Statement of Mark J Benedict Association for Persons with Disabilities in Agriculture (APDA), USDA

Commission Meeting on the Employment of Individuals with Disabilities in the Federal Government - June 28, 2006

June 28, 2006

RESPECTFULLY,

The Federal Government is facing a human capital crisis as more and more of its top tier managers pursue retirement - the federal Government has inadequate succession planning in place to transition this wealth of institutional knowledge & experience to the next generation of leaders.

The Federal Government failed to achieve the hiring goals of the New Freedoms Initiative (first offered by President Clinton then supported by the current administration). Affirmative Employment programs at federal agencies have been replaced by the EEOC MD-715 requirements, but those two instrumentalities are not the same. MD-715 filings with EEOC indicate real problems with federal employment of people with targeted disabilities. In addition to not meeting disabled hiring goals, the federal Government has lost over 29% of its disabled workforce since 2000 - WHY are these people leaving the federal sector when the federal Government touts itself as the "Employer of Choice" for people with disabilities?

People with targeted disabilities have problems too: one of the highest unemployment rates in the country (as opposed to a desire to work, skills and experience to offer, unique problem solving/multi-tasking skill sets, and a strong work ethic - Why are these individuals not "Employees of choice?" There seems to be an obvious opportunity ("win win") here; WHY can the two parties not come together to achieve mutually beneficial ends? What obstacles to success exist and how can they be removed?

PREMISE: There appears to be a unique "window of opportunity" opening which, if taken advantage of, could yield great results for both the federal Government and employees with targeted disabilities - this could be achieved in a cost effective, revenue neutral, way. This is clearly the "Right thing" to do and it should be done, but the federal Government needs to begin taking steps immediately to ensure that it WILL be done.

IF the federal Government needs highly skilled workers to develop Most Efficient Organizations and High Performing teams in the 21st Century work environment, it must consider both what is right and what is wrong about federal employment opportunities for people with targeted disabilities. More important, the federal Government, and its top tier managers MUST be willing to change long-held beliefs and ways of doing business.

THIS WILL NOT BE EASY, BUT MUST BE DONE TO ATTAIN EEOC'S GOALS.

Well, who am I to have the privilege of speaking before you today?

I am someone who became severely disabled (targeted disability with multiple, serious related medical conditions) over 35 years ago on March 17, 1972 when I was a junior in college. At age 20 and an athlete, I suffered a massive stroke (cerebral hemorrhage) as a result of a congenital defect - an arterio-venous malformation located mid-brain in the right parietal lobe. While I survived the initial stroke, the neurosurgery which followed several days later, while surely saving my life, left me severely physically disabled for the rest of that life. That was now over 35 years ago. Thirty five years of learning and knowing what life is like with a severe disability. My experience has allowed me to see and experience life from both sides - as a very NON disabled person AND as a person with a severe physical disability.

After the stroke, I completed my college degree, was accepted by and attended a top ten law school receiving my J.D. degree in May, 1977. I practiced law for about twelve years before moving into private consulting work. My federal service began in 1991 when I, as a Schedule A-eligible candidate, joined the staff of the Committee For Purchase From People Who Are Blind or Severely Disabled - the group of Presidential appointees which oversees the Javits-Wagner-O'Day (JWOD) Program providing employment and training opportunities to severely disabled Americans nationwide. Ironically, my experience with discrimination based on my physical disability began there after a decade of successful service. While a senior team member of the Committee staff, I was unable to obtain promotion above the GS-13 level despite a decade of distinguished service and I believe my targeted disability contributed to this decision not to promote by the leadership of that independent Executive branch agency.

The message I wish to promote today, is that ALL people are entitled to a career if they wish to pursue one. A CAREER is NOT just a desk & chair & work to do. A CAREER is the chance to grow (personally & professionally) - an opportunity for training, exposure and promotion after the initial hiring decision. A CAREER is limited (or should be) ONLY by ABILITY, not DIS-ability. Sadly, even in the early 21st Century, in both the public and private sectors, that is not always the case. I respectfully submit for your consideration the precept that: All people would prefer a CAREER to just a JOB; while recruitment and hiring is important, professional development and career advancement (as an INTEGRATED part of the workforce) is ESSENTIAL if good employees are to be retained. NO organization can afford to develop talent without rewarding talent such that investment in people is lost when they go elsewhere when career advancement is not realized.

To be sure, advancement through promotion to higher grades must be earned, not bestowed; however, it should NOT be arbitrarily denied to a class of employees due to management's lack of knowledge, understanding, and sensitivity or its prejudice. It is natural for people to be more comfortable working with people like themselves. Look around the management conference table - people like yourselves are not likely to be severely disabled. We are most comfortable in familiar surroundings, severe disabilities can be very frightening. How can we allay our fears and see past the disability to the PERSON standing there - a person just like us in every meaningful aspect. How can we remember that each of us (& every person we love) is only a heartbeat away from standing in that person's shoes?

