Summary of my career with the
Federal Bureau of Prisons / FCI Englewood, CO
Robert D. Oest
On February 7, 1993, I was appointed to the position of Correctional Officer, GS-007-06 step 1 with the Federal Bureau of Prisons, FCI Englewood, in Littleton, Colorado. With my background and experience in military police work and corrections, the position was a perfect fit and I was honored to be one of the chosen individuals to be given such an important role in society. It was my beginning of a life-long career serving my government. I believed that the career that I embarked upon in early 1993, would be one in which I could someday look back and feel a sense of accomplishment and satisfaction. I truly believed that this career would be the only one that I would be fortunate enough to enjoy for the next 25 or 30 years. It was the beginning of a dream that I had - to make a difference in society, to make a difference in the lives of others, to make a difference by working with others who had the same belief and integrity that I had. And in the beginning, I really believed that those with whom I worked upheld the same standards and conduct that we were all supposed to be responsible for ... for which we all were required to read and sign acknowledgment for. Better yet, I believed that those with whom I worked were all men and women of principle - men and women who had high morals and who upheld the regulations, laws and policies of the Federal Bureau of Prisons. Afterall, this was a place that was responsible for confining and rehabilitating society's weak and "dangerous" individuals. We were, at the very least, supposed to set an example for the inmates we watched and supervised day-in and day-out. On February 7, 1993, I embarked upon the most important journey of my life, the most rewarding (at times) and most difficult career I had ever dreamed of. It was a journey that taught me the very definition of "integrity" as well as "corruption."
I was not unlike many of the people that worked at FCI Englewood. There were many that I crossed paths with that believed in the mission of the Agency, and who would conduct themselves in a manner that the Department of Justice would be proud to boast about. There were many that would never stoop to the level of letting someone tell them what to do, if they knew in their hearts it was wrong. Those were the staff who stood on their own two feet and who were true public servants. But those individuals were few and far between - in an environment that should have fostered the moral sense that wrong is wrong, no matter what walls protect you. The walls surrounding FCI Englewood seemed to many, to provide some type of invisible barrier to the outside world's idea of what was wrong and what was right. As though the razor sharp constantine wire protecting society from those dangerous criminals was also a protecting the unspoken, immoral acts of the "good old boys" club. You would think that the concept of the "good old boys" was something that Hollywood made up, to make money and wow audiences. It was, in fact, an accurate definition of the silent regimen that was responsible for running FCI Englewood. And while you might think that the "good old boys" were true to their definition - and were actually "good," they (or should I say most) were not. The "good old boys" were not necessarily those that had been working for the Bureau of Prisons for many, many years... those who might have been burned out having worked in such a difficult and stressful environment for so long. No, the good old boys included the new rookies in the correctional service department as well as the old timers. It was a club that most fit easily into because it provided them a sense of belonging - like a fraternity I suppose. But it was also a club that stood by it's own, right or wrong, moral or immoral. And once you crossed the line to take a stand against one "good old boys," there was no return and no reprieve. It didn't take much to belong - there was no induction, no hazing, no dues, no secret meetings. It was just one of those things that everyone knew existed, and yet no one would label too loudly, or at all. For those who were a part of the good old boys club, the choices you made, right, wrong or indifferent, would always be supported by the other members of the club.
In early 1996, I was selected as one of nine other correctional staff members responsible for watching Timothy McVeigh and Terry Nichols, both suspects at the time, of the Oklahoma City bombing. The responsibility of this assignment was immense due to the fact that the nation was focused on every detail of McVeigh and Nichols' incarceration, trial and sentencing. It goes without saying that everyone assigned to watch the suspects was believed to have the utmost integrity and professionalism. We were to uphold the policies and procedures of the BOP at all times - double and triple checking our work so as to not make the slightest error. One wrong move, and the nation would know. FCI Englewood was in the hot seat, and wanted to be sure that all I's were dotted and T's crossed while the attention was focused on them. Management had to contain McVeigh and Nichols in a special housing unit (SHU) where no one, with the exception of the nine selected employees, could ever have contact. To insure that there were no media leaks or problems, the staff contact with the suspects was at a bare minimum. It was an honor to be one of the nine people who management trusted in such a position.
On March 17, 1996, while still on the McVeigh and Nichols assignment, I was assisting Lieutenant Tracy Hooper, my immediate supervisor at the time, in escorting inmate Willie Barnes, #03787-043 to the SHU where he was to reside temporarily. Lt. Hooper, Officer Santiago Molina, inmate Barnes and myself were all in the sallyport (entrance) of the SHU while Officers David Tiedman and Curtis Miller met us at the door. Officer Tiedman opened the door to allow us entrance to the SHU. Inmate Barnes was being verbally abusive and insolent toward Lt. Hooper, but was physically restrained in handcuffs (his hands were in cuffs behind his back) so he presented no danger to the lieutenant or any of the officers. Once inside the SHU however, Lt. Hooper took hold of Barnes' handcuffs and ran to push him into the brick wall which was about 5 feet away. Inmate Barnes' face struck the wall at which time Lt. Hooper threw Inmate Barnes to the floor, grabbed his hair and began to strike Barnes' face against the floor. The abuse caused a severe laceration above the inmate's right eye, and I was completely shocked at the lack of control displayed by my supervisor, not to mention the fact that what Hooper had violated every procedure and policy on the transporting of inmates (I also believe it constituted cruel and unusual punishment and was probably illegal). Lt. Hooper had his arm around inmate Barnes' neck and was yelling at the inmate "are you done being an asshole yet?" while inmate Barnes yelled "it's over, it's over." Lt. Hooper then got back on his feet, pushed the inmate away from him with his foot and said "get this piece of shit away from me." Officers Tiedman and Miller helped Barnes to his feet and I immediately left the SHU. This incident happened in the same housing unit that the bombing suspects were being held, and at the time there were approximately 10 to 20 media trucks in front of the institution. Suffice it to say that if word got to the press that a lieutenant assaulted a prisoner in the same housing unit as the bombing suspects, the institution would be under fire and there would no doubt be a barrage of criticism about how the bombing suspects were being treated. In retrospect, I should have realized that the incident with inmate Barnes would be covered up to protect the reputation of the institution as well as it's staff members - it seems so obvious now. One would have to wonder why I would voluntarily decide to expose the incident, given that the final outcome would, at the very least, be that I would be given the label "snitch" and "rat." Worst case scenario, I thought, would be that I might have to endure some minor name calling, but that it would eventually pass, and others would eventually see that I did the right thing. There was no question that I had an obligation to to the BOP - I had standards of conduct to uphold - I had been sworn as a public servant, a federal employee, and had promised to do my duty to the best of my ability which meant that I needed to disclose the incident to someone. Let them investigate it and come to their own conclusion ... truth would prevail, right? Morally, ethically and personally, I could not turn a blind eye to what had happened on March 17, 1996.
