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2008 Case Summary
USERRA Case Summaries

Uniformed Services Employment and Reemployment Rights Act (USERRA) Case Summaries FY 2008:

The US Office of Special Counsel (OSC) values the tremendous commitment of our military men and women and works meticulously to safeguard the merit system by enforcing USERRA through the investigation and prosecution of cases before the U.S. Merit Systems Protection Board (MSPB). OSC’s USERRA unit has investigated and resolved hundreds of cases protecting America’s military service members against prohibited workplace discrimination practices.

Specifically, safeguarding employment for members on active duty military leave is an issue that OSC works tirelessly to support. In a specific case involving the U.S. Postal Service, the USERRA unit was instrumental in authorizing military leave time that was denied to an Agency employee. In addition, OSC worked with the agency to ensure that managers accommodate employees who perform military duty by identifying and scheduling replacement workers and posting USERRA informational posters in locations accessible to employees. The claimant later indicated that after OSC’s involvement, he noticed a greater interest in the Agency’s efforts to recognize and support veterans.

Another successful example of the Special Counsel’s intervention involved a case against the U.S. Department of the Interior, National Park Service. The claimant alleged that the agency violated USERRA by improperly crediting his military service time, which in turn, affected his retirement date and other benefits related to federal employment. After an inquiry by the Office of Special Counsel, the National Park Service audited the employee’s records and made the necessary adjustments.

In a related case against the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), the claimant alleged that the agency denied her a benefit of employment by not allowing her to apply for a temporary Criminal Investigator position that became available while she was activated. At the Special Counsel’s request, ICE agreed to give the claimant priority consideration for its most current vacancy for the same position and location. Ultimately, the claimant declined the agency's offer and the case was closed.

In many instances, the Special Counsel investigates complex USERRA claims where investigators work to remedy personal hardships caused by employer’s misunderstanding of the law. For example, one of this year’s cases involved a claimant who alleged that the US Department of Homeland Security (DHS) mischarged his leave and imposed a debt on him as a result of his service in the Air Force Reserve. At the USERRA unit’s request, DHS took a series of actions necessary to make the claimant whole, including restoring annual leave, cancelling the debt, and reimbursing him for lost pay.

Another recent case involved a claimant who was on active duty in the U.S. Navy Reserves. The claimant alleged that the Federal Emergency Management Agency (FEMA) violated USERRA by incorrectly charging him annual leave during periods when he should either have been paid for military leave or taken leave without pay. He further alleged that he experienced continuing difficulties re-establishing the payment of his employee insurance benefit premiums by payroll deduction once he returned from active duty. After a full review, OSC worked with the agency to restore his leave balances and correct the health insurance premium errors.

In a USERRA case against the U.S. Department of Army, Directorate of Public Works (DPW), the claimant alleged that the agency violated USERRA when it denied him an interview for a GS-0802-09 engineering technician position because of his status as a veteran and because he was deployed in Afghanistan with the U.S. Army Reserve. OSC determined that the agency did not properly consider the claimant for the above position and counseled the agency to obtain emergency authorization to fill the position and give the claimant priority consideration.

An employee with the Department of the Army filed a claim alleging that his employer violated USERRA when he was not promoted because he had complained that an agency official had told him he would be required to sign an agreement that his temporary promotion would be terminated if he went on active military duty. After OSC contacted the agency, they agreed to give the claimant a temporary promotion for one-year, with a lump-sum payment of back pay. The Claimant then withdrew his USERRA complaint.

A USERRA claim was filed by an employee of a Department of Veterans’ Affairs medical center alleging that he was not selected for a supervisory position three times because he is a veteran. The claimant also alleged violation of a prohibited personnel practice because the agency had not given him a performance evaluation for 2006. Further, he claimed he did not get a performance award he believed that he deserved. OSC informally approached the agency with a settlement and, as a result, the agency gave him an outstanding rating and a $3,000 performance award. The claimant found the solution “very acceptable,” and OSC closed the case.

An employee of a Department of Veterans’ Affairs medical center alleged that “contingency leave” he’d requested for his last military deployment. He also claimed they had not awarded him an adequate adjustment to his salary and had not considered him for a promotion opportunity that had been posted while he was deployed. OSC contacted the agency and they admitted that he was entitled to an increase in pay and contingency leave. The agency agreed to pay retroactively the claimant the average amount of pay increases provided to his peers during the period. The agency determined that the recruitment for the position did not occur when the claimant was deployed and could have applied for the position. OSC closed the case as the agency had awarded all corrective action to which the claimant was entitled.

OSC obtained corrective action from the Department of the Navy after an employee, a Navy Reservist, complained had placed him as Absent Without Leave (AWOL) for not properly notifying the agency of his active duty. The complainant returned from active duty injured, and did not apply for reemployment, instead he took convalescent leave to which he was entitled under USERRA. The agency required him to submit medical records to provide he was incapacitated, then decided the documentation did not support convalescent leave and charged him with AWOL for approximately six months. The agency then proposed his removal for excessive AWOL. OSC explained to the agency that the claimant was entitled to leave prior to his military duty and could not be placed on AWOL during his convalescence. The AWOL charges and proposed removal were rescinded.

A USERRA claim was filed by an employee of the Department of Defense, Defense Contract Audit Agency (DCAA), alleging that the Defense Finance and Accounting Service (DFAS) had violated his employment rights by retracting certain employment benefits when it processed his retirement application. DFAS had determined that the claimant was not entitled to two within-grade pay increases he’d been awarded by DCAA when he returned from three years service in the Air Force Reserve. DFAS assessed a debt of about $19,000 against the claimant and initiated collection procedures. After intervention by OSC, both agencies agreed to credit the claimant with continuous service, correct his employment record, recalculate his within-grade increases, and rescind the debt assessed against him.

An employee of the Department of the Army alleged that the agency failed to properly make contributions to his Thrift Savings Plan (TSP) account while he was on active duty with the Army Reserve. OSC contacted the defense Finance and Accounting Service (DFAS) which credited the claimant’s TSP account, providing full corrective action.

OSC obtained a settlement for an employee of the Department of the Army who alleged that his agency violated USERRA by proposing to remove him from his position because of his military service obligations with the Air Force Reserve. The settlement included returning the claimant to work, awarding back pay of more than $89,000, attorneys’ fees of $60,000, and restoration of 224 hours of annual leave and 112 hours of sick leave. He was also allowed to take up to three years to utilize 186 hours of “use or lose” annual leave, and derogatory information related to the actions covered in his claim was removed from his record.

An employee alleged that the Department of the Navy violated USERRA`s anti-discrimination provisions by failing to provide him five additional days of leave upon his return from military duty in Iraq in November 2006. Although the agency alleged that claimant never requested the leave after his return from Iraq, they agreed to credit him the first 40 hours of sick or annual leave he took after his return from Iraq.

Another successful USERRA case involved a claimant who received reemployment rights and back-pay for lost wages. At the time, the claimant was an Environmental Engineer at the U.S. Army Corps of Engineers (USACE) Jacksonville District when he received orders from the U.S. Air Force to report for active duty. After more than two years service, he was honorably discharged and requested reemployment. The Army Corps viewed his request as untimely and denied it. After investigation, OSC filed a petition with the MSPB against USACE on behalf of the claimant. Under a settlement agreement reached in 2006, the Army Corps agreed to reemploy the claimant in his former position of Environmental Engineer, pay him a large lump sum to account for lost wages, make contributions to his Thrift Savings Plan account, and restore his annual and sick leave. Under the agreement, he was given one year of leave without pay to complete his Master’s degree, but his within-grade pay increases and other benefits would continue to accrue as if he’d never left the agency. In addition, USACE reviewed its policies and procedures to ensure that employees departing for military service are processed properly and informed of their rights and obligations under USERRA. As part of the settlement in this case, the Corps will also provide USERRA information to all employees via e-mail, post informational posters on USERRA, and include links to USERRA information on its website. In 2008, OSC determined that USACE had not followed through and opened negotiations with USACE and DFAS which resolved outstanding issues, including sick leave, health insurance costs, leave status and USERRA information.

In another case, the claimant alleged that due to his deployment with the Army National Guard, the agency failed to promote him from GS-11 to GS-12 in a timely manner and failed to convert or reclassify his position to one with a higher promotion potential. OSC determined that the agency had initially inadvertently reassigned the claimant, and two other agency employees, to GS-11in a different series. After becoming aware of the error, the agency requested that all three individuals interview for the position, but the claimant could not comply immediately as he was deployed. The agency told claimant via e-mail that he could complete the requirements upon return from his deployment. Claimant was not happy with the situation and after many exchanges with the agency they offered to reassign him back to GS-11 his original series so that he could take advantage of the recently increased GS-12 promotion potential. After OSC contacted the agency, they agreed to reassign him to GS-12 in a different series. OSC`s investigation found that the agency treated him the same as the other two individuals that were inadvertently reassigned.

In this USERRA case against the Department of Homeland Security, Immigration and Customs Enforcement (ICE), the claimant alleged that due to an issue of administrative error, he generated indebtedness to the Federal government regarding his pay and benefits due to his membership with the U.S. Air Force Reserve. OSC contacted the agency, which took a series of personnel actions necessary to make the claimant whole. These included corrections for the claimant made in their payroll system and refunds were disbursed to the claimant, and military leave corrections increased his annual leave balance.

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Hatch Act Case Summaries

Hatch Act Case Summaries FY 2008:

The Hatch Act Unit investigated a NASA employee and found that on numerous occasions throughout 2006 and 2007, while on duty and in the federal workplace, he used his NASA e-mail account to send partisan political e-mails to various individuals. In addition, during the same time period, the employee made numerous partisan political postings to his web log (blog) while he was on duty and in the federal workplace. These blog postings promoted the campaigns of several candidates, including a gubernatorial candidate and a candidate for State Representative. OSC`s investigation also revealed that on at least two occasions in 2006, the employee solicited political contributions in violation of the Hatch Act. Following the investigation, the Special Counsel, employee and NASA entered into a settlement agreement to resolve this matter and the employee was suspended without pay for 180 days.

The Hatch Act Unit received information about the candidacy of a police chief in central Florida in a partisan election for Sheriff. After an investigation, OSC advised the chief that his candidacy did in fact violate the Hatch Act and that to come into compliance with the law he needed to either withdraw from the election or resign from his employment. The chief resigned his employment to pursue the elected office.

The Hatch Act Unit received information that an employee of a county veteran services department was a candidate for Commissioner of St. Lucie County, Florida. OSC informed the candidate that to come into compliance with the law, he needed to immediately withdraw from the election or resign from his employment. The candidate withdrew his candidacy for Commissioner in August of 2008.

An Alabama Department of Transportation employee, who was a candidate in the partisan election for Commissioner of Pike County, Alabama was investigated by the Hatch Act Unit.
After being informed that his candidacy was in violation of the law, the employee withdrew his candidacy for County Commissioner in July of 2008.

The Hatch Act Unit found that a New Jersey Transit Authority employee’s candidacy in the partisan election for Keyport Borough Council was in violation of the Hatch Act. OSC indicated that in order to come into compliance with the law, he would need to resign from his employment or withdraw from the election. The candidate subsequently withdrew from the election.

The Hatch Act Unit received information alleging that a candidate for North Providence (RI) Town Council was in violation of the Hatch Act. The candidate was employed by the Providence Housing Authority (PHA) when he filed for election for town Council. After investigating the matter, OSC determined that the candidacy was indeed a violation of the Hatch Act and entered into a settlement agreement where the candidate was suspended without pay from his employment for 30 days.

The Office of Special Counsel’s (OSC) Hatch Act Unit investigated an employee of the Mt. Morris Township (MI) Building Inspector’s office who was running for election to Township Supervisor. OSC advised the candidate that his candidacy violated the Hatch Act and that to come into compliance with the law, he needed to withdraw immediately from the election or resign from his employment. The candidate resigned from his employment effective July 2008.

A Hatch Act Unit investigation of an employee of the Washtenaw County (MI) Prosecuting Attorney's found he violated the Hatch Act by becoming a candidate in a partisan election. In order to cure the violation, he resigned from his employment with the Prosecuting Attorney's Office in July of 2008.

The Hatch Act Unit investigated a matter concerning a county law enforcement officer who was a candidate in a partisan election for sheriff. OSC found that the officer was covered by the provisions of the Hatch Act and advised him that his candidacy violated the Act. The officer subsequently resigned from his employment with the county.

The Hatch Act Unit investigated a Department of the Navy employee who was a candidate in a partisan election for borough council. OSC advised the employee that his candidacy violated the Hatch Act, and the employee withdrew from the election.

The Hatch Act Unit investigated a county employee in Michigan who was found to be in violation of the Hatch Act because of his candidacy in a partisan election for county commissioner. As a result of OSC's investigation, the employee resigned from his employment with the county.

The Hatch Act Unit informed a candidate that his candidacy for South Carolina State Senate was in violation of the Hatch Act because of his employment with the South Carolina Forestry Commission. The candidate ended his candidacy in July of 2008

The Hatch Act Unit received a request for an advisory opinion from a candidate who was running for County Commissioner and was employed by the Fernandina Beach Fire Department in Nassau, Florida. As a result of the investigation, OSC determined that the candidate did have duties in connection with federal funds, and was therefore notified that he to withdraw his candidacy or resign from his employment. He chose to resign from the Fire Department, effective July 2008.

An employee of the US Department of Labor was investigated over his candidacy in the partisan election for the office of Groveland Township (MI) Treasurer. The Hatch Act Unit, after a complete review, advised the employee that his candidacy violated the Hatch Act and that to come into compliance with the law he needed to either withdraw from the election or resign from his employment. The employee resigned from his employment effective August 11, 2008.


