City HR employees rebel over director's actions, city response
The bureaucratic face of the city's Human Resources Department – charged with managing the city's hiring and firing and monitoring its treatment of employees, among other matters – is in the ordinary course of events, fairly unremarkable, even boring. HR's mission statement – "To help the City of Austin departments attract, motivate, and develop qualified, diverse and productive employees" – sounds cheerful enough, even vaguely progressive. But in recent months, rather than efficiently fulfilling that mission, the department has been troubled by serious employee allegations of job discrimination, persistent favoritism, and the reckless disclosure of employees' health information and related matters – the latter actions potentially in violation of federal law.
In early November, after several months of turmoil and two investigations (one external, one internal), City Manager Toby Futrell and Chief of Staff Kristen Vassallo told the Chronicle that, despite some persisting bruised feelings, the administration has done what is necessary to resolve the matter. Futrell said she's satisfied with the results of her internal review: "I know that it has not brought closure for some individuals; I know not everyone has heard the answer they wanted to hear, but I feel very comfortable that we have looked long and hard at this. I've not seen this level of review occur on something like this ever. We take it very seriously." As a result, a Human Resources assistant director has been officially reprimanded and is considering a change of position.
At least some employees remain unsatisfied. Following the external investigation completed earlier this year, union representative Carol Guthrie of American Federation of State, County and Municipal Employees wrote the City Council, "As we suspected, the employees' concerns were swept under the rug." Asked about Futrell's subsequent review, Guthrie concluded, "I think there are going to be numerous problems moving forward as long as Toby stands up and continues to say that people's medical information was not released."
A Ray of Sun
The problems first surfaced publicly in late May, when an anonymous e-mail was sent to the city managers and City Council members. The return address was "firstname.lastname@example.org," and the letter was signed only "44 Human Resources Professionals with the City Of Austin." There were no identifying details, and it remains unclear whether it was in fact a large group letter or instead sent by one or a few HR employees attempting to speak for dozens of others. The letter complained of neglect of Human Resources employees by city administrators, concerning compensation and related matters, and pointed specifically to HR Department Director Cathy Rodgers and Assistant Director Sylvia Gonzalez as "not trustworthy." The authors said they were writing because they believed they had no other forum for their concerns: "When Toby [Futrell] attended the Human Resources Professional Day, we would have liked to voice our concerns there, but with Sylvia and Cathy on hand it would have been rather uncomfortable. We strongly urge one of you to hear our voices and take immediate action."
The letter's complaints about Gonzalez were more specific and more serious: "[T]here is a level of distrust and lack of professionalism from Sylvia Gonzalez. We implore you to randomly speak with the Human Resources staff if not everyone regarding Ms. Gonzalez' behavior. We have witnessed Ms. Gonzalez promoting her friends that don't have the skills for jobs, preventing someone from getting a job, or discriminating against African American staff, divulging private information regarding other employees and making rude comments about others."
More specific complaints about Gonzalez surfaced the following month. On June 5 and 14, council members and City Manager Futrell received letters from a departmental HR manager and an HR coordinator, charging that Gonzalez had violated their rights under the Americans With Disabilities Act, the Family and Medical Leave Act, and other disability-discrimination laws. Noting that an employee's medical conditions or circumstances are legally confidential and only to be communicated on a need-to-know basis, the similarly worded letters said Gonzalez had "disclosed [our] medical information to someone who did not fit either of the above categories. That is truly a breach of confidentiality."
Although according to a report prepared by an investigator hired by the city, she denies having made the disclosures of medical information.
The HR manager and HR coordinator, who have asked to remain anonymous due to the private nature of the medical information at issue, had both previously worked under Gonzalez; in case of an emergency requiring medical treatment, both had informed her of their medical conditions. Each said they thought nothing of this standard disclosure – until they heard from a fellow employee in another city department. In a series of conversations with them about his own troubled working relationship with Gonzalez, that employee accused Gonzalez of discussing their confidential medical information with him. The two HR employees each say their informant revealed confidential medical information that he could have received only through Gonzalez herself. Their letters to city officials conclude with demands for their claims to be investigated.
The Cornell Report
In response to the employees' complaints, the city attorney's office, at Vassallo's request, hired local attorney Connie Cornell to investigate. On July 3, after interviewing the employees involved (including Gonzalez), Cornell submitted her confidential findings to Futrell, Vassallo, and assistant city attorney Robin Sanders. More than a month later, on Aug. 10, the employees were provided with copies of Cornell's confidential reports: two sets of findings addressing the complainants' allegations (in two brief reports, although the overlap in the allegations makes the two documents quite similar in content). In both reports, Cornell questions the motivation of the informant employee's initial communication concerning Gonzalez, since it occurred in the aftermath of a poor-job-performance review for which the informant held Gonzalez "uniquely accountable."
Cornell's concluding analysis in each report appears more concerned to undermine the informant's credibility than to address seriously the employees' charges of administrative irresponsibility. The report refers to "certain inconsistencies" in the informant's recollections, saying his memory of the specific occasions when and how Gonzalez revealed the employees' medical information was inconsistent – though it doesn't confirm or deny that he indeed received the confidential information. Asked about those inconsistencies, the informant responded that Gonzalez told him the information on different occasions and that instead of accepting written statements or recording her interviews, Cornell simply summarized his answers into her laptop without providing him a chance to review his statements. "Never did she give me an opportunity to review the documents, to see exactly what she typed. ... I don't believe she did a thorough, objective investigation."
