Part 2: SBA employees allege fake positions created

(This is part 2 of Federal News Radio’s investigative series, Discouraged and Disrespected at SBA.)

By Jason Miller
Executive Editor
Federal News Radio

Diane Sellers said she blew the whistle on senior managers at the Small Business Administration for creating fake position descriptions. And now she is facing retaliation of a familiar kind.

Sellers said SBA removed her from her position as director of personnel services as of Jan. 19, and placed her in the agency’s payroll and processing department.

“Where they put me doesn’t support a GS-15,” she said. “They already have a GS-14 supervising that staff, and now they are putting a 15 on top of that. It doesn’t make sense. There never has been a position established for payroll and processing for Denver and headquarters before because it will not support the grade.”

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Sellers said the retaliation is not unlike that of which Karla Saunders has been facing for three years. Saunders testified on behalf of another employee, who accused SBA management of abuse. When two of the three managers were removed, the third remaining one, Darryl Hairston, started to exact revenge, Saunders said.

Now Sellers, who stood up for Saunders and pointed out consistent human resources problems and possible illegal activities, is up against similar reprisals. And Sellers is not alone. Ethel Matthews, who works as the senior advisor to the chief privacy officer in SBA’s chief information officer’s office, and Stevie Gray, who is a supervisory human resources specialist, say they too have been removed from their positions as a result of retaliation for blowing the whistle on alleged human resources and contracting fraud.

“The environment at SBA is hostile, the morale is extremely low,” Sellers said. “What you have there is a total disregard for federal laws, rules and regulations as it ties into human resources.”

SBA’s Jonathan Swain, the assistant administrator for communications and public liaison, in e-mailed responses to questions said, “In response to your suggestion that the work environment at the SBA is hostile and that there is a ‘disregard for HR rules and regulations,’ we do not believe that is the case. Since being sworn in, Administrator [Karen] Mills has taken steps across the agency to strengthen management and oversight of all of SBA operations.”

But Keith Lucas, president of the American Federation of Government Employees Local 2532, which represents SBA employees, said he doesn’t agree with SBA management’s take on the working environment at SBA.

“The personnel practices at SBA I’ve experienced being a union president is abysmal and horrific,” he said in an interview. “I concur with a lot of the things I heard today listening to Karla make her statements. There is almost, with some managers at SBA, the feeling of invincibility because they feel no harm will come to them. Their intent is to instill fear in employees and once you have enough fear, the agency can run amok.”

AFGE doesn’t represent Saunders, Sellers, Matthews or Gray. Saunders and Matthews have petitioned to join the union, but SBA management never responded with a determination to let them join or not, said Elaine Powell Belnavis, AFGE Council 228 president.

Powell Belnavis said AFGE hears from employees they do represent about retaliation and mismanagement by agencies.

Sellers said the latest action against her is another in a series of attacks by SBA management.

Swain said, as per policy, SBA doesn’t comment on ongoing or pending employment matters.

New position

Sellers said she found out about her new position via e-mail while on her scheduled telework day.

“Effective immediately, I am re-aligning [Payroll Services Department] to balance the workload and improve customer service,” SBA chief human capital officer Kevin Mahoney wrote in the e-mail. “Supervision of the staffing functions in Washington and Denver will be moved to Paul Gutierrez. The Payroll Processing Branches in Washington and Denver will be supervised by you. I have given a lot of thought to this since our discussion last week and I believe this change will benefit the agency and insure (sic) your success as a manager.”

Sellers said she’s asked Mahoney three times for a position description describing her roles and responsibilities. And nearly three weeks after he assigned her the new role, Sellers continues to wait.

“Mr. Mahoney took a major portion of my current job and gave it to my subordinate in Denver, who I previously had filed a complaint against for changing my scores when I applied for the director of training position in 2009,” Sellers said. “I’m not sure what my new job is. I know it’s in the payroll and processing department.”

Sellers met with Mahoney shortly after he changed her position to ask why he made the move.

“He said he was getting complaints from managers that I was not getting people hired quickly enough,” she said.

Seller said this was the first time she heard of any complaints about her performance. Even during her performance review, for which she received a three out of five, Mahoney didn’t bring up any issues. Sellers said her performance scores were the lowest of anytime during her 27-year federal career.

Sellers said one major reason for the delay in hiring people is her staff dropped from seven employees to two since June 2010. When she tried to hire people to fill the vacancies, Mahoney and David Robbins, the associate administrator in the Office of Administration and Management, delayed the hiring process, she said.

Sellers also asked Mahoney for contracting help instead of hiring new employees, but that never materialized either.

She said missing five employees slowed down the entire agency’s ability to hire new employees. The delay in replacing the five people in her office was another piece of the retaliation, Sellers said.

Sellers said she tried to alert management of the problems in her office. She detailed all of her challenges with Mahoney in a letter to Mills, Marie Johns, SBA deputy administrator, SBA Inspector General Peg Gustafson and Rachel Venier in the Office of Special Counsel.

“As with your prior letter of December 10, 2010, the agency will open and conduct an investigation of the matters raised by your letter,” wrote Michael Chodos, SBA deputy general counsel in response to Sellers’ letter.

In the month since Sellers wrote the letter, she has not heard back from Chodos.

Position descriptions called into question

Sellers said the reprisals started when she pushed back against SBA managers who were asking for, what she calls, bogus position descriptions (PDs).

