|Judge Orders Trial for Diersen's
Reverse and Age Discrimination Claims After Evidence of GAO's Continuing Retaliation is
|Summary: Congress investigative arm, the United States
General Accounting Office (GAO), was headed by Comptroller General (CG) Charles Bowsher
between 1981 and 1996 and then by Acting Comptroller General James Hinchman during 1997
Under both Bowsher and Hinchman, GAO was put under tremendous pressure to give
preferential treatment to its younger professional employees, especially to its minorities
and females. GAOs personnel records show that those employees received
disproportionately more high-profile assignments, developmental opportunities and
leadership roles, higher performance ratings, bonuses, larger pay increases, and
promotions than their white, male counterparts.
When GAO was forced to undergo a major downsizing during the mid-1990s, agency management
ensured that a disproportionate number of GAOs newly hired young minorities and
females would be retained and that a complementary, disproportionate number of its older
white males would be forced out.
All this resulted in discrimination against GAOs older employees, especially against
its white males at the Band II (GS-13 and GS-14) level. Diersen et al maintain that GAO
retaliated against those white males who lodged legitimate complaints about this reverse
Adversity.Net officer/director Dave Diersen, a CPA and Certified Internal Auditor who
transferred from IRS to GAO in 1980, is an older, white, male who was discriminated
against by these GAO policies, and he had the moral courage to file constructive
complaints about the discriminatory treatment he was receiving. He believed (falsely) that
GAO management would treat him fairly, and would accept his constructive criticism, and
would seek to end reverse discrimination at the agency. Diersen could not have been more
wrong in this assumption.
The record clearly indicates that GAO sidetracked Diersens career from a very early
date because he had the wrong demographics (age, sex, race). The record also shows that
GAO retaliated against Diersen for complaining about reverse and age discrimination. Using
threats of constructive demotion and adverse transfer, GAO succeeded in forcing him to
take early retirement at age 49 in September of 1997. Diersen filed a discrimination
complaint, but GAO denied it in April of 1998 after conducting a sham investigation.
The age discrimination, reverse discrimination, and retaliation at GAO was so egregious
that it resulted in two multi-million dollar class action lawsuits being filed in the
United States District Court for the District of Columbia. Chennareddy v. Bowsher,
Case No. 87-3538, was filed in 1987 charging age discrimination and Diersen v. Hinchman,
Case No. 98-1887, was filed on July 30, 1998 charging reverse and age discrimination and
While GAO continues to stonewall and delay both lawsuits under the new CG David Walker,
GAO recently lost a major battle. Days after evidence of the egregious nature of
GAOs continuing retaliation against Diersen was presented in a motion, the Judge
ruled that Diersens individual claims of reverse and age discrimination and
retaliation should go to trial.
Background and History:
The U.S. General Accounting Office (GAO) is the audit and investigative arm of Congress.
It is headed by the Comptroller General (CG) of the United States. It employs
over 2,000 "Evaluators" in the District of Columbia and major cities across the
country and its annual budget approaches $400 million. Because GAO has the authority to
audit and investigate virtually everything the federal government does, it is one of the
most powerful agencies in the federal government. Its personnel policies serve as the de
facto model for the entire federal government.
GAO is supposed to be a model of real equal employment opportunity and all its
hiring, advancement, and retention decisions should be based on objective criteria and
However, sadly, since at least the early 1980s, the Democratic Party has put tremendous
pressure on GAO to give preferential treatment to its minority and female
Evaluators. In addition, GAO was under similar pressure from CG Charles
Bowsher between 1981 and 1996 and from Acting CG James Hinchman during 1997 and 1998 to
give preferential treatment to its younger Evaluators. As a result, GAOs
minority, female, and younger Evaluators received disproportionately more high-profile
assignments, developmental opportunities and leadership roles, higher performance ratings,
bonuses, larger merit pay increases, and promotions.
In 1989, to further help its managers give preferential treatment to its minority, female,
and younger Evaluators, GAO imposed personnel systems called broadbanding (BB) and
pay-for-performance (PFP). GAO converted its GS-7 through GS-12 Evaluators to Band
I, its GS-13 and GS-14 Evaluators to Band II, and its GS-15 Evaluators to Band III.
