Robbing veterans of their future. Part 2. Agencies for dirty tricks

…. has established a convoluted system for keeping claims filed by veterans out of federal courts. At the same time, federal judges have taken it upon themselves to block veterans at every turn to keep them from obtaining their legal rights through jury trials. Almost every American has seen the results of this system: large numbers of homeless veterans and their families wandering the streets of most American cities. Some of these veterans work 40 or more hours each week but still do not earn enough to pay for both food and shelter.

To explain this phenomenon, the American media have developed the myth of the psycho veteran, typically an alcoholic tortured by “flackbacks” of his misdeeds in

Vietnam

and ready at any moment to “go psycho.” The fact that such veterans do not exist does not disturb members of our fourth estate.

Hollywood

saw to it that the public believes in the existence of such veterans by cranking out movies and TV dramas for the past 40 years in which the villain is a deranged Vietnam War veteran who becomes a psychotic killer or a deranged military officer plotting to start World War III. Josef Goebbels blamed the Jews for their own persecution, and Stalin and Mao placed the blame on their own tens of millions of victims, who these dictators had executed or sent to forced labor camps, from which they would never return. American journalists therefore have mentors who proved themselves outstanding in fooling the public.

In fact, the cause of homelessness among veterans is simply the lack of a good job. A minority of veterans suffer from post-traumatic stress disorder (PTSD), and if any of them are homeless, it has to be recognized as criminal violation of their right to treatment and disability payments for a service-connected disorder. When veterans were inducted into the armed forces, they had to pass tests showing that they were in nearly perfect physical condition and with average or better intelligence. If they are not suffering from PTSD, it has to be concluded that their rights to the statutory employment services and preference in civil service employment, which they were promised before enlistment, are being violated.

In 1974, Congress acknowledged the fact that veterans were extremely disadvantaged on the employment market. It therefore amended the Vietnam Veterans’ Readjustment Assistance Act (VVRAA), which starts with the finding of Congress:

“(1) As long as unemployment and underemployment continue as serious problems among disabled veterans and Vietnam Era veterans, alleviating unemployment and underemployment among such veterans is a national responsibility.

“(2) Because of the special nature of employment and training needs of such veterans and the national responsibility to meet those needs, policies and programs to increase opportunities for such veterans to obtain employment, job training, counselling, and job placement services and assistance in securing advancement in employment should be effectively and vigorously implemented by the Secretary of Labor and such implementation should be accomplished through the Assistant Secretary of Labor for Veterans’ Employment.”

This statement was originally codified as Title 38, §2000, or the United States Code. The introductory statements were followed by specific requirements mandatory for the

United States

civil service and all federal contractors doing more than $10,000 worth of business with the government each year. Recently, this limit was raised to $25,000 per year. Since 1974, the federal contract has contained a large number of requirements found in the federal regulations under 41 C.F.R. §60-250. The Secretary of Labor assigned the duty of seeing to it that federal contractors complied with the terms of the contract to the Office of Federal Contract Compliance Programs (OFCCP). This agency was also supposed to enforce the provisions of civil rights laws, which were also required under the federal contract.

Federal judges quickly decided that no veteran could file a lawsuit against a federal contractor under the VVRAA on his own behalf because, according to the judges, Congress had assigned enforcement to the Secretary of Labor. There is nothing in the law that says a veteran cannot sue, but there is also no specific paragraph that says he can. In the case of similar laws, however, there were two specific statutes in force that permit anyone to sue the federal government for failure to abide by any law. The first is the Federal Tort Claim Act, which provides for monetary damages whenever a person suffers a financial loss because of the negligence of a federal agent acting under the authority of the government. The second is the Administrative Procedures Act, which permits a citizen to file for injunctive relief if a government agent is failing to carry out a specific duty under any law or statute. According to the United States Supreme Court, whether or not the agent has a duty to perform an action depends on the wording of the law. If the word “shall” is used, the action is compulsory. If the word “may” is used, the act is discretionary, and the agent cannot be sued for failing to perform it.

