Under the traditional law of employment discrimination, an employee alleging illegal termination can make out a prima facie case by alleging his membership in a protected class and adequate performance of his job. To rebut the prima facie case, an employer need only explain the termination by producing evidence of a legitimate, nondiscriminatory reason for the termination. At this point the burden shifts to the employee to produce evidence that the reason offered by the employer is a pretext for unlawful discrimination. Absent such proof, the employee’s charge of discrimination fails.
Though the issue is not employment discrimination, this framework provides a useful background to understanding the events in the case of AmeriCorps Inspector General Gerald Walpin. The Obama administration fired Walpin this past June. As John Hinderaker has previously noted in a series of posts, the Walpin story is an interesting one that sheds light on the lawless, bullying side of the Obama administration.
Walpin ran afoul of Obama because he investigated a charity operated by former pro basketball player Kevin Johnson, a prominent Obama supporter. The non-profit, St. Hope, received an $850,000 grant from AmeriCorps. Walpin investigated what St. Hope did with the money and concluded that much of it was improperly spent, for example, to pay recipients to wash Johnson’s car.
The result of Walpin’s investigation was that St. Hope agreed to repay half the money it got from AmeriCorps. However, since St. Hope is insolvent, AmeriCorps is unlikely to get its money back. The acting U.S. Attorney in Sacramento declined to prosecute anyone in connection with these events.
Walpin was fired after he blew the whistle on waste of government funds by a nonprofit run by Johnson, who in addition to being Obama’s friend is also the mayor of Sacramento. (It is apparently undisputed that Johnson was using AmeriCorps funds to pay people to wash his car, run errands for him, and so on.) Walpin’s effort to discharge his duties got him in hot water not only with Johnson, but also with the AmeriCorps corporation head, Alan Solomont, a Democratic Party fundraiser and Obama crony.
Apparently in retaliation for having put the heat on an Obama supporter, Obama had Norman Eisen, a Special Counsel to the President, telephone Walpin and demand that he resign within an hour. Walpin declined, pointing out that he is not a political appointee and does not serve at the President’s pleasure. So Obama fired him.
By statute, Obama was required to give Congress 30 days’ written notice of his intention to fire an inspector general and set forth his reasons for doing so. Obama failed to comply with that aspect of the statute, merely saying that Walpin no longer has the President’s “fullest confidence.” That would be sufficient reason to replace a political appointee, but not to fire an inspector general.
To justify the termination of Walpin the Obama administration has alleged that the AmeriCorps board fired Walpin on grounds of inadequate performance of his job, implying his inadequate performance had something to do with Walpin’s advanced age. (If the issue were age discrimination, the administration’s response might have been more tactfully phrased.) Walpin has in fact brought suit contesting his termination, but on other grounds arising from his status as AmeriCorps inspector general.
Byron York has been on top of this story since its inception. In his most recent article on it, York shows that the Obama administration’s alleged ground for Walpin’s termination is false. in fact, the White House story was cobbled together after Walpin was fired, not before. In other words, the White House story presents a classic case of pretext.
The Walpin case illuminates a side of the Obama administration that is ordinarily hidden from view. See also, for example, Robert Stacy McCain’s account of the 61-page staff report issued last month by congressional investigators working under the direction of Senator Charles Grassley and Rep. Darrell Issa. The Walpin case thus warrants the attention and scrutiny of the public, but the mainstream media have found it of little interest.
UPDATE/CORRECTION: The acting United States Attorney for the Eastern District of California, based in Sacramento, is Lawrence Brown, not Alan Solomont, as I wrote in one place that I have corrected above. In an April 29, 2009, letter to the chairman of the Integrity Committee of the Counsel of Inspectors General on Integrity and Efficiency, Brown criticized Walpin’s performance of his job in connection with the St. Hope investigation. By letter dated October 19, 2009, Walpin was cleared of the charge made by Brown in his letter.
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