Government Shutdown 2014: Attorney Jonathan Bell Weighs In

Video Transcript

Newscaster:  Day 4 of the government shutdown, the House expected to vote today on if Federal employees will get back pay for the time that they are furloughed.  Many workers, though, have also filed for unemployment. What’s next for the Feds, and will they get their back pay?  If they get their back pay, will they also be eligible for unemployment benefits as well?  We’ve got a gentleman joining us this afternoon who can answer those questions and others.  This is Jonathan Bell, who’s a Federal employment attorney and our guest.

Good to have you here.

Attorney Jonathan Bell:  Good afternoon.

Newscaster:  You were earlier at a rally up on Capitol Hill where some Feds—I think some of them were from the Treasury Department, maybe other agencies as well—rallied because they’re trying to put a human face on this.  If you don’t live in the Washington area, 800,000 Federal employees become sort of an abstraction.  It’s sort of hard to conceive of who all those people are.  What was the message that you took away from that rally earlier today?

Atty. Bell:  That despite retroactive pay, these government employees want to go back to work.  They want to provide a service for the government and for their country.  It’s not just about pay.  The primary supporters there were AFGE and NTEU, the biggest Federal employee Unions.  President Cox of the AFGE did a terrific job organizing and advocating for the Federal employees.

Newscaster:  Let’s talk about those Feds themselves now.  I’m sure you are hearing from them in increasing numbers now, with a lot of them saying, “I’m starting to get up against it.  We’re in Day 4 of this thing.”  For a lot of them, the future seems pretty bleak, doesn’t it?

Atty. Bell:  Yes.  These are Federal employees that have recently dealt with a sequestration.  They’ve dealt with about three years of pay freezes, and now this.  All they want to do is return to work.  They weren’t responsible for this legislative stalemate, and yet government is seemingly turning their back on them.

Newscaster:  Are you hearing from some Feds too that maybe this is the straw that breaks the camel’s back, because of pay freezes, and sequestrations, and stuff like this?

The Federal government was, for a long time, seen as a pretty good place to work.  It’s not nearly as cocooned as it once was, but it’s still a good wage for most of them—interesting, challenging work, and the feeling that I’m actually making a difference.  What are you hearing, though—”I can’t work like this anymore”?–because really, they’ve become the political football here, basically.

Atty. Bell:  That’s 100% correct except for the fact that these people are very patriotic.  It’s more than just a paycheck.  They probably could’ve gotten a better job or a higher paying job in the private sector.  Whether it be 9/11 or they’ve been there for 20 years, they want to continue doing what they’re doing.

It’s more than monetary.  They get enjoyment out of providing a benefit for the Federal government.

Newscaster:  Let’s get to some nuts and bolts things.  We talked a little bit about one of the potential questions we heard.  The State of Maryland registered as many Federal workers in a day as they very often do in an entire year for unemployment benefits, and it makes perfect sense.  If you’ve been furloughed, you qualify.  But if you get that and you start getting state assistance, what about if Congress—as it looks like it might do—passes retroactive pay today?  Do you owe that money back?

Atty. Bell:  Yes, the money that you get from unemployment, you do have to pay back.  I’m a full supporter of retroactive pay, however.  I hope it does pass.  It varies state by state.  Some people have to wait a week before they could file for unemployment, but ultimately if they get paid, they’re going to have to pay that money back.

Newscaster:  A little historical perspective is always valuable, too: There have been government shutdowns in the past where there wasn’t retroactive pay voted by Congress, so it’s by no means a certainty.  It sounds, this day, though, like that might actually hold.

Atty. Bell:  And I hope so.  Again, this was no fault of the Federal employees and they should be paid.  Also, the problem is the taxpayers are paying this money for these services—

Newscaster:  [Interposing] That they’re not getting.

Atty. Bell:  That they’re not getting.

Newscaster:  How long does this last, then?  Can we see the end yet?

Atty. Bell:  I personally believe that it’ll be over within the next week, but there’s no guarantee.  Like you mentioned, in ’95 it was for about three weeks.  So who knows?  When you’re living day to day as a Federal employee, you don’t know how you’re going to put food on the table, you don’t know how you’re going to pay tuition for your kids to go to college, this is a very nerve-wracking time for them, and they don’t deserve this.