To meet the official and unofficial promotion quotas given them, GAO managers flagrantly
abused the flexibility in BB and PFP to advance GAOs minority, female, and younger
Evaluators and to drive out older Evaluators, especially white males. GAO has always
expected its Evaluators who it did not promote beyond Band II to retire as soon as they
become eligible, typically at age 55, and virtually all of them do.
In addition, since the early 1980s, GAO revised its performance appraisal and promotion
procedures several times in ways that introduced even more subjectivity. While the
criteria GAO uses to appraise the performance of its Evaluators for bonus, merit pay
increase, and promotion decisions appears to be objective, in fact, it is extremely
subjective. GAO managers use that subjectivity to give preferential treatment to minority,
female, and younger Evaluators; to drive out older Evaluators, especially white males; and
to retaliate against Evaluators who complain about preferential treatment and reverse
In almost all cases, the Evaluators who received preferential treatment were demonstrably
less qualified in terms of work experience, performance, education, and/or professional
certifications. While GAO put elaborate procedures in place to deter and detect
discrimination against minorities and females, it consistently refused to put similar
procedures in place to deter and detect reverse and age discrimination and retaliation for
complaining about such discrimination. Many white male Evaluators believe that to
have a chance of being promoted beyond Band II, they have to convince their superiors that
they could and would do an exceptional job of giving preferential treatment to minority,
female, and younger Evaluators.
During the early and mid 1990s, many conservative Republican Senators and Representatives
became increasingly convinced that GAO was dominated by liberal Democrats and that
GAOs quota driven preference giving, discrimination, and retaliation had to
stop. They succeeded in forcing GAO to undergo a major downsizing. However, the
downsizing did not have its intended effect. It now seems clear that liberal
Democratic Senators and Representatives went along with the downsizing because they saw
that downsizing could be used to their own advantage. They saw that downsizing
could be used to drive out GAOs older white males, especially those who complained
about reverse and age discrimination; to drive out GAOs few remaining Republicans;
and to improve advancement opportunities for GAOs new hires. In fact, that is
exactly what happened as GAO went from approximately 5,000 down to 3,000 employees between
1993 and 1997 -- a loss of 2,000 employees!
Virtually all the Evaluators hired under Bowsher were minority, female, young, and/or
Democrat. Few had prior work experience, let alone relevant experience working for
an executive branch agency. While few had degrees in accounting, many had degrees
in less relevant areas such as "public policy." Few had passed the CPA or
Certified Internal Auditor (CIA) examinations. Nevertheless, during the downsizing,
GAO retained almost all of its new hires because instead of using seniority-based RIF
(reduction-in-force) procedures, GAO used buyouts, earlyouts, and selected office
closures. As a result, virtually all the Evaluators who left GAO because of downsizing
were white, male, older, and/or Republican. Virtually all of those who left were
demonstrably better qualified to do GAOs work in terms of experience, performance,
education, and professional certifications.
One Victims Story: Victims of GAOs reverse and age
discrimination and retaliation include Adversity.Net officer/director Dave Diersen.
Diersen transferred to GAOs Chicago Field Office as an Evaluator in January of 1980
after acquiring 9 years of relevant work experience at IRS, the last 6 years as a GS-12
Revenue Officer and Special Procedures Staff Advisor. Diersen, who is a white male
and a conservative Republican, has three job-related masters degrees and he passed the CPA
and CIA examinations on his first attempt. Nevertheless, GAO wasted his career
because his demographics were wrong and because he complained about reverse and age
As a condition of being transferred, GAO forced Diersen to accept a temporary downgrade to
GS-9 (a $6,000 pay cut), something it did not require similarly qualified minority and
female transferees to do. Even though Diersen was only 31 years old when he
transferred to GAO, he soon began receiving feedback and comments from his coworkers and
superiors that he was considered to be "too old" to advance very far within the
As a white, Diersen could not have picked a worse time to transfer to GAO because within
days of his transfer, GAOs black Evaluators filed a class action race discrimination
complaint alleging that GAO had discriminated against them in virtually every aspect of
its personnel practices, especially in its promotion practices. While it was not
until October 16, 1984 that Bowsher officially admitted that the prior CG had
discriminated against blacks, the steps that GAO took to respond to the complaint after it
was filed assured that at a minimum, Diersens promotions would be delayed.
