Is a due-process required for terminating a service connected disabled Vet?

SSgt Mark Ashi — Fri, 18 Dec 2020 23:16:33 -0500

Stated this earlier but looking for experienced victims. I am 60% disabled and had 37 years working with an unblemished record. The employer has subcontracted Air Force work, and is a primary contractor with the DoD. I was terminated for non-sense reasons that I have appealed throught thier appeal process. Now they are asking how they discriminated against me as a service-connected disabled Vet. For one, they did not offer me a due process such as options for corrective actions for the reasons they cited. They offered no compassion for my disabilities even though I had to remind them that I deserve more then a good-bye. Its shameful what they did- and no respect for our sacrifices. Their contracts are worth over $200M a year. The company's location is in California.

Is a due-process required for terminating a service connected disabled Vet? Put a different way, since the company does significant work for the military should they have a policy or practice that affords a disabled Vet an opportunity to address any shortcomings such as those that led to the wrongful termination? Since we declare our disabilities in advance on the HR website for our profiles shouldn't that lead to a process that includes termination? I'm struggling with the coldness and harsh practice by this multinational company. The Office of Federal Contract Compliance talks about the protected class of veterans but I'm confused as to the discrimination during the termination - it was the lack of due process that is the discrimination. Put a different way, by not being a part of the investigation or offerred any opportunity to improve or correct the reasons for termination it seems to be a one-way door with no protection for service-connected disabled Vets.

Response by CWO3 Private RallyPoint Member made Dec 19 at 2020 12:53 AM

CWO3 Private RallyPoint Member — Sat, 19 Dec 2020 00:53:57 -0500

You need to partner with an attorney and/or a Vets Group. Utilize Union arbitration if it applies. Don't expect much mileage due to being a Vet or disabled one. Your definition of non-sense reasons and the statutory legal definition may differ. That's what lawyers argue. EEOC rarely gets involved in low profile cases. ADA cases go to Federal District Court for starters. Most attorneys offer free consults, and if you have a case they might take it on commission. 40% usually, if you prevail. No cost if you don't, some require a retainer.

Response by Lt Col Jim Coe made Dec 19 at 2020 10:23 AM

Lt Col Jim Coe — Sat, 19 Dec 2020 10:23:24 -0500

Short answer: it sounds like you were a non-union free will employee. If so you can be terminated at any time for any reason or no reason.

Bring disabled may make you part of a protected class. You may have recourse through the company EEO office. Otherwise you’ll need to complain through state equal employment office. However if the company followed the law and their own procedures without discrimination due to your disability you may have no case. They aren’t required to be nice or compassionate, just fair and compliant.

Recommend you contact a lawyer specializing in labor law.

Response by SFC Casey O'Mally made Dec 19 at 2020 12:38 PM

SFC Casey O'Mally — Sat, 19 Dec 2020 12:38:12 -0500

If you were terminated because of your disability, you probably have a case. But only of that was the reason you were fired. And service-connected vet has nothing to do with it, it is all about the ADA. They should be making "reasonable accommodations." For your disability.

I ain't a lawyer - and that is who you need to be talking to. A lawyer who is a member of your state's bar who specializes in employment law.

Response by SSG Brian G. made Dec 19 at 2020 3:03 PM

SSG Brian G. — Sat, 19 Dec 2020 15:03:47 -0500

Here is the cold, harsh reality of the working world.
You are not owed, legally, anything for being a veteran, disabled or otherwise. You may or may not get preference in hiring and points towards that. You are owed the exact same thing that every other person alongside you gets and that is the opportunity to do your job and collect a paycheck.

Unless you are part of a union then the process is fairly straight forward. They can terminate you for whatever they deem appropriate. You are then owed a hearing, should you file an unemployment claim and should you win, then can expect to draw benefits for xx number of weeks. Beyond that you are not owed anything with respect to your service or disabilities.

When the law speaks of "protected class" it means that you cannot be terminated JUST because you are a disabled veteran. IE lacking limbs, mobility, hearing or speech impaired etc.

Response by CAPT Kevin B. made Dec 19 at 2020 10:39 PM

CAPT Kevin B. — Sat, 19 Dec 2020 22:39:37 -0500

"Due Process" is a term that relates to judicial law, not administrative actions. So that term doesn't apply in your case and you're not entitled to have that standard applied. Your accurate question would be were the relevant processes followed in a matter that is compliant with the terms of the contract and overarching law? The overall governing laws are Title VII (EEO) and the Rehabilitation Act. Contracting Law is found in the Federal Acquisition Regulations (FAR). First, make sure you know what pieces go where. When the Government awards a contract under the FAR, Section 1 of the contract contains many provisions; many incorporated by reference. The EEO and Rehab Act are standard boilerplate clauses. Another clause talks about incorporating the relevant and applicable stuff in any subcontract. So that you're working for a subcontractor but that subcontractor has prime contracts elsewhere is irrelevant. Your direct connection is through the provisions of the prime contract your subcontract employment services. The Federal Government, as represented by the applicable Contracting Officer, has no interest in your issues. They stay out of employer/employee relations. Their only concern that the contract audit types are interested in is if you got paid at least the minimum required by the Davis-Bacon or Service Contract Act. You have three, maybe four paths. Complaint to the Union if applicable (I never saw success there). You can file a complaint with the OFCC, or EEOC, or both. They tend to coordinate their work and also shift things around due to workload.

OK so you file a complaint. Only takes a postage stamp or maybe the internet. However, you have to substantiate it to an "administrative investigator". I've been assigned that role for EEO and other incidents in my day. A staff investigator who has done that for years would be vastly more capable than I ever was. If all you have is allegation and the employer has documented paperwork that supports their reasoning, you won't gain traction. What they did or didn't do to reasonably accommodate a disability falls under a standard which is very different from what you may surmise. Style points are not subject to correction or relief.

Bottom line, you were subjected to an administrative action. Anybody that does work for the Feds over time knows exactly how to generate, save, and present paperwork that shows compliance with the contract provisions and ultimately the law. It takes a special kind of stupid not to. However, I've seen it on occasion.

Response by SSgt Mark Ashi made Feb 1 at 2021 12:32 AM

SSgt Mark Ashi — Mon, 01 Feb 2021 00:32:15 -0500

I have an update on my termination appeal. I filed an extensive appeal (free-form with no given format) that included all the evidence that supports my innocent position on the termination charges. To cut to the chase, I also filed a complaint with my company that specifically called into question how they terminated me with no consideration to my disabilities or offer for corrective action or a warning. It took them over 4 months (and another letter from me after 3 months) and I just got my job back. Not the exact same position but one of equal pay and I will retain my seniority. I did not get a lawyer although I had one firm picked out. So the reinstatement also comes with an 18-month letter of discipline (a warning). I haven't seen the letter yet. Bottom line is I do not believe I am getting rehired because they like me (although I work hard and am respected by my colleagues and FAA inspectors). Rather, it was the documentation and evidence that I had that is bringing me back to work. I am grateful for all the advice given in this blog and appreciate the time as well. Thank you