At the time I filed my lawsuit, the VVRAA, 38 U.S.C. §2012 (b), read as follows:

“If any special disabled veteran of veteran of the Vietnam era believes any contractor of the United States has failed to comply of refuses to comply with the provisions of the contractor’s contract relating to the employment of veterans, the veteran may file a complaint with the Secretary of Labor, who shall promptly investigate such complaint and take appropriate action in accordance with the terms of the contract and applicable laws and regulations.” Italics were added.

For the layman, the words of a law have a generally understandable meaning, but in a court, the meaning of the words is whatever the judge says it is. Sometimes that is the opposite of what the words actually say, according to any English dictionary. Although federal judges have applied the Federal Tort Claim Act and Administrative Procedures Act to many other laws, they agreed that they should not be constructed with any of the veterans’ laws. Under the doctrine of the “living Constitution,” proclaimed by several Supreme Court justices, judges are free to change the laws as they go along. Obviously, judges believe that veterans deserve neither rights nor benefits.

After being rejected for employment by a large number of American universities during the early 1980s, I began filing age discrimination complaints with the Equal Employment Opportunity Commission (EEOC) and complaints of discrimination because of my veteran status with the OFCCP. While the investigations by the EEOC would yield several pounds of documents, the file produced for each of my complaints to the OFCCP produced exactly two documents: my letter of complaint and the letter from the OFCCP stating that it had found no violations by the employer. Whether or not the investigator even spoke with the employer on the phone is not clear. I know this to be true because I requested the investigation files under the Freedom of Information Act, and after I received nothing from the OFCCP, I sued for the documents. The United States Attorney representing the OFCCP told the judge that no other documents existed, and my complaint was dismissed accordingly. Later, I sued the Department of Labor because the OFCCP was failing to conduct a mandatory investigation. The lawsuit was also dismissed summarily for no understandable reason other than, as I learned, in such lawsuits, the judge always sees to it that the agency wins without referring the matter to a jury. The only exception to this occurs when a newspaper publishes something about the lawsuit.

What the files from the EEOC investigation showed was that the applicants being hired had less experience, authored fewer scientific publications than I had, and never served in the armed forces. After I had a summons served on the State University of New York and its research foundation, I telephoned the person in charge of the OFCCP office in

Buffalo,

New York

, and when I asked him the reason for his decision to take no action, he replied, “The one they hired had way better qualifications than yours.”

When I asked him in for specifics, he said that he really did not know because a subordinate had performed the investigation. When I asked to speak to the subordinate, he said that she was not there. When I asked when she would return, he said that he did not know but it would not be for a long time. I appealed his decisions and those rendered after many subsequent complaints, and I soon had a large collection of letters from Carmen McCullough, the regional chief of the OFCCP, confirming each decision made by her subordinates after their “investigations,” which did not yield a single document of any kind.

Eventually, after an initial hearing, the district judge for the Northern District of New York, Thomas McAvoy, ordered the appointment of a pro bono attorney to represent me. All complaints under veterans’ laws were dismissed on the allegation by the judge that he had no jurisdiction under those laws, but the age discrimination complaint remained. The lawyer negotiated a settlement with the university that gained me a small payment but more than I would have received if I had won the lawsuit at trial. At the time, I was entitled to receive the salary for the job I had been denied minus whatever I had earned elsewhere during the period. The salary was $17,000 per year, and I had been earning at least twice that amount in

Germany

. Later, the law was changed to provide a settlement high enough to discourage employers somewhat from discriminating. The denial of the job was simply meant to keep me from establishing myself as a scientist in the

United States

.