Diersens coworkers and superiors were adamant that they had not discriminated
against anyone and that they had not benefited from any discrimination and that therefore,
they should not have to pay the price for remedying any past discrimination. Consequently,
Diersen, and other new hires and transferees who had similar demographics, were targeted
to pay as much of the price as possible. While many of them left GAO because of
that, Diersen stayed hoping that the pressure to give preferential treatment to
minorities, females, and younger Evaluators would fade. However, instead, things
just got worse.
Before long, it became clear to Diersen that he had more wrong demographics than
anyone else in the office he was considered to be too old to
advance very far in the agency, a white, a male, a
conservative Republican who lived in city known as the heart of
conservative religious Republicanism in America, a Lutheran, of German national origin,
and a non-veteran.
Additionally, Diersen's financial status (middle class, second income from his wife's
career, pension benefits from his forced early retirement from GAO, and no dependent
children) worked against him at GAO -- It was almost as if GAO's policies explicitly
stated "Here's a guy won't end up in the poor house if we sacrifice his career to
meet our race, gender and age quotas (or targets)." It appears likely
that GAO took into account all of these factors when it decided to end Diersen's career in
order to advance the careers of preferred race, gender and age groups within the
It is apparent that GAO perceived it would be easy to get rid of Diersen, and that Diersen
would see the wisdom in keeping his mouth shut about this reverse discrimination.
(GAO was obviously mistaken on this point.) But it all begs the question: How
many other "Dave Diersens" did GAO sacrifice to salve the Democrats'
unsubstantiated and legally indefensible allegations that all white males have enjoyed
prior racist advantage due to historic discrimination against minorities?
Soon after Diersen turned 40 in 1988 and began complaining about age discrimination in
addition to reverse discrimination, things went from bad to worse. His superiors
forced him to accept an adverse transfer and constructive demotion. Six months
later, they gave him a performance appraisal that was so unfair that he had no choice but
to file a grievance. Of course, that grievance was denied.
Because GAO had to give preference to its minority, female, and younger Evaluators, GAO
wasted the relevant work experience that Diersen gained at IRS as well as the relevant
knowledge that he acquired studying for the CPA and CIA examinations and graduate
courses. GAO denied Diersen job assignments in which he could contribute the most to
accomplishing GAOs mission, including audits of IRSs collection
GAO denied Diersen developmental opportunities and leadership roles. GAO gave him
lower performance ratings, no bonuses, and either no or minimal merit pay increases.
GAO did not promote him back to GS-12 until 1982, did not promote him to GS-13 until 1986,
and made it clear to him that he should not apply for any additional promotions.
Diersen feels that court documents and agency records support his contention that all this
was done so that preference could be given to minority, female, and younger
Evaluators. Under Bowsher and Hinchman, rather than helping other federal agencies
operate more efficiently, effectively, and economically and helping Congress eliminate
fraud, waste, and abuse in federal spending, GAO saw its primary mission as hiring,
advancing, and retaining minority, female, and young Evaluators.
By 1997, Diersen had endured almost 18 years of watching GAO give less-qualified
minorities, females, and younger Evaluators bonuses, significantly larger merit pay
increases, and promotions that he and other Evaluators who shared his demographics should
have received. He had endured over 10 years of having his complaints about reverse
and age discrimination being ignored. During September of 1997, Diersens
superiors gave him an unfair performance appraisal and threatened him with a number of
adverse employment actions including a constructive demotion and an adverse
transfer. On September 30, 1997, the day after his 49th birthday, and the last day
that Diersen could take early retirement, GAO succeeded in forcing him to retire.
Diersen's court filings and agency records strongly suggest that GAO forced him into
rearly retirement because he had freqently registered complaints about documented cases of
age, gender and race discrimination directed against him by GAO.
On the same day that Diersen retired, he filed an administrative discrimination complaint
with GAO. GAOs investigation of that complaint was a blatant sham.