At the U.S. Department of Agriculture (USDA), the Association for Persons with Disabilities in Agriculture (APDA) and the Secretary's Advisory Committee On Employees with Disabilities (SACED) were designed specifically to build a bridge across that gap.

BACKGROUND ON SACED AND APDA AT USDA:

SACED originally started in 1991, chaired by Buzz Fitzpatrick, to address disability accommodation issues covered by the Rehabilitation Act of 1972. This group met until September 1994 and left as its legacy the creation of TARGET Center (1992) and the initial review of emergency preparedness for employees with disabilities.

Due to the start-up of a "Blue-Ribbon" panel made up of special interest/minority groups, chaired by Wardell Townsend, SACED disbanded in September 1994. After that, then USDA Secretary Dan Glickman issued the "CRIT-CRAT" Civil Rights Report (in 1996) that essentially left employees with disabilities "off the page" (I believe there were 2-3 paragraphs written in a 100+ page report), a meeting was held in TARGET to petition the Secretary for re-instatement of the SACED.

Then APDA President Mel Padgett, Ophelia Falls, Bruce McFarlane (TARGET Center Director), Don Gearing (union representative), Barbara Beitscher, Robert Williams and a couple of others put together a petition containing 6-benchmark issues and the charter framework to re-establish SACED, but as a "Senior-Executive member organization." Each USDA mission-area was to have a SES member, plus representatives from APDA, TARGET, JWOD, Section 508 specialists, "Dr. J" the USDA Medical Director, the Offices of Civil Rights, and the Office of General Counsel (OGC). APDA was the ONLY USDA employee organization given a seat on the SACED.

Under SACED's first chair-person, Mike Dunn (AMS), nationwide community "town hall" meetings were held to document issues facing employees with disabilities. A re-write of departmental accommodation policy was requested, and the "Pilot Mentoring Program" was conducted from 1999-2001, with great success. Under Ira Hobbs, the new DM-4300.02 was approved, and TARGET/USDA entered into the CAP Partnership agreement. After Mr. Hobbs left, the SACED SES-members started delegating their membership in SACED to senior (non-SES) career personnel, who then delegated to agency Disability Employment Program Managers (DEPMs). SACED then turned toward "traveling road-shows" to heighten awareness of disability issues and opportunities at various field locations.

Due to a reorganization of the USDA Office of Civil Rights, SACED disbanded at its May 2006 meeting. Much of SACED's work remains incomplete and several important initiatives focused on ensuring career advancement and promotion for people with disabilities are now in limbo with no real indication of if or how they will now be pursued.

APDA was started in 1989, with a Ms. Ellen King as the first President, followed by Dr. Denise Decker. The APDA charter was approved by the Secretary and APDA was the only employee organization that could meet on government time due to accommodation issues (interpreting services).

I have served APDA since mid-2001 including serving two terms as APDA President in 2004 and 2005. I have also served SACED as either a voting member or alternate since July of 2001. I have also been involved with the USDA Diversity Advisory Council since mid-2001 - that umbrella group for multiple employee organizations has also been terminated recently.

It is in this context that I can bring you the perspective of members of APDA regarding their experiences with being federal employees with disabling conditions of various types and degrees of severity. Their's is a story of difficulties in being hired, Schedule A eligibility applications, disparate treatment after becoming a federal employee, lack of training opportunities and high profile opportunities, frustrating experience with requests for reasonable accommodations, and repeated denial of opportunities for career advancement and promotion to higher grades.

The Association for Persons with Disabilities in Agriculture (APDA) is a fully accredited employee association open to and serving all employees of USDA. APDA's main chapter is at the Washington Headquarters complex of USDA, but there is a satellite chapter of APDA in Kansas City. Currently, APDA's membership includes approximately 20% of USDA's employees with disabilities. APDA has also made a practice of supporting and working together with other special interest groups (e.g., "Blacks In Government", the "Organization of Professional Employees in Agriculture, USDA's Hispanic Employee Organizations, etc.), and has worked with the Department's Special Emphasis Program Managers to cosponsor an annual career enhancement training program for USDA's Summer Interns.

APDA holds a voting seat on the Secretary's Advisory Council for Employees with Disabilities (SACED). SACED is comprised of the heads of each USDA branch activity and reports directly to the Secretary of Agriculture on disability issues such as employment of people with disabilities at USDA. SACED receives regular briefings on the status of disabled employment, including hiring and promotions of people with disabilities, at USDA.