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2007 Case Summary

Whistleblower Disclosure Case Summaries

Whistleblower Disclosure Summaries FY 2007: 

Disclosures of Substantial and Specific Dangers to Public Health and Safety

Infrequent and Inadequate Customs Inspections.  OSC referred to the Secretary of Homeland Security allegations that the Interim Port Director, Salt Lake City International Airport, significantly curtailed the frequency and scope of customs inspections conducted at the airport. The whistleblower alleged that, in doing so, the Interim Port Director violated applicable regulations and created a substantial and specific danger to public safety. An agency investigation substantiated the whistleblower’s allegation that the Interim Port Director fails to conduct adequate customs inspections. Nevertheless, the agency concluded that the Interim Port Director did not violate any law, rule, or regulation because the applicable laws and regulations do not specify a minimum number of inspections to be performed. However, based on the findings of the investigation, the Special Counsel concluded that the Interim Port Director’s policies did create a substantial and specific danger to public safety, as customs inspections play an integral role in the federal government’s overall strategy for averting terrorism. Referred June 2004; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees November 2006.

Misallocation of Funds Earmarked by Congress for Wireless Initiatives at the Southwest Border.  OSC referred to the Secretary of the Department of Homeland Security (DHS) allegations that in 2004 and 2005, DHS failed to allocate sufficient funds to support the acquisition of wireless telecommunications equipment and technologies as intended by Congress, and instead used the monies for non-wireless procurements. According to the whistleblower, the failure to support wireless communications at the southwestern U.S. border has rendered the border unsafe for agents and vulnerable to terrorist infiltration.

The agency investigation did not substantiate the allegation that money allocated by Congress for wireless initiatives was improperly spent on non-wireless initiatives. The agency’s report acknowledged the need for adequate technologies for border patrol agents in the southwest, and cited the Secure Border Initiative and SBInet as recent efforts to provide Border Patrol agents with the means to protect themselves against violence from criminal traffickers. Referred September 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees September 2006.

Faulty Repairs of F/A-18 Fighter Jets. OSC referred to the Secretary of the Navy allegations that mechanics in Shop 93503, Naval Air Depot, North Island, California, assembled generator conversion units (GCUs) for F/A-18 fighter jets incorrectly. Specifically, the whistleblower alleged that, from March 2005 until July 2005, the mechanics did not have the necessary torque tools required to properly torque the screws used to assemble the GCUs. Although Shop 93503 mechanics finally received torque tools in July 2005, the whistleblower stated that the GCU screws on hundreds of F/A-18s currently deployed by the U.S. military and several foreign militaries still have not been properly torqued. The whistleblower also alleged that Shop 93503 does not perform mandatory quality assurance inspections on all GCU components.

An agency investigation substantiated the whistleblower’s allegation that the GCU Shop artisans did not use proper torque tools to assemble GCUs for F/A-18 fighter aircraft. Nevertheless, the agency did not find that this situation posed any “safety of flight” issues. The Navy took corrective action to ensure that all GCU Shop artisans are currently using proper torque tools on GCU screws; however, the agency decided against pursuing disciplinary action against any individuals for the violations. The Special Counsel determined that the agency’s decision to refrain from disciplining any of the GCU Shop managers was unreasonable. Referred February 2006; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees April 2007.

Ineffective Border Security Tactics Mandated by Sector Management. OSC referred to the Secretary of Homeland Security allegations that Blaine Sector management ordered agents to discontinue their successful low-visibility tactics and adopt high-visibility tactics that stand no reasonable chance of deterring smuggling activities along a particular section of the U.S. Canada border. According to the whistleblowers, management allocated 3 agents to patrol a 75-mile stretch of border and adopted policies which left the border unprotected for at least 16 hours per day. These policies also impede cooperation with other federal and local law enforcement agencies. Given the recognized risk that terrorists may target the unprotected border area as a point of entry into the United States, the whistleblowers alleged that management’s new policies amount to a substantial and specific danger to public safety as well as gross mismanagement. In addition, the whistleblowers also alleged that the now retired Patrol Agent-in-Charge for the station in question engaged in violations of law, rule or regulation, gross mismanagement, and a gross waste of funds.

The agency investigation did not substantiate the allegations that agency officials adopted inappropriate new tactics and policies, exposed Border Patrol Agents to surveillance, impeded cooperation with other agencies, or engaged in a gross waste of agency funds. The investigation did substantiate two allegations against the Patrol Agent-in-Charge: inattention to duty and a violation of a DHS Directive regarding facility security. The Patrol Agent-in-Charge retired before the investigation was completed. The agency reports acknowledged that there are limitations on the ability of the Border Patrol to exercise full operational control of many zones within the Blaine Sector, resulting from limited availability of personnel and technical resources. Referred November 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees June 2007.

Falsification of Secure Database at Airport. OSC referred to the Secretary of the Department of Homeland Security allegations that management officials directed the entry of false records of customs inspections to inflate statistics at the Sanford International Airport (Sanford), Sanford, Florida. According to the six whistleblowers, Customs and Border Patrol (CBP) Agents, during the summer and fall, 2005, they were detailed to work at Sanford. During their shifts in the secondary agricultural inspections area, they were instructed by Sanford CBP Supervisors to take stacks of passenger and crewmember customs declarations, and enter the names into the enforcement database as reports of enforcement screens, or IO25s. They were told to guess at the information that would otherwise be obtained during direct interview and inspection of the passenger or crewmember, such as race, length of stay, and number of bags. They also alleged that they were instructed to enter an “ENF” code, rather than the code for an agricultural secondary inspection, “PPQ.” This would falsely reflect that the passenger or crewmember had been stopped, interviewed, and bags inspected in connection with a suspicion of possessing contraband or engaging in unlawful activity.

The report partially substantiated the whistleblowers’ allegations. The report reflects that personnel assigned to enter data were improperly directed to use default or generic data, and that authorized users were directed to enter data under another employee’s user identification number and password. The agency has taken disciplinary and corrective action in response to the findings of violations of law. Referred April 2006; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees May 2007.


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USERRA Case Summaries

USERRA summaries, FY 2007:

During the first three quarters of FY 2007, OSC’s USERRA Unit has continued to receive, investigate, analyzed, and resolve federal sector USERRA claims pursuant to the demonstration project established by Congress under section 204 of the Veterans Benefits Improvement Act of 2004 (VBIA), P.L. 108-454.

The corrective actions obtained has been numerous and varied. The unit has ensured that service members are reemployed to appropriate positions regarding pay, seniority and status (DP-07-0644, DP-07-0959); protected service members from wrongful disciplinary actions by having a demotion (DP-07-2917) and letters of reprimand rescinded (DP-07-0633, DP-07-0964); alleviated discrimination against service member by obtaining promotions for service members (DP-07-0634, DP-07-0605, DP-07-1048); and secured other employment benefits such that the service member received correct accounting of health insurance expenses (DP-07-0127) and military leave (DP-07-1091). For example, in one USERRA reemployment rights case, a service member returned to his civilian employment after serving in Iraq. Upon his return, the claimant learned that co-workers with less seniority had been promoted ahead of him. After making inquiry into the allegations, OSC determined that the agency had violated claimant’s USERRA reemployment rights. Thus, at the behest of OSC, the agency promoted the service member retroactively to the date that he should have originally been promoted and awarded him back pay. This represents full corrective action. (DP-07-0959)

The Special Counsel has also continued to enforce USERRA through prosecution of cases before the U.S. Merit Systems Protection Board (MSPB). Specifically, OSC is currently prosecuting a case of first impression concerning whether a federal agency’s decision to terminate a service member’s probationary employment while he is absent due to military service relieves the agency of its reemployment obligation. The Special Counsel firmly believes that Congress did not intend for federal agencies to be able to avoid their reemployment obligations in such a manner, so he authorized prosecution to clarify this important aspect of service member’s reemployment rights.

Nor has the Special Counsel shied away down from aggressively investigating possible USERRA violations against the highest ranking U.S. government officials. For example, OSC is currently investigating whether the U.S. Attorney General violated USERRA’s anti-discrimination provisions when he purportedly fired a U.S. Attorney for being an “absentee landlord.” The fired U.S. Attorney is a member of the Navy Reserve and was absent from employment approximately 40 days per year because of his military service commitments.

In addition to investigating, favorably resolving service member claims, and litigating novel issues, OSC has been very active in providing USERRA outreach and training. The USERRA Unit conducted five trainings for federal agencies, two presentations for a federal employment sector professional association, and two federal personnel law briefings for its USERRA partner: the U.S. Department of Labor’s Veterans’ Employment and Training Service. Moreover, the Special Counsel was the keynote speaker at a USERRA conference sponsored by the Reserve Officers Association. The unit’s outreach even extended to the international level as its chief met with representatives of the Australian Defense Department’s Office of Reserve Service Protection to discuss common issues and exchange ideas concerning service member employment and reemployment rights.

In one USERRA discrimination case, the claimant alleged the agency violated USERRA by proposing a 3-day suspension because she had a disrespectful verbal altercation with her supervisor. The altercation occurred soon after claimant returned from an 18-month absence due to military service. The deciding official mitigated the proposed 3-day suspension to a Letter of Reprimand

OSC investigated the matter. The letter of suspension was an appropriate penalty for the claimant`s misconduct, and it was evident that the claimant`s military service played no part in the deciding official`s ultimate imposition of discipline.

OSC was concerned, however, that the claimant`s military service played a factor in the proposing of discipline. Specifically, OSC substantiated Claimant`s allegation that her supervisor (the proposing official and the person with whom claimant had the verbal altercation) had made statements of animus indicating that the supervisor would not have hired her had he known that she was a service member.

The USERRA Unit attorney turned to MSPB case law that states even where a disciplinary action is appropriate because of the claimant`s misconduct, the MSPB can grant relief if the proposing of the disciplinary action was the result of a "retaliatory investigation" connected to the claimant`s whistle blowing. See Russell v. Dept. of Justice, 76 M.S.P.R. 317 (1997).

Because there was sufficient evidence to suggest that the claimant`s military service was a substantial factor in the proposing of the disciplinary action , OSC relied on the aforementioned case law (which supported the argument that, but for the illegal proposal, the claimant would not have been disciplined) and approached the agency about settlement. OSC persuaded the agency to take corrective action, namely: rescind the letter of reprimand. The rescission of the letter is full corrective action.

In another USERRA case against the U.S. Postal Service, Indianapolis, Indiana (agency), the claimant alleged the agency denied him military leave to perform his military service. The claimant presented documentation which supported his allegations that agency management had denied him military leave. OSC contacted the agency liaison and informed him of the issue at hand. OSC received confirmation that a memo had been signed by the Greater Indiana Regional District Manager and Plant Manager regarding USERRA and military leave. Standup talks were conducted to remind everyone that employees are to be allowed to depart for military duty without exception. A requirement was also made that this memo be posted at all postal facilities in the region. Claimant indicated that after OSC involvement, he noticed a greater interest in the agency’s attempt to recognize and support veterans. This amounts to full corrective action.

In a USERRA case against the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), Mayaguez, Puerto Rico (agency), the claimant alleged the agency denied him military leave to perform his military duties and created a hostile work environment. The claimant presented documentation which supported his allegations that agency management had denied him military leave.

OSC contacted the ICE Liaison and was successful in obtaining the desired relief. OSC received confirmation that agency management understands and will abide by USERRA and military leave with respect to all employees. Agency management is also aware that when making shift changes due to a worker`s military duty, the agency is responsible for finding replacement workers, not the employee. Furthermore, copies of the USERRA poster have been posted throughout the facility in accessible locations for employees. These results amount to full corrective action.

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Prohibited Personnel Practice Case Summaries

IPD CORRECTIVE AND DISCIPLINARY ACTION CASES FY 2007 (through June 22, 2007)

PPP Corrective Actions (non-litigation):
  • Complainant, a Decision Review Officer with a federal agency, blew the whistle on his supervisor for authorizing payments to veterans in violation of agency regulations. He was later suspended for 14 days, supposedly for failing to process his case work in a timely manner and for other minor matters. He alleged that the suspension was in reprisal for his whistleblowing. The OSC investigation found sufficient evidence that whistleblowing was a contributing factor to his suspension, and that the agency lacked clear and convincing evidence that the suspension would have occurred without the whistleblowing. The agency agreed to grant full corrective action to the complainant, including back pay, interest, and removing the suspension from his personnel record. In return, the complainant withdrew his OSC complaint. No disciplinary action was recommended, because the supervisor had already accepted a two-grade demotion to a non-supervisory position.

  • Complainant, a Medical Records Administration Specialist, alleged that her supervisors initiated an internal investigation into her whistleblowing activities; suspended her for three days; and, detailed her for 120 days to a different facility in another state, all in reprisal for her disclosing to her first- and second-level supervisors that one employee had given preferential treatment to another by inappropriately filling a prescription at the facility’s pharmacy. The complainant believed that this act of favoritism violated an agency rule. OSC investigated the complainant’s whistleblowing allegations and found that they had sufficient merit to warrant issuing a formal correction action letter and prohibited personnel practice report. In response to the OSC letter and report, the agency and complainant reached a global settlement agreement. Under the agreement, the complainant received $40,000 in cash, $30,000 for attorney fees, back pay, restored leave, training, and a clean record. In return, the complainant withdrew her OSC complaint and a related EEO complaint.

  • Complainant, a former Federal Air Marshal with a federal agency, alleged retaliation for whistleblowing and participating in an investigation. Specifically, the complainant had provided testimony in an Office of Professional Responsibility investigation. Shortly thereafter, he received three counseling letters and a proposed 14-day suspension. He resigned after receiving the proposed suspension. The parties agreed to the following settlement terms: The agency would forward the complainant’s unofficial personnel records to its headquarters office. The complainant would direct prospective employers to a designated agency official, who would confirm that the complainant voluntarily resigned his employment for personal reasons. The agency would remove all copies of the proposed 14-day suspension from the complainant’s unofficial personnel records. In return, the complainant would withdraw his OSC complaint.