“Me, personally, I created bogus PDs for Napoleon Avery (former SBA CHCO) until I got to a point where I said, ‘You know what, this is not right and I can’t keep doing this,'” she said. “This isn’t how I work. I take pride in my work and I don’t think it’s fair to create something just to be creating it.”

Sellers said she created one GS-15 position that was fake.

“I didn’t tie any technical work into it because I didn’t know what the job consisted of,” she said.

Sellers said Avery developed the fake position for his wife. She said she saw the paperwork that included his wife’s name.

“The selecting official didn’t even interview the person,” she said. “We sent the certification up to management late that afternoon and by the next morning they had made the selection. How can you not interview for a grade 15 position?”

Sellers said Avery’s wife did not end up getting the job because she had security clearance issues separate from the hiring process.

SBA spokesman Swain disputes Sellers’ claims about creating fake positions.

“The agency has found no indication that there has been an attempt to create ‘bogus positions,’ as your questions suggest,” he said. “To the contrary, staff in the Office of Human Capital Management are trained to work with individual managers to develop position descriptions designed to effectively match up qualified applicants with a specific agency need. It is agency’s policy to manage the hiring process efficiently and effectively as required by applicable law.”

He added that Mills has been very vocal in her support for improvements in the training and hiring process.

But despite Swain’s comments, Sellers said managers still are asking to create questionable positions.

“Managers will send down a PD that is weak,” she said. “And sometimes we will work with them, but if the work isn’t there we can’t make it happen. What they will do is go to my supervisor or my supervisor’s supervisor and complain. What a lot of times managers, which is Kevin Mahoney or whether it be Napoleon Avery, will say, ‘Can you look at this again?’ and harass my staff.”

She said Mahoney will call employees at home and ask them to reconsider their decisions.

When one employee looked at the position description again, Sellers said she started creating the jobs that the work isn’t there for.

“I told her it has to tie into the mission of the organization,” Sellers said. “In the SBA, it’s a free-for-all now. Everyone is at a high grade.”

Two more steps forward

Along with Sellers and Saunders, Ethel Matthews and Stevie Gray are the two other SBA employees who claim they are being attacked by agency management.

Matthews and Gray have alerted the OSC, the SBA IG and the Equal Employment Opportunity Commission about potential dishonest human resources and contracting practices.

Matthews worked for the Justice Department, the Defense Department and for the Government Accountability Office during her 31-year career. She was the senior advisor to the chief privacy officer until her position and responsibilities were changed by former SBA chief information officer Robert Naylor and current SBA CIO Paul Christy.

Matthews said her reassignment was a result of her blowing the whistle on how SBA was misusing Recovery Act funds.

The agency IG found in a report issued in June that the agency spent $4.3 million in Recovery Act funding to buy a customer relationship management tool without an approved acquisition plan. SBA sole sourced the contract to Copper River as a “pass through contract to purchase Microsoft software and licenses.” The IG also found SBA awarded the contract without legal clearance.

When Matthews brought up similar concerns, she said Naylor and Christy moved her office and took away her responsibilities.

“I no longer attend management meetings,” she said. “I no longer have staff and budget to run my organization.”

Gray said in 2008, SBA management removed him from his role as lead employee labor relations specialist. When he asked why, then-SBA CHCO Avery said he wasn’t doing his job.

Gray, who has worked for the government for 32 years and is a chief master sergeant in the Air Force, said he asked for documentation of poor performance but Avery offered no proof. Gray filed a complaint about Avery’s actions with the OSC in early 2009.

He said he has faced retaliation from SBA management ever since.

Gray said the reprisals started when Kelly Robinson, a senior policy analyst in the CHCO’s office, evaluated every other employee’s performance but his.

Grays’ lack of performance evaluation made it harder for him to receive performance step increases.

Gray also said he was made irrelevant by Robinson.

“She detailed a person out of the policy office and had her acting while I was the lead specialist in the office,” he said. “I asked her why, she told me she could do whatever she felt she wanted to do because she was chief of the position.”

Attorney Vincent Melehy represents the four SBA employees and has 13 years of experience practicing federal labor law.

Melehy said in all of these cases, and Gray’s in particular, the agency’s actions do not follow the expected path of removing an employee from their position.

“If SBA had a legitimate reason for taking him out of a leadership position, SBA would have served him with a notice of proposed demotion,” Melehy said.

He said SBA would have sent a letter to all four of the employees detailing why management thought it was necessary to demote them. The employees would have a hearing to explain why they shouldn’t be demoted and a decision would be made.

Melehy said it was because SBA didn’t have valid performance complaints that they skirted the rules to make personnel changes.

“They did it through a reassignment where they didn’t have to explain and justify why they did it,” he said. “My guess is that is what happened. And it’s fairly typical of SBA’s pattern.”

In addition to these four cases, Melehy said he represents a fifth SBA employee who is experiencing similar reprisals.

Read more of Federal News Radio’s exclusive “Discouraged and Disrespected at SBA” series.

Part 1: Four employees claim retaliation from SBA managers

Part 2: SBA employees allege fake positions created

Part 3: SBA whistleblowers weigh resolution options

Part 4: SBA’s contracting practices under close scrutiny

Part 5: SBA responds to whistleblower series

Update: SBA assures senator it’s fixing management problems

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