I struggled for weeks with how to handle the situation and how to go about doing the right thing. On the one hand, a human being's civil rights were violated - an inmate was physically abused in front of witnesses. Despite the fact that inmate Barnes was being insolent, Lt. Hooper had no right to do what he did. On the other hand, I feared the repercussions of "snitching" and worried that if the information leaked out to other staff members, my reputation and career would be on the line. I felt that there had to be a way that I could be protected in a situation as serious as this. Procedurally, it goes without saying that I should have reported the matter immediately and without hesitation, but because the ramifications of "snitching" are irreparable, and I knew this - it took a few weeks for me to come to terms with what I had to do. It took every ounce of my being to do the right thing, but deep down I knew in my heart that I had report it. Let the cards fall where they may. I was prepared to deal with some name calling if my "snitching" leaked out because I knew that once there was an investigation, the other officers would surely tell it how it was - they would display the same character and remember that we are all bound by the same standards of conduct - no matter what our position title. In the end, I thought truth would prevail and a wrong would somehow be made right.
On April 26, 1996, one of my days off, I went to Jeff Segars who was the Special Investigative Services (SIS) Lieutenant hoping to gain some advice about the incident and what I had witnessed. When I approached Lt. Segars, I told him that I wanted our conversation "off the record" since I didn't want the whole incident exposed for fear of retaliation and for fear of what it might do to my career. I also knew that this wasn't the first time that Lt. Hooper had an altercation with an inmate (e.g., his wrist was broken at one point in time during an altercation with an inmate in the Lower West housing unit) and I was concerned about the potential for his action (or inaction) to cause more harm if left unchallenged. Because Lt. Hooper was in a supervisory position, accountable for the training and leadership of officers under his direction, I was very concerned that his "methods" would be taught to rookie officers and accepted as an appropriate way to deal with inmates. More than anything else, I was hoping to gain a more seasoned perspective about the situation since Lt. Segars was in a supervisory role and had many years experience with the BOP. Lt. Segars acknowledged that the conversation was "off the record" and that he wouldn't talk to any one else about it. Susan Jordan, Special Investigative Techincian, and confidential employee, was also present. It was at this time that I told Lt. Segars about the March incident and Lt. Hooper's act of beating inmate Willie Barnes. After I finished telling Lt. Segars about the entire incident, he immediately picked up the phone and called Captain James Graham. By the time I was able to ask Lt. Segars what he was doing, he had already summarized the incident for Captain Graham, and then handed me the phone. Captain Graham asked me to do an affidavit on the incident and I immediately panicked and told him that I did not want to. Captain Graham then ordered me to do an affidavit telling me that I had no choice in the matter. It was a direct order from my supervisor, and I complied (see Tab 1).
I felt for days that it would only be a matter of time until the information in the affidavit would get out and I feared early on that there might be more severe retaliation than just a couple of the good old boys calling me a snitch, but I could not fathom the extent of what would soon happen to me, and how my life would change. Sometime during the week after I reported the incident to SIS, I met with Warden William Perrill. Warden Perrill told me that I should have reported the incident directly to him and he also explained that he had to report the matter to the Office of Internal Affairs. I expressed my concern to him that the nature of the accusation would surely cause reprisal, and that most of the other correctional officers did not look to fondly on other employees that "snitched" on another employee, but I also felt that maybe if the investigation was conducted by a party outside of FCI Englewood, my reputation and career might be spared.
No sooner than I had reported the incident to SIS, I began noticing a drastic change in how I was treated by others in the correctional services department. For example, the week of April 28, 1996, Lt. Hurlburt scheduled me for camp visiting, an assignment that interfered with prior obligations I had made that Lt. Hurlburt was aware of - I was no longer able to participate in the Correctional Worker's Week softball tournament or the Correctional Worker's Week banquet (activities that I had volunteered for in the years past and enjoyed being a part of). My assignment to camp visiting also interfered with my girlfriend's birthday which Lt. Hurlburt knew about since he was, at the time, a friend of my girlfriends. I believe that the change in my schedule during this week was intentionally altered due to the submission of my affidavit a few days before. In fact, Lt. Hurlburt and Lt. Segars were known to be very good friends who readily shared information with one another, and I believe that Lt. Segars divulged the information I provided him about Lt. Hooper to Lt. Hurlburt the very same day or day after I was ordered to submit an affidavit.
About the same time that my schedule was changed, I was "secretly" kicked off of the disturbance control team, an activity and assignment that I thoroughly enjoyed and looked forward to being a part of for years. I was never formally told that I was kicked off of the team, but found out through the person who was selected to replace me (Thomas Malone). My personal effects (boots, baton, helmet, etc.) were either thrown away or given to other members of the team. Once I learned that I had been kicked off of the team, I approached Tyrone Silver, Acting Captain, to ask what happened, and he said that the disturbance control team members took a vote to see if they still wanted me on the team. The final vote was that they no longer wanted me on the team ... Tyrone Silver could not explain what had prompted the vote, but I believe it was a direct result of my submitting an affidavit about Lt. Hooper. I believe that Gilber Garcia and Kieth Ballantyne, both members of the disturbance control team, would substantiate the fact that this happened.