  • Complainant, a federal employee, alleged that the agency provided a preferred candidate an unauthorized employment preference in violation of 5 U.S.C. ?2302(b)(6). The complainant alleged, among other things, that the preference was granted to management’s preferred candidate after she failed to qualify on the certificate of eligible candidates. Thereafter, the agency re-announced the position including a new Knowledge Skills and Abilities (KSAs) requirement—knowledge of EEO law—which the position did not call for. Consequently, the preferred candidate, who had extensive experience with EEO matters, was ultimately selected for the position under the revised announcement. OSC investigated and found that that there was sufficient evidence to warrant issuing a formal corrective action letter and prohibited personnel practice report to the Secretary of State. In response to the OSC letter and report, the State Department agreed to take the following full corrective action: (1) re-assign the selectee to another position; (2) re-advertise the position using the original vacancy announcement and KSAs; (3) contact all applicants, including veterans, who applied under the first announcement; (4) ensure that all applicants are evaluated by individuals who were not involved with the first two vacancy announcements and; (5) require identified staff members within the agency to attend prohibited personnel practice training.

  • A complainant reported to OSC that federal agency officials at an agency medical center violated civil service laws prohibiting the employment of relatives. Specifically, the center’s Rehabilitation and Long Term Care Administrative Director approved the selections of her two daughters as temporary Student Nurse Technicians. Later, she approved one daughter’s selection as a Registered Nurse. All three of these positions fell under the Administrative Director’s chain of command. She approved additional personnel actions for her daughters until she retired in 2006. OSC concluded that she had violated 5 U.S.C. ?2302(b)(7) by appointing and employing her daughters.

    Because the Administrative Director had retired, OSC could not pursue disciplinary action against her. Instead, a disinterested party reviewed the daughters’ official personnel folders and determined that the personnel actions would have been taken in the absence of any family relationship. The agency also agreed to provide nepotism training to the entire division human resources staff, including the Human Resources Director.

  • Complainant, a GS-9 Program Assistant with a federal agency, alleged that management violated 5 U.S.C. ?2302(b)(12) when it charged her sick leave for a day she left work after she became ill while on the job. According to 5 C.F.R. ?551.425, time spent waiting for (or receiving) medical attention for illness shall be considered hours of work if: (1) the medical care is required on a workday on which the employee reported for work and subsequently fell ill, (2) the medical attention occurs during the employee’s regular work hours and, (3) the care was received on agency premises or off-site at the agency’s direction. All three of the above factors were present in this case. Accordingly, OSC contacted the agency and the agency credited complainant with the wrongfully charged sick leave.

  • Complainant, a GS-13 Investigator with a federal agency alleged that his right to compete for future promotions was deceitfully or willfully obstructed when his second-level supervisor lowered the performance score issued by his first-level supervisor. Complainant alleged that his score was lowered because his second-level supervisor was upset with complainant’s wife who resigned from the agency so that she could accompany her husband when he was transferred from Houston, Texas to Mobile, Alabama. After OSC initiated settlement discussions, the agency agreed to raise the complainant’s rating and place the First Level Promotion Evaluation form in his 2005/2006 Promotion Cycle folder. In return, complainant withdrew his OSC complaint because he had received full corrective action.

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PPP Disciplinary Actions (non-litigation):

  • Complainant, a GS-7 Sandblaster with a federal agency, alleged that she was sexually harassed by a co-worker and a work leader, and that the harassment was condoned by her supervisor in violation of 5 U.S.C. ? 2302(b)(1). While the OSC investigation revealed insufficient evidence to prove that complainant was the victim of Title VII defined sexual harassment, OSC did find as did a Commander’s inquiry, that she had been subjected to inappropriate conversations and other unacceptable behavior. The agency issued the co-worker a letter of reprimand prior to the complainant filing her OSC complaint. With regard to the work leader and the supervisor, the agency requested under the provisions of 5 U.S.C. ?1214(f) to demote the work leader to a sandblaster, demote the supervisor to a work leader, and reassign both to different work centers. OSC approved these requests.

  • Complainant, an Equipment Cleaner with a federal agency, alleged that she was subjected to sexual harassment and other inappropriate behavior by her supervisor. While the OSC investigation revealed insufficient evidence to prove that complainant was the victim of Title VII defined sexual harassment, OSC did find as did a Commander’s Inquiry, that the supervisor had made inappropriate comments in the workplace and had engaged in inappropriate behavior with the complainant. The agency requested authorization from OSC, under the provisions of 5 U.S.C. ?1214(f), to demote the supervisor to a work leader and reassign him to a different work center. OSC approved this request.

  • An Anonymous complainant alleged that a high level official with a federal agency signed off on the promotion of her son-in-law in violation of 5 U.S.C. ?2302(b)(7). The OSC investigation substantiated the allegations. Specifically, OSC obtained the SF-52 form that the subject official signed as the “requesting official” to promote her son-in-law. In response to a request from OSC to suspend the subject official for 15-days, she elected to retire from the federal government.

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PPP Corrective and Disciplinary Actions (non-litigation):

  • Complainant, a GS-13 Supervisory Physical Security Specialist with a federal agency, alleged that the agency issued him a letter of reprimand, prematurely cancelled a 90-day temporary promotion, failed to select him for a permanent GS-14 position, inserted negative comments in his 2005 annual performance evaluation, issued him a proposed 14-day suspension, and issued him an interim mid-year evaluation in 2006 containing negative comments in reprisal for his disclosures to the agency director. Complainant reported that both his first and second level supervisors were abusing their authority, grossly mismanaging a local agency office and that they had violated various laws, rules or regulations. The OSC investigation confirmed that the disclosures were a contributing factor in these personnel action decisions. As a result, the agency agreed to promote complainant to the GS-14 position permanently; grant him the pay he would have received had he served the entire 90-day temporary promotion period; cancel the letter of reprimand and proposed 14-day suspension; remove the derogatory comments from the 2005 annual performance evaluation and the 2006 interim appraisal; and pay his attorney’s fees. In addition, OSC granted the agency’s 5 U.S.C. ?1214(f) request to issue the first level supervisor a letter of reprimand for her role in the aforementioned personnel actions.

PPP Litigation:

  • On March 21, 2007, OSC filed a petition for corrective action with the Merit Systems Protection Board (MSPB), charging that a federal agency violated 5 U.S.C. ?2302(b)(8), when it reassigned a special agent in reprisal for his disclosure of a violation of law. The OSC investigation revealed that the special agent made a written anonymous disclosure that a district assistant special agent in charge had violated the civil rights of a criminal suspect. The regional agent in charge requested a review by the DEA Office of Inspection (OIN) into allegations made in the anonymous letter in which he told them to identify the author. The agent in charge recommended the special agent’s reassignment immediately upon the OIN identifying the special agent as the source of the protected disclosure. The DEA Deputy Administrator then approved the reassignment and the special agent was reassigned to a different branch of the agency.

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Hatch Act Case Summaries
A Team Leader with a federal agency, disseminated four partisan political e-mails to agency employees, including subordinates, and other individuals. One of the e-mails the employee distributed contained a video that was 12:39 minutes long and was paid for by the Republican National Committee and the Bush/Cheney ‘04 campaign. The employee was on duty and in his federal workplace when he disseminated this e-mail. OSC concluded that the employee’s actions violated the Hatch Act. OSC, the federal agency and the employee agreed to informally settle this complaint. The employee was suspended without pay for ten consecutive work days, from October 23, 2006, through November 3, 2006.


An employee of a state agency, was a candidate in a 2005 partisan election for Alderman. After investigating the complaint, OSC determined that the employee violated the Hatch Act. OSC, the employee and the state agency agreed to informally settle this matter with the employee serving a suspension of 30 consecutive work days without pay. The employee served her suspension from November 27, 2006 through January 9, 2007.

A civilian employee of a federal agency, was a candidate in the November 2006 partisan election for Bibb County School Board. After investigating the complaint, OSC determined that the employee violated the Hatch Act. OSC, the employee, and the federal agency agreed to informally settle this matter with the employee being suspended for 32 consecutive work days without pay. The employee’s suspension is being served from May 14, 2007, through June 27, 2007.

A federal employee, disseminated a partisan political e-mail to 27 of her work colleagues while she was on duty and in her federal workplace. The e-mail the employee disseminated invited the recipients to a party she was co-hosting that would feature Mr. Ken Gordon, a candidate for partisan political office, as a special guest. The e-mail and its attachment informed recipients of the partisan political office that Mr. Gordon was a candidate for, stated that hearing Mr. Gordon speak would be “a treat,” described Mr. Gordon in favorable terms and contained a link to Mr. Gordon’s campaign website. After investigating this matter, OSC determined that the employee violated the Hatch Act. OSC, the employee and the federal agency agreed to informally settle this matter by suspending the employee without pay for 40 consecutive work days. The employee is serving her suspension from May 15, 2007, through July 10, 2007.

OSC has a case which involves a high level supervisory official at a federal agency who solicited her subordinate employee to contribute money to a gubernatorial candidate while on duty and in a federal building. OSC filed a complaint for disciplinary action against the federal employee. A hearing was held in this matter last November and the administrative law judge issued his initial decision in favor of OSC finding that the federal employee’s solicitation of a political contribution from her subordinate violated three separate provisions under the Hatch Act. The initial decision is currently before the full Board for a determination as to the appropriate penalty for the federal employee’s egregious violation.

OSC has a case which involved a federal employee who forwarded a partisan electronic mail message to approximately 30 of his colleagues while he was on duty and in his federal office. Specifically, the email message contained a letter from then chairman of the Democratic National Committee, Terry McAuliffe, that urged its recipients to take immediate action after the Presidential debates so that John Kerry would win the Presidential election. OSC filed a complaint for disciplinary action against the employee. The Board concluded that the federal employee’s forwarding of this email constituted political activity in violation of the Hatch Act. The case was remanded back to the administrative law judge for a determination as to the appropriate penalty.

On February 1, 2007, OSC filed a complaint for disciplinary action against an employee of a state agency, charging that he violated the Hatch Act by being a candidate in the November 2005 partisan election for Lawrence Township Council. After OSC filed the complaint, the parties entered into a settlement agreement. Pursuant to the agreement, the employee was removed from his position as Executive Director and debarred for a period of six months from seeking or accepting employment at a state or local agency within the State of New Jersey.

OSC investigated events surrounding a 2004 presidential campaign appearance by Sen. John Kerry at a federal agency in Florida. OSC found that broadcasting and Web-streaming this campaign event to 2,000 agency employees and 13,000 agency contractors in the community, while on duty and in the federal workplace, violated the Act. OSC’s investigation revealed that senior management officials at the agency relied on incorrect advice of counsel and then-existing agency guidelines in authorizing the broadcasting and web-streaming of the Kerry campaign event to the community. As a result of OSC’s investigation, the agency has updated its guidelines so that they are consistent with the protections and prohibitions of the Hatch Act. In addition, as part of a settlement agreement, all agency employees are required to view an OSC training video on the Hatch Act.

OSC investigated allegations that, on March 24, 2006, while appearing in his official capacity as Administrator of a federal agency, the employee endorsed former Representative Tom DeLay, then a Congressional candidate in Texas. The endorsement allegedly occurred during the employee’s keynote speech at the Rotary Club National Awards for Space Achievement Banquet in Houston, Texas, which was near Representative DeLay’s Congressional district. The employee’s statement was ambiguous, and he denied that he meant to endorse Mr. DeLay. OSC concluded that as a high-level federal government official, the employee should have exercised better judgment when making his remarks at the banquet and that, arguably, the remarks he made in his official capacity as agency administrator could have been viewed as an endorsement of Mr. DeLay. OSC decided, however, to close its file in the matter and send a firm warning letter detailing OSC’s concerns to the employee.

A federal agency employee, forwarded an e-mail to 27 recipients, some of them fellow agency employees, from his government office, during official duty hours, on October 24, 2004. The e-mail was entitled “Your Vote,” criticized presidential candidate John Kerry, and concluded with the statement, “I vote the Bible” superimposed on a picture of President George Bush. OSC determined that the employee had violated the Hatch Act. The employee, who left federal employ, settled the case with a written agreement dated September 26, 2006, in which the employee admitted a Hatch Act violation. In view of the employee’ departure from government employ, no other sanctions were imposed.

The employee was Executive Director, of a private, not-for-profit organization, which is subject to the Hatch Act by virtue of its significant federal funding. On September 7, 2004, The employee allowed an agency employee who was on leave of absence, running for election to the U.S. House of Representatives, to give a campaign speech at a mandatory meeting of the entire agency staff. OSC determined there was a Hatch Act violation and filed a complaint with MSPB on July 10, 2006. On October 25, 2006, the employee and OSC entered a settlement whereby the employee admitted liability and agreed to serve a 30-day suspension. The suspension was served October 25 to November 24, 2006.

These companion cases concern serious allegations of coercion by an elected county prosecutor and his Executive Assistant. OSC’s investigation focused on numerous situations in which the subjects used their official authority to interfere with or affect the results of elections for preferred candidates (including the prosecutor’s wife) and/or coerce Hatch Act-covered employees into contributing money and time to the local Democratic party. The prosecutor was first elected in 1992 as a representative of the Democratic party and has successfully run for re-election every four years since then.

The Prosecutor’s Office has received three federal grants – the Violence Against Women Act (VAWA) grant, the Victims of Crime Act (VOCA) grant, and the IV-D grant – since at least 1997. The prosecutor has duties in connection with these programs due to his oversight of the Prosecutor’s Office, including those programs funded with federal grants, and also due to his responsibility for seeking and receiving the grants. His Executive Assistant was covered by the Hatch Act because he was paid by and otherwise had duties in connection with the IV-D grant received by the Prosecutor’s Office.

