By Jim Wright
NINE MONTHS AFTER being fired, Albert Bender is still fighting to get his job back as an equal employment officer for Pima County.
Bender claimed he had no warning that his work was allegedly less than satisfactory until the day he was fired. The firing occurred a few days before Bender was to complete his probationary period.
Bender, a Cherokee Indian, lawyer and a graduate of the University of Oklahoma School of Law, said he can think of only one reason he was terminated: "I was treated differently. I was an Indian and a male. The only Indian male in the history of the county ever to work in the Equal Employment Office."
In other words, he's alleging discrimination.
Jose Matus, director of the Border Rights Project, which monitors human rights violations and abuses by federal immigration agents, said, "Whenever an Indian professional is fired and told his work product is simply 'unsatisfactory,' many of us (in the Indian community) immediately become suspicious."
Matus, a Pascua Yaqui, has 20 years experience as an equal employment advocate for Native Americans. He said he's alarmed and concerned over Bender's firing.
One month after he was fired, Bender put a check mark in one of the little squares on a county grievance form, indicating he felt he'd been discriminated against due to race and gender. Because he was a probationary employee, no other grievance procedure was open to him under county rules.
Once the grievance was filed, Bender said he again began to feel county officials were treating him differently.
Pima County Administrator Chuck Huckelberry said it would have been highly inappropriate for the County's Equal Employment Office to conduct Bender's investigation. And since Bender rejected an investigation into his dismissal by the county attorney's office, Huckelberry said he felt it best to refer the matter to an outside agency for an independent review.
After several agencies turned him down, Huckelberry asked Tucson City Manager Michael Brown for assistance; Brown asked his EEO director, Floyd Thompson, to do the investigation.
Thompson now says he rues the day he got involved in the case. He recalled explaining to Huckelberry that because he was unfamiliar with county merit system rules, which are different from the city's civil service procedures, he would not be able to offer any recommendations, other than to uphold or deny the order to fire Bender.
Other options available under county rules included: extending probation, suggesting Bender receive intensive counseling, and many more. Thus, unbeknownst to Bender, he was being treated differently. With Thompson unable to provide a full range of recommendations to the county administrator, the process was tainted before it began.
There were other problems.
"From the start," said Thompson, a 28-year veteran with the city's EEO, "things went wrong. I asked the county's Human Resources Department to send over Bender's personnel file. When it came I remember saying to myself, 'Damn, there's nothing in here.'"
Even after several calls to Jorge Lespron, director of the County EEO, Thompson was unable to secure documents related to Bender's termination. Thompson sent Lespron a letter with a list of seven questions related to Bender's firing. "Some of the questions I asked him required only 'yes' and 'no' responses," Thompson recalls. "It wasn't as though I was asking him to translate Gone With The Wind into Yiddish."
When the documents finally arrived, a month had passed, and more than five months had passed since Bender was fired in May 1994. Today, more than eight months have passed since Bender filed his grievance. In all, Bender has waited nine months for this matter to be settled.
Thompson said even though his investigation found in favor of the county, he can't help being concerned about the process.
And he's not the only one. Pima County Supervisor Raul Grijalva has carefully tracked Bender's case.
"Put aside for a moment whether Lespron was justified in his dismissal of Bender," Grijalva said. "Just put that aside. Now look at the process Bender has had to go through. Look at how long he had to wait. It's been awful for him. I really feel sorry for him. Clearly he hasn't been treated fairly."
But Thompson observed, "Lespron did treat Bender badly. But he didn't treat Bender differently. He (Lespron) treated others on his staff equally as badly as he treated Bender."
Thompson admitted his "findings of fact" are a bit unusual, but he defended them by saying Lespron was able to produce documents showing he had been counseling Bender about his poor job performance.
However, Bender claimed he had never seen the letters of counseling.
Thompson said the problem of an employee claiming he's never seen critical documents placed in his personnel file is easily remedied by having the employee sign a document saying he's reviewed the documents. And, Thompson pointed out, a simple exit interview conducted by county human resources staff would have allowed Bender an opportunity to review and make copies of his personnel file.
However, county records show that Bender was never given this opportunity.
Also, the lack of documents supporting Bender's insistence that his work performance was of high quality--documents such as the evaluations written by students taught by Bender as a part of his EEO responsibilities--troubles Thompson.
A spokesperson for the county's personnel records department said it would be up to the employee to place "evaluations" in his own file.
Several weeks ago, after weeks of badgering county officials, Bender finally received a copy of Thompson's "findings of fact."
Currently, Bender is asking Thompson to reopen his case to allow him an opportunity to rebut Lespron's "documentation," which he claims he never saw until after the investigation was concluded.
Huckelberry said document "signature lines" and exit interviews which allow employees to see their personal files may be proposed in future changes to the merit system rules. But the county administrator added he's sticking by Thompson's investigation and conclusion.
Meanwhile, Bender is trying to find new ways to open the investigation. On occasion he camps in Thompson's outer office, conducting a one-man, peaceful sit-in.
"I'm not giving up until my case is reopened," he said.
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