Newscaster:  If someone comes to you or you direct them to the many agencies that are available out there now that can help them, what’s the most frequent complaint?  Is it, “I’m worried about paying my mortgage,” “I’m worried about my car loan,” things like that?

Atty. Bell:  It’s all the above.  These people don’t take extravagant vacations.  They’re not worried about paying for their Ferrari.  They’re literally worried about putting food on the table, a lot of them, and it’s really sad that it’s gotten to this state when you’re picking on a group that’s so essential to the United States.

Newscaster:  And maybe that’s the idea of the fact that, essential or nonessential, it’s how they get rated within the government… but for an awful lot of Americans, it turns out what they’re doing has some essential benefit.

Atty. Bell:  Realistically, they should all be considered “essential.”  But yes, they are broken down to two categories.  A lot of the essential workers are not getting paid right now, but ultimately once the spending bill passes, they’re guaranteed the retroactive pay as opposed to the furloughed employees.

Newscaster:  One of the many ironies of this whole thing, all those brave Capitol police officers yesterday who were doing what they’re supposed to be doing, and protecting the members of Congress and the staff **** [00:06:03] everybody up on Capitol Hill, they were all doing that yesterday for an IOU.  They’re not getting paid.  They turn out to be nonessential.

Jonathan Bell, thank you.  Good to have you here.

Atty. Bell:  Thank you.  Very nice meeting you.

Government Shutdown Begins

Video Transcript

Newscaster:  One billion a week—that’s the amount the shutdown is actually going to cost taxpayers.  More than 2 million Americans are suddenly going to be without pay.  But the lawmakers who actually got us into this predicament?  Well, they’re going to get paid.  For some reason, something doesn’t add up here.

It’s been 17 years since this happened.  What is affected?  What’s not affected?  Here with the breakdown is Jonathan Bell, Federal employment attorney, and he is here to guide us through this day.  A lot of people are like, “So what’s happening?” We know what’s not affected.  What will be affected?

Attorney Jonathan Bell:  For example, some agencies, like NASA—agencies considered nonessential—will essentially be shut down.  Ninety-five percent of NASA employees will be furloughed—Department of Energy, some major Federal agencies…

It really is going to affect different Federal agencies differently.  For example, Customs and Border Protection, which is considered essential—84% of those employees will be allowed to return to work.

Newscaster:  Back in 1995, it was for 21 days.  Do we have any word on how long this could obviously take?

Atty. Bell:  No word whatsoever and that’s what makes it terrifying for Federal employees.  There’s about 1 million people right now out of a job and waiting for Congress to get their act in order to find out what’s going on with their future, to see if they can put food on their table and put their kids through college.

Newscaster:  Yes, and if you think about Head Start Programs, you think about the military, you think about people that are so essential—Congress feels like they’re essential and they’re getting paid.  Now, they’re putting this caveat that they’re going to donate their money.  Do you think that’s enough of a Band-Aid for the American public?

Atty. Bell:  Essentially not.  These Federal employees could have made a lot more money in the private sector.  They’re very patriotic.  They’ve worked hard and they’re getting the short end of the stick.

Newscaster:  Also, let’s talk about the money from tourist dollars that’s not going to be coming into cities such as Washington, D.C., such as New York City.  How bad is it going to hurt?  We’re estimating it’s going to be $1 billion per week.

Atty. Bell:  It’s not just going to hurt the Federal employees; it’s going to hurt airlines, people not getting their—

Newscaster:  [Interposing] Small businesses.

Atty. Bell:  Small businesses that rely on the army bases that make money based on the Federal employees’ incomes.  And what about the contractors for Federal employees as well?

Newscaster:  These are some of the services that are affected: applications for small business loans and mortgages.  That’s going to be put on hold?

Atty. Bell:  Yes.

Newscaster:  Also, we have Federal Courts.  They’re going to remain open for 10 days, but after that, what happens?

Atty. Bell:  They’re going to run out of money.  Federal Courts, they have filing fees that could help them sustain for a little bit of time, but they’re going to run out of that money and they’re going to be subject to the furlough.

Newscaster:  Let’s take a look at more things that are affected.  We have the IRS audit appointments.  They’re going to be cancelled.  And of course, national parks and museums—they are going to be closed.  What is going to happen is that Social Security is going to keep going, but for how long are we going to get those checks?