On May 17, 1996, I requested emergency annual leave to attend my grandfather's funeral in California. Upon my return on June 9, 1996, I began noticing derogatory notes that were left in my custody mailbox every morning (see Tab 2). I also began receiving cheese and crackers in my mailbox which accompanied notes that threatened my life and referred to me as a "rat" and "lying snitch." Shortly after I began receiving threats in my mailbox, I approached William Perrill, Warden to ask his advice and see what my alternatives were with the Bureau of Prisons and with the custody department. I told Warden Perrill that I felt I had been "black-balled" from custody and that I felt that I had to leave since I did not anticipate the situation would get any better over time. He agreed with me and asked if there were any jobs posted that I felt I would qualify for. I mentioned to him that the only posting I knew of was a Materials Handler Foreman in the Food Service Department. The Materials Handler Foreman job was on a different pay scale and if I got the job, it would mean that I would make less money; however, I really believed that there was no alternative, with the exception of resigning. Warden Perrill said that he would do his best to get me out of my current situation and strongly recommended that I apply for the Materials Handler Foreman position. So, after my conversation, I worked on my paperwork for the job, and submitted my application.
June 18, 1996, after finding more derogatory notes, cheese and crackers in my mailbox, and feeling like I had no hope, I confided in John Baxter, the institution's designated EAP counselor. I also went to Daniel Fitzgerald, Associate Warden for Operations and to Jeff Segars, SIS Lieutenant about the stuff that was going on. Mr. Fitzgerald told me that he would talk to Captain Graham about getting the notes stopped, and Lt. Segars also stated that he would talk to the Captain about what was happening. A few days later, Lt. Segars told me that the captain had told all of the lieutenants to clean my mailbox everyday before I got to work - I'm sure that this made matters significantly worse since they now they were all well aware of what was going on.
On June 19, 1996, Larry Lewellyn, Staff Duty Officer at the time of the incident, approached me to tell me that he would help me with the "situation" if I needed which only reconfirmed that the entire institution, in addition to the correctional services staff, were knowledgeable of the entire situation.
On June 21, 1996, contrary to normal procedures where the scheduling lieutenant is supposed to tell their employees what their schedule is when they are assigned to "sick and annual," I had to specifically ask Lt. Hurlburt for my schedule so that I knew what my hours were going to be during the next pay period. I had worked a "sick and annual" schedule in the past and was never required to approach my supervisor about hours until after the March 1996 incident.
On June 28, 1996, I received notification that I was selected for the Materials Handler Foreman job in the Food Service Department. Shortly thereafter, I met with Warden Perrill again to discuss the outcome of the case against Lt. Hooper. He stated that he knew I was being truthful in my allegations against Lt. Hooper and that he had called all of the parties involved (David Tiedeman, Santigo Molina and Curtis Miller) to inform them that it was "amnesty day" and that there was an on-going investigation about the matter. He went on to say that he had informed the parties that if they wanted to re-write and re-submit their affidavits that he would allow that, just as long as the truth was told. Of course, all of the parties declined to do so. Warden Perrill also stated that OIA sent the investigation back to the institution saying that it was the institution's jurisdiction, not OIA's. Captain Graham told Warden Perrill that the investigation came back "unfounded." Warden Perrill told me that he would address the issue to the institution via a memorandum, to make a subtle point without naming names (see Tab 3). I found it very disturbing and frustrating that neither OIA or FCI Englewood ever interviewed me during the so-called "investigation" after I initially submitted the affidavit. I question the truthfulness of the Captain in saying that there ever was an investigation into the matter, and believe that he was part of the cover-up since he was close friends with Lt. Hooper. During my meeting with Warden Perrill, he asked me to re-write my position description in order to compensate me for the loss of money.
On July 7, 1996, based on my selection, I was moved to the Food Service Department as Materials Handler Foreman. The nature of action on my move was "promotion" (due to pay setting procedures) but the difference in pay (I was moving from GS to WS), resulted in an annual salary change of $33,405 to $32,933 - and I lost all benefit of working overtime, night differential and holidays since the Food Service position was a set schedule with rare necessity to work a schedule other than from 7:00 - 3:00. Since I believed that this was my only alternative to a very hostile work environment, I decided to move forward, got to my new position in Food Services, and hope that the conditions improved.
On August 27, 1996, Warden Perrill issued a memorandum to all staff addressing the low morale problems that were rampant in the Correctional Services department. A portion of the memo was prompted by my reporting the abuse of Inmate Barnes by Lt. Hooper; specifically, the section of the memo that addressed "leading by example" and doing the right thing since lives may depend on the outcome (see Tab3).
Sometime during October 1996, I asked Doug Scott, who was at the time, the Food Service Administrator (FSA) , to look at my position description and consider changing it to add all of the additional duties that were being given to me (specifically, I was being assigned duties that were ordinarily performed by the Assistant Food Service Administrator (AFSA), but in the absence of one AFSA, there was a necessity to assign the work to someone else who could get the work done. Consequently, the someone was me, and I proved myself worthy of performing most of the additional duties assigned to me - bear in mind that the AFSA’s are typically GS-11 positions). Mr. Scott discussed the changing of my position description with Warden Perrill who said that with the additional duties I was performing, he felt I should be a GS-10. Robert Holton, Associate Warden (Programs) called the United States Penitentiary in Florence, Colorado to request a copy of the position description that they used for a similarly situated employee in the warehouse, who was a GS-10. The position description was faxed to Mr. Holton on December 10, 1996. Mr. Scott made “pen and ink” changes to the position description and I re-typed it and gave it back to Mr. Scott. Because a new warden was scheduled to start at the institution within a few weeks, Mr. Scott told me that he thought it would be best if we waited to submit the new position description to him. In February 1997, the position description was signed by Mr. Scott and by the new warden, Joseph Brooks, and it was forwarded to the Regional Office for final classification. I learned later that the PD was returned and it noted that the job was misclassified - specifically, the wrong series was used. Given this information, I re-wrote the PD once again, using a different series and resubmitted it to the new FSA, David Freeman. Mr. Freeman signed the second PD and it was again submitted to the Region. Mr. Freeman told me that the PD was returned denied stating that it wasn't consistent with other positions in the Bureau of Prisons.
