Returning military members allege job discrimination

BY STEVE VOGEL | THE WASHINGTON POST

WASHINGTON — Every year, more than a thousand National Guard, reserve and active-duty troops coming back from Iraq, Afghanistan or other military duty complain of being denied jobs or otherwise being penalized by employers because of their military obligations.

The biggest offender: the federal government.

It is against federal law for employers to penalize service members because of their military service. And yet, in some cases, the U.S. government has withdrawn job offers to service members unable to get released from active duty fast enough; in others, service members have been fired after absences.

In fiscal 2011, more than 18 percent of the 1,548 complaints of violations of that law involved federal agencies, according to figures obtained under the Freedom of Information Act.

“On the one hand, the government asked me to serve in Iraq,” said retired Army Brig. Gen. Michael Silva, a reservist who commanded a brigade in Iraq and was fired from his job as a U.S. Customs and Border Patrol contractor upon his return. “On the other hand, another branch of government was not willing to protect my rights after serving.”

The federal government is the largest employer of citizen soldiers. Roughly 123,000 of the 855,000 currently serving Guard members and reservists, or about 14 percent, have civilian jobs with the federal government. Over a fourth of federal employees are veterans.

The Uniformed Services Employment and Reemployment Rights Act, or USERRA, enacted in 1994 to ensure that members of the military not face disadvantage in their civilian careers because of their service, calls on the federal government be “a model employer” for service members.

But critics say the federal government has been far from perfect, and they fear that with troops back home from Iraq and more on the way from Afghanistan, violations of the law could increase.

The problems persist even though the Obama administration has made a priority of cutting veterans’ unemployment, which is significantly higher among post-9/11 veterans than in the population as a whole.

Advocates for veterans say the system set up for service members to challenge alleged USERRA violations is onerous, with no single agency having oversight. And they note that the federal government doesn’t have much incentive to improve. The federal government can be ordered to pay back wages for being in willful violation of the law but it incurs no other penalties. A private company, by contrast, could be liable for double an employee’s lost wages.

“There seems to be a feeling that the federal government can get away with what they’re doing,” said Matthew Estes, a USERRA lawyer with the law firm Tully Rinckey.

Some federal employers have forced reservists to leave military service as a condition of hire, which is also against the law, according to Samuel Wright, director of the Service Members Law Center at the Reserve Officers Association.

“Federal agencies are routinely doing that,” Wright said.

The Defense Department, including the Army, Navy, Air Force and various defense agencies, had 75 USERRA cases filed with the Labor Department in 2011, while Veterans Affairs had the second most, with 46 complaints. Other major offenders include the Department of Homeland Security and the U.S. Postal Service.

Federal officials acknowledge the violations and say the chief challenge has been educating supervisors in the field. The VA began in-depth training in November for managers to ensure compliance with “both the spirit and the letter of USERRA,” according to Mary Santiago, director of the VA’s Veteran Employment Services Office.

The Defense Department, along with the VA and six other agencies, formed a working group in late 2011 to examine how to improve federal compliance.

For service members, high rank has not necessarily proved to be a protection. Brig. Gen. Silva, a 1978 West Point graduate, served with the Army Reserve on deployments in Qatar and Afghanistan while pursuing a civilian career in finance, and commanded the 411th Engineer Brigade, an Army Reserve unit, during a one-year deployment to Iraq.

Shortly before the brigade returned to the U.S. in August 2007, Silva sent a form letter to each employer for his 4,000 soldiers, including his own boss, reminding them of their obligations under USERRA law.

Silva expected to return to his job as a contract employee at a Customs and Border Patrol facility in Lorton, Va. But a Customs contracting officer told the contractor, SPS Consulting, that the government wanted to keep Silva’s replacement in the job, and warned the contractor in an e-mail that Customs “would cancel the contract” if Silva was reinstated.

After being laid off, Silva filed USERRA complaints against Customs and SPS. The Justice Department declined to take action against the contractor. But the U.S. Office of Special Counsel, which reviews alleged government wrongdoing, won a decision holding Customs responsible.

Silva, who reached a confidential settlement with Customs, remains angry that the Justice Department did not pursue the case. “They refused to give any kind of explanation,” he said. “The whole burden is put on the serving soldier to defend your case.”

Silva’s experience is not unusual. Some employees penalized for their military service describe being forced to wend their way through a frustrating bureaucracy before they get recourse. Sometimes, veterans and advocates say, they never get it.

In fiscal 2010, the Labor Department recommended that Justice officials pursue 43 alleged violations of USERRA. The Justice Department agreed to represent only three but helped settle nine other cases. The department declined to represent 18 service members, despite Labor’s conclusion that their cases had merit. Another dozen cases were still being considered by Justice at the end of the fiscal year.

The Justice Department’s decisions “are always based on a careful consideration of the case from a litigation and merits standpoint,” said spokeswoman Xochitl Hinojosa.

Service members who have been refused re-employment or denied new jobs say the consequences often extend to their personal lives.

First Lt. Christopher Matthai, 31, enlisted in the Army at age 18 after graduating from high school in Baltimore, and in 2006 he joined the Army Reserve. In May 2009, shortly before he married, Matthai was hired for a two-year internship by the Social Security Administration as an information technology specialist.

Soon after he started, however, the Army Reserve selected Matthai to be a commissioned officer. After missing much of his first year at work for officer training, Matthai informed his civilian supervisors in April 2010 that he would be sent to Afghanistan in the fall for a year. A few days later, he was fired for “poor performance” and being absent without leave.

“I was shocked,” Matthai recalled. “I told them, ‘At least let me resign so I can walk out of here with a clear name.’ ”

Instead, he was escorted out by a guard.

Matthai filed a complaint with the Department of Labor. The investigation stretched on for months, and Matthai deployed to Afghanistan with the situation unresolved and his wife, Lindsay, pregnant with their first child. Stress from the case “was destroying my marriage,” he said. “I’m sitting overseas, banging my head against the wall.”

When completed in March 2011, the Labor investigation found Matthai had been “wrongfully terminated” because of his military obligations and falsely accused of being absent without leave. There was no evidence of poor performance.

Matthai was entitled to get his job back with lost wages and benefits and have his record cleared of any wrongdoing, according to the Labor Department. Matthai, then midway through his tour in Afghanistan, only wanted SSA to clear his record and pay his attorney fees.

But the Labor Department’s findings carry no enforcement power. SSA offered to pay only a small portion of his attorney fees and insisted that Matthai not seek reemployment with SSA, a stipulation that would have been a red flag for any other federal agency considering hiring him, according to Estes, his attorney.

“The whole complaint process is totally broken,” Matthai said. “I’m a federal employee, and a reservist, and I felt completely unprotected and abandoned by the federal government.”

It was only after Matthai returned from Afghanistan, when his attorney began scheduling depositions to bring the case before the Merit Systems Protection Board and his congressman, Rep. Dutch Ruppersberger, D-Md., called the agency, that SSA settled the case in November.

The agency dropped its demand that Matthai not seek employment with it again, paid him his full $13,500 in attorney fees and cleared his record, but made no admission that it violated USERRA. The agency declined to comment.

“I still feel cheated,” Matthai said. “The law needs some muscle behind it to have it mean something.”

In late January, Matthai left Maryland for a one-year assignment with the Army in Texas. His wife and their now 1-year-old son, Christopher Jr., will soon follow.

“I’ve got to find some kind of employment,” he said, “and it seems the only option is the military.”