I also demanded and received an admission by the university that its search committee had disregarded my right to affirmative action as a Vietnam War veteran. This was a moral victory for me, but it had no legal value because of the prohibition created by federal judges against veterans suing in their own behalf. The lawyer also told me that the head of the search committee admitted that I was the most qualified applicant and that he said that he wanted to hire me. However, I had been blackballed by the head of the department and one professor named Makarowicz, who had told the New York State Human Rights Commission, investigating on behalf of the EEOC, that I was not hired because the cover letter of my application was “less appealing” than those of the other applicants. He explained that this was because I had identified myself as a Vietnam War veteran and seemed to imply that I wanted special consideration. In fact, the federal contract states that veterans are supposed to be encouraged to self-identify so that they can benefit from the employer’s mandatory affirmative action program. It is also mandatory that search committee members be informed of this policy.

The investigations of my first complaints to the OFCCP should have taken place in 1984 or 1985. More than 20 years later, several veterans groups began investigating the record of the OFCCP. Nobody discovered even one case in which a veteran had received relief for employment discrimination through the actions of the Secretary of Labor. Complaints by veterans against colleges and universities abound. In two cases in which I had received favorable settlements from federal contractors against whom I had filed discrimination lawsuits, the OFCCP had first ruled that my complaint had no merit. As my litigation proceeded, however, it became clear that I almost certainly would have won before a jury.

In at least one case about which I did not file a lawsuit, the OFCCP confirmed that the employer against whom I had filed a complaint, a college in the

University

of

Nevada

system, was in violation of the federal contract. Because I was offered no relief, I did not learn what this violation was. Another group of veterans compelled the OFCCP through lawsuits to find that the

University

of

California

,

Long Beach

, was also in violation of the contract. Again, this did not help any veterans overcome the discrimination. I assume that the violation was corrected by having the university print, “Hire a Vet!” on its envelopes.

Meanwhile, other veterans were engaged in a long legal battle with

Ohio

State

University

. The outcome of the matter was influenced when an attorney representing the university admitted, allegedly under the influence of alcohol, that its administration had a special classification system for veterans. For some reason, retired military personnel were acceptable to the university, but other veterans were classified as “closet veterans,” who kept their service secret, and “unrepentant veterans,” who put their military service on their resumes. The faculty and administration would never hire an “unrepentant veteran.”

Later, the universities began to discover that there were more “closet veterans” on their faculties than they had previously thought. They learned about this through the VETS-100 program, which was initiated by the Veterans’ Employment and Training Service (VETS) in 1988. Under this program, federal contractors are required to report how many persons they employ and how many of them are Vietnam Era or disabled veterans. To the great surprise of the university staff members who had to survey their employees to discover veterans, a number of employees at almost every university had actually served in the armed forces during the Vietnam War. The administration and other faculty members had never known this before because the employees had not told anyone about it. When VETS began pressuring the universities to hire veterans, they complied but also began firing the veterans they had discovered on their staffs. Therefore, while the Secretary of Labor was crowing about the significant rates of hiring veterans, the veterans engaged in the lawsuit against Ohio State University began discovering that some universities was firing twice the number of veterans they were hiring each year. In addition, my own limited records disclose that veterans are typically hired as janitors, night watchmen, and ground keepers but not as faculty members. The VETS-100 reports do not differentiate jobs according to salary or duties. To the Secretary of Labor, one veteran hired to empty trash baskets is equal to one veteran hired as a college president, and once credit has been given to the contractor for hiring a veteran, nobody cares whether they fire him the next day.

In 1994, Congress passed the Uniformed Services Employment and Reemployment Rights Act (USERRA), which permitted veterans to sue on their own behalf if they have been discriminated against by an employer. It also developed convoluted systems for adjudicating complaints by veterans against employers with federal contracts and against federal agencies.

No federal court will accept a complaint against any employer unless all administrative remedies have been exhausted. To do this, the veteran is required to submit complaints with every agency willing to accept such a complaint and wait a specific period of time or until the complaint is dismissed.

A serious problem is that veterans filing complaints have no chance of finding competent legal counsel. A group of veterans in

Los Angeles

attempted to compile a list lawyers who feel themselves knowledgeable enough about the relevant laws to assist veterans. Very few were found, and their competence was limited to assistance through the Department of Veterans’ Affairs system for filing claims. Lawyers did not even seem to consider the possibility of employment discrimination, and even those veterans who claimed to have some ability to assist veterans had never heard of the OFCCP. In fact, few Americans of any profession seem to know that the Department of Labor has such an important role in reintegrating veterans into civilian life.

