U.S. OFFICE OF SPECIAL COUNSEL ANNOUNCES SETTLEMENT OF UNFAIR HIRING PRACTICE CASE

FOR IMMEDIATE RELEASE - 6/10/99
CONTACT: JANE MCFARLAND
(202) 653-7984      

    Today, the U.S. Office of Special Counsel (OSC) announced that it had reached a favorable settlement agreement with the Department of Navy on behalf of Ms. Sharon Foster, a former Navy employee, whom OSC found the agency did not select for a position because of illegal manipulation of the procedures for recruiting and selecting candidates. Under the terms of the settlement, while not conceding that it violated the law, the Department of Navy agreed to provide corrective relief to Ms. Foster, including a lump sum monetary payment and attorney fees.

    In 1990, Ms. Sharon Foster applied for a GS-11 Management Analyst (MA) position at Newport Naval Hospital (NNH) in Newport, Rhode Island. Ms. Foster was the only “in-house” and minority applicant of the five qualified candidates referred by the personnel office. At the time of the vacancy, NNH’s policy was to grant selection priority to “in-house” applicants.

    NNH, however, did not select Ms. Foster or any of the four other applicants. Instead, it changed the MA position description by adding new, unique qualification requirements, it lowered the grade level to the GS-9 level, and it used special hiring authority to select another individual who did not qualify for the position at the GS-11 level. 

    Ms. Foster filed suit in federal court alleging that NNH had discriminated against her based upon race and gender when it did not select her for the MA position. In Foster v. Dalton, 71 F.3d 52 (1st Cir.1995), the appellate court found insufficient evidence of racial or gender bias but concluded that Foster’s case appeared to involve a “near-classic case of an old boy network, and favoritism.” The court suggested, without deciding, that Ms. Foster might have a remedy against the agency under federal personnel laws that enforce merit system principles, violations of which OSC investigates and prosecutes.

    Based upon the appellate court decision, OSC initiated an investigation into the matter. The evidence obtained during OSC’s investigation revealed that two individuals involved in the selection process had changed the grade level, qualifications, and recruiting authority for the position to secure employment for a questionably qualified friend. The NNH hired the friend, an old war buddy of one the officials, in lieu of Ms. Foster and the four other applicants. On the basis of its investigation, OSC concluded that Ms. Foster had been the victim of a prohibited personnel practice under 5 U.S.C. § 2302(b)(6), which makes it unlawful for an agency to grant a preference that is not authorized by law for the purpose of improving a particular individual’s chances for employment.

    Special Counsel Elaine Kaplan stated that OSC was pleased with the Navy’s decision to provide Ms. Foster with relief, and thanked it “for its cooperation in arriving at a just settlement of Ms. Foster’s case.” She observed that “cronyism cannot be reconciled with merit system principles, which require that hiring decisions be made on the basis of fair and open competition.” “OSC,” she said, “will aggressively pursue cases in which the recruitment and selection process is unlawfully manipulated.”

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