APDA is open to all USDA employees, but has a core constituency of employees with disabilities of various types. Yet despite this fact and APDA's large membership base, USDA employees often fear being seen at APDA meetings because they feel they will be labeled as being disabled. These employees fear that such a label is irrevocable and will spell the end to their professional careers at USDA. Long-time APDA members have shared their experiences of fast tracked careers suddenly being derailed when supervisors realized that the employee had some type of disabling condition. Even when there had never been a previous issue or concern with the quality of the person's work, the mere awareness of their disabling condition has been enough to stop a previously flourishing career.

Often, management's reluctance to provide advancement opportunities to persons with disabilities, especially "targeted" disabilities, is based on the unsubstantiated "fear" that the employee will require extensive accommodations in order for them to perform their jobs. In 2002, APDA was at the forefront of an effort at USDA to develop reasonable accommodation procedures which have since been implemented throughout the Department of Agriculture and copied by all of its subordinate agencies. APDA also worked actively to educate senior managers regarding the fact that most accommodations cost less than $50.00. APDA has also worked with the USDA TARGET Center to partner with the Department of Defense on the CAP initiative providing computer assistance devices at no charge to employees with disabilities. Under the CAP initiative, neither the employee requiring the accommodation nor their employer pays anything for the required accommodation.

Despite all these advances and successful efforts at disability advocacy, neither APDA nor SACED has been able to make any meaningful headway to resolve the long-standing practice at USDA, and its subordinate agencies, of failing to promote people with targeted disabilities beyond grade 13 regardless of the employee's performance, qualifications and accomplishments. Remarkably, management often excuses this failure with the explanation that the problem is not due to discriminatory intent but, rather, there is an "Old Boy" network at senior management levels and an "exclusive club" mentality where the most valued employees come from the USDA field locations - a credential that is not easily attained by a person who is severely disabled. Sadly, this and other comparably bogus excuses have been utilized by USDA's Office of General Counsel to successfully litigate against the rights of disabled employees.

Further, promotion to a Grade-14 position appears to carry with it by some unspoken understanding requiring supervisory responsibility - even when highly competent technical employees really do not possess the skill sets, experience, or desire to be supervisors. APDA has been a strong advocate for non-supervisory grade 14 "team leader" positions which allow worthy employees promotion potential without imposing the burden of supervisory responsibilities. Even this proactive HR concept has failed to result in the elevation of employees with severe disabilities to leadership positions.

APDA members have widely supported and taken advantage of special Schedule A non-competitive hiring authorities. While Schedule A can be a wonderful tool for gaining beginner/apprentice level employment, APDA members have discovered it to be a two-edged sword that interferes with their later efforts to seek promotion. APDA members responding to Agency vacancy announcements often apply to the vacancy in both their competitive and non-competitive Schedule A eligibility status, thus giving notice to the selecting official that the applicant is disabled.

APDA members often make the certificate of Best Qualified candidates twice - in both capacities yet are still repeatedly not selected despite outstanding results in Behavioral Event Interviews (BEIs). Despite being judged highly qualified, they are never selected for promotion to these higher grades.

Agency senior managers and supervisors, under Schedule A procedures are supposed to confer with the state rehabilitation agency (referring the person with the disability for employment) within the first 90 days of employment, but this is hardly ever done. As a result, supervisors often fail to gain the fuller understanding and awareness of the nature, severity, and operational impacts of the employee's disabling condition. APDA members perceive this as a top down problem because it is rare indeed to find any managers or supervisors with targeted disabilities or disabilities of any type, and virtually impossible to find such managers at the Senior Executive Level.

As a result, lack of understanding and sensitivity to the needs of people with targeted disabilities at the highest leadership levels (where it is needed most). APDA members often feel that they are viewed either as a "problem" or "potential problem" rather than as a valued member of a high performing team.

APDA members report that, once hired by the federal Government, they experience a variety of disappointments. They report receiving less than fair performance evaluations, disparity in the receipt of awards (as compared to their colleagues with no disabilities), denial of reasonable accommodations or retribution for requesting accommodations, lack of access to high profile assignments, and denial of promotions to grades higher than GS-13. They also report Agency tendencies to abuse Performance Improvement Plans; for example, establishing goals that cannot be successfully achieved so as to fabricate a basis for terminating the employment of a person with a severe disability or discrediting their eligibility for promotion to higher grades in favor of employees who have no disabling condition or accommodation needs.

APDA members have personally experienced this lack of equal employment opportunity and, when they have turned to the Office of Civil Rights for assistance, have been repeatedly denied. When they have then turned to the EEO Office and filed formal complaints, they have become pariahs and seen their hopes for careers effectively ended. In fact, the Complaints divisions of the Offices of Civil Rights have told APDA members that there is "no point" in filing formal complaints because they cannot hope to win, their careers will be over, the Agency will utilize the deep pockets of the Government to render the cost of litigation so onerous that the complainant will face financial ruin if they continue to pursue the enforcement of their EEO rights, and it will take years to prosecute their complaints. APDA members realize that during these long delays they may be subjected to reprisal, harassment and a hostile work environment. The Agency will then use all its resources to frustrate and delay processing of those complaints.