Without representation by a competent lawyer and with little help from any organization, a veteran who is turned down for a job or a promotion or who is fired because of the antipathy many non-veterans feel against those who served in uniform during the Vietnam War and subsequent conflicts must learn the complex process established to permit him to seek redress. Since 1994, the veteran has been required to take the following steps before he or she can file a lawsuit. If the employer is a federal contractor, he must file a complaint with VETS, the OFCCP, or both. It is also a good idea to file a complaint of discrimination under one or more of the civil rights laws, which prohibit discrimination because of race, national origin, religion, sex, age, or reprisal. One of these may have been a contributing reason for the discrimination, but, in any case, the EEOC does a much better job of investigating than the Department of Labor. Neither Labor nor the EEOC will be of much help to any veteran in an appeal, but the information gained through the EEOC records generally substantiates that discrimination occurred. At least it did for me after every complaint I filed. After these agencies issue statements that no further action will be taken, a lawsuit may be filed in a federal court. However, the period permitted for filing the lawsuit is very short, usually 30 or 60 days. Recently, it was discovered that agencies of the Department of Labor were not issuing certificates stating that their investigations were complete and that the veteran has a right to file a lawsuit, or at least not mailing such certificates, in order to prevent veterans from filing their lawsuits.

In case the employer is an agency of the federal government, complaints must be filed with VETS and with the U.S. Office of Special Counsel. After the issuance of a certificate that no further action will be taken by the Special Counsel, which often relies on the investigation by VETS, or after a period of 60 days during which the Special Counsel takes no action, the veteran may file an appeal with the Merit System Protection Board. Decisions by administrative law judges can be appealed to the chief members of the Board in

Washington,

D.C.

, and their final decisions can be appealed to the U.S. Court of Appeals for the Federal Circuit.

In 1998, because of the severe problems of discrimination against veterans by the federal civil service, Congress passed the Veterans’ Employment Opportunity Act over vehement objections by various organizations of federal employees. This law provided the first means of enforcing veterans’ preference since it was introduced in 1944. The method of administrative appeal under this law is the same as that under USERRA.

The same route of appeal is available for whistleblowers in the civil service, against whom reprisal has been taken, except that VETS has no part in the process. In the next article, my own experience with this system will be discussed. It had no chance for success in view of the following findings by various groups and my own records obtained under the Freedom of Information Act.

The record of VETS is almost as bad as that of the OFCCP, which has never been known to assist a veteran who had faced discrimination. Through the Freedom of Information Act, I discovered that VETS does not even keep records of the number of complaints it receives from veterans each year. However, about five years ago, I was told that records of 1029 complaints had been maintained for the previous year in agency files. Of these, about 37 had been referred to Justice Department lawyers, who had decided to pursue 5 through lawsuits. Because 4 or the 5 were settled immediately by the employers when they were threatened with a lawsuit, only one actually ended in litigation supported by VETS. When I last checked, the annual budget for VETS was $219,000,000. That is a high cost for a lawsuit involving a job paying no more than $25,000 per year. The Government Accountability Office (GAO) issued a report in 1994 criticizing the Department of Laborfor classifying only those jobs paying less than $25,000 per year as “suitable for veterans.” That means that many employers and state employment services do not even list jobs paying higher salaries for veterans to see. Up until about 1978, this maximum salary for veterans had been $18,000 per year.

To provide an idea of how prevalent discrimination against veterans of the Iraq War era actually is, the GAO issued a report on the subject in 2007. This report received some grudging attention from the press because it stated that about 16,000 veterans had filed employment discrimination complaints after serving in

Iraq

,

Afghanistan

, or elsewhere in a supporting role. Many had been illegally fired while in service, while others had been discriminated against in hiring. The GAO also discovered that only about one in three veterans who has faced discrimination bothers to complain. Therefore, at the time of the report, about 48,000 of those veterans recently discharged from the service had been illegally denied employment, which, for most Americans who are not independently wealthy, represents denial of a means of survival.