The affidavits that Diersens superiors submitted in defense of their actions (in
response to GAOs investigation) contained many documented false and unjustified
negative statements about Diersen's performance. GAO denigrated Diersens
abilities, his judgment, his performance, his character, and his credibility. GAO
made it very clear that the more Diersen complained about reverse and age discrimination,
the more they would retaliate against him. GAO also arrogantly refused to provide
information on its affirmative action and diversity quotas and goals. GAO refused to
provide demographic, bonus, and merit pay increase data. GAOs investigator
refused to interview relevant witnesses.
The female GAO investigator asked many leading and biased questions during her interviews.
She used erroneous criteria to base her recommendation to deny Diersens
complaint. She denied Diersen an opportunity to comment on many documents that she
based her recommendation on. In Diersens March 19, 1998 letter to GAO, he
identified these and many other serious deficiencies in GAOs investigation. But GAO
refused to correct them and denied Diersens complaint on April 29, 1998.
GAOs strategy from this point forward is predictable. It will assert that
prior to September 30, 1997, it was unaware that Diersen had made any complaints about
reverse or age discrimination and that therefore, it had no motivation to retaliate
against him. However, Diersen has documents that prove otherwise. Since the
late 1980s, Diersen frequently made such complaints orally and in writing to his
superiors, to top GAO managers, to his Congressman Henry Hyde, to the staffs of
Congressional committees that oversee GAO's operations, and to GAO's Mid-Level Employee
Council, the GAO-sponsored organization that represents Band II Evaluators.
In direct contrast to GAO's defensive cover-up of the facts surrounding Diersen's
discrimination complaint, Diersen himself was always constructive in his complaints.
He consistently urged GAO to put internal controls in place that would deter and detect
reverse and age discrimination; he urged GAO to stop abusing the flexibility in its BB and
PFP systems to give preferential treatment to minorities, females, and younger Evaluators;
and he voiced support for litigation that was pending against GAO that charged reverse and
age discrimination. Diersen was completely open and honest in his dealings with
GAO: He never made any effort to conceal these facts from his superiors and
consequently, many of them were aware of these facts and committed acts of retaliation
based upon that knowledge.
Since being forced into early retirement, Diersen has sent many letters to elected
officials, the media, and others complaining about reverse and age discrimination and
retaliation at GAO. His letters resulted articles that describe his complaints and
litigation against GAO in the September 21, 1998 issue of the Federal Times and the
December 14, 1998 issue of Accounting Today. According to court decisions, such
activities are federally protected forms of opposition to discriminatory employment
practices. Diersen believes that he deserves to be protected as a
"Whistle-Blower" because he blew the whistle on reverse and age discrimination
and retaliation at GAO.
Two Lawsuits are Languishing: Attorney Walter T. Charlton has filed two class
action lawsuits against GAO charging it with reverse and age discrimination and with
Chennareddy, et al, v. Bowsher, (Case No. 87-3538), has been languishing since 1987
in the District Court for the District of Columbia before Judge Penn.
Diersen v. Hinchman, (Case No. 98-1887), has been languishing in the same Court
since July 30, 1998 before Judge Robertson. It is extremely significant that
GAOs strenuous efforts to have these lawsuits dismissed have not been
successful. However, justice delayed is justice denied. (Note: On August
3, 1999, Senator Hatch asked Chief Justice Rehnquist to investigate the case assignment
procedures used in U.S. District Court for the District of Columbia. Complaints had
been raised that cases important to the Clinton Administration are being assigned to
Judges who Clinton had appointed, including Judge Robertson.)
The New Comptroller General is a Major
Disappointment: Many Band I and
Band II GAO Evaluators who are victims of reverse and age discrimination and a smaller
number who are victims of retaliation, including Diersen, hoped that when a new
Comptroller General (CG) was sworn in, GAO would enter into good faith negotiations to
settle Chennareddy and Diersen and GAO would stop the preferential
treatment, discrimination, and retaliation. However, and sadly, even though David
Walker was sworn in on November 9, 1998, GAO continues to pretend that Diersen's and other
lawsuits alleging reverse discrimination are "frivolous" or unfounded, and this
mighty government agency continues to retaliate against Diersen and the other plaintiffs.
