U.S. Office of Special Counsel
1730 M Street, N.W., Suite 218
Washington, D.C. 20036-4505
U.S. OFFICE OF SPECIAL COUNSEL REACHES SETTLEMENT AGREEMENT IN USERRA
CASE WITH VETERANS AFFAIRS EMPLOYEE
FOR IMMEDIATE RELEASE - 8/10/05***
CONTACT: CATHY DEEDS, 202-254-3607,
WASHINGTON—The U.S. Office of Special Counsel (OSC)
announces the successful resolution of a matter under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA), the federal law that
protects the civilian careers of persons who perform military service.
OSC represented Judithe Hanover Kaplan, a Lieutenant Colonel in the U.S. Air
Force Reserves who alleged that the U.S. Department of Veterans Affairs, VA
Medical Center, San Diego, California, (agency) terminated her employment due to
her reservist duties.
Kaplan was a Senior Nurse appointed to a full-time, 13-month temporary position.
The agency terminated her employment only 2 1/2 months after it started. During
that time, Kaplan had been absent for 22 days due to military leave and illness
connected with her prior military service during the Gulf War conflict. The
agency based its decision on Kaplan’s alleged failure to follow established
procedures, lack of availability, failure to request leave appropriately, and
volunteering to participate in activities without the consent of her immediate
OSC determined that the VA violated USERRA’s anti-discrimination provisions,
which protect service members from being denied initial employment, retention in
employment, and any benefit of employment based on past, present, or future
military service. It successfully negotiated a full corrective action settlement
“USERRA’s anti-discrimination provisions apply to all employment positions
whether they are full-time, part-time, term, seasonal, or non-recurrent,”
explained Special Counsel Scott Bloch. “I am pleased that the agency ultimately
understood its responsibilities to service members and resolved this case fully
and fairly,” he added.
Under the terms of the settlement, which does not constitute an admission of
fault by the agency, the agency paid Kaplan a lump sum amount for her pecuniary
losses, removed all negative documentation relating to her termination and
issued documentation reflecting that Kaplan resigned from duty, and conducted
USERRA training for the managers involved in the termination. The MSPB approved
the settlement, and its decision became final on January 14, 2005.
USERRA prohibits discrimination against persons because of their service in the
Armed Forces Reserve, the National Guard, or other uniformed services. USERRA
prohibits an employer from denying any benefit of employment on the basis of an
individual’s membership, application for membership, performance of service,
application for service, or obligation for service in the uniformed services.
USERRA also protects the right of veterans, reservists, National Guard members,
and certain other members of the uniformed services to reclaim their civilian
employment after being absent due to military service or training.
Pursuant to a demonstration project established by the Veterans Benefits
Improvement Act of 2004 (VBIA), P.L. 108-454, OSC, rather than the Department of
Labor’s Veterans Employment and Training Service (VETS), has the authority to
investigate federal sector USERRA claims brought by persons whose social
security number ends in an odd-numbered digit. Under the project, OSC will also
receive and investigate all federal sector USERRA claims containing a related
prohibited personnel practice allegation over which OSC has jurisdiction
regardless of the person’s social security number.
The U.S. Office of Special Counsel (OSC) is an independent
investigative and prosecutorial agency and operates as a secure channel for
disclosures of whistleblower complaints. Its primary mission is to safeguard
the merit system in federal employment by protecting federal employees and
applicants from prohibited personnel practices, especially retaliation for
whistleblowing. OSC also has jurisdiction over the Hatch Act and the
Uniformed Services Employment and Reemployment Rights Act. For more
information please visit our web site at www.osc.gov or call 1-800-872-9855.