Among other things, OSC’s investigation focused on allegations that the prosecutor coerced subordinates to make yearly contributions to two Democratic party fundraisers, to volunteer for his 2004 re-election campaign, and to volunteer their time to the Democratic Party; used Prosecutor’s Office resources to further his 2004 candidacy for reelection to the Prosecutor position; and used his official authority to interfere with or affect the outcome of the 2004 election for United States Congress when he allowed his name and official title to be used on a fundraising invitation for a Democratic candidate.

OSC’s complaint also focused on allegations that the Executive Assistant similarly coerced employees, including subordinates, to make contributions to two yearly Democratic party fundraisers, and to volunteer on behalf of the Democratic party and on behalf of the prosecutor’s wife when she was a candidate in a partisan election in 2005; and used Prosecutor’s Office resources to further the prosecutor’s 2004 candidacy for re-election.

At the conclusion of our investigation, we filed complaints for disciplinary action against both officials with the Merit Systems Protection Board.

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2006 Case Summary



Whistleblower Disclosure Case Summaries

Allegations of Gross Mismanagment and Abuse of Authority

Physician Misconduct at VA facility.  In this whistleblower case, a doctor providing care to veterans was found to have provided substandard care in several cases. This was uncovered by several whistleblowers who reported on the doctor's actions. With OSC's help, an investigation ensued and additional scrutiny was added to the facility.
 

Allegations of a Violation of Law, Rule or Regulation

Violations of Federal Contracting Laws and Regulations. OSC investigated an allegation of improper military contract awarding. OSC found that an officer had improperly delegated a service contract awarding decision to a subordinate, a policy violation. Corrective actions were recommended and subsequently adopted by the violating entity.

Improper Storage of Military Equipment and Supplies. OSC investigated allegations of improper military equipment storage. OSC found that violations had occurred and recommended more thorough inspection, increased education, and better inventory accountability.

Falsification of Agency Records reporting Federal Air Marshal Flights. OSC investigated allegations of isolated cases of falsified DHS and FAMS reports, indicating a greater amount of time worked than was possible with then current staffing levels. OSC determined that the reporting did not result in financial gain. 

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Allegations of Substantial and Specific Danger to Public Health and/or Safety and Abuse of Authority

Deficiencies in Security and Safety Violations at Nuclear Research Laboratories and Facilities. OSC investigated claims of improper security procedures at a nuclear research facility. The investigation did not result in recommendation or corrective action in addition to already implemented process improvements.

OSC also investigated a classified allegation, resulting in referral to individuals and agencies charged with oversight in this national security matter.

Airport Security Vulnerabilities and Violations. OSC referred to the Secretary of Homeland Security allegations of security vulnerabilities and violations of law, rule or regulation at the Cherry Capital Airport, Traverse City, Michigan. The whistleblower alleged that airport personnel were not trained for emergencies, that a back door of the facility was always left unlocked, and that a door to a tunnel in the secure baggage area was routinely left unlock allowing unauthorized personnel entry and possible access to aircraft. He also alleged that the emergency back-up lights in the tunnel did not work. Finally, the whistleblower alleged that a one-way revolving door from the sterile passenger area presented a security risk because the one-way mechanism had failed and attempts to fix it had been unsuccessful. In addition, the door’s alarm was inaudible to airport personnel located at the nearest checkpoint approximately 100 yards away.

The Secretary tasked the Inspector General with conducting the investigation and writing the report. The report did not substantiate the allegations but did acknowledge some of the security issues identified, including a problem with the door, but also describes how those issues were resolved. In addition, the report noted that the terminal building at issue in this case was no longer in use. The airport began operating out of a new facility described as a “state-of-the-art terminal complex” on October 27, 2004. Referred October 20, 2004; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on March 1, 2006.

Improper Treatment of VA Psychiatric Patients. OSC referred allegations from four whistleblowers that the U.S. Department of Veterans Affairs (VA), Greater Los Angeles Healthcare System (VAGLAHS), West Los Angeles Medical Center (Medical Center), Los Angeles, California was providing substandard care to veterans with mental illnesses. The whistleblowers alleged that the Medical Center was warehousing mentally ill veterans in its Emergency Department (ED), where they were exposed to conditions that were neither therapeutic nor safe for patients in need of psychiatric care. The whistleblowers disclosed that the VAGLAHS management had reduced the number of psychiatric beds available at the Medical Center and closed its Psychiatric Emergency Service (PES) in violation of 38 U.S.C. ?1706. They further alleged that the allocation of psychiatric resources adopted by VAGLAHS management endangered patients, staff, and the public.

According to the whistleblowers, during the frequent bed shortages, psychiatric patients presented for emergency care were either admitted to a fictitious ward, Ward 1 East, or denied immediate treatment and referred to an outpatient facility that is not equipped to treat their serious psychological conditions. Patients admitted to Ward 1 East were allegedly left on gurneys in the ED without the supervision of adequately trained nursing staff or psychiatrists for as long three days. In addition, the whistleblowers alleged that VAGLAHS management engaged in an ongoing waste of funds in connection with the administration of long-term care contracts, needlessly extending the amount of time patients spend in high-cost hospital wards and refusing to renew cost-effective, long-term care contracts for mentally ill veterans subject to conservatorships.

The Secretary Veterans Affairs delegated responsibility for investigating the whistleblowers’ allegations to Dr. Jonathan B. Perlin, Undersecretary for Health. The agency’s report found that the Medical Center experienced some complications in its provision of psychiatric services when the PES and ED were merged but that there was little evidence these complications produced lasting conditions in which patients were receiving substandard care. In addition, the agency concluded that the whistleblowers’ allegations regarding the administration of long-term care contracts were largely unfounded. Finally, where the agency identified shortcoming in psychiatric programs at the Medical Center, it made recommendations for improvement. Referred July 14, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on March 22, 2006.

Proper Medical Care Denied to Patients. OSC referred allegations that patients at the Department of Health and Human Services (HHS), Indian Health Service, Acoma-Canoncito-Laguna (ACL) Service Unit, Albuquerque, New Mexico, were being denied necessary medical services. The whistleblower, a physician, alleged that, from July 2004 until October 2004, Dr. Stephen Ryter, then-Clinical Director, routinely denied all requests for contract medical services. The ACL Service Unit relies upon contracts with other hospitals as a means of providing advanced medical services to its patients. The whistleblower alleged that Dr. Ryter’s practice of denying all requests for contract services created a substantial and specific danger to the health of the hospital’s patients because patients were not receiving proper medical care.

The HHS OIG Dallas Regional Office, Albuquerque Field Office, investigated the allegations and found them to be unsubstantiated. The investigators found that Dr. Ryter implemented the case priority system properly. They also reviewed the medical records of the eight patients specifically mentioned in the disclosure and, in each case, found that there was a satisfactory explanation for the ACL Service Unit’s decision not to pay for further treatment. Referred April 25, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on March 30, 2006.

Dangers to Public Safety at Prison Factories. OSC referred allegations that inmate workers and civilian staff members at United States Penitentiary Atwater, California (USP Atwater) and other Federal Bureau of Prisons (BOP) institutions were being exposed to lead, cadmium, barium, and beryllium in computer recycling facilities. The whistleblower, a BOP Safety Manager, alleged that toxic materials were released when Cathode Ray Tubes (CRTs) were broken during the recycling process. Despite numerous air quality tests documenting excessive levels of airborne lead and cadmium, management personnel at USP Atwater and Federal Prison Industries, Inc. repeatedly ordered reactivation of recycling operations without implementing recommended safety measures or the required approval the safety department. According to the Occupational Health and Safety Administration (OSHA), overexposure to such toxic materials can cause cancer, kidney disease, disruption of the blood-forming system, damage to the central nervous system, impairment of the reproductive system, or even death. The whistleblower also disclosed that in his attempts to address safety concerns at USP Atwater, he discovered similar dangers in recycling facilities located at other BOP institutions throughout the country.

BOP produced two reports in response to OSC’s referral. The reports substantiate some of the allegations but ultimately conclude that BOP FPI and Safety Staff appeared to have adequately addressed the safety concerns. The agency found that BOP and FPI management and staff took appropriate steps to ensure factories were operating safely. The whistleblower strongly disagreed and provided OSC with documentary evidence to support his comments. According to him, BOP investigators neglected to interview some witnesses in possession of relevant evidence.

Upon review of the agency’s submissions and the whistleblower’s comments, the Special Counsel found that the agency’s findings were unreasonable. The Special Counsel observed that the agency’s reports made little effort to explain why documentary evidence appearing to contradict the agency’s findings was unreliable or how this evidence could be reconciled with the conclusions of the agency’s investigation. The Special Counsel also noted that the agency’s reports appeared to rely on strained interpretations of applicable rules in order to justify management’s actions and that the agency’s investigation into recycling facilities at other BOP institutions appeared cursory at best. In light of these and other deficiencies, the Special Counsel recommended an independent and impartial investigation into BOP’s recycling activities. It is our understanding that such an investigation is currently being conducted by the Office of Inspector General for the U.S. Department of Justice and that this investigation comprises all computer recycling facilities located in BOP institutions. Referred November 15, 2004; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on April 3, 2006.

Improper Administration of Respiratory Medications. OSC referred allegations that medical personnel at the Department of Veterans Affairs (VA), Miami VA Medical Center (VAMC), Miami, Florida, endangered the health of respiratory patients by administering respiratory medications improperly. The whistleblower, a Respiratory Technician, alleged that medical personnel delivered the medications albuterol sulfate and ipratropium bromide to patients in diluted doses and at incorrect intervals of time in order to cut costs. He also alleged that management at the VAMC instructed medical personnel to falsify medical records in order to conceal this wrongdoing.

The VA Office of the Medical Inspector (OMI) investigated the whistleblower’s allegations and found them to be unsubstantiated. However, the investigation did uncover other problems in the VAMC’s Respiratory Care Unit, including a shortage of staff and poor documentation of medical treatments. To correct these deficiencies, the OMI recommended that the VAMC: 1) document respiratory treatments with greater consistency, 2) increase staffing levels in the Respiratory Care Unit, 3) improve recruitment and retention strategies for respiratory therapists, and 4) clarify the policy on the administration of medications via aerosol delivery devices. Referred September 15, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on May 9, 2006.

Deficiencies in Screening Procedures at Airports. OSC referred allegations that TSA screeners and management personnel at the U.S. Department of Homeland Security (DHS), Transportation Security Administration (TSA), Orlando International Airport, Orlando, Florida were not following standard operating procedures (SOPs) for the inspection at the airport. DHS partially substantiated the allegations and acknowledged that there an omission in its SOPs which created a security deficiency. In response to this finding, Secretary Chertoff noted that TSA acknowledged the vulnerability and plans to issue revised SOPs to airports required to conduct security screening to correct the omission and inconsistent screening methods. Referred November 16, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on May 25, 2006.

Inadequate Provision of Cardiac Care to Veterans. OSC referred allegations that the lack of competence and questionable credentials of the Chief of the Cardiology Division have compromised the provision of cardiac care to veteran patients. A cardiologist with the Department of Veterans Affairs (VA), St. Louis VA Medical Center, St. Louis, Missouri, disclosed that he had become aware that the Cardiology Chief made significant errors in the interpretation of electrocardiograms and other heart monitors. He also alleged that the Cardiology Chief had publicly misrepresented his standing as a board-certified cardiologist, and that the Cardiology Chief regularly failed to report for duties in the Cardiology Division. The whistleblower maintained that this significantly compromised patient care and safety.

The agency did not substantiate the whistleblower’s allegations that the lack of credentials and incompetence of the Chief constituted a violation of law, rule, or regulation, gross mismanagement or a danger to public health. According to the report, the agency did not find that there had been a misrepresentation or that the Cardiology Chief was incompetent or failed to report for duty, but acknowledged that he had some difficulties in management early in this tenure.found that these early missteps did not affect his overall management skills and that he continues to provide high quality care. Referred October 31, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on July 14, 2006.

Police Officer Used Unauthorized Weapon and Ammunition. OSC referred allegations that a Supervisory Police Officer at the Department of the Army, Directorate of Emergency Services, Fort Meade, Maryland, often carried his personal weapon while on duty and sometimes loaded it with his own ammunition. The whistleblower, a former Civilian Police Officer, also alleged that the Supervisory Police Officer used hollow point ammunition in military rifles on the firing range, and provided hollow point ammunition to other police officers to use on the range. The whistleblower contended that, in doing so, the Supervisory Police Officer violated Army regulation 190-56 and created a substantial and specific danger to public safety.

The Department of the Army investigated the whistleblower’s allegations and found them to be unsubstantiated. However, the agency investigation did uncover ambiguities and deficiencies in Fort Meade’s policies and procedures for registering and storing privately owned weapons. It also found that Lt. Russell failed to secure necessary approval before acquiring training ammunition from the National Security Agency. According to the agency report, Fort Meade has taken appropriate corrective action to remedy these deficiencies. Referred March 7, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on July 28, 2006.

Improper Testing of Harrier Jet Engine Component. OSC referred allegations that personnel at the U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station Cherry Point (NADEP CP), North Carolina were using an unauthorized procedure to conduct a functional test of an exhaust diffuser main repairable assembly (exhaust diffuser MRA). The exhaust diffuser MRA is a component of the F402-RR-408A/B jet engine used in the U.S. Marine Corps’ AV8B Harrier. The whistleblower, production supervisor for Shop No. 96556, alleged that the unauthorized testing procedure was a violation of law, rule or regulation and created a substantial and specific danger to public safety. NADEP CP’s Shop No. 96556 is responsible for the repair and overhaul of the F402-RR-408A/B jet engine.