Atty. Bell:  The Social Security checks are going to continue.  What’s going to make it difficult is processing the new applications for new applicants.  They’re going to be extremely delayed.

Newscaster:  These are some of the things that are not affected: mail delivery; like we said, Social Security, Medicare, and unemployment benefits; air traffic controllers, TSA agents, and, of course, Amtrak trains, active military personnel.  But once again, if it goes for a prolonged period of time, we don’t know how long that’s going to take.

Also, there is a budget battle that’s looming in October, too, that we have to deal with.  Is there a possibility that the government can just simply run out of money?

Atty. Bell:  I don’t think there’s a possibility they’re going to run out of money.  Eventually, both sides are going to come to the table and reach a mutual agreement—which they should have done already.

Newscaster:  A lot of back and forth, a lot of back and forth, a lot of politics as usual, and a lot of people are saying, “What is going on in D.C.?”  Not a good sign.  But thank you so much for the breakdown.

Jonathan Bell, he’s a Federal employment attorney; he’s joining us live, here in-studio.

Federal Employment Attorney Jonathan Bell on Federal News Radio

Video Transcript

Newscaster:  For any government employee who makes illegal purchases on a government-issued credit card, agencies have until the end of this month to firm up their internal controls and prove they’ll take a tougher stance on credit card abuse.  So what should the holders of credit cards know?  Jonathan Bell is a Federal employee attorney.  He’s got some answers.

Mr. Bell, good morning.  Thanks for joining us.

Attorney Jonathan Bell:  Good morning.  How are you doing?

Male Newscaster:  Tell us why should more energy be put into training these employees on proper use as opposed to just simple punishment?

Atty. Bell:  Well, the stats that I reviewed is that government workers rack up about $20 billion in credit card charges and there really hasn’t been much accountability as far as  fraud, illegal, improper use, or erroneous use.  I figure it’s a good idea for the agencies to keep the eyes on Federal employees who potentially abuse government credit cards.

Female Newscaster:  I just want to back up for a minute.  The Office of Management and Budget, they did say that now agencies should fire these employees who make the illegal, improper, or erroneous purchases with government cards.  Couldn’t they do that in the first place?  Couldn’t agencies—if they found somebody who had a habit, at least, of doing this type of purchase—fire them?

Atty. Bell:  They can, and they have in the past.  I’ve seen those cases in the past.  The key, really, is there shouldn’t just be a no-tolerance, “go directly to termination.”  You have to look at the facts.  You have to determine if it was really erroneous as opposed to intentional, illegal, or improper use.  Really, I’d like to see more focus on the training.  If they’re giving the credit cards and they’re giving that power and authority, oftentimes I find that they really weren’t properly trained on proper use of the credit card.

Male Newscaster:  Are there different types of cards—that is, some are used for travel; some are used for small threshold purchases?  Does one card cover all of those things, or are there different classes?

Atty. Bell:  I’m pretty sure it varies by agency, but some Federal employees are given a credit card and they use it month to month for all types of charges and they’re supposed to get the approvals of the **** [00:02:13] and then pay for it.  There really hasn’t been much accountability before recent.

Female Newscaster:  We’re speaking with Federal employment attorney, Jonathan Bell.

Regarding the training that you’re advocating, if I can just play devil’s advocate, I think a reasonable person would know don’t use this charge card to buy books on Amazon or to purchase your Christmas vacation.  So what sort of training do you advocate?

Atty. Bell:  Well those are the obvious things, but sometimes there might be books that they feel might be helpful to their job, which they haven’t gotten approval for.  Or sometimes there might be lunches with contractors or other individuals that may be related to the job.  There is a certain gray area that has to be more clearly defined.

Also, they have to do these audits equally.  In the past, I’ve seen sometimes they just look at the employees that they deem as troublemakers and put them under unnecessary scrutiny.  They should really be doing this stuff across the board so no one’s treated differently.

Male Newscaster:  When it comes to credit card use, is this something that’s more related to when they’re out of the office, or things they’re doing within the office under standard types of procurement operations?  Do we have those metrics?

Atty. Bell:  I’ve seen all types of abuse in all types of different situations, but a lot of it is done outside of the office.

Male Newscaster:  For example, sometimes you hear about the egregious examples—people going to gentleman’s clubs or that kind of thing—but there’s a big gray area when you’re out of the office too, isn’t there?