In November 1997 (approximately), a third PD was submitted to the Region again with a different title and series. This PD was approved and classified by the Region at the GS-7 level. Once Mr. Freeman was notified that it was approved as a GS-7, he told me that he wanted it to be a GS-8, so I should re-submit it at a later date. I told Mr. Freeman that I would take a GS-7 so that I could get out of “wage grade” (WS) and have more opportunity to advance within the department. Also, going from WS to GS would move the position from regional control to the institution which would allow more flexibility since it would no longer be a regional position. Finally, I felt that the duties of the position were more indicative of general schedule work versus wage grade work due to the additional Assistant FSA duties that I was now doing. Since Mr. Freeman was adamant about re-subitting the PD later to see if we could get it to be a GS-8, I felt that I was not going to be made a GS-7 and decided that the effort I had put forth over the past year was not going to be recognized. In a sense, I felt that my hands were tied at this point and decided not to pursue the GS-7.
Approximately June 1999, I approached Janet Martinez, Human Resource Manager to ask her how I could get my PD going again since I felt that Mr. Freeman was against it, and since none of the higher graded duties had been taken away from me in the last two years. She said that she would talk to Mr. Freeman about it, and mentioned a "desk audit." For a desk audit, she told me that I would need Mr. Whitehead, Associate Warden (Programs) approval and that Mr. Freeman must also approve it. Once I had those approvals, I could re-submit the PD for another institutional audit. I went to Mr. Freeman to ask him if he planned on doing anything with the last PD that came back as a GS-7 two years ago. Mr. Freeman told me that he wasn't going to give it to me based on the fact that I don't do the same duties as I had been doing two years ago, and that my duties had changed since Doug Scott was the FSA. He didn't feel that I deserved the GS PD. I told Mr. Freeman that I was going to request a desk audit through Mr. Whitehead, and he said "do what you need to do - I've tried to get my GS-13 and haven't got it, so you need to come to the realization that you're not going to get this." I left Mr. Freeman's office to go see Mr. Whitehead (who was Acting Warden at the time). I explained to Mr. Whitehead that I had been working on this PD and audit process for the past 3 ½ years and told him that the reason I was still pursuing the issue is that Doug Scott, AFSA and Paul Tiberi (my first line supervisor) had both told me that I've taken on too many additional duties that were higher graded. In addition, Robin Cuffie, Assistant to the Director of Food Service in the BOP, said that I was doing additional work that should be compensated. Mr. Whitehead told me that he didn't want me to have a desk audit since it may jeopardize other similar positions in the BOP (only if appealed to OPM and the final classification was lower). I told him that Mr. Freeman, and Warden Brooks, had already signed off on the GS-7 PD that was approved by the Region back in 1997, and that Mr. Freeman wasn't going to give it to me. Mr. Whitehead told me to hold off on the request for a desk audit until he had a chance to talk to Robert Holton, Associate Warden (Operations) and Mr. Freeman about the PD. (Mr. Holton had another institution fax a copy of a GS-10 PD to him and told me to use it for my PD since most of the duties were identical). I told Mr. Whitehead that I felt the whole situation was personal with Mr. Freeman or that it was due to reprisal from the custody issue (I then explained to Mr. Whitehead the Hooper incident since he didn't work at FCI Englewood when it happened).
After three weeks, Mr. Whitehead had still not gotten back to me as he promised. I saw him on the upper compound and asked if we could discuss it since he hadn't got back to me. He apologized to me, but told me that he had talked to Mr. Freeman and Mr. Holton and said that Mr. Freeman was "adamantly against it." I asked him how he could be adamantly against it if he had already signed and approved it at one time in the past. Mr. Whitehead said that he didn't know that it had been signed previously and that he would talk to Janet Martinez about it. I said okay and told him about another problem that had transpired recently. I told Mr. Whitehead that on October 29, 1999, I wrote a "shot" (a "shot" is an incident report that officers use to write up inmates for rule or behavior infractions) for an inmate on my detail and submitted it through the proper channels to Lieutenant Fague (Operations Lieutenant). Lt. Fague set the shot on the desk for the next shift to process. At the same time, Lt. Hurlburt came in the office, saw the shot on the desk and said "that's the mother fucker that snitched on our buddy." After I told Mr. Whitehead about this incident, I explained that this type of reprisal and retaliation had been on-going for the last 3 ½ years and that I was going to ask Lt. Fague to write a memo about what happened. I told Mr. Whitehead again that I felt that these things were being done to me as a result of my whistleblowing and that it was blatant reprisal. Mr. Whitehead told me to give him a copy of the memo when Lt. Fague finished it. I also told Mr. Freeman about the incident that same day and told him that I had told him about this type of thing in the past, but now I had someone who was willing to write it down as proof. I wanted him to know about it since he was my 2nd line supervisor and I didn't want him to think I was going over his head by going to the Associate Warden.
