U.S. Office of Special Counsel  1730 M Street, N.W., Suite 201  Washington, D.C. 20036-4505

U.S. OFFICE OF SPECIAL COUNSEL ANNOUNCES FAVORABLE RESOLUTION OF COMPLAINT ALLEGING OBSTRUCTION OF DISABLED VETERAN’S RIGHT TO COMPETE FOR FEDERAL EMPLOYMENT

FOR IMMEDIATE RELEASE - 2/6/03
CONTACT: JANE MCFARLAND
(202) 653-7984               

    Today, the U.S. Office of Special Counsel (OSC) announced the favorable resolution of a prohibited personnel practice complaint filed by Mr. Gary Fowler against the Department of the Army. Mr. Fowler, a disabled veteran, filed a complaint with OSC alleging that he had been unlawfully obstructed from competing for an Operations Specialist position with the Army. After an OSC investigation substantiated Mr. Fowler’s complaint, OSC asked the Army to voluntarily provide Mr. Fowler with relief. The Army, without admitting liability, agreed to provide Mr. Fowler with a lump sum payment of $132,706 in settlement of his complaint.

     Gary Fowler is a 20-year veteran of the United States Army. He served in combat during the Vietnam War, and suffered spinal cord injury as a result of an explosion. Mr. Fowler received a Purple Heart and a Bronze Star for his service. 

     As a 40% disabled veteran, Mr. Fowler received a 10-point veterans’ preference during the competition for the Operations Specialist position. As a result, he was the number one candidate on the list of eligible applicants for the position. 

     Mr. Fowler advised OSC that an Army employee asked him to disavow his interest in the position because management wanted to choose another candidate but was blocked from doing so by Mr. Fowler’s veterans’ preference. Mr. Fowler stated that he was told that he would not be selected for the position “in any circumstance.” Nonetheless, Mr. Fowler declined to withdraw his application from consideration. 

     After Mr. Fowler declined to withdraw his application, the Army sent a request to the Office of Personnel Management (OPM) asking for permission to bypass Mr. Fowler on the grounds that he was not qualified for the position. OPM, however, disagreed. It advised the Army that Mr. Fowler was qualified, and must be considered for the job.

     Notwithstanding this directive by OPM, the agency cancelled the vacancy announcement. It rewrote the announcement in a manner that excluded Mr. Fowler from consideration. The Army posted the revised vacancy announcement approximately three months later and selected another candidate.

     OSC investigated Mr. Fowler’s allegations and concluded that there existed reasonable grounds to believe that several prohibited personnel practices were committed in connection with the application process. Specifically, OSC concluded that the Army had willfully obstructed Mr. Fowler’s right to compete for employment, in violation of 5 U.S.C. § 2302(b)(4), unlawfully attempted to influence his withdrawal from competition, in violation of 5 U.S.C. § 2302(b)(5), and given the selected candidate an unauthorized preference or advantage so as to injure Mr. Fowler’s employment prospects, in violation of 5 U.S.C. § 2302(b)(6).

     In light of these conclusions, OSC requested that the Army consider resolving
Mr. Fowler’s complaint through settlement. The agency, without admitting liability, agreed. Under the terms of the settlement the Army will pay Mr. Fowler a lump sum payment of $132,706 based on three years’ salary and certain benefits that would have been paid to Mr. Fowler had the agency hired him for the position. 

     The Office of Special Counsel is an independent federal agency that investigates and prosecutes complaints alleging the commission of prohibited personnel practices at federal agencies. In cases where an OSC investigation reveals reasonable grounds to believe a prohibited personnel practice has been committed, and an agency declines to voluntarily provide relief to a complainant, OSC will prosecute a petition for corrective action before the Merit Systems Protection Board. In many cases, such as this one, OSC obtains relief for complaining parties through settlement, before it makes a formal finding regarding the merits of the complaint. 

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