After a thorough investigation, the Navy substantiated the allegations. The Navy found that the artisans’ use of an oil squirt can to perform the functional test on the exhaust diffuser MRA was improper. In addition, the Navy found that NADEP CP Quality Assurance (QA) personnel violated the QA procedures, specifically NAVAVNDEPOSINST 4855.8A, when they failed to issue a Corrective Action Request, as requested by the whistleblower, to determine if a recall of Harrier jet engines contained exhaust diffuser MRAs tested by the oil squirt can was necessary. The report disagrees with the whistleblower’s assertion that the testing was flight critical and emphasizes that the deficient testing did not pose a risk of loss of aircraft because the engine cells undergo comprehensive testing prior to reinstallation on the aircraft. This subsequent testing would have revealed any problems with the engine. Thus, the Navy concluded the deficient testing did not pose a danger to the fleet. Referred August 5, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on August 1, 2006.

Failure to Support Wireless Communications at the Southwest Border. OSC referred allegations that the failure to support wireless communications at the southwestern U.S. border has rendered the border unsafe for agents and vulnerable to terrorist infiltration. The whistleblower, a high-level telecommunications specialist, alleged that in 2004 and 2005, officials in the Office of the Chief Information Officer, Department of Homeland Security, failed to allocate sufficient funds to support the acquisition of wireless telecommunications equipment and technologies as intended by Congress, and instead used the monies for non-wireless procurements. He alleged that in many places along the nearly 2000 mile border with Mexico, agents could not communicate directly with one another and that routing calls through a dispatcher created delays that jeopardized the safety of agents and the mission of the agency.

The agency report acknowledged the need for adequate technologies for border patrol agents in the southwest, and cited recent initiatives designed to improve communications on the border, including the Secure Border Initiative and SBInet. These recent efforts are intended to provide border patrol agents with the means to protect themselves against violence from criminal traffickers. The agency did not substantiate the allegation that money allocated by Congress for wireless initiatives was improperly spent on non-wireless programs. Referred September 9, 2005; OSC’s Analysis of Disclosure submitted to the President and Congressional oversight committees on September 26, 2006.

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USERRA Case Summaries

Protecting Reemployment Rights including those of Injured Soldiers

  • The service member left the U.S. Army Corps of Engineers for active duty in the U.S. Air Force. ischarge, he requested reemployment. The agency did not reemploy him because it believed that the service m


  • The service member alleged that the U.S. Park Police failed to reemploy him promptly and did not reemploy him to the appropriate “status” upon being honorably discharged. The service member had served as a police officer for the agency. The agency reemployed the service member but assigned him to an office in a different part of the country. OSC’s investigation uncovered sufficient evidence to establish that the agency should have reemployed the service member to his former duty station and should have reemployed him sooner. OSC successfully persuaded the agency to pay the service member an amount equaling the lost wages he suffered as a result of the delay in reemploying him and as a result of being reemployed in the other city.


  • The service member alleged that the U.S. Department of the Navy, Kings Bay Submarine Base violated USERRA by failing to reemploy him to a suitable position. Specifically, the service member, an agency Police Officer who suffered a serious back injury while performing military service, alleged that the agency removed him from federal service after determining: 1) he was unable to perform the essential duties of a Police Officer because of his service-connected injury and 2) there were no other available positions in which to place him. OSC’s review of the service member’s complaint revealed that the agency did not comply with federal USERRA regulations requiring it to contact the U.S. Office of Personnel Management for placement assistance after determining that it could not reemploy the service member because of his service-connected disability. When informed by OSC of its USERRA obligations, the agency endeavored to comply with USERRA by looking for an alternative position and readying itself to request placement assistance from OPM. Additionally, OSC prepared and sent a training document to the agency explaining its responsibilities when presented with the task of reemploying service members who are injured while performing military service. The agency agreed to circulate the training document among the Human Resource Staff and other agency supervisors so that, if the agency is faced with a similar situation in the future, it will be fully aware of its responsibilities. The agency also agreed to post and circulate a USERRA information poster.

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Preventing Denial of Initial Employment

  • The service member alleged that he was offered and accepted a position with the U.S. Department of Army. When the agency gave the service member an entry on duty (EOD) date, the service member informed the agency that he could not start on such date because of military service. In response, the agency withdrew the offer of employment. OSC contacted the agency and explained that it is illegal under USERRA to deny initial employment because of military service. In response, the agency re-offered the position, which the service member again accepted, and the parties agreed to a new EOD date.

  • The service member, a member of the United States Air Force Reserve, applied for two Social Insurance Specialist/Claims Representative positions with the Social Security Administration. During her job interview, the selecting official noted that she was a member of the Air Force Reserve and asked if she could be activated. The agency later notified the service member that she was not selected. OSC’s subsequent investigation uncovered evidence that that the service member would likely have been selected but for her military service obligations. OSC negotiated full relief for the service member, namely: the agency agreed to pay the service member a lump sum reflecting loss of pay from the time the service member would have been selected until the time the service member began her job with another employer. (The service member declined the agency’s employment offer.)

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Securing Competitive Promotions, Career Ladder Promotions, and Step Increases

  • Two service members alleged that the U.S. Department of Justice, Bureau of Prisons, did not consider them for competitive promotions to GS-8 Senior Officer Specialist positions while they were away due to military service obligations. OSC’s investigation confirmed that the agency violated federal USERRA regulations requiring that a federal agency’s promotion plan provide a mechanism for considering absent service members for promotion. Thus, OSC persuaded the agency to consider the service members for promotion. Subsequently, the warden selected the service members for promotions to GS-8 Senior Officer Specialist positions. OSC also obtained evidence establishing that the service members would have been selected for promotion had the agency considered them earlier. Consequently, OSC requested that the agency provide full corrective action to the service members, and agency officials also agreed to promote the service members retroactively and to award them back pay and other applicable seniority-based employment benefits.


  • The service member alleged that the U.S. Drug Enforcement Administration denied her a career ladder promotion to the GS-12 level because she was absent from employment due to military service. During its investigation, OSC obtained evidence indicating that, but for the service member’s departure for military service, the service member would have attained her promotion. Thus, upon her return from military service, the agency granted OSC’s request that it provide the service member appropriate training and, upon successful completion of such training, promote her retroactively and award her back pay.


  • The service member alleged that the U.S. Postal Service did not grant the service member his step increase in salary upon being reemployed after completing 17 months of military service with the U.S. Army National Guard. OSC contacted the agency and educated it about its USERRA obligations. In response, the agency made the step increase retroactive and will award back pay to the service member.

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Correcting Denial of Benefits of Employment

  • The service member alleged that the Centers for Disease Control and Protection prepared its monthly schedule in such a way that discriminated against him because of his reservist duties. The service member and his co-workers are required to work on weekends. The agency, however, gives its employees weekends off on a rotating basis. OSC’s investigation confirmed that the agency always scheduled the service member to be off on the weekend he had reservist duties. Although the agency had a business reason for not scheduling the service member to work on weekends that it knew he would be unable to come to work (i.e., his reservist weekend), the agency’s scheduling practice violated one of the purposes of USERRA, namely: minimize the inconveniences to civilian careers that arise from military service. Accordingly, at OSC’s request, the agency changed the manner in which it prepared its monthly schedule such that it would not automatically schedule the service member to be off the weekends he had military duty.


  • The service member alleged that the Department of Veterans Affairs violated USERRA by not awarding her a “goal sharing” bonus that all the members of her team had received for participating in fulfilling team goals. The agency did not award the service member the bonus because she did not fully participate in the team’s work because of her absence from employment due to military service. Prior to the service member’s deployment, she had participated in the goals for which the other employees were being rewarded. The evidence showed that the service member would have been given a bonus but for her absence due to military service. Under OSC’s interpretation of the statute, which is to be liberally construed in favor of the service member, such team bonuses constitute a benefit of employment different from salary or wages. Thus, OSC contacted agency officials, and they agreed to award the service member the same goal-sharing bonus.

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Prohibited Personnel Practice Case Summaries

PPP Corrective and Disciplinary Action FY 2006 summaries

MA-99-0173
In this case, the complainant was Port Director, GS-13, at Tampa International Airport. When his supervisor suggested a reassignment to an Adjudication Officer position, the complainant accepted it. However, he was not notified that it was a GS-12 position and that by accepting it, he was going to be downgraded. Therefore, his downgrade was not voluntary and he was constructively demoted without being given Chapter 75 due process rights. OSC concluded, on these facts, that there were reasonable grounds to believe that (b)(12) had been violated.

The complainant has since retired from the federal government. In resolution of his complaint, the agency offered and he accepted a lump sum payment of $82,732.96 (which is equivalent to the amount of pay that he lost between his GS-13 and GS-12 positions). In exchange, the complainant withdrew this complaint.

MA-00-1440
An Appraiser with the Department of Interior (DOI), alleged that Bureau of Land Management (BLM) officials failed to select him for a promotion, significantly changed his working conditions, and took other personnel actions against him because he blew the whistle on BLM`s improper appraisal practices. He asserted that BLM`s failure to divorce land appraisal from exchange negotiation violated legal requirements and national standards of appraisal practice. These land exchanges grossly inflated property values to the detriment of the federal taxpayer.

The Whistleblower`s protests led to investigations by the OIG and GAO and a review by the Appraisal Foundation, all of which validated his allegations.

OSC investigated the complaint of reprisal for whistleblowing and approached DOI regarding informal corrective action for personnel actions taken in violation of 5 U.S.C. §§ 2302(b)(8), (9), and (12) (first amendment).

DOI agreed to provide the Whistleblower the following relief: a retroactive noncompetitive promotion to BLM Acting State Chief appraiser, GS-13, for 120-days; a retroactive promotion to BLM State Chief Appraiser, GS-13; a retroactive promotion to a GS-13 appraisal position within the Appraisal Services Directorate (ASD); $7000 for performance awards; to purge his personnel records of all negative references related to his status as a whistleblower; to restore 10 days of annual or sick leave; not to retaliate against him with respect to the terms and conditions of his employment, including his position description, work assignments, training, and promotional opportunities; to pay $2000 for career training; and to pay attorneys fees not to exceed $17,500. In exchange, the complainant agreed to withdraw his complaint to OSC.

MA-00-1754
In this case, the complainant, a Real Estate Specialist with the Department of Interior (DOI), along with his coworker, alleged that Bureau of Land Management (BLM) officials failed to select him for a promotion, significantly changed his working conditions, and took other personnel actions against him because he blew the whistle on BLM`s improper appraisal practices. The complainant asserted that BLM`s failure to divorce land appraisal from exchange negotiation violated legal requirements and national standards of appraisal practice. These land exchanges grossly inflated property values to the detriment of the federal taxpayer.

The complainant’s protests led to investigations by the OIG and GAO and a review by the Appraisal Foundation, all of which validated his allegations.

OSC investigated the complaint of reprisal for whistleblowing and approached DOI regarding informal corrective action for personnel actions taken in violation of 5 U.S.C. §§ 2302(b)(8), (9), and (12) (first amendment).

DOI agreed to provide the complainant the following relief: $7000 for performance awards; to treat his future requests for continuing education as it would treat any other individuals` request; to pay for him to maintain his status as a General Certified Appraiser; $2000 for career training; to purge his personnel records of all negative references related to his status as a whistleblower; to restore 7 days of annual or sick leave; not to retaliate against the complainant with respect to the terms and conditions of his employment, including his position description, work assignments, training, and promotional opportunities; and to pay attorneys fees not to exceed $11,500.

MA-02-0516
In this case, the complainant was a computer technician for the Department of Veterans Affairs. He alleged that he was placed on enforced annual leave and suspended for 14 days because he had posted critical comments about his agency on his personal web site.

he agency agreed to provide the complainant with a clean record and back pay for the enforced annual leave and suspension. The complainant withdrew his OSC complaint.

MA-02-0556
In this case, the complainant alleged that the Border Patrol failed to select him for over 200 border patrol vacancies because he and his supervisor had disclosed that other Border Patrol agents had engaged in voucher fraud through a kickback scheme involving various rental property owners in Arizona. (The whistleblowing is the subject of a separate OSC Disclosure Unit file that has resulted in significant investigative work and disciplinary action.) The complainant moved to another agency and lost no pay.

The complainant and Border Patrol agreed to a no-fault settlement that will pay the complainant $40k in cash. In return, the complainant has withdrawn his OSC complaint and an EEO lawsuit filed in district court alleging age discrimination.

MA-03-1572
The complainant filed a complaint with OSC alleging that U.S. Department of the Interior (DOI) officials retaliated against him for disclosures he made concerning contracting irregularities permitted by DOI officials. The complainant claimed that his whistleblowing led to several personnel actions against him, including two suspensions, a reprimand, and the denial of awards since 2002.

After investigation of the complainant’s allegations, OSC believed that the complainant’s disclosures may have contributed to his first suspension and the length of his second suspension (because the length was based, in part, on the existence of the first suspension). The assigned attorney encouraged settlement discussions. DOI ultimately agreed to rescind both suspensions, pay the complainant a lump sum of $6,500, and pay $10,000 in attorney fees. In exchange, the complainant agreed to closure of his OSC complaint. He and the agency agreed to keep the settlement confidential.

MA-03-1708
The complainant, a WS-10 electrician with the U.S. Department of Navy, Norfolk Naval Shipyard, alleged his work duties were changed because he engaged in protected activity. Specifically, he alleged that in reprisal for filing a complaint with OSC in January 1997, he suffered a significant change in duties and responsibilities which continued until OSC`s intervention in late 2005. Due to OSC`s investigation, the agency agreed to reassign the complainant to the type of duties normally performed by a WS-10 electrician and provide any necessary training to enable him to perform those duties.

MA-03-2233
The Office of Special Counsel (OSC) obtained informal corrective action where officials at the Veterans Administration Medical Center in Anchorage, Alaska, improperly granted a $10,000 relocation bonus to a GS-7 Human Resources Assistant in violation of 5 U.S.C. ?2302(b)(12) and the VA rules governing relocation bonuses. VA officials neglected to comply with any of these provisions when they offered the relocation bonus.

OSC concluded that VA officials had failed to comply with laws, rules, and regulations that implemented or directly concerned the merit system principle that the federal workforce be used efficiently and effectively, 5 U.S.C. ?2301(b)(5), and had thus violated 5 U.S.C. ?2302(b)(12).

