Seven years of racist and homophobic rants by Veterans Law Judges on their secret Forum Of Hate at the Board of Veterans Appeals resulted in a recent decision to uphold termination by the Merit Systems Protection Board.
This one falls into the “Truth is Stranger than Fiction” category, so I plan to merely cut and paste excerpts from the decision. While we know some racist and sexist employees still operate within VA, I often hope it is not so blatant as it was in this instance.
The Merit Systems Protection Board (MSPB) recently found “proved” the bad conduct that justified the removal of one Veterans Law Judge and another Chief Veterans Law Judge. As for James Markey and Dennis Chiappetta, respectively, MSPB found “good cause” to remove the duo from federal employment for their roles in the Forum Of Hate (FOH).
While the allegations against Chiappetta barely raised an eyebrow other than his failure to shut down FOH and its highly offensive commentary, Markey’s involvement was worth noting. Three other Board of Veterans Appeals (BVA) attorneys were Bernard DoMinh, Charles Hancock, and John Prichard.
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Now, I like a good joke, but the comments from members of the Forum were highly offensive, especially for a group of attorneys and judges who have worked at VA for twenty years adjudicating veterans claims.
Let’s not forget, many of the veterans whose cases were adjudicated belong to the groups disparaged by these judges and attorneys. Those individuals whose cases were decided by any of the judges should evaluate the position taken by the agency very closely.
Excerpts From Veterans Law Judge James Merkey MSPB Decision On Forum Of Hate (FOH)
Of note from MSPB decision are the following written by Markey. All below statements in italics are directly from the decision:
- Respondent participated in an email chain on or about January 14, 2008, which ridiculed a BVA Deputy Vice Chairman’s Puerto Rican accent. (Tr. Vol. II at 38-39; Agency Ex. [*5] 3-D).
- Respondent’s reply referring to a “taco lunch” attempted to trump “the outrageousness of his [Bernard DoMinh] email” by further stereotyping and mocking the Deputy Vice Chairman’s nationality. (Tr. Vol. II at 39-40).
- Respondent participated in an email chain on or about January 14, 2008, which used homosexual slurs to discuss several BVA employees. (Tr. Vol. II at 40-41; Agency Ex. 3-D).
- Respondent identified numerous BVA employees as homosexuals in response to the email using homosexual slurs. (Id.).
- On or about March 21, 2013, Respondent participated in an email chain containing a picture of an all white little league team. In response to the picture, Respondent stated “[n]ice, but where are the white sheets? Gotta start them when they are young” and “of course my bad. ‘Bon Fire’ after every victory.” (Tr. Vol. II at 41-44; Agency Ex. 3-C, 3-D).
- Respondent’s references to the Ku Klux Klan’s (KKK) infamous hooded white outfits and the KKK burning crosses in celebration are racist and offensive. (Id.).
- On or about August 28, 2013, Respondent participated in an email chain containing altered pictures of an FOH [*6] member receiving an award; the pictures were altered to contain derogatory terms for Vietnamese people and also called an African American BVA Chief VLJ a “G-Pot.” (Tr. Vol. II at 44-46; Agency Ex. 3-D).
- Respondent’s statement that the racist alterations to the pictures and other racial statements were “hilarious” encouraged and condoned the use of racist terms, regardless of whether one of the individuals in the photograph was an FOH member. (Id.).
- Respondent replied to an email chain containing a picture of four female BVA employees; the email contained derogatory terms to describe having sexual intercourse with one of the females in the picture. (Tr. Vol. II at 47-48; Agency Ex. 3-D).
- Respondent participated in an email chain on September 11, 2013, where another FOH member described a BVA Chief VLJ using inappropriate terms and describing her treatment of another BVA employee. (Tr. Vol. II at 48-49; Agency Ex. 3-D).
- Respondent replied to the email describing the BVA Chief VLJ as being a “total bitch” to the BVA employee; the reply did not use any sexist or racist terminology. (Id.).
- Respondent sent an email on September 19, 2013, containing [*7] a news article he altered. (Tr. Vol. II at 51; Agency Ex. 3-C, 3-D).
- Respondent altered the news article by adding the following sentences: “[t]he opponent, a fast food working, basketball type playing man, indicated that such talk just wasn’t cool. He left, timidly, when 11 people causally tossed ropes at him.” (Resp. Ex. B-7(1)).
- Respondent’s use of “fast food working” and “basketball type playing” refers to African Americans and are offensive racial stereotypes. (Tr. Vol. II at 53; Agency Ex. 3-C).
- Respondent’s statement concerning tossing ropes refers to the KKK’s use of ropes to lynch African Americans. (Agency Ex. 3-C).
- Respondent participated in an email chain on or about December 13, 2013, which ridiculed a BVA Deputy Vice Chairman Puerto Rican accent. (Tr. Vol. II at 54-55; Agency Ex. 3-D).
- Respondent’s reply stating “[m]ore likely he’ll roll on Dennnneeeeeese CheeeOpeeeeta and Jeeemy Marssshhhh” further stereotyped and mocked the Deputy Vice Chairman’s nationality. (Id.).
- On January 30, 2014, Respondent sent an email calling another VLJ an “Ewok.” (Agency Ex. 3-D).
- On January 30, 2014, Respondent participated [*8] in an email chain where Mr. Charles Hancock made a reference to two male BVA employees engaging in oral sex. Respondent’s reply to the homosexual comment was “[y]ou’re on fire today Chuckles,” to which Mr. Hancock stated “I am clearly filled with hate. Need to stop.” Respondent then replied “[n]o!! actually keeps it sane here.” (Agency Ex. 3-D).
