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

OSC Wins Settlement
Against Air Force Academy
Unusual Case of Quota Discrimination
At Service Academy Reaches Happy Conclusion  

FOR IMMEDIATE RELEASE - August 22, 2006
CONTACT: LOREN SMITH, 202-254-3714, lsmith@osc.gov
    
WASHINGTON, DC -- The U.S. Office of Special Counsel reached a settlement that secured a faculty position at the Air Force Academy for a candidate originally chosen unanimously as the number one selection by a review board before quota politics intervened.

The case was filed under the Uniformed Services Employment and Reemployment Rights Act of 1994, or USERRA. This is the federal law that protects the civilian careers of persons who perform military service.

In this highly unusual case, the serviceman alleged that the U.S. Air Force Academy did not select him for a civilian faculty position because the he was a retired career service member.

In the summer of 2005, the Academy announced a civilian faculty position in its management department starting in August 2006. The serviceman in question, who currently teaches at the Academy as an active duty service member, applied for the position. If selected, he was prepared to retire from active duty.

He sailed through the recruitment process and was unanimously recommended by the selection panel as the #1 candidate. The head of the management department also recommended him, as did the Dean of the Academy.

The Superintendent of the Academy did not approve the hiring of claimant solely because the claimant was retired career service member and, by hiring him, the Academy would have exceeded its 33% target for retired career service members in the civilian faculty.

The Superintendent explained that he was concerned about the lack of qualified civilian applicants that responded to the summer 2005 recruitment. Claimant has a PH.D. (from Harvard, nonetheless) and the best qualified civilian candidate was in an "all but dissertation" status. So, the Superintendent instructed HR to re-announce the position to try to attract better qualified civilians.

OSC`s investigation substantiated that claimant was not selected only because he was a retired career service member - a clear violation of USERRA.

OSC discussed the matter at length with the Academy`s counsel and successfully persuaded it to resolve the case. The Academy awarded claimant full corrective action, namely: appointment to a civilian faculty position effective August 21st, 2006.

Special Counsel Scott Bloch believes this case illustrates OSC’s commitment to, and effectiveness in, enforcing the reemployment rights of federal employees who serve in the military. “The message that I want our brave service members to hear loudly and clearly is, your rights will be protected.”

Bloch also expressed his appreciation to the Air Force Academy. “I thank the Academy for realizing the error and working with my staff to resolve it. We expect no less of the service academies.”

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 and abuse of authority. 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 whistle blowing. 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.