VA officials took all of the corrective action that OSC recommended, including initiating a bill of collection to recoup the improper bonus, training the approving official regarding the failures in the bonus, and writing Standard Operating Procedures to ensure proper administration of recruitment bonuses in the future.

MA-04-0895
In this case, the complainant was the secretary to the Alaska State Director, Rural Development, USDA. She alleged that the state director detailed her to a lower-graded position outside his immediate office because he suspected she had made IG hotline complaints and because she refused to perform nongovernment duties related to his appointment to a local borough assembly seat. The complainant further alleged that the state director instituted a misconduct investigation against her for the same reasons.

The investigation confirmed the complainant`s allegations. A formal PPP report was sent to the Secretary. Whereupon, the state director resigned and the agency granted full corrective action: (1) merit promotion appointment to a GS-7 loan technician position with a promise of noncompetitive promotion to GS-9 after one year; (2) 10k in attorney fees; (3) $10,311.68 in medical costs; and (4) a clean record.

MA-04-0911
In this case, the complainant alleged that Pine Bluff Arsenal (PBA) officials violated 5 U.S.C. ?2302(b)(8) when they terminated his one-year term appointment as a WG-10 Heavy Equipment Mobile Mechanic at the Pine Bluff Arsenal (PBA) on February 12, 2004, one day before the expiration of his one-year term appointment. The complainant had made arguably protected disclosures.

OSC`s investigation revealed that the decision to remove the complainant was based, in part, on unsubstantiated claims that he had lied on his application for a security back ground investigation and was ineligible for a security clearance. OSC also found that the complainant’s supervisor, James Reed, had inappropriately referenced an oral admonishment for not following the chain of command in making his disclosures in the record of his 2003 mid-year performance review.

On 1/30/06, the complainant and PBA signed a settlement agreement in which PBA agreed to 1) cancel the action removing the complainant during his trial period and change it to a termination-expiration of appointment effective February 13, 2004; 2) remove all references to the termination in the complainant`s personnel records; 3) remove the reference to the oral admonishment from the record of his 2003 mid-year performance review; and 4) ensure that its response to any requests for his employment references/ history accurately reflected the changed personnel action. In exchange, the complainant has agreed to withdraw his OSC complaint.

MA-04-1634
The complainant was a GS-5 seasonal helitack firefighter at Mt. Zion National Park. He disclosed to management that his supervisor assaulted a co-worker. Subsequently, his supervisor gave him a "not achieved" performance rating for the fire season and told him he would not be rehired for the following season. He alleged that both decisions were based on his protected whistleblowing.

The investigation showed that management had knowledge of the complainant`s disclosure at the time it gave him his rating and informed him he would not be rehired. The investigation also showed that the evidence to support the rating was pretexted.

The agency agreed to take corrective action. It removed all derogatory information from its personnel files, gave the complainant a new "achieved" rating, provided the complainant with back pay ($23,681.56) for missed salary and overtime because he was not rehired, and issued a letter offering him a position for the 2005 fire season. The complainant accepted the job offer.

MA-04-1673
A former Supervisory Program Manager for the Department of the Army alleged that the Army knowingly made illegal temporary and permanent promotions to the position of Deputy Chief of Staff for Resource
Management at the Rock Island Arsenal.
Management at the Rock Island Arsenal detailed employees without the necessary qualifications to the position on a temporary basis. When the permanent position was announced, the announcement lacked the language restricting it to the Army Acquisition Corp (AAC) employees. The Agency could have requested a waiver to fill the position outside of CAP, but they failed to do so. The Agency selected an employee without AAC membership to fill the open position. The complainant was the only applicant who possessed AAC qualifications.

As a result of OSC`s investigation, the Agency acknowledged that the position had been filled, both temporarily and permanently, by unqualified applicants. In settlement, the Agency agreed to temporarily promote the complainant, retroactively, for a period of 120 days. At the end of the temporary promotion, the Agency retroactively permanently promoted him from the effective date of the promotion to his retirement date. The Agency agreed to provide back pay, with interest; to recalculate the amount of his leave payment, based on his higher salary at the time of his retirement; and to request an adjustment of his annuity, from OPM, based on a recalculation of his high three salary.

MA-04-2464
In this case the complainant, a 30 percent disabled vet, applied for a GS-7 budget analyst position with the Bureau of Reclamation, DOI. He was not selected. Instead the agency selected a lower standing nonveteran under the Outstanding Scholar Program (OSP).

Complainant appealed his nonselection under USERRA and VEOA before the MSPB. The AJ, with the full Board affirming, denied his appeal. His OSC complaint followed alleging that the selection of the nonveteran was a PPP.

The investigation found reasonable grounds to believe that the selection of the nonvet under the OSP was improper. In response to a corrective action letter from the Special Counsel, the Department appointed complainant to a vacant GS-7 budget analyst position and agreed to provide appropriate training to supervisors and human resources staff on PPPs, veterans preference, ICTAP and OSP.

MA-04-2788
The complainant alleged that the agency improperly processed his removal as a voluntary resignation as opposed to a removal action. OSC settled the complaint by having the parties agree that the agency would cancel the resignation action and re-process in accordance with the originally proposed action.

MA-04-2834
In this case, the complainant alleged that management officials at the Veterans Affairs Medical Center (VAMC), in Michigan, attempted to influence him to withdraw from competition for a position he applied for at VAMC in violation of 5 U.S.C. ?2302(b)(5).

OSC found that management officials at the VAMC did attempt to influence the complainant to withdraw from competition for a position, based on their belief that they were looking out for the complainant’s best interests in attempting to dissuade him from giving up a career appointment for a temporary position, which is nevertheless a prohibited personnel practice.

The Veterans Administration (VA) agreed to informal corrective/disciplinary action. The VA issued a memorandum to supervisors at the VAMC; specifically including the managers who attempted to influence complainant to withdraw from competition for a position. This memorandum reviews prohibited personnel practices and merit system principles. Managers with questions were directed to contact OSC.

MA-05-0031
In this case, the complainant filed a complaint with OSC alleging that U.S. Department of Housing and Urban Development (HUD) officials retaliated against him for disclosures he made to HUD officials concerning violations of HUD housing assistance regulations. The complainant claimed that his whistleblowing led to a five day suspension.

After an investigation of the complainant’s allegations, OSC believed that there was sufficient evidence to assert that the complainant had made disclosures that may have contributed to his suspension. The assigned attorney engaged in settlement discussions with HUD. As a result, HUD agreed to rescind the suspension, remove it and the accompanying proposal from the complainant’s official personnel folder, and pay the complainant for the five days when he served the suspension.

MA-05-0780
In this case, the complainant, a GS-5 contact representative for DVA and a union representative, filed a ULP on behalf of her unit challenging DVA`s unilateral decision to relocate employees within her unit. The ULP was successful. Shortly after the ULP was corrected, management detailed the complainant to a different service unit.

OSC found evidence to believe that the detail was because of complainant`s protected complaint. Based on a draft PPP report, the agency agreed to take corrective action. The agency provided the complainant with a clean record, restored 19 hours of sick leave, 50 hours of annual leave, and 70 hours of travel compensatory time, and paid her $6,746.31 for consequential damages and $22,500 for attorney fees and related costs.

MA-05-1004
In this case, a Federal Medical Center (FMC) Warden reassigned the complainant from her warden`s secretarial position to a special investigative support technician position. The complainant alleged that she was reassigned because she filed a workplace violence complaint against her first-line supervisor, Executive Assistant.

At OSC request, the agency reassigned the complainant back to her secretarial position. Her reassignment was effected concurrent with the arrival of a new FMC warden.

MA-05-1171
The complainant in this case, a contract representative with the Social Security Administration, Texas, alleged that her supervisor, willfully obstructed her from competing for a GS-5/7 social insurance specialist (claim representative) position with promotion potential to GS-11 and attempted to influence her to withdraw from competing for one of the five vacancies.

OSC investigation revealed that the supervisor told the complainant and other contract representatives, before the positions were announced, that he was only going to be considering external applicants for the claim representative vacancies so they need not apply. The complainant found applied anyway, but did not make the referral list. OSC found that while the supervisor did not commit any prohibited personnel practices, he did violate Civil Service Regulation 330.1001 (Withdrawal from Competition), which prohibits a federal official from attempting to influence another person to withhold filing an application for the purpose of improving or injuring the employment prospects of any one person.

After requesting and receiving OSC approval, the agency suspended Combs for 1 day.

MA-05-1353
The complainant, an instructor at the U.S. Citizenship & Immigration Services Academy, Georgia, alleged that his annual summary performance rating was lowered, and that he was denied training and threatened with disciplinary action because he made protected disclosures, filed a previous OSC complaint (MA-04-1932), or because he filed a grievance over his lowered performance rating.

At OSC request, the agency agreed to give the complainant an outstanding overall summary rating for the October 1, 2003 through September 30, 2004, performance year, and a 40-hour time off performance award.

Both subjects, the former director and deputy director of the Academy, have retired from federal service.

MA-05-2058
Complainant, currently a GS-12 Special Agent, Bureau of Indian Affairs, alleged that the Southwest Human Resources Office illegally promoted another employee to the position of GS-9 Special Agent. The selectee did not meet time-in-grade requirements. After the HR office made the selection and moved the employee, they realized the selectee lacked the necessary time-in-grade. Instead of reannouncing the position, the agency attempted to correct the problem by placing the selectee in a GS-7 position to allow him time to meet the time-in-grade requirements for the GS-9 promotion. OSC requested the agency agreed to reannounce the GS-9 Special Agent position to allow qualified employees the opportunity to compete.

MA-05-2274
The complainant, a senior level official at the Farm Service Agency alleged that he filed a hotline complaint with his Office of Inspector General. He believed that in reprisal for the hotline complaint, his immediate supervisor changed his duties and included negative comments in his annual performance appraisal.

Before our on-site investigation began, we learned that the supervisor had retired from federal service. At OSC’s requests, the agency then removed from the complainant`s appraisal both the supervisor`s negative comments and the complainant`s reponse to those comments.

MA-05-2380
Complainant, a GS-101-07 mental health specialist, Indian Health Service, Department of Health and Human Services, alleged that he was charged absent without leave (AWOL) and subsequently terminated during his probationary period because of complaints he made to the union about his supervisor.

Prior to the OSC investigation, the agency realized that the complainant was not a probationary employee at the time of his termination and had not been given statutory appeal rights. As a result, the agency unilaterally reinstated complainant and provided him with full back-pay.

The agency, at OSC`s request, then agreed to remove the AWOL and charge the time to the complainant`s regular pay and to remove all references to the AWOL and his termination from his Official Personnel Folder.

MA-06-0391
Complainant, currently a GS-5 police officer, U.S. Department of Army (ARMY), alleged that following his retirement from a Non-appropriated Fund position with the Army and Air Force Exchange Service on August 8, 2003, and entering on duty into a GS-3 police officer position on August 7, 2003, the agency committed a PPP, in violation of (b)(12), when it failed to properly compute his leave and pay in violation of the Portability of Benefits for Non-appropriated Fund Employees Act of 1990 (ACT).

On June 12, 2006, the agency, at OSC request, agreed to resolve this matter by: 1) changing the complainant`s date of hire from August 7 to August 9, 2003; 2) resubmitting all time cards which need to be changed as a result of the new hiring date; 3) making a good faith effort to afford the complainant the opportunity to use any accrued annual leave in a timely manner or receive pay for said leave if the complainant is placed in a situation where he has to use or lose accrued annual leave.

MA-06-0522
In this case, the complainant, a GS-12 Facility and Strategic Planner, at a Veterans Affairs Medical Center, alleged that his termination was proposed because he disclosed to the U.S. Office of Personnel Management Inspector General concerns he had with the way the local Combined Federal Campaign office was operating.

At OSC’s request, the Assistant Director of the VAMC rescinded the proposed termination letter.

MA-06-0698
In this TSA screener complaint for reprisal for whistleblowing, the agency`s disciplinary board overturned complainant`s 2004 removal. Nonetheless, the agency failed to take corrective action and after a long delay, erroneously documented that the complainant had resigned from service.

OSC intervened and persuaded TSA to rescind the removal, rescind the erroneous 2005 resignation, and grant complainant full back pay. Complainant, in turn, decided he did not want to return to his former position and resigned the day his reinstatement was effected. Complainant received back pay for the period.
 

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Hatch Act Case Summaries

Hatch Act Disciplinary Actions Filed

State/Local Employee Violations. OSC filed two complaints for disciplinary action against state or local employees or officers for using their official authority and influence for the purpose of interfering with or affecting the result of an election and/or coercing subordinates to make political contributions. In one complaint, OSC sought disciplinary action against a Sheriff of a local county Sheriff’s Department for asking his subordinate employees to appear in a political campaign commercial on behalf of a gubernatorial candidate. The Sheriff asked his employees to appear in this campaign ad while they were on duty and asked them to appear in the commercial wearing their official Sheriff County uniforms and standing next to Sheriff Department official vehicles. The complaint also contained a separate count that alleged the Sheriff invited his subordinate employees to political fundraisers that the Sheriff held on behalf of his own re-election campaign. In the other case, the former mayor of Atlantic City was charged with holding several meetings during which he asked subordinate employees, mainly city department directors, to collect absentee ballots for a candidate in a then-upcoming primary for City Council, Third Ward. It was further charged that the former mayor held subsequent meetings where he requested his directors to inform him of the number of ballots they had collected. In a separate count the former mayor was also charged with using his official position in an endorsement letter on behalf of the same candidate, in violation of the Hatch Act’s restrictions on use of official authority.

Federal Employee Violations. During FY 2006, OSC filed three complaints for disciplinary action against federal employees. For example, in one complaint an Assistant United States Trustee (AUST) was charged with using her official authority or influence to affect the result of an election and for soliciting a political contribution from a subordinate. Specifically, the AUST handed an invitation to a political fundraiser to a subordinate employee while the AUST admitted to the employee that she knew “it was a little outside the rules.” The AUST had received training on the Hatch Act a mere two weeks prior to this incident.

