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

U.S. OFFICE OF SPECIAL COUNSEL REACHES SETTLEMENT AGREEMENT IN USERRA CASE WITH VETERANS AFFAIRS EMPLOYEE

FOR IMMEDIATE RELEASE - 8/10/05
CONTACT: CATHY DEEDS, 202-254-3607, cdeeds@osc.gov
    
      WASHINGTON—The U.S. Office of Special Counsel (OSC) announces the successful resolution of a matter under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the federal law that protects the civilian careers of persons who perform military service.

     OSC represented Judithe Hanover Kaplan, a Lieutenant Colonel in the U.S. Air Force Reserves who alleged that the U.S. Department of Veterans Affairs, VA Medical Center, San Diego, California, (agency) terminated her employment due to her reservist duties.

     Kaplan was a Senior Nurse appointed to a full-time, 13-month temporary position. The agency terminated her employment only 2 1/2 months after it started. During that time, Kaplan had been absent for 22 days due to military leave and illness connected with her prior military service during the Gulf War conflict. The agency based its decision on Kaplan’s alleged failure to follow established procedures, lack of availability, failure to request leave appropriately, and volunteering to participate in activities without the consent of her immediate supervisor.

     OSC determined that the VA violated USERRA’s anti-discrimination provisions, which protect service members from being denied initial employment, retention in employment, and any benefit of employment based on past, present, or future military service. It successfully negotiated a full corrective action settlement for Kaplan.

     “USERRA’s anti-discrimination provisions apply to all employment positions whether they are full-time, part-time, term, seasonal, or non-recurrent,” explained Special Counsel Scott Bloch. “I am pleased that the agency ultimately understood its responsibilities to service members and resolved this case fully and fairly,” he added.

     Under the terms of the settlement, which does not constitute an admission of fault by the agency, the agency paid Kaplan a lump sum amount for her pecuniary losses, removed all negative documentation relating to her termination and issued documentation reflecting that Kaplan resigned from duty, and conducted USERRA training for the managers involved in the termination. The MSPB approved the settlement, and its decision became final on January 14, 2005.

     USERRA prohibits discrimination against persons because of their service in the Armed Forces Reserve, the National Guard, or other uniformed services. USERRA prohibits an employer from denying any benefit of employment on the basis of an individual’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. USERRA also protects the right of veterans, reservists, National Guard members, and certain other members of the uniformed services to reclaim their civilian employment after being absent due to military service or training.

     Pursuant to a demonstration project established by the Veterans Benefits Improvement Act of 2004 (VBIA), P.L. 108-454, OSC, rather than the Department of Labor’s Veterans Employment and Training Service (VETS), has the authority to investigate federal sector USERRA claims brought by persons whose social security number ends in an odd-numbered digit. Under the project, OSC will also receive and investigate all federal sector USERRA claims containing a related prohibited personnel practice allegation over which OSC has jurisdiction regardless of the person’s social security number.

 

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 and the Uniformed Services Employment and Reemployment Rights Act. For more information please visit our web site at www.osc.gov or call 1-800-872-9855.