Atty. Bell:  Yes.  There’s a huge gray area.  That’s why it has to be defined and that’s why there has to be proper training.  There has to be more than just a zero-tolerance.  If someone has 20, 25 years in Federal government then they make a mistake for whatever reason, you have to continue to look to mitigating factors.  They gave the agencies discretion.  There hasn’t been any type of set standard as to what to do within each agency, so it’s up to the HR people to develop these rules.  I hope they don’t do zero-tolerance because, again, everyone makes a mistake, especially after a long career, and it shouldn’t automatically end your career.

Female Newscaster:  What you’re advocating for sounds like almost “sentencing guidelines” for people who misuse credit cards.

Atty. Bell:  Yes, I think it should be a case-by-case basis.  Even if someone does find misuse, as long as it’s not illegal or completely egregious, there should be mitigating factors still considered, in my opinion.

Male Newscaster:  And in many cases, the employees can pay the government back.  That’s always part of whatever adjudication occurs also, correct?

Atty. Bell:  Yes, and that should be part of it.  They are starting to run credit checks on the employees, which I think is a good idea.  They’re forcing agencies to maintain records.  Again, I think it’s a good idea.  But really, the training is key.  You don’t want to do something where you’re just trying to catch employees in misconduct; you want to make sure you have the proper training on the proper use.

Female Newscaster:  And for employees, would you recommend that whatever the purchase they make, they always check with their supervisor first?  In other words, there is no “safe” purchase to make without permission?

Atty. Bell:  I think that’s a wise idea.  Some things are obvious and some people have been in the government long enough to know what a correct purchase is, but for those items that are questionable, I think it’s a good idea not only to actually supervise it, but to get it email, get it in writing, so you know you’re completely covered.

Male Newscaster:  What about those internal controls that the Office of Management and Budget is being asked to develop?  What might those look like, in addition to controls they have in place already?

Atty. Bell:  Again, if they’re required to send reports of misuse two times a year involving what types of misuse, the money involved, and the disciplinary actions taken, I think it’s a good idea to show some types of consistency with the penalties between the agencies.  I just think that there should be more guidelines regarding what the consistency and penalties should be instead of leaving it agency by agency, because that could vary.

Female Newscaster:  Jonathan Bell is a Federal employment attorney.  Thanks so much for joining us.

Atty. Bell:  Thanks a lot for having me; I really appreciate it.

Federal Furlough Notices Go Out As Sequestration Takes Effect

Video Transcript

Newscaster:  Good news came for thousands of Department of Defense civilian employees when Defense secretary Chuck Hagel announced he would cut the number of furlough days from 11 down to 6.  The bad news though, since July 8th, an undisclosed amount of employees have taken more than the required six unpaid vacation days.  So how will the Pentagon compensate those proactive employees?  Joining us with much more on this is Federal employee attorney Jonathan Bell.

Jonathan, good to have you here.

Atty. Bell:  Nice to see you.

Newscaster:  These employees, they didn’t do anything wrong.  They were originally told 11 days.  So where does the DOD go from here?  Tell us some scenarios that could essentially play out.

Atty. Bell:  I 100% believe that these Federal employees need to be paid.  The question, really, is should they be paid through their annual leave or should they be given back pay.  I believe that it should be back pay.  These Federal employees worked hard to save up their annual leave.  They had a choice.  They knew they were being furloughed.  They had to look at their finances and decide what’s best for their family, and some of them took consecutive days off that are now more than six.  They should be compensated for those days, for morale purposes.

These are not people that go on extravagant vacations; they need money for their mortgage, for their groceries, and this money will come in handy for them.

Newscaster:  There hasn’t been an exact number as to how many people might be impacted by this, but there are hundreds of thousands of civilian Defense workers out there.  Give me a ballpark figure as to how many people could be potentially impacted by this decision.

Atty. Bell:  There are as many as, I believe, 650,000 Federal employees subjected to furlough.  I believe that they should all be paid for the six days when the Federal government could catch up.  The number of people who took more than six days, I don’t have the figure, but it could be hundreds of thousands.

Newscaster:  Say that you are a civilian DOD worker.  What can you do?  Do we just sit and wait?  Is there anything that we can do to be proactive again?

Atty. Bell:  The government hasn’t made up their mind, so they should be in touch with AFGE, which is a terrific Union for Federal employees.  They should be in touch with Federal employees’ attorneys who will work them through their process, and ultimately, when a decision is made, will take the appropriate action.