OSC also filed a complaint for disciplinary action against a federal employee for sending politically partisan electronic mail messages while on duty in violation of the Hatch Act. Specifically, the complaint was against an agency employee who sent an e-mail message to over 30 coworkers while on duty and in his federal office. The e-mail contained a letter from then-Chairman of the Democratic National Committee Terry McAuliffe, which urged its recipients to take immediate action after the Presidential Debates “to help Kerry win on November 2.”

Lastly, OSC filed a complaint for disciplinary action against an employee of the Department of Veterans Affairs for distributing campaign materials while on duty in his government work place.

Hatch Act Disciplinary Actions Obtained. In this fiscal year, OSC obtained eight disciplinary actions (through negotiated settlements or from the Merit Systems Protection Board). For example, OSC obtained disciplinary action against a federal employee for sending a partisan political e-mail, which advanced the re-election campaign of a Congressional candidate, while on duty and in the federal workplace. The e-mail was titled “Halloween Party for Tim Holden” and contained an attached invitation that encouraged people to attend the party and “meet Tim Holden,” a U.S. Representative seeking re-election to the 17th Congressional District, Pennsylvania. The federal employee sent the e-mail and invitation to over 300 recipients. In February 2006, an Administrative Law Judge (ALJ) recommended that the employee be suspended for 60 days for violating the Hatch Act. The ALJ noted that the e-mail described the candidate in highly favorable terms and strongly encouraged attendance at the event, and the ALJ concluded that the text and the attachment of the e-mail “obviously were directed toward the success of Mr. Holden’s reelection campaign.” In June 2006, the Merit Systems Protection Board upheld the ALJ’s decision and ordered that the employee be suspended for 60 days.

Also, in FY 2006, OSC obtained disciplinary action against an attorney with the Small Business Administration, who OSC had charged with knowingly and willfully violating the Hatch Act by engaging in political activity over a three year period on behalf of a political party while on duty in his government office (e.g., using his government office equipment to send and receive more than 100 e-mails, to draft documents and to have telephone conversations in support of a political party and its candidates). The Merit Systems Protection Board upheld the initial decision finding that the employee’s activities as charged warranted removal from his employment.

In April 2006, the Merit Systems Protection Board upheld an initial decision suspending a federal employee for 30 days for violating the Hatch Act’s solicitation prohibitions. OSC had charged the employee with soliciting political contributions when he permitted a campaign committee to send a letter identifying him as the sender to 144 people requesting political contributions for a candidate for partisan public office.

In yet two other cases, OSC reached settlement agreements with two federal employees who e-mailed invitations to a political fundraiser while they were on duty and in their federal workplace. One of the employees sent the invitation to subordinates. Their actions violated the Hatch Act’s prohibitions on soliciting political contributions, using official authority or influence to interfere with the result of an election, and engaging in political activity while on duty and/or in a federal building. Under the terms of the settlement agreements one employee served a ten day suspension, while the other employee served a twelve day suspension.

In March 2006, OSC reached a settlement agreement with the former Mayor of Atlantic City. OSC filed its petition seeking disciplinary action on November 9, 2005. He left office on December 31, 2005, after being defeated in his re-election bid. As described in greater detail in the preceding section, OSC had charged this official with violating the Hatch Act by asking several subordinates employees to collect absentee ballots for a candidate in a partisan election and by using his official position in an endorsement letter on behalf of the same candidate. Under the terms of the settlement agreement, the former mayor admitted violating the Hatch Act and he agreed not to seek or accept employment with the State of New Jersey for a period of eighteen months.

In yet another example, in November 2005, the Merit Systems Protection Board upheld an initial decision finding that an executive director of a New Jersey county agency had violated the Hatch Act when he ran for partisan public office. The Board found that the executive director’s violation was willful and ordered his county agency to remove him from his position.
 

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2005 Case Summary

Whistleblower Disclosure Case Summaries

Whistleblower FY 2005 summaries: Results of Referrals to Agency Heads

Violation of Security Regulations at Agency Facility. OSC referred allegations to the Secretary of the agency that a lead dispatcher violated security procedures and regulations by admitting individuals to highly sensitive areas of the agency solely on voice recognition. The whistleblower alleged that the dispatcher instructed other employees to admit individuals on voice recognition and that he frequently turned off the National Crime Information Center (NCIC) printer in the agency's Communication Center, preventing the agency from receiving contemporaneous information on security threats and criminal activity from law enforcement agencies and the Department of Homeland Security. Finally, the whistle-blower alleged that the dispatcher made violent and threatening statements to the whistleblower and other employees.

The agency's investigation partially substantiated the whistleblower's allegations finding that the dispatcher failed to follow the regulations for admitting individuals in violation of agency regulations. The report stated there were significant concerns with the dispatcher's behavior prior to OSC's referral. In response to the investigation, the agency ordered refresher training on access procedures for protected areas and on the proper operation of the NCIC printer. The agency also made significant management changes, undertaking a comprehensive reorganization which included converting the position of Chief, Agency Operations Division, from a military to a civilian position and hiring a civilian supervisor. The supervisor and Agency Operating Division Chief in place during this investigation were stripped of their responsibilities and under the reorganization will not hold supervisory positions. Referred May 2003; closed May 2005.

Management Involvement in Kickback Scheme Excused by Agency. The whistleblowers disclosed to OSC that numerous employees of the Border Patrol, including some management personnel, were engaged in extensive kickback and fraudulent reim-bursement schemes in violation of federal law. The whistle-blowers initially made a disclosure to the agency's Office of Inspection General (OIG), and the OIG published a report substantiating many of their allegations. The OIG recommended that the agency take "strong and immediate action" against the employees involved in the wrongdoing. Nearly a year after the OIG made its recommendation, however, OSC discovered that the agency decided to forego disciplinary action. Given the OIG's recommendation, the evident seriousness of the wrongdoing identified in the OIG report and agency's refusal to take disciplinary action, OSC referred the whistleblowers' allegations to the Secretary of the agency for formal investigation by the agency. The agency filed two reports with OSC detailing its investigation into the whistle-blowers allegations. These reports uncritically accepted the assertions of management personnel that they were unaware of any wrongdoing. OSC's analysis of the agency's reports concluded that the agency's investigation of management appeared pretextual, at best, and that the agencies involved "failed to conduct a thorough investigation." In response to the press coverage generated by this analysis, the agency publicly committed to thoroughly reinvestigate the whistleblowers' allegations. Referred November 2003; closed May 2005.
 

The complainant alleged wrongful termination in violation of 5 U.S.C. ? 2302(b)(8) and (b)(9)for whistleblowing and filing a union grievance. He had been forced to work overtime with no compensation and without proper approval. When he refused to drop the grievance, his supervisor threatened him with termination. Both parties agreed to OSC mediation and all issues were resolved in a timely manner.

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USERRA Case Summaries

USERRA FY 2005 summaries: Filings with the MSPB

Termination due to military absence. Claimant, a full-time staff nurse serving under a temporary appointment, alleged that the agency violated USERRA by terminating her employment because she was excessively absent from the work place due to her military service obligations. The agency had taken the position that claimant`s position was not covered under USERRA. USERRA`s antidiscrimination provisions, however, cover all types of appointments. OSC filed an action before the MSPB and successfully obtained full corrective action for claimant, namely: back pay (approximately $53,000); the expunging of all negative documentation relating to her termination; and issuance of an SF-50 reflecting that claimant resigned from the agency. Additionally, the agency agreed to undergo USERRA training.

Dismissal from training due to military absence. Claimant had been accepted into a federal agency`s 16-week Associate Supervisory training program(ASP). Enrollees who successfully complete the ASP are noncompetitively promoted to supervisory positions. Over the first eight weeks of the ASP, claimant earned excellent performance evaluations and attained a grade point average of 3.65 on a 4.0 scale. While enrolled in the ASP, however, claimant performed reservist duties and was absent from employment and unable to attend the ASP on Saturdays. The agency expressed concern over the fact that claimant`s military duties caused him to miss the ASP every Saturday. Moreover, the agency believed there would be an undesirable adverse affect on agency morale when claimant, after completing the program, would be assigned to a junior supervisory position but would be unavailable to work on Saturdays -as is expected of new supervisors- because of his reservist duty. Thus, it was decided to dismiss claimant from the ASP. Because the evidence established that claimant`s military service obligations were a substantial and motivating factor in his dismissal from the ASP, OSC determined that the agency violated USERRA. OSC filed a USERRA action before the MSPB and successfully resolved the case with claimant accepting a large cash settlement.

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Prohibited Personnel Practice Case Summaries

PPP Corrective and Disciplinary Action FY 2005 summaries

Nepotism. OSC secured disciplinary and corrective action in a case in which agency management officials violated nepotism laws and granted an unauthorized preference or advantage to certain applicants for vacant positions in an installation during the fall of 1999. Our investigation revealed that the selecting official completed job applications and advanced the candidacy of several relatives of agency officials and advocated for her own daughter’s employment. Our investigation also revealed that the selecting official’s supervisor and another Division Chief advocated for their respective daughters’ employment for one of the vacant positions. At OSC request, the agency suspended the selecting official for five days and her supervisor for three days, and gave the Division Chief an oral admonishment that will remain in his supervisory file for two years. The agency also agreed to provide Outreach training about prohibited personnel practices to relevant management officials.

Unauthorized Preference. OSC secured disciplinary and corrective action in a case in which a former Chief Administrative Law Judge (ALJ) of a federal agency granted an unauthorized preference to an employee. The ALJ selected the employee in 1998 as an Attorney Adviser and 18 months later, made inquiries with the agency's personnel about raising her grade. In April 2000, the servicing personnel office acted on the ALJ's request, retroactively converting the employee to a higher grade as of November 1998, 90 days after her original appointment and awarding her back pay. Four months later, the ALJ selected the employee for a management position for which she would not have been qualified without the retroactive upgrade. The agency corrected all of the employee's SF-50's; initiated collection proceedings against her for the difference in when she would have received her promotions absent the unauthorized preference; and offered priority consideration for future similar positions to the other candidates for the management position.

Retaliation for Protected Activity. OSC secured corrective action in a case in which a federal employee alleged that he was given a directed reassignment from his duty station in Virginia, to California, in retaliation for having joined in a class action lawsuit against the agency. Prior to investigating the matter, OSC secured an agreement with the agency allowing the employee to remain in Virginia, which stayed in effect until he was ready to retire.

Reprisal for Protected Activity. OSC settled a case in which a former Security Specialist at a federal agency alleged that he was suspended for 14 days because he provided testimony in an IG investigation and re-leased a draft IG report to the media. Additionally, the employee alleged that his security clearance was suspended and he was reassigned to a non-security clearance position at the agency because of his disclosure. As a result of our investigation and conclusion that the agency violated the whistleblower statute when it suspended the employee, in part, because of his protected disclosure of the unclassified draft IG report, the agency agreed to (1) rescind the14-day suspension; (2) compensate the employee for lost pay plus interest; (3)restore all related benefits from the rescission of the 14-day suspension; (4) pay the employee $2,000 in attorney's fees; and (5)expunge all records related to the employee's 14-day suspension from his employment files, with the exception of his Personnel Security file.

Reprisal for Protected Activity. In February of 2003, a supervisory systems accountant at a federal agency in Alabama, alleged that she was given a letter of reprimand in part because she disclosed to the Office of Inspector General (OIG) in May of 2002that her two supervisors violated the Federal Acquisition Regulation and abused their authority. The OIG investigation substantiated five of complainant's thirteen allegations. Investigation revealed that her disclosures were a contributing factor in the decision by her first-line supervisor to reprimand her. The agency agreed to pull the letter of reprimand from the employee's Official Personnel File.

Conflict of Interest. OSC settled a case in which an employee alleged that the former Director of a federal agency committed a prohibited personnel practice when she noncompetitive hired another individual who was jointly and severally liable with the former Director on a $261,600 promissory note secured by their personal residence - a $2,885 monthly mortgage obligation. The former Director appointed this individual to a Supervisory Business Manager position. OSC investigated this matter as a possible violation of 5 U.S.C.2302 ?(b)(12). These regulations prohibit an employee from participating substantially in an official capacity in any matter in which, to her knowledge, she has a financial interest, if the matter will have a direct and predictable effect on that interest. 5 C.F.R. §§ 2635.402(a) and (c). OSC filed a disciplinary action complaint against the former Director, and she signed a settlement agreement in which she accepted a five-day suspension without pay.

Due Process Violation. OSC also settled a case in which a GS-13 attorney-advisor with a federal agency presently stationed overseas alleged that the agency violated his due process rights under federal law and agency regulations by initiating garnishment of wages for an alleged$29,962.82 debt to the agency. The Complainant (Cp) alleged that the agency did not provide him the required opportunity to provide proof that he did not owe this debt. According to our investigation, the agency initiated the garnishment without affording him due process rights in the federal regulations. Thus, we found reasonable grounds to believe that the wage garnishment violated 5 U.S.C. ? 2302(b)(12)because the law and regulations violated implement merit principle ?2301(b)(2). The agency agreed to stop Cp's wage garnishment ($350 biweekly) and refunded Cp a total of $14,542.57 and $772.44 in interest.
 

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Hatch Act Case Summaries

Hatch Act Enforcement Action FY 2005 summaries

Disciplinary action against state or local employees who were candidates in partisan elections. In one complaint a Transportation Engineer with a state agency was charged with running in the 2001 election for Southington Town Council, in violation of the Hatch Act. In another complaint a Home Care Supervisor with a New York City agency was charged with violating the Hatch Act when he was a candidate in the 2004 election for New York State Assembly. In yet another case, a Child Support Enforcement Specialist with an agency in Hawaii was charged with being a candidate in the 2002 election for Hawaii State Representative, 35th District. Lastly, the Executive Director of a Lorain County agency was charged with violating the Hatch Act when he was a candidate in the 2004 primary election for Lorain County Commissioner.

