Uncivil Rites

Intrigue, inaction and personnel disputes have one federal agency at war with itself. Can't we all just get along?

"I could have filed more grievances than I did," he says now. "If I was so terrible, why is it that now that I'm with the EEOC, my evaluations are outstanding?"

In 1986 Lovato's supervisor at the OCR attempted to fire him. Curiously, the action had been triggered in part by a complaint from John Garcia, later to become Lovato's ally in HISPAC. Garcia, who worked in the same building for another HHS agency, complained that Lovato was abusing his sick-leave privileges and had directed another employee to serve Garcia with a summons in a dispute over a private debt, wasting government time in the process.

Lovato appealed the termination. An arbitrator threw out the charge of falsifying sick-leave documents and found that while the summons incident constituted "wasteful actions in the performance of his duties," the infraction was too minor to warrant termination. He ordered Lovato reinstated--but without the back pay he had lost during the fourteen months he'd fought his dismissal. Lovato protested the decision to a federal appeals court, which reduced the penalty to a sixty-day suspension and, in effect, awarded him a year's pay for his trouble.

The decision apparently satisfied no one. Lovato came back to the OCR, was assigned to the same supervisor he'd had trouble with before--and was soon embroiled in other personnel disputes.

"I think that when Lovato was disciplined, he was so angry about that, he never forgot it," Kyle-Holmes says now. "That has been the basis of his vendetta, if you will, against management here. He tried to get everybody, particularly Hispanics in the office, to see it as a 'Hispanics are not being treated fairly' kind of thing. He was successful in influencing some, I believe."

Lovato has a different recollection. "They wanted my butt," he says. "Vada didn't want to reinstate me, but the arbitrator's decision was binding. And even after I got that decision, they didn't actually pay me the money until I went to [then-congresswoman] Patricia Schroeder for help. They really wanted me out."

As evidence of management's malice, Lovato points to a sex-harassment investigation launched against him by his supervisor after he referred to a female colleague as a "ballbreaker." According to him, the context of the remark was decidedly unsexual; he'd asked the woman, a member of the military reserves, to help him rearrange some office furniture and had referred to her as "Sarge." The woman had corrected him, saying she had the rank of captain.

"I said, 'So, you're a real ballbreaker'--meaning a taskmaster," Lovato says. "Before I knew it, they started an investigation, saying that I had sexually harassed her."

Other OCR employees describe the investigation as overblown and biased. One woman would later testify that her affidavit on the matter was altered by Lovato's supervisor to appear more negative toward Lovato. Jeff Claxton says that he was the only witness to the incident other than Lovato and the woman involved but that the supervisor wasn't interested in what he had heard.

"Management interviewed everybody in the office except for me," Claxton says. "They were interviewing people about whether they thought Jimmy could have said something like this, not what he said. Eventually they had to talk to me, and that put an end to it."

Kyle-Holmes says that federal supervisors are required to investigate every allegation of sexual harassment. The case resulted in a reprimand of Lovato "for making vulgar remarks," but after Lovato complained to the EEOC, the reprimand was withdrawn; as part of a settlement agreement he reached with the OCR in 1990, he was assigned to another supervisor.

The harassment tiff was soon followed by a complaint that Lovato had disclosed the contents of an OCR investigative report to outside parties by using it as a "writing sample" in a job application submitted to the University of Colorado. Lovato says he removed all the names and other information that would identify the parties involved; Kyle-Holmes says the document concerned "a very sensitive issue and had not been sanitized well."

She turned the matter over to the HHS inspector general's office. That office referred the case back to the OCR after the U.S. Attorney's office declined to prosecute. Lovato says that there simply wasn't any evidence that he'd compromised anyone's confidentiality and that the notion of prosecuting him was overkill. "It was all to try to get me terminated," he says.

Edward Mercado thought so, too. Mercado was the national director of the OCR then; he would later testify that he was astonished to learn that Kyle-Holmes had sought criminal prosecution of Lovato over the incident, then abruptly dropped the matter--rather than pursue it administratively--when federal prosecutors declined to get involved. "It was just a blind attempt to get rid of Mr. Lovato without any real foundation or reason," he told one of the procession of administrative judges who have dealt with the office's many grievances.

"I was shocked when Mercado testified as he did," says Kyle-Holmes. She suggests that her former boss chose to intervene on Lovato's behalf because the two were friends. (Lovato says he had only a passing acquaintance with Mercado at the time.) "If you were the head of an agency and you knew discrimination was occurring, wouldn't you stop it? If Jimmy Lovato was being done wrong, [Mercado] could have disciplined me or whoever...but when I told him about the personnel problems I was having with Lovato, he just laughed."

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