Erickson v. U.S. Postal Service

• Decision Date: 15 July 2009
• Docket Number: No. 2008-3216.,2008-3216.
• Citation: 571 F.3d 1364
• Parties: Richard ERICKSON, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

571 F.3d 1364

Richard ERICKSON, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.

No. 2008-3216.

United States Court of Appeals, Federal Circuit.

July 15, 2009.

Ariel E. Solomon, Tully Rinckey P.L.L.C., of Albany, NY, argued for petitioner. Of counsel was Mathew B. Tully.

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Tony West, Assistant Attorney General, Jeanne E.

Davidson, Director, and Todd M. Hughes, Deputy Director.

Before BRYSON and GAJARSA, Circuit Judges, and ST. EVE, District Judge.^*

BRYSON, Circuit Judge.

The Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") represents Congress's most recent effort to encourage noncareer military service "by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service." 38 U.S.C. § 4301(a). USERRA prohibits discrimination against civilian employees because of their military obligations, 38 U.S.C. § 4311, and it provides reemployment rights to those who leave their jobs to serve in the uniformed services, 38 U.S.C. § 4312.

Petitioner Richard Erickson, a former employee of the United States Postal Service, claims that the Postal Service violated his USERRA rights when it removed him from his position on account of his military service and refused to reemploy him after he completed that service. He pressed his claims before the Merit Systems Protection Board, but the Board rejected them. We agree with the Board that Mr. Erickson failed to make a timely request for reemployment with the agency, and for that reason, we uphold the Board's ruling that the Postal Service did not unlawfully refuse to reemploy him after his service. With respect to his claim of discrimination based on military service, we reject the Board's rationale for rejecting his claim, and we remand for the Board to address the administrative judge's finding that Mr. Erickson waived his USERRA rights by abandoning his civilian career in favor of one in the military.

I

Mr. Erickson was employed by the Postal Service from 1988 until he was removed from his position in 2000. Throughout his employment with the agency, Mr. Erickson served in the Army National Guard Reserve. During that period, he was absent from his position with the Postal Service for lengthy periods of time while he was on active duty with the National Guard. Between 1991 and 1995, he was absent from his Postal Service position for a total of more than 22 months, and between 1996 and the date of his removal in 2000, he worked at the Postal Service for no more than four days. In January 2000, a labor relations specialist from the Postal Service contacted Mr. Erickson by telephone to determine whether he intended to return to his position with the agency or continue serving in the military. Mr. Erickson responded that he would not report back to work with the agency until he completed his current tour of duty in September 2001. In the course of that conversation, he stated that he preferred military service to working for the Postal Service.

Shortly thereafter, the Postal Service issued a notice proposing to remove Mr. Erickson from his position because of excessive use of military leave. The notice stated that in the course of his tenure with the agency, he had been on military leave for more than five years, excluding weekend drills and annual training. Because USERRA contains a five-year limit on the amount of military leave an employee may use while retaining employment rights, the agency advised Mr. Erickson that he was no longer entitled to occupy his position with the Postal Service. Mr. Erickson did not respond to the notice of proposed removal, and on March 31, 2000, the agency issued a final decision removing him from his position because of his absence. Mr. Erickson subsequently re-enlisted with the National Guard and remained on active military duty until December 31, 2005.

On September 28, 2006, nine months after the end of his military duty, Mr. Erickson filed an appeal with the Merit Systems Protection Board alleging that the agency had violated his USERRA rights by removing him from his position based on his military service. The administrative judge who was assigned to the appeal found that at the time of Mr. Erickson's removal in 2000, his cumulative military leave did not exceed the five-year cap set by USERRA, because some of Mr. Erickson's military service was statutorily exempt from the five-year service limit. See 38 U.S.C. § 4312(c). The administrative judge further concluded that the agency had violated USERRA's nondiscrimination provision, 38 U.S.C. § 4311, when it removed Mr. Erickson for excessive use of military leave: "Because appellant was removed solely because of his military service, the evidence of record supports a finding that appellant's military service was `a substantial factor' in appellant's termination from the Postal Service." However, the administrative judge concluded that Mr. Erickson had waived his USERRA rights by abandoning his civilian career in favor of one in the military. The administrative judge therefore issued an initial decision denying Mr. Erickson's USERRA appeal.