Newscaster:  It sounds like Unions and the higher-ups, government officials, are the ones who are going to have to battle it out, essentially.

Atty. Bell:  Yes.  If they look at it and the purposes of morale, these people work to support the military and their families.  You want to keep these people happy.  They’ve been in the Federal government for a long time.  They’re very good at what they do.  They should get the back pay and keep their annual leave.  Take the family vacations.  If they need FMLA, they could be paid using their annual leave.  If they resign or they’re terminated, they could get paid that annual leave.  That annual leave is very important for them to keep in their pocket.

Newscaster:  And workers who are watching this, is there a timeline as to when they can possibly see that money?

Atty. Bell:  Just like anything with the Federal government takes a lot of time, I don’t know when we’re going to have an answer to that.  Come October 1st, there’s going to be new news as to whether or not there might be additional furloughs or how that budget’s going to play out.  This is going to be a topic of discussion for quite some time.

Newscaster:  And there could be another twist there, too.  Jonathan Bell, thank you very much for breaking that down.

Disabled Man Suing TSA for Alleged Discrimination

Video Transcript

Newscaster:  A man born without a right hand is now suing the TSA for allegedly violating the Americans with Disabilities Act.  Michael Costantino is a Golden Gloves boxer who says he’s gone toe to toe with the former world champions… and now, he wants to know why the TSA deemed him medically unfit to be a security screener.  Here now, Michael Costantino, and his attorney Jonathan Bell.

Gentlemen, welcome.  Good to have you both here today.  You said you went in there; you passed the test.  Tell us your story.

Mr. Michael Costantino:  I passed the initial screening test—it’s a computer test where you have to pass an x-ray [phonetic] exam, about 200 questions.  Passed that, then the next step was an airport assessment.  I passed that.  It was almost like a job interview as well.  Then the third step was a background check.  It’s a government job, so they have to do a thorough background check.

Then the last and final step was the physical.  I took the physical; I received an email saying I failed.  I said, “I don’t understand.  Possibly how could I have failed?”  So then I received a letter about two weeks later stating that they’d disqualified me because I was born without a right hand [phonetic].

Newscaster:  And what in this job description would you not be able to do because of your hand?

Mr. Costantino:  Nothing.  I’m capable of doing everything.

Newscaster:  Opening suitcases, putting things through the screeners—all the stuff that you see them doing at the airport every day.

Mr. Costantino:  Yes.

Newscaster:  What’s their response, Jonathan?  Let me ask you that.

Attorney Jonathan Bell:  As of right now, they’re basically stating that they have a right to do this because Congress gives them that right.  My question to them is Congress gives you a right to discriminate against someone and just assume that my client can’t do something because he has a disability?

This guy is a Golden Glove boxer.  As a citizen, I would love to have him as the first line of defense against terrorism in that TSA line.  If things got out of control, I know for a fact that Michael Costantino could handle himself.

Newscaster:  What drew you to want to work at TSA?

Mr. Costantino:  It’s a good job, good benefits… good upside working for the government.

Newscaster:  Did they ever ask you to demonstrate your ability to do the job?  Did they ever say come on in, Michael; let’s put you through the ropes here and make sure that you can handle it?

Mr. Costantino:  No.  Never once was stated in that letter that—open luggages?  I never had to perform any of those tasks that they stated.

Newscaster:  Were all of the tests that you took online before the physical?

Mr. Costantino:  No, not online; they were in TSA facilities.  But basically—

Newscaster:  [Interposing] So you met with them.  They were fully aware of your situation.  They know that you’re an athlete and a boxer and all of that, right?

Mr. Costantino:  Well, I’m not too sure if they were aware of that, but pretty much they met me.  They knew about my—

Newscaster:  [Interposing] And the interview went well in your interactions with them?  You felt as though you impressed them?  You felt like the job was going to happen, right?

Mr. Costantino:  Basically, yes.

Atty. Bell:  The problem is they didn’t consider him as the whole person.  What is Michael Costantino other than his disability?  If they’d factored in the fact that he was a boxer, if they saw the things that he’s capable of doing, we wouldn’t be here right now.  That’s the whole part of the case.

Newscaster:  You certainly haven’t put any limitations on yourself, have you?

Mr. Costantino:  No.

