The U.S. Court of Appeals for the Federal Circuit recently held that the U.S. Postal Service incorrectly terminated a member of the National Guard under false assumptions in that he abandoned his position. This huge win for veterans and service members means that federal agencies will find it harder to base their discriminatory terminations of military members on circumstantial evidence that the employee abandoned their civilian position.
In the case of Erickson v. United States Postal Service, Docket # 2010-3096 (Federal Circuit, February 28, 2011), Army Special Forces Sergeant Major Richard Erickson, who has been awarded multiple medals for Combat Valor and is a Purple Heart recipient, joined the Postal Service in 1988.
Due to his military service, he was absent from this position for various periods of time for the purposes of Special Forces training and drug eradication missions. While on active duty in January 2000, Erickson had a telephone conversation with Roslyn Warner, a labor relations specialist with the Postal Service, which she later summarized in an e-mail: “[Mr. Erickson] told me he is staying in the military until his orders expire…he likes the military and said that he did not like working for the [Postal Service]. He doesn’t care for the way they treat their employees.” The Postal Service tried to argue that these comments indicated that Erickson would not be returning to his civilian position and had abandoned it in favor of a career in the military. Shortly after this conversation, the Postal Service proposed Erickson’s removal from federal service. With Erickson out of the country on military duty, he did not respond to the proposal and was terminated in March 2000.
Six years later, Erickson appealed his removal to the Merit Systems Protection Board on the grounds that the Postal Service violated the anti-discrimination provisions in the Uniformed Services Employment and Reemployment Rights Act (USERRA). The administrative judge in that case held that he had in fact abandoned his position which disqualified him for the protections of USERRA.
In Erickson’s appeal to the full Board, they affirmed the result of the initial decision not on the grounds that he abandoned his position but rather that he failed to show that his military status was a motivating factor in his termination. Erickson further appealed to the Federal Circuit, which reversed the Board on the claim of discrimination and held that his military service was a motivating factor in his removal. The court also remanded the case back to the Board to determine if he abandoned his position as held by the original Administrative Judge. On remand, the Board affirmed Erickson’s termination due to alleged abandonment and relied on three key pieces of evidence: (1) length of military service, (2) failure to challenge or appeal his termination for six years, and (3) expressed dissatisfaction with the Postal Service. Once again, Erickson appealed to the Federal Circuit to protect his USERRA rights.
Most recently, the Federal Circuit again vacated the Board’s decision denying Erickson his protection from discrimination and held that Erickson did not abandon his civilian position in favor of a career in the military. The Federal Circuit pointed out that Erickson’s service did not exceed the five-year cap, when considering periods that were exempt, which results in a service member forfeiting his or her reemployment rights. The court also disagreed that Erickson’s dissatisfaction with how the Postal Service treated its employees and his failure to challenge his termination while deployed were not sufficient to establish that Erickson abandoned his civilian career. As the court noted, the USERRA statute does not set-forth any time limits by which a service member may appeal their discrimination claim. The Board completely failed to take this into consideration, prematurely concluding that Erickson’s failure to act was abandonment in and of itself when in fact he was still overseas fulfilling his military obligations at the time of his removal. The Federal Circuit explained, “Because an employee who is in military service retains his USERRA anti-discrimination rights despite the passage of time, an employee’s failure to promptly challenge an adverse action by his employer should not be given undue weight in the abandonment inquiry.”
The court also relied upon the fact that Erickson specifically stated that he would return to the Postal Service when his orders were up and Erickson testified that “his job was with the Postal Service,” which supported his argument that he never intended to abandon his position. Finally, the Federal Circuit believed the Board relied too heavily on circumstantial evidence to connect the dots to support the Postal Service’s argument that Erickson abandoned his position. Taken as a whole, expressed dissatisfaction with an agency coupled with a time lapse in appealing a removal does not constitute a waiver of USERRA rights. In previous cases where the abandonment principle was upheld, and which the Postal Service tried to rely, the employees had formally resigned as well as withdrew their personal retirement contributions. In the absence of both, as well as the affirmative evidence that suggested Erickson never intended to leave his position, the court held that he did not abandon the Postal Service and remanded the case yet again to the Board. If Erickson is reinstated into his previous position, he may be entitled to eleven years of back pay and benefits that could cost the Postal Service over $1 million in damages when attorney fees are included.
What does this mean for the half-million people currently serving in the National Guard and Reserves?
The Federal Circuit’s decision should make it much more difficult for an employer to discriminate against a service member and then attempt to argue that the employee abandoned his or her position in order to avoid liability under USERRA. In a poignant rebuttal against such future arguments, the Federal Circuit highlighted that the five-year cap on military service for purposes of reemployment was also relevant to whether the employee abandoned their civilian position. Specifically, the Federal Circuit held: “Because the five-year period provides a distinct termination point for USERRA’s reemployment rights, the enactment of that statutory period makes it reasonable to assume that, absent clear evidence to the contrary, employees who have not exceeded that period do not intend to abandon their civilian positions.” This language should make it increasingly more difficult for employers to discriminate against service members and will make it easier for soldiers, sailors and airmen to serve without fear of discrimination. While the Board is expected to issue a final decision in favor of Erickson, the recent decision by the Federal Circuit should help protect many service members from discrimination going forward. Mathew B. Tully is Founding Partner of Tully Rinckey PLLC and a medically retired employee of the U.S. DOJ. He concentrates his legal efforts in federal employment and national security law.