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Successful Case Summaries
Below is a sampling of some recent cases that were successfully resolved. They cover each of OSC’s four statutory areas of enforcement: processing Whistleblower Disclosures, protecting the jobs of military servicemen under the Uniformed Services Employment and Reemployment Rights Act (or USERRA), investigation and prosecution of Prohibited Personnel Practices and enforcement of the Hatch Act.
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2007 Case Summary
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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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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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):
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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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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
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.
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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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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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- 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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- 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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- 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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- 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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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 co | | | |
