U.S. OFFICE OF SPECIAL COUNSEL ANNOUNCES FAVORABLE SETTLEMENT OF PERSONNEL VIOLATIONS IN VETERANS’ PREFERENCE CASE

FOR IMMEDIATE RELEASE - 4/15/99
CONTACT: JANE MCFARLAND
(202) 653-7984      

    The U.S. Office of Special Counsel (OSC) today announced the favorable settlement of a complaint filed with it by Samuel J. Lambert against the Department of Defense (DOD). Mr. Lambert had complained that DOD had violated veterans’ preference requirements when it failed to select him for a position for which he applied within the Office of the Secretary of Defense (OSD). As a result of the settlement, Mr. Lambert will receive a retroactive promotion and backpay of approximately $100,000 and a new position.

    Mr. Lambert contacted OSC in November 1996, alleging that in April 1995, he had applied for a GS-14 Communications Management Officer (CMO) position in OSD. Mr. Lambert alleged that, when he refused the personnel office’s request that he waive his rights as a 10-point veteran, the office canceled the recruitment notice and hired the applicant that they wanted as a temporary employee.

    OSC’s subsequent investigation confirmed that OSD had selected its preferred applicant, a nonveteran, who was then an active military official, for a substantially similar position through two temporary appointments. When those appointments expired, it converted the applicant to a 4-year term appointment as a CMO. After the Office of Personnel Management (OPM) denied DOD’s request to pass over Mr. Lambert to select the nonveteran, OSD canceled the vacancy for which Mr. Lambert had applied, rather than hiring him. 

    OSC’s investigation revealed evidence of three prohibited personnel practices: 1) the OSD personnel office asked Mr. Lambert to waive his veterans’ preference; 2) it selected the preferred applicant for the job while the applicant was still an active military official, contrary to federal statute and DOD regulation; and 3) it used temporary-term appointment authority to fill the CMO position without legitimate need. 

    Under the terms of the settlement, Mr. Lambert will start work next month as a GS-14 Telecommunication Specialist in the OSD and will receive backpay and interest for the period since October 1995. The settlement agreement contains a provision stating that DOD does not admit any wrongdoing or violation of law in connection with the personnel actions about which Mr. Lambert complained. 

    Special Counsel Elaine Kaplan said that she wanted “to commend the cooperation given to OSC by the DOD’s General Counsel’s Office in this matter, which responded promptly when it became clear that prohibited personnel practices had been committed.” Kaplan stated that while OSC stands “ready and eager to prosecute meritorious cases, its ability to achieve favorable results through the settlement process without need for litigation contributes significantly to the public’s interest.” 

    The U.S. Office of Special Counsel receives, investigates, and prosecutes before the Merit Systems Protection Board (MSPB), charges concerning the commission of prohibited personnel practices. OSC investigations frequently result in the favorable resolution of complaints without litigation. For example, last year, OSC obtained 80 pre-litigation informal stays and/or favorable corrective actions on behalf of employees who had filed complaints alleging the commission of a prohibited personnel practice.

    At the time Mr. Lambert filed his complaint in this matter, violations of veterans’ preference requirements were prohibited personnel practices that were within OSC’s prosecutorial jurisdiction. Pursuant to the Veterans Employment Opportunities Act of 1998 (VEOA), however, OSC is no longer authorized to seek corrective action for knowing violations of veterans’ preference violations that occurred prior to October 31, 1998. Instead, complainants must seek redress, by filing a written complaint with the Department of Labor’s Veterans’ Employment and Training Service (VETS). OSC is still authorized to prosecute disciplinary actions for violations of veterans’ preference requirements.

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