Challenging the administrative judge's finding that he had abandoned his civilian employment, Mr. Erickson filed a petition for review by the full Board. The agency opposed that petition and filed a cross-petition for review alleging that the administrative judge had erred in failing to address its argument that Mr. Erickson did not make a proper request for reemployment with the agency. The Board affirmed the initial decision denying Mr. Erickson's appeal "as modified" by its final order, but it did not address the question whether Mr. Erickson had abandoned his civilian career in favor of one in the military. Instead, the Board found that Mr. Erickson's military service was not, as the administrative judge had concluded, a motivating factor in the agency's decision to remove him, because "the agency's removal notice makes clear that the real reason for the appellant's removal was his absence regardless of its cause." Thus, the Board concluded that Mr. Erickson did not show that the agency had violated USERRA's nondiscrimination provision when it removed him from his position.

The Board also found that Mr. Erickson did not submit a timely request for reemployment with the agency, and that even if he done so, he no longer retained reemployment rights under section 4312 because at the time of his appeal in 2006 his cumulative absence exceeded the five-year limit set by USERRA. For those reasons, the full Board concluded that Mr. Erickson failed to demonstrate that the agency had violated his USERRA rights. Erickson v. U.S. Postal Serv., 108 M.S.P.R. 494 (2008).

II

Mr. Erickson maintains that the agency committed two independent USERRA violations with respect to his removal. First, he contends that the agency discriminated against him, in violation of 38 U.S.C. § 4311, when it removed him in 2000 from his position because of his excessive use of military leave. Second, he asserts that the agency violated 38 U.S.C. § 4312 when it refused to reemploy him in 2005 after he had completed his military service.

A

Section 4311 prohibits discrimination on the basis of military service. It provides:

A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

38 U.S.C. § 4311(a). USERRA discrimination claims are analyzed under a burden-shifting mechanism. See Sheehan v. Dep't of the Navy, 240 F.3d 1009, 1013 (Fed.Cir.2001). An employee who makes a discrimination claim under USERRA bears the initial burden of showing by a preponderance of the evidence that his military service was a substantial or motivating factor in the adverse employment action. If the employee makes that prima facie showing, the employer can avoid liability by demonstrating, as an affirmative defense, that it would have taken the same action without regard to the employee's military service. Id. at 1013; see 38 U.S.C. § 4311(c)(1). An employer therefore violates section 4311 if it would not have taken the adverse employment action but for the employee's military service or obligation. See H.R.Rep. No. 103-65, at 24 (1993), as reprinted in 1994 U.S.C.C.A.N. 2449, 2457; see also Pittman v. Dep't of Justice, 486 F.3d 1276, 1281 (Fed.Cir.2007).

In its notice of removal, the Postal Service stated that the sole reason for removing Mr. Erickson from his position was his excessive use of military leave. The full Board acknowledged that "on its face" that admitted purpose would seem to constitute direct evidence of discrimination under USERRA. Nonetheless, the Board found that Mr. Erickson had failed to show that his military service was a motivating factor for the agency's action because the "real reason" for his removal was his absence from work—regardless of whether that absence was caused by his military obligation.

We reject that argument. An employer cannot escape liability under USERRA by claiming that it was merely discriminating against an employee on the basis of his absence when that absence was for military service. As other courts have held, military service is a motivating factor for an adverse employment action if the employer "relied on, took into account, considered, or conditioned its decision" on the employee's military-related absence or obligation. Petty v. Metro. Gov't of Nashville-Davidson County, 538 F.3d 431, 446 (6th Cir.2008), quoting Coffman v....