Cornell concluded that "there does not appear to be any evidence of discrimination by Gonzalez." While questioning the informant's motives, her report sidesteps the question of how he had come to know the employees' confidential medical information in the first place. The report does suggest an alternative source – according to Cornell's notes summarizing her interview, Gonzalez described the HR coordinator as "very open with other employees about his medical condition, referring to certain medical procedures and making jokes." The HR coordinator categorically rejects this version of events, insisting "it's not the truth." The extent of the "jokes," the HR coordinator insists, involved referring to blood-work appointments in Gonzalez's presence as trips to "see the vampires" – nothing more.
The most damning revelation in Cornell's report involves Gonzalez's alleged additional disclosure of the HR manager's medical information to the HR coordinator – when, he says, he was told of his friend's illness and that she was "off her medication." Cornell's report is ambiguous on the issue of disclosure.
Cornell doesn't deny the disclosure may have occurred but attempts to excuse it. She writes, "Gonzalez denies having revealed" the medical conditions of the two employees but goes on to call the disclosure "credible." Yet, Cornell continues, "assuming that Gonzalez did reveal medical information, there is no indication that she did so maliciously or with a desire to cause harm. In fact, [these employees] were trusted colleagues whom she had no reason to believe would use the information for ill." Regardless, under federal law (see "ADA Confidentiality," below) such medical information is confidential; the intent of the discloser is irrelevant.
The employees were thoroughly disappointed with Cornell's report and charge that she understated or misinterpreted their complaints in order to protect corporate HR and the city. At the end of August, union representative Guthrie wrote City Council on behalf of the employees, saying their "concerns were swept under the rug." "How this witness would know not one but two employees' medical conditions without being told by Gonzalez is beyond me," Guthrie wrote. "Maybe the witness is psychic." Guthrie described Cornell's investigation as inadequate and incomplete and requested a new investigation by the City Auditor's Integrity Unit.
With the dispute still festering, the city called instead on federal mediator Mike McMillion. A representative of the Federal Mediation & Conciliation Service, McMillion evaluates troubled work environments to provide appropriate "team building" and "conflict management" programs. In interviews, McMillion emphasized that his role is solely aimed at conflict resolution, not investigative findings, but he spoke with the directly affected employees, plus dozens more from other city departments – a total of more than 40 interviews.
By Sept. 21, when McMillion met with most of the principals (the HR manager was out of town), it was clear the situation he was attempting to resolve was bigger than this single dispute; the conversation also concerned the allegations of discrimination against African-American HR employees initially described in that May letter from "44 Human Resources Professionals with the City Of Austin." With the Cornell investigation having satisfied no one and McMillion's team-building exercises unable to address their specific complaints, the employees turned to Futrell. At the September meeting, she promised to investigate the matter herself.
In the interim, Gonzalez has had disciplinary action taken against her – but not for anything recorded in Cornell's report. Instead, Futrell and Vassallo had learned that Gonzalez had contacted the informant by phone when Gonzalez learned he would be interviewed by Cornell. (The phone call somehow didn't make it into Cornell's report.) Vassallo called the contact "inappropriate" but concluded that the informant had not considered the phone call intimidating. However, in a memo to Vassallo the informant disagreed: "I personally was concerned as I knew the 'power' Sylvia Gonzalez has in her current position and know how bleak my future with the City of Austin could be if I were at odds with Sylvia Gonzalez." In her letter to council members, AFSCME's Guthrie described the phone call as "what is known as impeding an investigation," and it earned Gonzalez a written reprimand from HR Department Director Cathy Rodgers.
Her investigation finished, on Oct. 31 Futrell released her findings to the affected HR employees. While declaring that most of the charges against Gonzalez "were unfounded" or "boil down to a 'he said, she said' situation," Futrell acknowledged that "what has come to light after dozens of interviews with subordinates, peers and supervisors – past and present – is that Sylvia has developed a reputation in our organization for sharing inappropriate information with other employees and/or engaging in gossip." Writing to one employee, she added, "this is particularly distressful since, as you pointed out, she was counseled in 2005 about this behavior by her former Department Director prior to being made an assistant director of corporate HR." Futrell wrote that Gonzalez will receive "counseling and a written reprimand" from her director. The summaries end with a section titled "Next Steps," admonishing all parties involved: "In general, I am deeply disappointed in the behavior and attitudes exhibited by many of our HR professionals on both sides of these issues." She wrote to one employee, "There is culpability on all sides."
Workplace politics flare up everywhere, but with layers of bureaucracy, institutional inertia, and proximity to public political considerations, civil-service positions are especially susceptible. In her notes to the employees, Futrell also responds to their complaints that they were denied promotions or reclassification to higher positions and salaries – decisions in which Gonzalez either played a role or was perceived to have done so. And the city manager concludes that these perceptions of mistreatment are either unconfirmable or untrue. Yet concerning the pervasive allegations of sharing inappropriate information, Futrell describes them as "a disturbing trend."
Futrell told the Chronicle that, prior to this controversy, Gonzalez had already been considering other city positions. "She has let me know she is interested in going back into a departmental role as an [assistant director]. There are several department directors and several [assistant city managers] talking with her, and she is going to make that announcement."
Meanwhile, the affected HR employees are considering their next move, including the possibility of taking legal action against the city – which would also require them to abandon the protection of anonymity. In the meantime, they continue to call for the termination of Gonzalez, on the grounds that the medical-information disclosures are only specific examples of her larger administrative failures.
The Americans With Disabilities Act includes this provision: "[I]nformation obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record," except as on a need-to-know basis for supervisors and managers and first-aid and safety responders.