On November, 4, 1999, I received the memo from Lt. Fague (see Tab 5) who also sent a copy to Captain Hansen via email the same day. I had talked to Captain Hansen about the remark prior to receiving the memo and he also asked me to give him a copy of the memo once I receive it - I never gave a copy to the captain as I believed that they would have used it to start an investigation on Lt. Hurlburt and that I would again be "sold down the river" and made the fall guy. I feared further retaliation and reprisal. About the same time that all of this happened, I consulted Dr. John Baxter as I was experiencing a great deal of anxiety, loss of sleep and depression. Dr. Baxter, who I had seen on several previous occasions about the incident with Lt. Hooper, advised me to seek outside psychological help and to get legal representation as he felt that this second situation would be worse that the first (see Tab 9).
It's also important to mention another incident that happened in approximately March 1999. Inmate Joe Hernandez, whom I had built a rapport with over the past 6 years, approached me to tell me Warden Brooks, Captain Hansen, and Robert Walker (now the SIS Lieutenant), called him to the Lieutanant's office and interviewed him about some staff members in the Food Service Department. Inmate Hernandez told me that my name was mentioned and that Brooks, Hansen and Walker asked him if I was bringing drugs into the institution. I asked him if he was sure that it was my name, and he said "yes." I immediately went to the SIS office to talk to Lt. Walker. I asked him why he was inquiring about me to an inmate and insinuating that I was bringing in drugs. He stated that he never had that conversation with the inmate, but that he had met with the inmate about drugs in general and that no names were given to the inmate. He asked me what the inmate's name was and said he would go to Captain Hansen on it. I told him that I was already on my way. Lt. Walker called Captain Hansen as I left. Captain Hansen (who was acting AW(O) at the time), was in the AW's office. I asked him if the meeting with the inmate was held, but he also denied giving my name. I told him that I was very concerned about the meeting, but more concerned that this inmate came to me with this information, and since the Captain knew that my situation in custody was bad (he knew about the harassment, being black-balled, etc), I felt that it was a situation where I could be set up for bringing in drugs (i.e., they were "planting the seed" with this particular inmate to set me up). I felt that this jeopardized my position as a correctional worker, and told Captain Hansen that if he thought I was doing something illegal like bringing in drugs, go ahead a do an investigation because we all knew that I wasn't. Approximately one month later, Inmate Hernandez's cell was set on fire because there was a leak to the other inmates that he was, and had been for several years, a confidential informant for the SIS department.
On November 18, 1999, I retained Marissa Williams and Rhonda Rhodes of William & Rhodes LLP to represent me in filing a claim with the Office of Special Counsel and with seeking relief from a hostile work environment (I actually signed the retainer for their services on November 27, 1999).
On November 30, 1999, Williams & Rhodes LLP (my legal representatives) filed a complaint with the Office of Special Counsel alleging reprisal for whistleblowing (particularly that there was a violation of law, rule or regulation; gross mismanagement and an abuse of authority (see Tab 6). This was later referenced by OSC as OSC File No. MA-00-0482.
On December 2, 1999, Darrell Reuss, Senior Officer Specialist, gave me a copy of a memo that he wrote concerning the incident with Lt. Hooper. The memo stated that one of the officers who was present (Santiago Molina) had confided in him about what Lt. Hooper had done to the inmate in the SHU in April 1996. His memo also explains that I had asked him to document the conversation that he had with Officer Molina back in 1996, but that another Lieutenant persuaded him not to write it since Lt. Hooper was trying to leave the institution (see Tab 7). The lieutenant also told Mr. Reuss that he wasn't present during the incident so he could not verify if it actually happened. I was relieved to finally get the memo from Officer Reuss, 3 ½ years later as it clearly articulated the fact that Lt. Hooper had done precisely what I had reported.
On December 3, 1999, Marisa Williams sent a letter to Warden Brooks advising that I had filed a complaint with the Office of Special Counsel alleging that the BOP, more specifically FCI Englewood, had engaged in prohibited personnel practices in reprisal for my prior whistleblowing activities (see Tab 8). The letter went on to point out that I was in a hostile work environment and that I was very concerned about my personal safety. The letter requested that I be put on paid administrative leave, or a detailed to an office not involved in the hostilities, pending my resolution of the complaint.
On December 7, 1999, Inmate Kevin Boss 27314-013, wrote a memo to me which discussed other slanderous remarks made by another staff member, Chris Apostolides, who had called me a "rat" and said that he had "worked with [Oest] in custody and now one likes a rat. Although he never told on me, I knew the guys he told on and it was for some petty stupid shit. I was putting cheese and some rat traps in his mail box until the captain made us all stop doing it and got his ass out of custody and into the job he's in now where he wasn't around anyone" (see Tab 10).
On December 8, 1999, Janet Martinez, Human Resource Manager, responded to Williams & Rhodes' request for administrative leave or detail by stating that FCI Englewood "provides a safe working environment for all employee," and that they were "unaware of allegations of a hostile work environment, [but that] if Mr. Oest has a specific incident, he should provide the specifics to enable [FCI Englewood] to properly look into those allegations" (see Tab 11).
On December 16, 1999, Marisa Williams sent to Janet Martinez, a letter explaining that, based on my past experience with disclosing confidential information, I was very concerned that if I disclosed the specific information about my complaint, that information would eventually be used to retaliate against me and other staff members of FCI Englewood thereby creating additional hostility in the work place. The letter again requested that I be placed on immediate administrative leave pending the decision from OSC (see Tab 13).
On January 4, 2000, Janet Martinez sent a letter back to Marisa Williams, stating that my request for administrative leave was denied because I was responsible for requesting leave, including administrative leave, and that since I myself had not notified the administration that I had legal counsel, I needed to tell the administration myself that I had legal counsel before they would acknowledge any requests from my attorneys (see Tab 14).