Newscaster:  So where does the lawsuit stand now, Jonathan?

Atty. Bell:  We’re in the informal stages.  We have to exhaust all administrative remedies.  It’s not that easy to sue the government.  We have to jump through some hoops.  We’re in the process of jumping those hoops.

Newscaster:  If they called you today and said, okay we’re sorry about this and we’d like to offer you the job, would you drop everything and take the job?

Mr. Costantino:  Yes.

Atty. Bell:  That, plus the back pay that he should have gotten if they gave him it originally.  And also I want them to be on notice not to do this to people in the future, because there are other people coming out of the woodwork now to me.

Newscaster:  You think you could do the job better than some of the people that you see when you go through the line?

Mr. Costantino:  There’s only one way to find out, but I think I could.

Newscaster:  Good luck to you, Michael.  Thank you very much.  Thanks for sharing your story with us.  Thank you, Jonathan.

Employment Discrimination Attorney Jonathan Bell for M. Kotbi

Video Transcript

Mr. Mohamed Kotbi:  Everyone had their correct name except me.  He handed me “Edgar” instead of Mohamed.  I said, “That’s not my name.”  He said, “I’m doing you a favor.  I’m saving your life tonight.  [These are already] secret service.  They’re not going to play with you.  They’re going to take you out on the spot.”

Newscaster:  Kotbi’s lawyer says, considering what he’s gone through, seeking $6 million in compensatory damages is not too much.

Attorney Jonathan Bell:  Ten years of discrimination and harassment on a weekly basis?  Had to put everyone on notice that this has to end?  I don’t even think it’s enough.

Newscaster:  Mohamed is still working and bearing a different name on his nametag, one that has his last name.  He credits his Union with saving his job, but was supposed to be suspended for a few weeks—he said he agreed to enter anger management, for a coworker accused him of making a threat.  He says he simply wants the discrimination to end.  We asked but Hilton Worldwide, which owns the Waldorf, would not comment on a pending lawsuit.

EEOC Discrimination Lawsuit Filed Against NY Post Office

Video Transcript

Female Newscaster:  Father’s Day came and went with a local dad still fighting to be with his disabled daughter.

Male Newscaster:  For years, his job accommodated his daughter’s needs.  But all of a sudden, his hours were changed and now he’s going to court.  CBS News’ Derrick Dennis has more on a father’s fight.

Newscaster:  George Ulrich of Westchester and his daughter Victoria are inseparable.  She came into this world disabled and he’s been her caretaker while working as a letter carrier at this Scarsdale post office.

Mr. George Ulrich:  Yes, for 17 years I’ve been working 5 A.M. to 1:30 P.M. in order to be home at 2 P.M. for my daughter.

Newscaster:  But George’s early-morning family-friendly hours were suddenly changed last February, forcing him to choose between sorting the mail by day or cutting his hours and income for the sake of his daughter.

Mr. Ulrich:  Oh, it’s unfair.  It’s unfair.  I’ve got medical bills, ConEd bills…  I’m losing pay right now.

Newscaster:  He chose the pay cut—$200 less a week—and filed a Federal complaint of disability discrimination with the EEOC.

Mr. Ulrich:  Everybody knew about my daughter and nobody ever had a problem with me working 5 to 1:30.

Newscaster:  George Ulrich isn’t just fighting for more time with his daughter; he’s fighting to change the Americans with Disabilities Act, so that it not only protects the disabled, but parents of the disabled on the job.

Attorney Jonathan Bell:  Sometimes, to do what’s right, it’s worth fighting for.

Newscaster:  Jonathan Bell represents the Ulriches.  He says Victoria clearly needs her father and the law should allow him to maintain his prior schedule.

Atty. Bell:  If you’re caring for a child or a significant other or someone else, and as long as it’s a reasonable accommodation, that’s what we’re going through here.

Newscaster:  The Postal Service wouldn’t comment on the Ulrich case, but since, automation has cut the need for some early morning shifts, along with a 20% drop in mail volume nationwide.  But Victoria just wants her dad, even if it means a change in Federal law.

In Westchester, Derrick Dennis, CBS2 News.

Male Newscaster:  A hearing has not yet been set in the case.  It could take as long as six months before a decision is made.