- Respondent’s comments to Mr. Hancock’s emails condoned and encouraged Mr. Hancock’s homosexually charged comments. (Tr. Vol. II at 55-56).
- Respondent participated in an email chain on or about May 20, 2014, which included racial and homosexual slurs. (Tr. Vol. II at 59-60; Agency Ex. 3-D).
- In the email chain, Respondent refers to two male BVA attorneys as “butt-buddies,” and a Chief VLJ as “charo.” (Agency Ex. 3-D).
- The FOH used “Charo” to mean someone of Spanish decent. (Agency Ex. 3-C).
- Respondent used “butt-buddies” to imply two BVA employees were homosexual. (Tr. Vol. II at 59-61).
- Respondent only stopped sending FOH emails because he was “caught” by the VA OIG. (Tr. Vol. II at 88).
VA v. Markey, 2017 MSPB LEXIS 4774, *4-8 (M.S.P.B. Nov. 9, 2017)
Specific Breakdown Of Homophobic Emails
The following is a short excerpt from the MSPB decision focusing solely on the issue of homophobia:
On January 14, 2008, Mr. Charles Hancock sent the FOH an email asking whether two male BVA members “BOTH gobble jizz.” Respondent replied to the email “[y]es, Regan’s.” Mr. Hancock followed up his statement with another email declaring “[t]here may be a spot open in AA’s Forum of Gayness,” to which both Respondent and Mr. DoMinh sent emails listing numerous other male BVA employees as potential candidates for the “Forum of Gayness.”
Respondent defined “jizz” as sperm. (Tr. Vol. II at 40). Therefore, when Respondent replied to Mr. Hancock’s email, he was implying the two male BVA employees “gobbled” a male BVA employee’s sperm. As such, the January 14, 2008 email chain referenced above contains multiple homosexual references.
Specific Breakdown Of Racist Emails
The following is a short excerpt from the MSPB decision focusing solely on the issue of racism:
The VA asserts in Charge 1, Specifications 3, 7, and 9, Respondent participated in a series of racist email exchanges. (Complaint). In the March 21, 2013 exchange, Respondent received an email containing a picture of an all white children’s [*20] baseball team and responded stating “[n]ice, but where are the white sheets? Gotta start them when they are young.” In response to Respondent’s statement, another FOH member, BVA Chief Judge Dennis Chiappetta states, “[c]ome on James, that is the name of the kid’s team: ‘The Maryland White Sheets.'” Respondent replied to Mr. Chiappetta’s comment “of course my bad. ‘Bon Fire’ after every victory.”
Respondent’s emails concerning the baseball team refers to the Ku Klux Klan’s (KKK) infamous hooded white outfits, KKK members burning of crosses during celebrations and rallies. These comments are intrinsically racist and offensive and do not promote confidence in the judiciary. The ABA Model Code of Judicial Conduct Rule 1.2: Promoting Confidence in the Judiciary directs a judge to act at all times in a manner that promotes public confidence in the integrity, [*21] and impartiality of the judiciary. Respondent’s callous reference to such infamously racist acts, especially when referring to children’s baseball team, diminishes the public’s confidence in the judiciary and undermines his status as an impartial jurist. These emails alone equate to conduct unbecoming a VLJ.
But Respondent’s behavior did not stop there. On September 19, 2013, Respondent emailed a news article to fellow FOH members concerning a Frederick County Sheriff who posted pro-gun videos. (Agency Ex. 3-D). The article explained the sheriff was shooting automatic weapons while shouting obscenities about liberals, minorities, and the Second Amendment. (Id.). Respondent modified the news article by adding “Some of his [the Sheriff] supporters . . . got into a heated debate with an opponent. The opponent, [*22] a fast food working, basketball type playing man, indicated that such talk just wasn’t cool. He left timidly, when 11 people causally tossed ropes at him.” (Id.).
Respondent admits the use of “fast food working” and “basketball type playing” refers to African Americans. (Agency Ex. 3-C). These terms are used by Respondent as racial stereotypes and meant to be derogatory. Respondent further admits his statement concerning tossing ropes refers to the KKK’s use of ropes to lynch African Americans. (Id.). This statement, concerning lynching African Americans, is offensive and racist in nature and beneath the dignity of Respondent’s position. Accordingly, I find Respondent’s emailing the modified news article containing racial stereotypes and offensive racial acts violates the ABA Model Code of Judicial Conduct Rule 1.2. His actions fail to promote confidence in the judiciary and this constitutes conduct unbecoming a VLJ.
In yet another instance, Respondent received an email chain on May 20, 2014, containing various comments by FOH members the VA deemed unbecoming a VLJ. In this email chain, another FOH member states: “[d]e rules be diffrint up in de Big House where de plantation [*23] massah lives. Out in de fields, we field slaves hafta pick de cottin at three bales a week an’de obserseer hagta make sho he delibber 20 bales a week.” This FOH member is clearly referencing African American slavery by stereotyping the way African American slaves in the south spoke.
Speaking as if one is an African American slave is inherently racist and deplorable.
Veterans Law Judge Racism, Homophobia Summed Up
This is about as bad as it gets for VA employees who are entrusted to fairly decide claims regardless of race or sexual preference. Can you imagine how these jokers decided claims of male veterans who were victims of sexual assault or black veterans who were victimized by race?
This needs to be evaluated more deeply.
Based on the follow-up analysis of MSPB concerning ethics rules, it seems likely these judges will have their licenses challenged by their respective bars for inappropriate behavior unbecoming judge.
Those affected by decisions from any of these judges should contact your lawmakers in Washington DC to demand an inquiry. It is possible many denials could be overturned based on the findings through an equitable relief package from Secretary David Shulkin.