On January 24, 2000, OSC sent a response to Marisa Williams regarding my complaint (MA-00-0482) stating that a preliminary determination had been made to close the file in this matter. Specifically, it stated that there was no information to suggest that personnel actions were denied to me because of my whistleblowing activity, that no other management official (with the exception of Warden Perrill who was no longer employed with FCI Englewood) had made any promises to me with regard to re-promoting me or upgrading me based on a new position description. Further, it went on to say that Lt. Hurlburt had no supervisory authority over me and that he was not involved in the failure to promote me or the failure to grant me administrative leave or detail. The final outcome of this complaint was that they found no basis for further inquiry into my complaint as a possible violation of 5 USC §2303(b)(8) (see Tab 15).
After receiving a copy of OSC's letter, I contacted Marisa Williams to discuss the possibilities at this point. Marisa stated that she did not want to respond to OSC (OSC gave me 16 days to respond, in writing, to the preliminary determination before they closed my complaint) because she was eager to get an Individual Right of Action (IRA) from OSC so that she could go forward to the Merit Systems Protection Board (MSPB). Once she had the IRA, she would start her interrogatories with those involved which meant that she would be interviewing everyone involved to begin establishing her case file. I knew that once she began interviewing staff from FCI Englewood, the rumors would fly, and it would only be a short amount of time until I would again be subject to additional hostility. Because the Warden had denied my administrative leave (January 28, 2000), I knew that I would have no choice but to go to work and endure the increased hostility and slander, or resign. I did not feel that resignation was an option and did not want to give up my career. So, I vehemently disagreed with Marisa, and told her that I was going to disclose the specifics of my case with the Warden hoping that when he learned the details of the case, he would grant administrative leave and reopen the case with OIA.
On February 4, 2000, I decided to confide in Warden Hahn and disclose the entire case history to him. I had heard that Warden Hahn was a respectable leader, and I believed that since he had no prior knowledge of the incident in March 1996, or the events that transpired thereafter, he might be willing to reopen the case against Lt. Hooper and have it reinvestigated. Since my request for administrative leave had already been denied, and because it was evident that it would not be approved if I did not divulge the specifics of my allegations, I was willing to take a chance with Warden Hahn in hopes that he would see the seriousness of what was going on and reconsider his denial of my leave request. Further, I was hopeful that given the specifics of the entire case, Warden Hahn would have the fortitude to have the matter with Lt. Hooper reinvestigated by the appropriate party (OIA not individuals from FCI Englewood). I scheduled a meeting with Warden Hahn, but before I started talking, Warden Hahn told me that he because my case was on-going, he was not supposed to discuss the case with me at all. I told him that since he denied my administrative leave, and his denial was based on the fact that he did not have the specifics of my case, he might reconsider his denial if he knew the events that transpired since 1996. He went on to say that he had already read the case file on Lt. Hooper and interviewed administrative staff and staff involved in my case and came to the conclusion that there was no doubt in his mind that Lt. Hooper had abused Inmate Barnes back in 1996. Warden Hahn stated that the investigation against Lt. Hooper was the first case that he had ever seen that had been returned from OIA back to an institution for investigation. Particularly since the case involved an alleged beating of an inmate, he was surprised that it was not investigated by OIA since procedurally, this was how it should have been handled. Warden Hahn went on to tell me that if I dropped my lawsuit, he would make me financially whole by making me a GS-8 again. I told the Warden that I would be willing to accept this because I thought it would convey the message to staff that I was right all along thereby clearing my name as a snitch.
On February 7, 2000, I faxed a letter to Audre Field-Williams at OSC, requesting that my complaint and case be closed. On February 9, 2000, Audre Field-Williams sent me a confirmation letter that my file would be closed, and on February 14, 2000, I gave a copy of the letter to Warden Hahn (see Tab 16).
On March 1, 2000, I again met with Warden Hahn to ask about the status of my promotion to which he stated "no one has talked to you yet? I'll talk to Mr. Freeman to get it expedited." Mr. Freeman, FSA, was supposed to be submitting another position description, incorporating all of my duties.
On March 21, 2000, I met with Janet Martinez to ask when my promotion would be effective. Janet said "what promotion? I wasn't notified of any promotion. I was told to review your position description with Mr. Freeman and Mr. Freeman said you could appeal your position description with OPM." I told Janet that I was on my way to talk to the Warden because this was not what I was told by the Warden. The Warden was not available when I went down there, so I scheduled a meeting with him on March 22, 2000. When I met with Warden Hahn on March 22, 2000, I asked about the status of the position review to make me a GS-8 and the Warden said "your boss (Dave Freeman) has nothing for you, and neither do I. I will make you a GS-7, now stop you damn whining. You've been in this office three or more times in the past month, why don't you stop your whining? You've made your bed, now sleep in it - you're just a big whiner." When the Warden told me this, I was shocked. I told him that now I felt he had made my environment even more hostile by insinuating that I should have to deal with the repercussions of my actions since I had "made my bed" and that others in the administrative staff felt the same way.
On April 20, 2000, I sent a detailed letter to Audre Field-Williams with OSC discussing the events that had now transpired since my request to have the case closed on February 7, 2000. I felt that there were now additional things that needed to be considered, specifically that I had been promised a promotion, by way of a position review, by Warden Hahn and had not received any such promotion. I requested at this time that the case be re-opened or that I be granted an IRA immediately since it was apparent that the reprisal was continuing and I was given no relief (see Tab 18).
On May 1, 2000, I submitted a request to Mr. Freeman for 12 weeks of leave without pay under the Family and Medical Leave Act of 1993, to care for my newborn daughter. Mr. Freeman refused to acknowledge by signing my request. Warden Hahn approved my request, and I was placed on 12-weeks of leave without pay beginning on May 15, 2000 (see Tab 19).
