U.S. Office of Special Counsel  1730 M Street, N.W., Suite 218  Washington, D.C. 20036-4505

Guardsman Gets Justice After Seven-Year Wait
Long-stalled USERRA case settled quickly after referral to OSC

FOR IMMEDIATE RELEASE - April 8, 2008
CONTACT: James Mitchell, 202-254-3607, jmitchell@osc.gov

WASHINGTON, DC – An Air National Guardsman, who lost his federal job while on active military duty, waited more than seven years to get relief under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Only months after the Government agency where his case had languished for seven years referred it to the U.S. Office of Special Counsel (OSC), a settlement was reached providing him with full back pay and restored benefits.

After his return from active duty in the Alaska Air National Guard in June 2000, Robert J. Traut’s employer, the U.S. Department of Health and Human Services, Indian Health Service (IHS), refused to reemploy him. Mr. Traut filed a complaint under the Uniformed Services Employment and Reemployment Rights Act (USERRA) with the U.S. Department of Labor, Veterans Employment and Training Service (DOL-VETS), in November 2000.

USERRA protects the employment and reemployment rights of those who serve in the military. Under the law, IHS had an obligation to promptly re-employ Mr. Traut after he returned from military duty in June 2000, as he had left his job to perform uniformed military service; gave IHS advance notice; did not serve more than five years; received an honorable discharge; and made a timely application for reemployment.

Federal employees alleging USERRA violations may file claims with DOL-VETS. If DOL-VETS cannot resolve the claim with the Federal employer, the service member may request the claim be referred to OSC for possible prosecution. In 2004, four years after Mr. Traut filed his initial claim DOL-VETS wrongly informed him that his claim had been referred to OSC, but that OSC had declined to represent him, closing his case. This was incorrect, as the case had never been referred to OSC for review.

DOL-VETS then re-opened Mr. Traut’s USERRA claim and obtained partial relief for him in February 2006 by assisting him in finding a position with the U.S. Coast Guard in Kodiak, Alaska. However, this did not address the substantial back pay and benefits Mr. Traut lost by IHS’s failure to reemploy him for over six years. During that 65-month period, Mr. Traut was only able to find part-time and temporary work to help pay his bills.

After previous efforts by Mr. Traut to get his case referred to OSC failed, DOL-VETS finally sent it to OSC in November 2007 after Senator Lisa Murkowski (R-AK) inquired about it at a congressional hearing on USERRA.

In March 2008, a settlement negotiated by OSC was finalized between IHS and Mr. Traut. Under the agreement, Mr. Traut will receive his back pay plus interest for the 65-month period, structured in a way to minimize his tax burden. The agreement also restores his basic Federal retirement benefits as if he had been reemployed in June 2000, with IHS providing full employer make-up contributions to his Federal Employee Retirement System (FERS) account.

“OSC is proud to have brought Robert Traut’s long struggle for justice under USERRA to a positive end,” said Special Counsel Scott J. Bloch. “Until his claim was finally referred to us, he endured seven years of hardship and frustration. In only a few months, we were able to negotiate a settlement to make him substantially whole. This is the sort of swift justice that all our brave service members deserve, and they should not have to be shunted off into a maze of bureaucratic procedures to get that justice.”

 

The U.S. Office of Special Counsel (OSC) is an independent investigative and prosecutorial agency and operates as a secure channel for disclosures of whistleblower complaints. Its primary mission is to safeguard the merit system in federal employment by protecting federal employees and applicants from prohibited personnel practices, especially retaliation for whistleblowing. OSC also has jurisdiction over the Hatch Act. For more information please visit our web site at www.osc.gov or call 1 (800) 872-9855.
 

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