Walkers actions, his public statements, the actions taken and the statements made by
his attorneys, and his responses to Diersens correspondence indicate that he has no
sympathy for over age 40 white male Evaluators who Bowsher or Hinchman did not promote
beyond Band II. His lack of sympathy is in keeping with Arthur Andersens
"up or out" philosophy which is little more than age discrimination both
Bowsher and Walker were Partners at Arthur Andersen and Hinchman was hand picked by
Walkers sour attitude toward older white males who are not as successful as he is,
who disagree with him, or who are social conservatives, is also in keeping with his
self-professed "progressive" attitude on social policies. While Walker has
stated that he opposes quotas, he seems to accept the Democratic Partys progressive
social policy that minorities and females should get preferential treatment -- at the
expense of non-minority males. Inexplicably, Comptroller General Walker seems to
believe that sexual harassment is GAOs biggest personnel problem -- in
spite of the rampant age, reverse race and reverse gender discrimination in his
Walker's proposals to rate "attitude" and "effort" would only add more
subjectivity to GAOs performance appraisal system. He seems to believe that
reverse and age discrimination and retaliation never happened at GAO, and even if it did
happen, the victims deserved what they got and they should keep quiet about it.
Sabotage of Diersens Job Search
procedures require its supervisors to respond in a timely manner to inquiries from
prospective employers about the character and performance of its former employees.
On September 17, 1997, as an inducement to Diersen to take an early retirement (and get
him out of their hair), Diersens superiors promised him that they would recommend
him highly to prospective employers. However, none of three letters of
recommendation that GAO subsequently gave Diersen could be considered
But far worse than that, three different firms that check references for prospective
employers have documented that for five separate inquiries between July of 1998 and July
of 1999, GAO failed to respond in a timely manner, refused to answer questions about
Diersens character and performance, refused to recommend Diersen, and/or failed to
recommend Diersen highly! Clearly, by "damning with faint praise", GAO was
deliberately sending the message to these faux employers that Diersen should not be hired!
Diersen sent letters to the new Comptroller General Walker on March 12, 1999 and April 21,
1999 complaining about GAOs sabotage of his job search. Predictably, Walker
ignored Diersen's complaints.
On April 21, 1999, and again on April 26, 1999 when he was not aware that Diersen was
listening, one of Walkers attorneys told Diersens attorney that Walker and
other managers at GAO thought that Diersen was "nuts."
On May 12, 1999, Diersen's attorney sent a letter to the Department of Justice (DOJ)
complaining about GAOs continuing retaliation against Diersen including its latest
effort to imply that he has mental problems, but DOJ rejected that letter. [See
Link: Letter to U.S. Attorney]
On August 13, 1999, Walker sent an email message to Diersen in response to a copy of an
August 10, 1999 letter that Diersen had sent the Office of Personnel Management (OPM)
about OPMs proposal to allow BB and PFP at IRS. [See Link: OPM Letter and Comments] In his email
message, Walker severely criticized Diersens credibility, but Walker failed to cite
any facts to support his criticism.
GAO has made it clear that rather than responding to the facts that Diersen has cited,
GAOs strategy is to denigrate Diersens abilities and credibility and to imply
that he has mental problems a strategy frequently used by Clinton and his
supporters. Given that strategy, it is not surprising that Diersen has been unable
to find professional work subsequent to his forced departure from GAO.
GAO knows that Diersens forced unemployment severely limits the funds that he has
available to pay legal fees and the agency thus sends a strong message to other victims of
GAO's reverse discrimination that they will most assuredly be subjected to similar
retaliation if they complain.
It is highly probable that GAO will defend itself by arguing that the real reason for
Diersens career problems at the agency was that he was a poor performer and that is
why he has not been able to find professional work after leaving GAO. Of course, GAO
won't let Diersen's sterling personnel record stand in their way -- they will probably
attempt to re-write it.
Federal Judge Rules Diersen's Case
Should Go To Trial: After
the egregious nature of GAOs continued retaliation against Diersen was cited in a
motion, a federal judge ruled that Diersens claims should go to trial. Even
though both Chennareddy and Diersen are supposed to be expedited because
they include age discrimination claims, they continue to languish. Justice delayed
is justice denied. Ever since Walker was nominated by Clinton on October 5, 1998,
GAO has continued to strenuously fight both Chennareddy and Diersen.
