A Law That Gives Racists Something to Fear

Can the No FEAR Act force a change in Huntsville, Alabama?

Matthew Fogg is a veteran of wars against criminality on two fronts. Highly decorated for his leadership in America’s war on drugs, Marshal Fogg has also successfully fought the U.S. Department of Justice in the courts. In 1998 a federal jury found Attorney General Janet Reno and the entire U.S. Marshal Service (USMS) guilty of discrimination in Fogg’s career. The jury awarded him a landmark $4 million, found the entire USMS to be a racially hostile environment for all African American deputy marshals and promoted him to the rank of chief deputy.

Fogg is currently guiding employees of the US Army and the National Aeronautics and Space Administration (NASA) Marshall Space Flight Center (MSFC), in their struggle against discrimination and blacklisting at Redstone Arsenal, in Huntsville, Alabama. He is also executive Director of CARCLE, Congress Against Racism & Corruption In Law Enforcement.

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I’m proud of to be a U.S. Marshal. I’m even more proud that I have fought racism in the U.S. Marshals Service every step of the way for the past 17 years, resulting in a $4 million judgment. Since federal law limits such awards to $300,000—equal to the sum already paid to the lawyers who helped me prove my case of racial discrimination and reprisals—I won’t get rich any time soon. (Compensation with back pay, however, is expected to accumulate beyond a $1 million.) Nevertheless, the 1998 Fogg v. Reno decision was both a personal victory and a blow struck for all the brave men and women of color in government service.

When I say “brave,” I’m not just talking about sisters and brothers in federal law enforcement. Minorities of all job descriptions are subjected to daily assaults against their dignity and livelihoods in workplaces throughout the U.S. government. Ultimately, it has been my faith in GOD who has blessed me with a double portion of intestinal fortitude to stay the course in this never-ending war within the most powerful institution on the planet. We don’t pick racial fights, but we’re not backing down either. That goes for all GS pay grades, from the janitor sweeping the halls at the U.S. Treasury Department in Washington, D.C., to the African American Ph.D. designing weapons systems at Redstone Arsenal, in Huntsville, Alabama.

When I was first asked to look into complaints of discrimination at the U.S. Army’s Redstone installation, I thought I was going to assist one employee. Instead, I found myself on a base rife with cruel, pervasive racism. Direct evidence indicated that minorities are systematically held back from promotion, threatened with dismissal, ‘blacklisted’ when they file lawful grievances, treated as pariahs in the workplace and subjected to vile verbal abuse. My immediate advice was, get organized.

Two years later, the 200-strong Redstone Area Minority Employees Association (RAM), is preparing a class action suit against Redstone’s various U.S. Army commands and NASA. RAM has compiled evidence of massive illegality, including falsification of documents, biased clearance revocations, obstruction of justice, and perjury by federal managers—including many who are still employed. I serve as RAM’s executive director and also officially represent many of these employees in the agencies’ equal employment opportunity administrative processes.

For me, a defining moment of culture bias reality came when Al Sullivan, the former Commanding General over Redstone facility operations, finally stopped playing the innocence game. At a press conference last year, in response to RAM allegations, Sullivan said, “Does discrimination exist? Yes it does. It exists in any organization.”

Ironically, I owe my excellent training in the arena of investigations protocol to the U.S. government. What the U.S. Marshals Service didn’t teach me, I learned on my own in the course of suing the Department of Justice. However, my personal experiences did not fully prepare me for the appalling scope of institutionalized bigotry at Redstone Arsenal. Certainly, no civilized person could have predicted the sudden resurrection of the epithet, “Tar Baby,” the new slur of choice among some civilian and military supervisors. It is a phrase commonly used in Ku Klux Klan web pages that portray black Americans as sub-human. (See Tar Baby Outrage in this issue of . )

In response to RAM’s repeated protests against all forms of discrimination, including a demand for a congressional investigation into conditions at Redstone, the government commissioned a $185,000, three-month study by Booze-Allen & Hamilton, of McLean, Virginia. The company surveyed almost 2,000 Redstone employees. Although the company whitewashed a number of RAM’s key complaints, its survey discovered shocking levels of dissatisfaction with the promotions and appeals process on the base. An astonishing “79.5% of non-managers and 53.5% of managers believe that selection decisions across [Redstone] are based on relationships and favoritism,” concluded Booze- Allen. “In addition, citing fears of reprisal, some participants claim that challenging a decision could be detrimental to an employee’s career.”

Had the confidential survey been limited to minority employees, the verdict against management would have been near-unanimous, and the term “favoritism” would be replaced by a more accurate description of Redstone’s employment practices: racist. Ultimately, RAM’s class action suit will prove the rightness of our cause.

The prospects for victory in the courts are excellent. Just last month, NASA’s Goddard Space Flight Center in suburban Washington, D.C. agreed to a $3.75 million settlement of a suit by 120 Black scientists and engineers. The plaintiffs will also get the promotions they had been unfairly denied under NASA’s discriminatory personnel policies.

I believe bias practices at Huntsville’s Marshall Space Flight Center are even more pervasive than at Goddard.

Huntsville’s besieged minority employees can also look forward to their day in court, with confidence that they will prevail at the end of the process. However, until only a few weeks ago, a key weapon was missing from the civil rights arsenal; no mechanism existed that would make discriminating agencies accountable for their crimes.

No matter how high the monetary award, the offending agencies have never been held accountable for the bill. Taxpayers, not perpetrators, paid the price, while the agencies that committed or permitted crimes against their minority employees lost not a dollar in funding. Agency executives kept right on stepping up the career ladder, losing judgments but retaining their budgets.

The First Civil Rights Bill of the 21st Century

On May 15, we scored a righteous victory, with a lot of help from our friends in the civil rights community and in Congress. President George W. Bush signed into law the Notification and Federal Anti-Discrimination and Retaliation Act, or No FEAR, backed most notably by African American Rep. Sheila Jackson Lee (D-TX) and House Judiciary Committee chairman James Sensenbrenner (R-WS).

It was a day that whistleblowers like myself will long remember. Hopefully, passage of the No FEAR Act will become an event that racists, who are strategically placed throughout the federal bureaucracy, will not soon forget.

Under the old rules, agencies that were found guilty of discrimination walk away from the courtroom without a scratch. Damage awards were paid out of a general U.S. Treasury fund covering the entire federal government, rather than by the agency that broke the law.

In other words, racists responsible for harming citizens at tremendous cost to the taxpayer were allowed to carry on with business-as-usual, totally unaccountable for their crimes. We may finally be rid of the old system of official impunity.

The new rules require that settlements and judgment money come out of the offending agency’s budget, and that each agency make a yearly report to Congress on the number of discrimination and whistleblower cases pending against it. They will also be forced to report on whether employees have been disciplined for discriminating.

NAACP board member Leroy Warren summed up the issue best. ”This legislation,” he told the Associated Press, “should stop some of the managers whose actions are like some international outlaw, where they can do what they want to, when they want to and how bad they want to, without anyone taking control of it.”

Congresswoman Lee said the bill “could not have been passed without the pain and the sheer agony of so many employees who came forward to mention that their lives were made almost in the form of a nightmare because they chose to stand up.”

I am intimately familiar with that kind of pain. So is my soul mate in the struggle against racial crime, Marsha Coleman-Adebayo. Her $600,000 award against the Environmental Protection Agency in 2000 was, like mine, reduced to $300,000, in line with the federal cap. Her case against EPA was credited as the impetus for the No Fear Act.

I was also honored to be among those who submitted testimony before the Congress in support of NO FEAR, on May 9, 2001.