TSA Hiring Discrimination Alleged by One-Handed Applicant

Video Transcript

Newscaster:  Tonight, we’re talking about a former boxer.  Take a look right here behind me.  That’s him right there, Michael Costantino.  He’s getting ready to work out here at the gym.  He is telling us tonight that he applied for a job as a security screener at LaGuardia Airport, but he got eliminated, disqualified—just because he has one hand.

32-year-old Michael Costantino knows all about hard work and determination, and he says he has never let the fact that he was born without his right hand hold him back.

Mr. Michael Costantino:  It’s difficult being born without a right hand, but I think I’ve been doing my best with it.

Newscaster:  Now, the former boxer is fighting for the right to work as a TSA security screener at LaGuardia Airport.  He says he passed the interview, the background check, and he thought he also passed the physical exam, but he says ultimately the TSA disqualified him for the job because he only has one hand.  Now he is suing the government agency for discrimination.

Mr. Costantino:  I was hurt at first.  At first, it was disappointing.  I passed everything that was required and they just assumed, because I was born without a right hand, that I wouldn’t be able to perform the tasks of the job.

Attorney Jonathan Bell:  They assumed due to his disability that he cannot perform the essential functions of his job without even testing him to see if he can, such as asking him to open some luggage, asking him to pat somebody down.

Newscaster:  Costantino demonstrated that he can open zippers and look through bags.  The TSA in the meantime says it will not comment on the case because it is a pending lawsuit; however, a TSA official says that Congress gave the TSA leeway to create its own physical qualifications for the job as security screener, including motor skills.

Mr. Costantino:  They should definitely fix it, especially if [they’re the] government.

Newscaster:  Costantino says, by the way, he is not suing for money—what he is suing for is the job.

In Ozone Park, Queens, I’m Linda Schmidt, Fox5 News.

TSA Employment Discrimination Alleged by Disabled Applicant

Video Transcript

Male Newscaster:  The TSA has really gotten a bad rap over the past several months.  A lot of folks think pat downs are going too far, people up in arms because small children are undergoing pat downs.

Female Newscaster:  Here is a new TSA story that has us all talking.  A New York man applied for a job with the TSA, but he was turned down.  The man was born without a hand.  That man’s name is Michael Costantino and his lawyer, Jonathan Bell, are both joining us live from New York City to talk about this.

You’ve got the whole nation talking this morning.  Good morning, you two.

Attorney Jonathan Bell:  Good morning, guys.

Mr. Michael Costantino:  Good morning to you.

Male Newscaster:  As a requirement, the TSA says… did they specify that you need both limbs, both hands, in order to do this job?

Mr. Costantino:  Never.  No, they never specified.

Female Newscaster:  Take us through how you applied.  Then was it after you had an interview that they saw you didn’t have the hand, and is that when they turned you down?

Mr. Costantino:  No, actually it’s called an airport assessment.  It was prior to the medical.  I actually passed that.  They basically said you’re pretty much hired; your final step is just to take your medical physical.  I took my medical and then I received a letter within two weeks stating that I failed the physical because I was missing my right hand and I couldn’t perform opening tasks—they said like opening luggage, to perform a proper pat down—which had nothing to do with any of the tests prior to, testing for the job.

Male Newscaster:  You already proved to them that you could do the job requirements that are necessary.  Did you tell them or did they know that you’re an athlete, a former boxer, and all that?

Mr. Costantino:  I’m not aware if they knew about that, no.

Atty. Bell:  And that’s really the problem that we have here with what they did.  They didn’t consider any outside considerations other than the fact that he didn’t have a right hand, and they just assumed that he could not perform this job.  They didn’t look at him as a whole person.  Because he’s missing one hand, they simply stated you cannot perform these activities without even giving him the opportunity to try to perform the activities, or test whether or not he could perform the essential functions of that position.

Female Newscaster:  So once this happened, right then did you think you wanted to fight this, or did it come after?  When did this all come about?

Mr. Costantino:  At first, I was pretty depressed.  I wasn’t planning to fight it because it’s the government.  I said what am I going to do, you know?  It’s pretty much everything set.  But then I contacted Jonathan Bell.  He’s pretty much the top-rated Federal lawyer in the country.  His opinion?  He said, “We have a case there, and you have to fight for your rights.”

Male Newscaster:  So, Jonathan, what is the next step?  What are you guys going to do?

