously disagree with the rendition of events set forth on that document. I believe that the removal was motivated by an effort to stifle my filing of discrimination complaints. Together with my designated representative, Mr. Eric Rudolf, AFGE Field Vice President, I made an oral response to the proposed removal on November 4, 1996.

11. By memorandum dated November 25, 1996, Phillip Olekszyk, Deputy Associate Administrator for Safety Compliance, upheld my proposed removal (Exhibit B attached). He simultaneously offered me the opportunity to enter into a Last Chance Agreement, a copy of which was attached to the decision letter (Exhibit C). This Agreement required me to relocate to Vancouver, Washington, to withdraw my pending EEO complaints, to waive my rights to grieve or appeal any subsequent discharge and to grant the FRA a general release.

12. After receiving the Last Chance Agreement and the decision letter, I consulted with the EEO staff of the Department of Transportation, Atlanta Region, my union representative and two private attorneys. Each of them advised me that they did not believe that the Last Chance Agreement was valid because it required me to waive my right to file EEO complaints and for other grounds. When the Department of Transportation EEO Office apprised FRA of that position, the Agency offered me a second Last Chance Agreement on December 12, 1996 (Exhibit D). This Agreement differed from the first in that it did not assign me to Vancouver, but reassigned me to a temporary appointment not to exceed July 1, 1997. In accordance with the terms of the Agreement, I was to remain a Computer Specialist, GS-334-11, Step 3. I was told that I had to accept or reject the Last Chance Agreement by the close of business the following day, December 13, 1996. When I asked management to negotiate its provisions, I was told it was nonnegotiable.

13. I needed to remain in Atlanta and continue to receive my salary from the FRA in order to complete my Ph.D. program. I had no choice but to enter into the Agreement even though I did not believe it was valid and I had no intention of waiving my appeal rights. Because I had no real choice, I signed and executed the second Last Chance Agreement on December 13.

14. I did not freely accept the Agreement as it says in its final paragraph nor did I enter into it voluntarily and knowingly. Nor was I accorded an ample opportunity to discuss this Agreement as I was only given twenty-four (24) hours before I had to sign it.

15. After the Agreement was signed, I attempted in good faith to perform the duties of my position without violating any provisions of the Agreement. I withdrew my pending EEO complaints and tried to the best of my abilities to do my job. On or about January 3, 1997, I found that I had been denied access to the Agency's e-mail system. I had done nothing improper nor had I misused the e-mail system in any way. Furthermore, I needed that system in order to perform the day-to-day duties of my job as a Computer Specialist. I considered the Agency's exclusion of me from the system to be a breach of the Agreement because the Agency was not according me the opportunity the Agreement required to demonstrate my reliability and value as an FRA employee.

16. I also learned that the Regional Administrator had instructed all Region 3 staff not to discuss any computer issues with me under any circumstances. This, in effect, precluded me from performing the duties of my job.

17. On January 7, I called Janie Slay in the National Office and asked to have some WordPerfect disks copied and sent to me. This was in strict accordance with our license agreement with Corel. When I called back two days later to check on the status of my request, Ms. Slay told me that Chris Clune, the Deputy Regional Administrator for Region 3, and Fred Dennin, the Regional Administrator, had directly instructed her not to honor my request.

18. In late January, Don Gryder, an MP&E inspector, told me that when he asked for my computer assistance, Mr. Dennin had issued instructions that no one was to speak with me. I was directed by the Regional Office to attend an Internet development meeting in Washington on January 28. I flew to Washington and proceeded to the meeting. I was asked to perform some tasks at the conference and when I attempted to use headquarters computer equipment, Sheila Clarke, a computer analyst in headquarters, told me that I could not use the computer equipment at headquarters. Part of my position description is the development of regional databases. I have not been allowed access to any regional file server nor have I been granted training on the new network. I am unable to perform any of the requirements of my position description without being given at least dial-in access. By denying me access to the computer system, the Agency's e-mail system, Agency headquarters computers, the Agency has, in effect, precluded me from performing the duties of my position. I cannot function as a Computer Specialist to any significant extent with these restrictions.

19. On January 28, 1997, I wrote a letter to Phil Olekszyk who had been designated my supervisor since the Last Chance Agreement became effective. A copy of that letter is attached hereto as Exhibit E. My intent in writing this letter was to inform Mr. Olekszyk of the problems I was encountering in attempting to perform my day-to-day functions. Other than the letter attached as Exhibit E, I made no other statements or communications to anyone in management which could in any way constitute disrespectful, disruptive, intimidating or threatening behavior towards my coworkers or other individuals with whom I come into contact, nor have I engaged in any profane or obscene language in the workplace or in the presence of supervisors, coworkers or other individuals with whom I have come into contact. 20. On or about February 13, 1997, I received the document attached hereto as Exhibit F. While I did mention the possibility of suing FRA managers, this was because I sincerely believed that I had been treated in a discriminatory manner and I was not barred from filing new complaints under the Last Chance Agreement. I never refused to continue work on the World Wide Web restructuring assignment nor did I ever condition performing such work on the FRA meeting certain terms. Rather, I was eager to perform those assignments but could not do so because the Agency had not accorded me the resources I needed to perform those duties.

21. Since I diligently attempted to perform the duties of my position and was prevented from doing so by restrictions placed on me by higher management, I believe that the Agency has violated the Last Chance Agreement.

I have read the foregoing Affidavit consisting of ______ paragraphs and ______ pages and made and initialed corrections. All of the information it contains is made directly of my own personal knowledge. I hereby attest under penalty of perjury that the information it contains is true, accurate and complete to the best of my knowledge, information and belief.

FURTHER Affiant sayeth naught this _____ day of March, 1997.

______________________________

CAMERON W. SEAY

Sworn to and subscribed before

me this _____ day of _____________, 1997.

____________________________________

Notary Public

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