Engaging in political activity on behalf of a Congressional candidate. OSC also filed a complaint for disciplinary action against an employee with a federal agency, charging that he violated the Hatch Act by engaging in political activity on behalf of a Congressional candidate while on duty and in the federal workplace. The employee sent an e-mail to over 300 agency employees inviting them to attend a "meet the candidate" event for Congressional candidate Tim Holden.

Federal employees sending politically partisan electronic mail messages while on duty. One complaint was against a federal employee who sent an e-mail message to about 22 coworkers. The message contained a letter purporting to be written by John Eisenhower, son of former President Eisenhower that states, among other things: " … I intend to vote for the Democratic Presidential candidate, Sen. John Kerry"; " … the word 'Republican' has always been synonymous with the word 'responsibility' … [t]oday's whopping deficit of some $440 billion does not meet that criterion."; "Sen. Kerry, in whom I am willing to place my trust, has demonstrated that he is courageous, sober, competent … I will vote for him enthusiastically …." Prior to forwarding the above-referenced e-mail, she added the following statement: "Some things to ponder……….."

The other complaint also concerned a federal agency employee who sent an e-mail message titled, "Your Vote," to 27people. The e-mail states, among other things: " … our votes should be for the party that stands firm on morally and ethically correct issues as written in the[B]ible"; "Kerry claims he has morals and ethics … American society under Kerry's command is frightening to even think about." The e-mail then states "Pass along the 'I VOTE THE BIBLE' button" and includes a small picture of the button. In addition, there is a picture of President Bush in front of an American flag with the statement "I VOTE THE BIBLE" super-imposed on the picture.

Engaging in political activity on behalf of a political party. OSC also filed a complaint for disciplinary action against a federal attorney with a federal agency, charging that he violated the Hatch Act when engaged in political activity on behalf of a political party while on duty in his government office (e.g., using his government office equipment to receive and send more than 100 e-mails, draft documents and have telephone conversations in support of a political party and its candidates).

Soliciting, accepting, receiving political contributions. OSC also filed a complaint for disciplinary action against a federal employee, charging that he violated the Hatch Act's prohibition against soliciting, accepting or receiving political contributions. The employee was identified as the sender of a letter that was sent to approximately 144 people seeking political contributions for a local candidate, either by attending a reception or sending a check in an enclosed envelope. The candidate's campaign committee sent the letter, but the federal employee was aware of and agreed to the contents of the letter before it was sent.

NJ Candidacy. Also, in December 2004,the Merit Systems Protection Board found that a New Jersey state employee's candidacies, in 2003 and 2004, for Member of the Board of the Chosen Freeholders in Cumberland County, New Jersey, violated the Hatch Act and that her removal was warranted..

MD candidacy. Similarly, in February2005, the Merit System Protection Board found that a civilian employee of a federal agency violated the Hatch Act, which warranted his removal, when he was candidate in the 2002 partisan election for the Maryland House of Delegates.

Candidate in Partisan Elections. For example, in December 2004, OSC reached a settlement agreement with a state employee with a New York agency, who was charged with being a candidate in the partisan elections for Rochester City Council and New York State Senate, 56thDistrict, in 2001 and 2002, respectively. As part of the agreement, the state employee admitted that she was covered by the Hatch Act and that she violated the Act in 2001 and 2002 by her candidacies in partisan elections. As a penalty for her violations of the Act, the employee agreed that she would resign from FLDDS effective January 7, 2005, and would not seek or accept employment with the State of New York for 18 months.

Soliciting Political Contributions. In March 2005, OSC reached a settlement agreement with the former Chief of Staff of a District of Columbia agency. The official was charged with violating the Hatch Act during a campaign rally on August 8, 2002,by specifically asking D.C. employees, many of whom were his subordinates, to volunteer to work on a reelection campaign. Additionally OSC's petition charged that, in or about May 2002, the official personally and/or through subordinates, solicited political contributions by asking individuals to purchase tickets to the Kennedy-King dinner, a political fundraiser for the District of Columbia Democratic State Committee. OSC filed its petition seeking his removal from the District of Columbia on July 9, 2004. He voluntarily resigned as Chief of Staff effective August 1, 2004. Under the terms of the settlement agreement, he agreed not to seek or accept employment with the District of Columbia for a period of two years, beginning August 1, 2004.
 

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2004 Case Summary

Whistleblower Disclosure Case Summaries

Whistleblower summaries FY 2004:  Results of Referrals to Agency Heads

  • Improper Use of Government Property. OSC during FY 2004 referred allegations that a manager at a federal agency in Minnesota violated Section 102-36 of the Federal Management Regulations by giving a government desk to an employee for personal ownership, instead of following the proper procedures for excessing government property.

    OSC initially requested further information about the incident from the Department of the Interior Office of Inspector General (OIG). When the OIG failed to provide a satisfactory response, OSC referred the matter to the Secretary of the Interior for investigation. According to the Department of the Interior’s report, the investigation substantiated the whistleblowers’ allegation that the manager did not dispose of the desk properly; however, the agency also found that the desk was broken, and the cost of repairing it would have exceeded the value of the desk. The report further stated that the Superintendent would ensure that agency personnel receive appropriate training in property management and the disposition of government property. OSC found the agency report to be deficient because the investigators failed to interview the whistleblowers and the report did not include an adequate description of the conduct of the investigation, as required by 5 U.S.C. ?1213(d).


  • Time and Attendance Abuse by Air Traffic Controllers.. During FY 2004, OSC referred allegations from two whistleblowers that air traffic controllers (ATCs) at a Michigan airport routinely failed to arrive on time for their assigned shifts and left work early failing to complete their scheduled tours of duty. The whistleblowers alleged that this practice, known by such employees in different areas of the country as “shoves, pushes or early-outs,” was a violation of law and constituted a substantial and specific danger to public health and safety. Under this practice, ATCs who arrive late or leave early do not inform FAA managers they will be late or will leave early. As a result, the whistleblowers alleged that the Air Traffic Control Tower at this airport was often dangerously understaffed or unattended and that ATCs received compensation for hours they did not work.

    The whistleblowers also filed complaints with the Department of Transportation (DOT). The FAA Civil Aviation Security and the DOT Office of the Inspector General investigated allegations of “shoving” at this airport. In April 2001, the DOT OIG concluded that at least four ATCs were engaging in the “shoves” practice. The whistleblowers filed a disclosure with the OSC in August 2001, because they alleged that no action had been taken to stop the practice and that ATCs continued to routinely engage in “shoves.”

    DOT found no evidence to support the allegations that ATCs were swapping shifts or departing the facility prior to the end of their assigned tour of duty. Thus, the agency did not substantiate the allegation that “shoving” has continued since being brought to the attention of the FAA Office of Civil Aviation and the DOT OIG in 2000, or that any danger to public safety resulted from the scheduling of air traffic controllers at the airport. The report did conclude that there was significant distrust between the ATCs and management and recommended that periodic audits be conducted to attempt to address the problem. Finally, the report acknowledged that the practice of shoving has occurred in the past and could occur in the future. For this reason, the OIG recommended that the FAA periodically audit the scheduling practices at this airport and ensure that safeguards are in place to prevent the practice of shoves from recurring.

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USERRA Case Summaries

USERRA summaries, FY 2004: Filings with the MPSB

  • A reservist alleged that he was dismissed from the agency’s 16-week supervisory training program because 1) his reservist duties conflicted with the supervisory training schedule and 2) he would be absent from work on Saturdays due to future reservist duties, which the agency believed would cause significant morale problems at the workplace because new supervisors were expected to work on Saturdays. Employees who completed the supervisory training program would be automatically promoted. The dismissal meant the reservist did not receive a promotion and lost the economic and related employment benefits. The case focuses on the question of whether the agency violated USERRA’s “anti-discrimination” provisions by dismissing the reservist from the program.


  • A reservist was terminated from his seasonal employment because he was injured while on military duty and could not perform the tasks for which he was hired. He suffered a loss of pay due to the termination of his employment. The case focuses on the question of whether the agency violated USERRA by denying the reservist retention in employment because of his military service..

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PPP Enforcement Actions summaries, FY 2004

Prohibited Personnel Practice Case Summaries

PPP Disciplinary Action summaries, FY 2004

  • A federal agency suspended a selecting official for five days and her supervisor for three days, and gave the Division Chief an oral admonishment that will remain in his supervisory file for two years for violating the anti-nepotism laws and granting an unauthorized preference or advantage to certain applicants (including several relatives of agency officials and advocacy for official’s own relative) for vacant positions in an installation. (The federal agency also agreed to provide outreach training about prohibited personnel practices to relevant management officials.)


  • OSC secured disciplinary and corrective action in a case in which we believe a former Chief Administrative Law Judge (ALJ) of a federal agency granted an unauthorized preference to an employee. The ALJ selected the employee in 1998 as an Attorney Adviser and 18 months later, made inquiries with agency personnel about raising her grade. In April 2000, the servicing personnel office acted on the ALJ’s request, retroactively converting the employee to a higher grade as of November 1998, 90 days after her original appointment, and awarding her back pay. Four months later, the ALJ selected the employee for a management position for which she would not have been qualified without the retroactive upgrade.


  • While our case was pending, the ALJ in the above case was removed by the Board for alleged sexual harassment in a separate case against him. Pursuant to the settlement, if the ALJ is successful in any appeal of his removal, the agency will consider OSC’s recommended discipline of 30 days’ suspension for the ALJ. OSC also secured a reprimand for the personnel specialist who assisted the ALJ in retroactively promoting the employee at issue. The Agency also removed all of the employee’s SF-50’s; initiated collection proceedings against the person receiving the unauthorized preference for the difference in when she would have received her promotions absent the unauthorized preference; and offered priority consideration for future similar positions to the other candidates for the management position.
PPP Enforcement Actions summaries, FY 2004

A petition for corrective action was filed with the MSPB on behalf of the complainant, who claimed that the agency involved violated his due process rights when it terminated him without giving him 30 days written notice, nor an opportunity to respond, nor a notice of his rights to appeal the decision to the MSPB. The ALJ assigned to adjudicate the case ruled in the agency’s favor against OSC. Because of some of the nuances of the case, the Special Counsel decided not to file a petition for review of the Administrative Law Judge’s decision with the full board.

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Hatch Act Case Summaries

Hatch Act Enforcement Action summaries, FY 2004

  • Senior Executive Runs for Office.In November, 2003, OSC settled a complaint for disciplinary action against the former Deputy Assistant Secretary of Defense for Counter Narcotics of a federal agency. OSC’s complaint, for disciplinary action alleged that the employee violated the Hatch Act by becoming a candidate for nomination and election to the U.S. House of Representatives 8th District in Virginia. According to OSC’s complaint, the employee, acting in concert with the Friends of the 8th Congressional District Committee (Friends of the 8th), a partisan political group, sought nomination and election to the House of Representatives. OSC also alleged that the employee knowingly solicited political contributions in support of his campaign. OSC’s complaint also included a third allegation, charging the employee with using his official title and position description at the federal agency while engaging in political activity. Based upon the settlement agreement, the employee admitted that he engaged in activities from March to October 2003, which constituted candidacy under the Hatch Act. He also admitted that on more than one occasion between March and October 2003, while federally employed, he knowingly solicited political contributions. He also agreed that his violations of the Hatch Act warranted imposition of a penalty consistent with 5 U.S.C. ?7326, which includes removal from federal service. The federal agency agreed to permanently place a copy of this settlement agreement in the employee’s Official Personnel File. The employee resigned his federal employment after OSC filed the complaint against him. As a result of the settlement, OSC moved to dismiss its complaint against him.


  • Solicitation of Subordinates in Violation of the Hatch Act.. On July 9, 2004, OSC filed a complaint against District of Columbia (D.C.) agency’s Chief of Staff for soliciting uncompensated volunteer services from his subordinates to support the Mayor’s bid for reelection. Although OSC’s investigation found that the Chief of Staff had solicited uncompensated volunteer services from his subordinates, the evidence failed to substantiate that the Chief of Staff solicited monetary contributions or engaged in political activity while on duty. After OSC filed its complaint, the Chief of Staff resigned from his position.


  • Candidacy of State Official. OSC filed a complaint for disciplinary action against the Deputy Police Chief of a state agency and Speaker of the Nevada Assembly. OSC’s complaint charges the employee with violating the Hatch Act’s prohibition against being a candidate for elective office in a partisan election. The employee ran in 2002, and after that election, OSC notified him that he was covered by the Act and that his 2002 candidacy violated the Act. OSC also warned him that future violations of the Hatch Act could result in disciplinary action charges being brought against him before the MSPB. Despite OSC’s warning, the employee filed for re-election on May 5, 2004, and became a partisan candidate for the Nevada Assembly, District 23 (Clark County).


  • Other Candidacy Violations. OSC filed a complaint for disciplinary action against an Area Administrator who worked for a state agency. OSC’s complaint charges the employee with violating the Hatch Act’s prohibition against being a candidate for election office in a partisan election. In 2002, the employee ran for re-election to the Alabama House of Representatives after his employer notified him about the Hatch Act and that his candidacy may conflict with the Act.


  • In July 2004, OSC filed a complaint for disciplinary action against a state employee working in a state agency. The complaint charged that despite her employer warnings about the Hatch Act she was a candidate in the partisan elections for Rochester City Council and New York State Senate, 56th District, in 2001 and 2002, respectively.


  • Federal Employees Send Prohibited E-mail Messages While on Duty. During FY 2004, OSC filed two similar complaints for disciplinary action against federal employees for sending politically partisan electronic mail messages while on duty in violation of the Hatch Act.

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Last Updated: 10/24/08