In cases of discrimination for civil service employment as well as of denial of veterans’ preference rights, the U.S. Office of Special Counsel (OSC) almost never provides assistance. However, my own case was announced as a “favorable settlement” for a veteran in a press release posted by the OSC on its website in 1998. It confirmed charges I filed that I had been offered $20,000 to withdraw from a federal civil service selection by the U.S. Forest Service in

Alaska

in 1997. In the press release, however, the bribe was falsely described as a “temporary position,” and the Forest Service employees involved were punished only for committing a prohibited personnel practice, rather than grand larceny for misappropriating $20,000 and bribery. The OSC had a copy of an e-mail in its files from Tricia Wurtz of the Forest Service to her supervisor, Hermann Gucinski, and F. Stuart Chapin, III, of the University of Alaska clearly stating that the money was to be taken from funds for equipment purchases and thatit was to be paid for my withdrawal from the selection rather than for temporary employment.

After I was fired one day before the end of the probationary year in reprisal for blowing the whistle on the offer, I went back to the OSC, which wanted nothing to do with my complaint. It grudgingly conceded that it would investigate but stated that I would have to wait at least seven months before it could even start. I later learned that the OSC takes action on only about 1 in 800 complaints it receives from whistleblowers and veterans, so the fact that it took action once for me was like winning a lottery. Its action, however, just set me up for agency reprisal and blacklisting.

According to Vietnam Veterans of America, the Merit System Protection Board (MSPB) has never provided relief to a veteran since it first starting hearing their appeals in 1994. It almost always rules in favor of corrupt agencies against whistleblowers, and even when it decides in favor of the whistleblower, it usually fails to enforce its own orders. I filed four appeals with the MSPB concerning two different matters, and I believe that I could prove to any reasonable jury that the proceedings were conducted fraudulently by the administrative law judges in every case.

Appealing to the Federal Circuit Court of Appeals also serves little purpose. The judges on this court not only see to it that the agency always wins, they changed the stated intent of Congress by refusing to consider most disclosures to be whistleblowing at all and by requiring the veterans to obtain confessions from agency employees, not only that they committed prohibited personnel actions against veterans but that their motivation for the discrimination was military service and not some other reason, such as the race, sex, or age of the veteran. The Federal Circuit does not deny that other forms of discrimination are illegal, but it allows the MSPB to exercise jurisdiction only if the veteran can get a certified mind reader to ascertain that the motive was his or her service in the armed forces.

The only conclusion from these facts is that it is still a violation of the law to discriminate against veterans in employment, but that if any employer does so, the veteran has no chance to get anyone to uphold the law. He might waste his time and money trying, but he will have no success. If he finds a lawyer to represent him, he will simply owe more money after his case is improperly dismissed. I am sure that the veterans would win almost every lawsuit brought before an impartial jury, but Congress has been pressured by various employers to place veterans’ appeals in the hands of corrupt bureaucrats, who can see to it that the veteran never gets a fair hearing. Corrupt judges will continue finding bogus reasons to dismiss veterans’ appeals summarily without a jury, as they have been doing in the past.

The present Congress has taken cognizance of the criminal activities of the OSC, MSPB, and Court of Appeals for the Federal Circuit. The House Committee for Government Oversight and Accountability and Senators Akaka and Grassley have affirmed that the decisions made by these appeals court judges are contrary to the stated intent of Congress, and new legislation has already passed the House of Representatives to reform the system. Unfortunately, the reforms are directed only to improve the chances of whistleblowers and not specifically worded to improve the chances of veterans to find justice. The Seventh Amendment to the United States Constitution affirms that trial by jury in civil cases involving more than $20 is a basic civil right. Until veterans are able to secure that right for themselves, the best advice for servicemen returning from

Iraq

and

Afghanistan

is to reserve a place in a homeless shelter as soon as possible.

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