In Chennareddy, GAO ignored a March 31, 1999 court order to cooperate with the
Charltons discovery requests and to enter into good faith settlement negotiations.
GAO continues to delay issuance of a GAO Personnel Appeals Board (PAB) report which
supports the charges made in both Chennareddy and Diersen. On June 10, 1999,
Charlton served the PAB with a notice of intent to sue.
In Diersen, on October 20, 1998 and again on December 24, 1998, GAO asked Judge
Robertson to dismiss both Diersens class action and his individual reverse and age
discrimination and retaliation claims. GAO asked that as an alternative, Robertson should
dismiss Diersens class action claims and transfer his individual claims to the
United States District Court for the Northern District of Illinois in Chicago. Judge
Robertson could have ruled on GAOs request as early as January 27, 1999, but failed
to do so.
Diersen took a number of actions recently to help get things moving. On August 10, 1999,
he sent a letter to OPM with copies to many elected officials, the media, and others in
which he stated that no action should be taken on OPMs proposal to allow BB and PFP
at IRS until both Chennareddy and Diersen are resolved. On August 12, 1999,
he sent a letter to Senator Hatch concerning the investigation the Senator had requested
of case assignment procedures in the United States District Court for the District of
Columbia. Diersen asked that his lawsuit be included as one which might have been
improperly assigned. On August 16, 1999, Diersen sent a letter to Speaker Hastert
complaining about GAOs continuing retaliatory actions, including its sabotage of his
job search, Walkers attorney badmouthing his mental health, and Walkers August
13, 1999 email message. On August 26, 1999, at Diersens request, Charlton filed a
motion citing the egregious nature of GAOs continuing retaliation against Diersen,
including GAOs continuing sabotage of Diersens job search. Charlton asked for
injunctive relief in that motion and cited five documented examples of how GAO continues
to sabotage Diersens job search. On September 1, 1999, Diersen met with Speaker
Hasterts staff concerning his complaints about GAOs continuing retaliatory
actions, GAOs refusal to enter into good faith settlement negotiations, and the
delay in Judge Robertsons ruling on GAOs motion to dismiss.
Finally, on September 3, 1999, Judge Robertson acted on GAOs October 20, 1998 motion
to dismiss and ruled that Diersens individual claims should be transferred to
Chicago and that they should go to trial. While Judge Robertson dismissed Diersens
class action claims, significantly, he ruled that the Court in Chicago could reinstate
them. On or before September 20, 1999, attorney Charlton will file a motion asking
Judge Robertson to reinstate Diersens class action claims and keep the lawsuit in
the District of Columbia.
Adverse Impact on GAO, Other
Federal Agencies, and Federal Spending: The Democratic Party wants GAO to be its patronage army and an example of
how its "progressive" social policies result in preferential treatment for the
Partys prime constituency -- minorities and females.
Sadly, in many ways, the Democratic Party has already succeeded. There are very few
Republicans left in GAO and there are virtually no conservatives. Sadly, Walker
either sees no problem with that, has been told to ignore it, or believes that he lacks
the power to do anything about it. Many Republican Senators and Representatives are
still concerned that GAO is dominated by liberal Democrats. Others are concerned
about GAOs ability to do its work because since the 1980s, GAOs top priority
has been hiring, advancing, and retaining Evaluators who are minority, female, and
younger. Many believe that GAOs top priority should have been hiring,
advancing, and retaining Evaluators who are the best qualified to do GAOs work in
terms of experience, demonstrated performance, education, and professional
certifications. Consequently, many Republican Senators and Representatives continue
to be reluctant to ask GAO to do important work. Because GAO is underutilized, many
opportunities are being lost for GAO to help other federal agencies operate more
efficiently, effectively, and economically. Many opportunities are being lost for
GAO to help Congress eliminate fraud, waste, and abuse in federal spending.
You Are a Victim: If you are or
were a Band II GAO Evaluator or applied for the position, and you believe that GAO
discriminated against you because you were white, male, or over age 40, please contact
either or both of Attorney Walter T. Charlton and/or Plaintiff Dave Diersen. (See
End Case 16: Diersen v. GAO Main Page