On June 21, 2000, I received a letter dated June 16, 2000, from Jackie Bryant, Acting HRM (see Tab 21). I was completely distraught with the letter as it stated that effective June 18, 2000, my position had been reclassified from a Materials Handler Supervisor, WS-6907-03 to a Supply Technician, GS-2005-07. I assumed that the reclassification was a futile attempt by the Warden to make me financially whole since at our last meeting he said that he would make me a GS-7 (far from making me financially whole); however, I was taken aback when the letter went on to say that as a result of my being on approved FMLA, I would be reassigned from my new position of Supply Technician, GS-2005-07 located in the Food Service Warehouse, to the position of Correctional Officer, GS-007-07 located in the correctional services department. The move was being made because my absence from the position would cause "undue hardship for the department and the institution in general." Moving me to the correctional services department meant placing me back in the environment that I had no choice but to escape after being black-balled and receiving threats from co-workers. I did not understand how I could be carelessly moved into a position in the correctional services department while I was on approved leave under FMLA. A Correctional Officer position in the correctional services department would have meant that my schedule and work hours would be changed since Correctional Officers are required to work rotating shifts, nights, weekends and holidays. The position I held in the food service department over the past 4 years (Materials Handler Supervisor) was Monday through Friday, 7:00 am to 3:00 pm, with no weekend, night, shift or holiday work required. I firmly believed that this move was a direct violation of my rights under 5 CFR §630.1208(a)(2). Specifically, if I was required to work as a Correctional Officer, (1) the duties and responsibilities of my position (absent the care and custody of inmates) would change dramatically, (2) my work schedule and status would change since I would not be on a set schedule and would now be required to compete with hundreds of other officers for my leave schedule thereby changing my status within the department, and (3) I would be denied my within grade increase as a wage grade employee (which would be due in July 2000). On the surface, the within grade increase wouldn't appear to make any difference since they set my pay as a GS-7 Correctional Officer at a step 10; however, if I was promoted to a GS-8 as the Warden promised me, the within grade increase to a WS-3 step 5 would impact the step as a GS-8. The personnel actions taken on June 18, 2000, denied me all that I was entitled to under the provisions of the FMLA.
The day after receiving the letter from Ms. Bryant stating that I was being reassigned to the correctional services department, I went to the institution to ask for a copy of the SF-52, Request for Personnel Action that moved me from WS to GS, and the SF-52 that moved me from food services to correctional services. I found it unsettling to see that the SF-52 moving me from WS to GS was approved by the Human Resources Department only three days after I went on leave under FMLA. If the intent of the Warden was to make me financially whole, why was this action held up for two months, and then approved by management three days after I went on leave? I felt that it was made effective after I went on leave so that they could further retaliate against me by moving me back to the correctional services department.
In addition, the nature of action on the SF-50 moving me from Materials Handler Supervisor, WS-6907-03 to Supply Technician, GS-2005-07 was "promotion" (see Tab 23). When I showed my wife both of these SF-50's (she also works in personnel, and used to work in the personnel office that generated these SF-50's), she commented that the nature of action (according to pay setting regulations (see Tab 24) and 5 CFR 530.306(g) (see Tab 25) should be a "change to lower grade" since the base pay ($36,189 per annum as WS (see Tab 26)) would ultimately decrease to$34,408 per annum - the highest step allowable on the regular GS pay scale for a GS-7 (see Tab 27). Since the base pay on all SF-50's for GS employees at FCI Englewood shows up as the salary with locality adjustment, the personnelist who generated the SF-50 incorrectly set the nature of action as a "promotion" because she was comparing the WS salary with the wrong base salary (she was comparing it to the salary with locality (see Tab 28) vs. the regular GS pay scale (see Tab 27). The nature of action on this SF-50 is very significant because if it would have been done correctly and showed a "change to lower grade" it would have constituted an adverse action (since the action was involuntary) and I should have been given the appropriate proposal letter, chance to respond and appeal rights. Since the nature of action was incorrectly input as a "promotion" I was not afforded the appropriate rights as dictated by our master agreement or as dictated by 5 CFR. To further complicate this matter, it is relevant to point out that the "promotion" was made effective only three weeks prior to my within grade increase (which was due on July 7, 2000). When I made human resources aware of this fact, and the fact that the nature of action was incorrect on my SF-50, Janet Martinez, HRM stated that they didn't know I was due a step increase but that they would research it. I believe it is the responsibility of any personnelist to research these matters before generating a personnel action, especially if the pay would ultimately be affected. The fact that this was not researched prior to generating the SF-52's, shows that administration did not treat me in the same manner as they would other employees at FCI Englewood, otherwise, they would have at least pulled my OPF to do the research and not waited for me to bring such an important matter to their attention. Before I mentioned any of this to Janet Martinez, my pay was going to be set at the GS-7 step 9 (see Tab 22).
Also on June 22, 2000, I faxed a memorandum to Audre Field-Williams of OSC (I had already discussed the actions with Ms. Williams day before) explaining that my agency was reassigning me based on retaliation of my filing a complaint with OSC for reprisal for whistleblowing. The memorandum also pointed out that the reassignment was in direct violation of the Family and Medical Leave Act and that by moving me back to the Correctional Services Department, I would be subject to a more severe hostile work environment than already existed in my current position, especially considering that the move placed me back in the very department that was responsible for my original complaint.
The same day that I visited the human resource department to get copies of the SF-52's taking me from WS to GS and then reassigning me to the correctional services department, I asked if my position in the Food Service Department was going to be filled. I received a copy of the job announcement for this position that was taken away from me (Supply Technician) which opened June 20, 2000 and closed July 11, 2000. The job announcement was advertised under Merit Promotion procedures (announcement number 00-ENG-018), and closed only a couple of weeks prior to my scheduled return from FMLA (see Tab 30). It made absolutely no sense to me that even though they had stated in their letter to me that they needed to take me out of my position and fill it during my absence because the department was suffering such an undue hardship, the announcement closed only three and a half weeks prior to my scheduled return from FMLA (August 7, 2000). If the announcement closed on July 11, 2000, and merit promotion procedures had to be followed, I assumed that there would have to be a merit promotion board held to determine the best qualified list, that the list would then have to be sent forward to the Warden for selection. Then, the Warden would have to determine who he was going to select (possibly interview the candidates?), then the selectee would have to be notified and an effective date established (which is typically the beginning of the next pay period after the selection is made). Given the steps that had to be taken after the job closed on July 11, 2000, the soonest date the position could have been filled would have been July 16, 2000 (three weeks prior to my return), but could have also been effective July 30 (one week prior to my return). In either case, it was clearly not a case of having to fill my position because my absence was causing an undue hardship on the department - if this was truly the case, why wasn't someone detailed to my position during my absence as had been done back in June 1998 when I took FMLA for the birth of my son? Removing me from my position was blatant and continued retaliation and reprisal for my filing a complaint with OSC.