APDA, in an effort to address these concerns and the documented historical evidence regarding Agency and Department unwillingness to advance people with targeted disabilities to higher grades, has worked with SACED (before its termination in May 2006) to propose a formal initiative to facilitate advancement of employees with targeted disabilities to higher grades and more senior positions. It should be noted that the problems described by APDA members transcend individual administrations and individual Secretaries of the Department. This is not a Cabinet-level issue; it is a top level operational issue where many senior managers have evidenced a stubborn unwillingness to change the current system from which they benefit. There appears to be no room for people with disabilities, especially targeted disabilities in the top tiers of this "old boy" network.

In the past, the Agency and Department had formal Affirmative Employment Plans which specifically addressed the obligation to recruit, hire, train, and promote people with disabilities. These plans were terminated in anticipation of the release of the EEOC Management Directive (MD) 715 which has now been issued. The first MD-715 filings by the Agency and Department were reflected data troubling enough to warrant EEOC writing to the Secretary of Agriculture and FSIS Administrator formally expressing concerns about the inadequacy of employment opportunities for people with disabilities and other matters impacting equal employment opportunity.

Using this EEOC response to the Department and Agency's first filings under the new MD-715 as a stimulus, APDA developed an initiative which it believed would be of substantial benefit to all parties involved in the situation described. APDA believes this initiative, using "vehicles" already available, in use, and with an established track record of success, would be effective, efficient, and affordable in these times of budgetary shortfalls. Further, the APDA initiative would have the additional benefits of increased awareness and sensitivity of the nature of severe disabilities and the ABILITIES of people who have targeted disabilities through the close interaction of people with targeted disabilities and Agency and Departmental senior executives and top management.

Specifically, APDA proposed as a best practice the use of existing Executive Potential Programs administered by the USDA Graduate School to educate, train, and demonstrate the readiness of people with targeted disabilities to advance to higher grade levels. It should be noted that the Department of Homeland Security has initiated its own special program designed to promote people with targeted disabilities to Grade 15 and the Senior Executive Service (SES) tier. APDA believes that use of existing Executive Potential Programs can facilitate a similar effort at the Department of Agriculture and the Food Safety Inspection Service (as well as any other USDA agency).

APDA proposed, and SACED accepted, an initiative to utilize the existing Executive Potential Program. SACED created a team to make brief, formal presentations to the Under Secretaries of different parts of USDA and to the Administrators of USDA's subordinate agencies within those program areas. SACED was seeking a commitment from the top management (career and political) of each program area within USDA to nominate employees with targeted disabilities each year to participate in the Executive Potential Program. SACED also sought commitments from the Agencies to provide the necessary funding (circa $5,000.00 per candidate) and the time required to participate in the program. This excellent and proven program includes mentoring by SES personnel and active participation in high profile initiatives in each program area. The final commitment sought by SACED was a commitment to actually provide viable promotion opportunities to candidates who successfully completed the program and graduated.

APDA felt, and SACED agreed, that without this final commitment to actually promote program graduates, the initiative could not succeed. Worse, candidates would be able to take advantage of this development opportunity at the expense of their Agency and then might leave if not promoted taking those valuable skills elsewhere to inure to the benefit of another employer (in the public or private sector). SACED had just undertaken the first of these presentations when it was disbanded in May of 2006. Sadly, the Offices of Civil Rights at USDA and its subordinate agencies have expressed no interest in pursuing this initiative which APDA and SACED believed to hold so much promise.

With the termination of the SACED and the rise of the Offices of Civil Rights in the operational control of disability employment issues at the Department and its subordinate agencies, the pendulum appears to have swung back to 1990, potentially erasing sixteen years of progress regarding employees with disabilities. APDA and its membership believes that nothing good will result from this and the current "cycle of shame," regarding treatment of employees with targeted disabilities, will continue. This may be further aggravated by the aging of the federal workforce and the unfortunate, but true, possibility that many current federal employees will become disabled in one way or another before their public service careers conclude.

The New Freedoms initiative failed and the federal Government is seeing a decline in its employment of people with disabilities. These are valuable human capitol resources. Hopefully, the "national discussion" being initiated by EEOC today can make a difference by ensuring that these resources will be treasured and nurtured, not discarded. APDA pledges its full support to the EEOC in this effort and respectfully requests that it be considered for an active role in any task force formed by the EEOC to further pursue this critically important issue.

Respectfully submitted,

Mark J Benedict, J.D.
(202) 205-7913
APDA President 2004 and 2005
SACED voting member 2004 and 2005

representing
Dr. Thomas F. Kalil, Esq.
2006 President, APDA
(202) 720-9876

This page was last modified on July 12, 2006.