The Miami Herald, Inc.; Monday, September 9, 1996
Susana Barciela; Herald Business Writer

Mark La Fontaine thought he had it pretty good working for the Department of Veterans Affairs in Oakland Park. Making about $8.50 an hour as a medical records clerk wasn't the best deal. But the hours allowed him to go to college at night.

And the the benefits were comforting. Particularly the medical coverage that would take care of complications that might arise from his having the virus that causes AIDS.

La Fontaine liked his job in the mental health department of a VA outpatient clinic. "I got along with everyone, the patients and doctors," he says.

That was, until he applied for a promotion and discovered he was knocked out of the running because he was HIV positive.

"I find it difficult now to trust anyone in the work force," says La Fontaine, 29, more than a year after he began pursuing a complaint of job discrimination against the VA.

Like other federal employees who suspect they've been mistreated because of their race, religion, sex, national origin, age or disability, La Fontaine has had to follow a lengthy government process to have any hope of remedy. They are all part of a rising tide.

Amid reinvention and the passage of new laws such as the Americans with Disabilities Act, federal employees filed 24,592 equal opportunity complaints in fiscal 1994, the latest year for which figures are available. That represented a 40 percent increase since 1991.

As in the private sector, the complaints have grown more complex and time-consuming. Which is of little comfort to employees like La Fontaine, HIV positive in a race against time.

"It's an emotional beat-down," says William Porter, La Fontaine's lawyer. Employers "hope the employee will get frustrated and quit."

What follows is mostly La Fontaine's version of events, substantiated by the VA's own investigation. Though the VA is open about its procedures, it did not comment on La Fontaine's complaint -- its policy on any case that could lead to litigation.

La Fontaine began working as a volunteer in the mental health department of an outpatient clinic in Broward. Within months, he was on the payroll as a clerk. About a year later, a higher-grade clerical position opened in his department, and he applied. Unknown to La Fontaine, he was rated as qualified and selected for the job by the hiring manager.

But before the selection was finalized, it was overruled by a ranking medical director who named another VA employee to the job. When announced, the selection puzzled La Fontaine. Soon, he discovered that the promotion had been given, then taken away from him.

Following the VA's internal process in such cases, La Fontaine lodged his first complaint, going to an equal opportunity counselor in June 1995. He argued that he had been denied the promotion because of his disability.

He -- and others interviewed later by a VA investigator -- alleged that the medical director had said La Fontaine shouldn't be promoted because he was HIV positive and that it had been poor judgment to hire him in the first place. The medical director later denied having made such statements.

The counseling did not lead to any resolution, so La Fontaine filed a formal complaint in July, which led to the investigation.

By September, La Fontaine had been fired. The VA said it was because he would not train the person named to the higher- grade position. La Fontaine said it was harassment.

In January 1996, the VA investigator submitted her report. La Fontaine "would have been selected for the Medical Data Clerk position as the preponderance of the evidence indicates that (his) disability (HIV positive) was the deciding factor," the report said. He had been discriminated in the job posting, she concluded, though not in the termination.

"We can talk about the ignorant people, but when you deal with doctors and hospitals that write the book on this, and then they turn around and mistreat an individual for having HIV, that is the worst form of hypocrisy," Porter says. "You can't mistreat people because they have the disease."

Even so, a year after he lost his job, there has been no resolution for La Fontaine. Despite attempts at negotiation, the two sides haven't agreed on how much he should be paid in damages, other than back pay and reinstatement. For months, the case has rested in the VA's Office of General Counsel, which issues the VA's final offer. But it, like other federal offices that handle employment discrimination claims, strains under backlogs.

In the meantime, La Fontaine's health has been touch-and- go. He's had a tough time landing a job. Before finding Porter, who took his case on contingency, he found a number of other lawyers who wanted retainers as high as $10,000. He's survived, he says, because his partner has a job. And he has continued his studies, hoping to graduate with a bachelor's degree in accounting next year.

La Fontaine and Porter are preparing to sue the VA in federal court, too, a right that employees have after pursuing a federal agency's internal procedures to no avail. That will mean more cost, time and frustration, though.

The process to fight job discrimination doesn't seem fair, is stacked against those with limited resources and leads to few clear victories. But for most employees, it's either that or quit. And then the people who discriminate win.

A LONG AND WINDING ROAD

If you're one of the 2.8 million employees of the 1ederal government, the rules are different when it comes to on-the-job discrimination.

Private-sector employees typically complain to the Equal Employment Opportunity Commission, the federal agency that enforces laws against discrimination based on race, religion, sex, national origin, age or disability.

Federal employees, however, resort to the EEOC or federal court only after going through their own agencies' complaint processes. "The idea was to keep federal employees out of federal court," explains Patrick Kokenge, administrative judge for the EEOC in Miami.

EEOC guidelines and agency procedures are similar, though. Veterans Affairs employees, for example, must first go to a counselor who tries to resolve the complaints, says Linnell Baker, one of 10 such counselors at the VA medical center in Miami.

If necessary, the next step is a formal complaint to the VA's general counsel in Washington. Cases are assigned to independent investigators who take sworn affidavits, analyze evidence and make recommendations. At any point, the agency may settle. The general counsel decides what, if anything, the agency will offer.

In theory, this takes six months; in reality, it can take well over a year just for the internal process.

Ultimately, employees may ask for a hearing before an administrative judge such as Kokenge, who has a backlog of about a year. If that does not resolve the case, federal employees may then sue for damages in federal court, after satisfying certain requirements. That can drag on for years.

Have a column idea? Write to Susana Barciela, The Herald, 1 Herald Plaza, Miami, Fla. 33132, or via e-mail at barciela(at)herald.infi.net.

Published by: The Miami Herald, Inc.; a Knight Ridder publication. One Herald Plaza, Miami, FL 33132-1693

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