Atty. Bell:  Right now, we’re going through the administrative process to sue the government.  There are certain hurdles you have to jump over before you file suit, so we’re in the middle of exhausting those remedies before we can bring this case into the EEOC and move forward with it.

Female Newscaster:  What do you hope to see happen?  Whether the case gets taken, whether you win or not, what do you hope happens from all of this, the outcome?

Atty. Bell:  Realistically, what we’re suing for is his job, which he should have gotten in the first place.  We want the back pay that he would have received if they hired him in the first place, and then we just want to make sure this doesn’t happen to anybody in the future.  This is a government agency violating Federal government law, and again just making an assumption: because he has a disability, he can’t perform the job.  We don’t want this to happen in the future to anybody else.

Male Newscaster:  Very good.  Thank you to both of you for sharing some time and being on the program with us.  I hope you keep us posted because we’d like to follow this case right to the outcome.

Atty. Bell:  We sure will.  Thank you.

Mr. Costantino:  Thank you so much.

Male Newscaster:  The TSA couldn’t speak specifically on this case because, as they say, “pending lawsuit”—which to me many times is just a cop-out.

Female Newscaster:  That they don’t want to talk about it.

Male Newscaster:  Yes.  But a TSA worker said this: “…the congressional act that created the TSA in 2001 gave the agency the leeway to create its own physical qualifications for the Transportation Security Officer position, and potential employees have to meet certain physical standards to meet those qualifications.”  That’s their statement on the case.

Female Newscaster:  They continue on to say that “…screeners are required to possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills.”

That was what they explained.  I couldn’t see a monitor while we were talking to Michael, but there’s quite a bit of video out there circulating.  He was boxing and things like that—

Male Newscaster:  [Interposing] They could run the video.  Run the video.

Female Newscaster:  Look at this.  He definitely is very physically fit, able…  Look at him.

Male Newscaster:  I don’t mean to disparage people that work for the TSA or anything like that, but when you see him here working out, do you think he is possibly in better shape than some other TSA agents you’ve seen in the past?

Female Newscaster:  Yes.  I definitely wouldn’t want to second-guess him, talk back to him, or disrespect him in any way.  Not that I would do that to anyone, but obviously the physical look of him—

Male Newscaster:  [Interposing] The guy’s in good shape.

Female Newscaster:  —is kind of scary.

Male Newscaster:  When the Federal government should be the vanguard, the leading edge of hiring people with disabilities… They’ve obviously perceived in that way.  They’ve obviously been that way in the past.

Female Newscaster:  We’ll see what happens with his case.  We’ll try to follow it and see what the outcome is.

Queens Disabled Man Files TSA Discrimination Suit

Video Transcript

Newscaster:  Michael Costantino says he’s fighting for the rights of the disabled.  The Whitestone man who was born with only one hand is a former boxer.  Used to pummeling opponents in the ring, he’s now trying to knock down a decision by the Transportation Security Administration that medically disqualified him for a security officer job at LaGuardia Airport.

Mr. Michael Costantino:  I’m training at Universal Boxing Gym in Ozone Park where I work out with professional fighters every day, highly trained fighters.  So I think I’m more capable than most people because I do have boxing experience.  It’s the frontlines of security.  I could definitely protect people.

Newscaster:  Costantino has filed a formal complaint with the TSA for disability discrimination, claiming the agency violated the Americans with Disabilities Act.  He says he passed the TSA’s interview process and their background check, but failed a routine physical exam.  His attorney says it’s an exam that never gave him the chance to prove that he can do the job.

Attorney Jonathan Bell:  Examples that they stated in their letter said that he could not open and close zippers and bags in a timely fashion.  He wasn’t able to do a pat down.  But the most shocking thing is that they never tested him on those skills.  They just made a presumption.

Newscaster:  In a statement, a TSA spokesperson says, “We do not comment on pending litigation.”  TSA officials say, under the Aviation and Transportation Security Act, the agency has the leeway to create its own physical qualifications and potential employees have to meet certain physical standards.  Costantino says the agency’s standards, though, make for an unfair fight.

Mr. Costantino:  You expect the government should be totally equal to everyone, so it definitely was hard.

Male Newscaster:  Costantino and his attorney are confident the Equal Employment Opportunity Commission will reverse the TSA’s decision.  It’s a process that takes at least six months, so a ruling isn’t expected until sometime next year.

CeFaan Kim, NY1.