On June 28, 2000, I sent additional information to Audre Field-Williams concerning the reassignment and other retaliatory concerns, and requested that the matter be investigated promptly (see Tab 32), and on July 11, 2000 the case was reopened (OSC File No. MA-00-1995) (see Tab 33).
Anticipating the end of my FMLA and my scheduled return to duty which was August 7, 2000, I gave a letter to Warden Hahn stating that based on his decision to reassign me to the Correctional Services department, I could not return to work because I feared further retaliation. I pointed out that by returning to the Correctional Services department, Warden Hahn would be placing me in the same environment that I worked fervently to escape back in 1996. Given that he was aware of my entire situation, I could not understand how he could reassign me to this department. Under the circumstances, I requested administrative leave pending the outcome of my complaint with OSC (see Tab 34).
On August 4, 2000, I begrudgingly submitted my resignation based on the hostile work environment that I had been subject to, and based on the involuntary move to the Correctional Services department and administration's lack of desire to do anything to assist me. Under the circumstances, I had no other choice than to give up the career I had made with the Federal Bureau of Prisons (see Tab 35).
On August 18, 2000, Warden Hahn sent me a letter stating that he would be willing to reinstate me to the position of Supply Technician, but the position would still fall under the umbrella of the Correctional Services department (see Tab 30).
On August 24, 2000, I responded to Warden Hahn by addressing several concerns that I had with his proposed position of Supply Technician, namely that it was still a position in the Correctional Services department, and that I would ultimately be reporting to the Captain of the department and in the absence of the proposed 1st line supervisor, Mr. William Morris, I would more than likely be responsible for reporting to Lieutenants in that department. Since William Morris was a member of the disturbance control team and responsible in part for voting me off of the team and disbursing my personal property to other members of the team, I completely failed to see how putting me under his direction (and the direction of Captain Hansen who was friends with Lt. Hooper) would alleviate any hostile work environment. In fact, this proposed position in the "Lockshop" would not offer any less potential for hostility or reprisal than if I were to remain as a Correctional Officer. I stated that I would rescind my resignation if the Warden agreed to placing me on administrative leave pending the outcome of the OSC complaint (see Tab 37).
On August 31, 2000, Warden Hahn replied to my letter of August 24, 2000, and denied my request for administrative leave. The letter stated that my resignation would be processed accordingly (see Tab 38).
The financial burden that I have been faced with as a result of being forced to resign my position with the Federal Bureau of Prisons has created severe stress and hardship for me and my family. I am a father of two small children who I had hoped would someday look up to me with admiration for having a meaningful career and for being responsible for making a difference in society. Being left without a job has caused severe embarrassment for me and has caused significant mental duress that, to this day, keeps me up at night. I was raised with a solid work ethic and taught that I should always be responsible for providing for my family. Having no choice but to resign my position with the Bureau of Prisons, I am left relying on my spouse to provide for my family, a situation that is difficult to come to terms with given my background. The entire situation has caused a great deal of strain on my relationships with both my wife and children, as well as with others in the community where I live. Having to explain why I am suddenly without a job is, at the very least, a demoralizing and stressful experience.
Finally, the last hope that I had for obtaining a little bit of an "income" while I searched for other employment, was callously appealed by FCI Englewood and subsequently denied based on inaccurate and untrue statements made by Janet Martinez, HRM. I had initially been approved for unemployment by the Colorado Department of Labor and Employment; however, based on reasons unknown to me, FCI Englewood appealed the decision to grant me a full award and benefits. In her statement to the Colorado Department of Labor and Employment, Ms. Martinez blatantly lied and said that I "had not made any specific complaints to the employer about fearing for [my] safety prior to [my] quitting" (see Tab 40). Considering that I had personally confided in her about the circumstances surrounding the hostile work environment, and considering that I had notified Warden Brooks via letter on December 3, 1999 and Warden Hahn on January 28, 2000 (see Tab 8) that I was subject to a hostile work environment and was very concerned about my safety, and considering that I gave full disclosure of the entire history of my case beginning with the incident with Lt. Hooper in March 1996 and to Warden Hahn on February 4, 2000, I completely believe that the appeal which lead to the reversal of my unemployment compensation is the final act of retaliation and reprisal by the administration of FCI Englewood for my whistleblowing. The administrative staff of FCI Englewood should be reprimanded for their practices and their blatant disregard of their own policies and procedures. Perhaps it is arrogance that leads these individuals to believe that they are exempt from the very policies that guide every other federal agency in the United States ... perhaps it is simply ignorance or contempt of those willing to stand up against them ... perhaps it is the "good old boys" belief that they can do what they please when they please. It is sickening, and it is wrong.
Ralph Waldo Emerson said
"society everywhere is in conspiracy against the manhood of every one of it's members. Society is a joint-stock company, in which the members agree, for the better securing of his bread to each shareholder, to surrender the liberty and culture of the eater. The virtue in most request is conformity. Self-reliance is its aversion. It loves not realities and creators, but names and customs. Whoso would be a man, must be a nonconformist. He who would gather immortal palms must not be hindered by the name of goodness, but must explore if it be goodness. Nothing is at last sacred but the integrity of your own mind."