Sheehan v. Department of Navy

• Citation: 240 F.3d 1009
• Decision Date: 09 February 2001
• Docket Number: No. 00-3271,00-3272.,00-3271
• Parties: Patrick J. SHEEHAN, Petitioner, and Ronald J. Fahrenbacher, Petitioner, v. DEPARTMENT OF the NAVY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

240 F.3d 1009

Patrick J. SHEEHAN, Petitioner, and Ronald J. Fahrenbacher, Petitioner, v. DEPARTMENT OF the NAVY, Respondent.

Nos. 00-3271, 00-3272.

United States Court of Appeals, Federal Circuit.

February 9, 2001.

COPYRIGHT MATERIAL OMITTED

Ronald J. Fahrenbacher, of Kansasville, Wisconsin, pro se.

Patrick J. Sheehan, of Pleasant Prairie, Wisconsin, pro se.

James H. Holl, III, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent. With him on the brief were David M. Cohen, Director; and Deborah A. Bynum, Assistant Director. Of counsel was Catherine Donovan, Counsel, Office of the Assistant General Counsel, Human Resources Operations Center, Department of the Navy, of Washington, DC.

Before NEWMAN, MICHEL, and GAJARSA, Circuit Judges.

PAULINE NEWMAN, Circuit Judge.

Patrick J. Sheehan and Ronald J. Fahrenbacher appeal the decision of the Merit Systems Protection Board denying their request for relief based on asserted discriminatory treatment under the Uniformed Services Employment and Reemployment Rights Act of 1994, Pub.L. No. 103-353, 1994 USCCAN (108 Stat.) 3149 ("USERRA") (codified at 38 U.S.C. §§ 4301-4333).¹ The Board's decision is affirmed.

BACKGROUND

The appellants are retired military officers, and had served in the Navy Judge Advocate General Corps. Both have distinguished records. In 1996, both of the retired appellants applied for the newly-created civilian position of Attorney Advisor and Counsel to the Commander of the Naval Training Center at Great Lakes, Illinois. Neither of the appellants was selected. They separately appealed their non-selection to the Board, on the ground that the agency discriminated against them on the basis of their prior military service, in violation of the USERRA. The appeals proceeded separately, and were assigned to different administrative judges.

Mr. Fahrenbacher's appeal was denied by the administrative judge, from which Mr. Fahrenbacher petitioned for review by the full Board. Mr. Sheehan's appeal was granted by the administrative judge, from which the agency petitioned for review by the full Board. The Board consolidated the petitions, and ruled that neither Mr. Fahrenbacher nor Mr. Sheehan was entitled to relief under the USERRA.

JURISDICTION

The Board has jurisdiction of the appellants' USERRA claims under 38 U.S.C. § 4324. See 5 C.F.R. § 1201.3(a)(22) ("The Board has jurisdiction over appeals from agency actions when the appeals are authorized by law, rule, or regulation. These include appeals from ... non-compliance by a Federal executive agency employer or the Office of Personnel Management with the provisions of the USERRA relating to the employment or reemployment rights or benefits to which a person is entitled after service in the uniformed services.");² Williams v. Dep't of Army, 83 M.S.P.R. 109, 113 (1999). The Federal Circuit has jurisdiction of the appeal pursuant to § 4324(d)(1).

THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT

The USERRA prohibits discrimination in employment on the basis of military service. The operative provision, 38 U.S.C. § 4311, states:

(a) 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.

* * *

(c) An employer shall be considered to have engaged in actions prohibited —

(1) under subsection (a), if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service.

While the Board has previously considered the legal structure and operation of this statute, e.g., Williams v. Dep't of Army, 83 M.S.P.R. 109, 112 (1999); Petersen v. Dep't of Interior, 71 M.S.P.R. 227, 239-40 (1996), as have courts in other circuits, e.g., Gummo v. Village of Depew, N.Y., 75 F.3d 98, 105-06 (2d Cir.1996), this court has not done so. On the basis of the statute and the appurtenant legislative history, we adopt a construction of the statute consistent with those decisions.

The USERRA was enacted in congressional response to the Supreme Court's decision in Monroe v. Standard Oil Co., 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981), wherein the Court held that the USERRA's antecedent, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, "was enacted for the significant but limited purpose of protecting the employee-reservist against discriminations ... motivated solely by reserve status." Id. at 559, 101 S.Ct. 2510. The Court concluded that liability for violation of the statute could not be found unless the employee's reserve status was the sole motivation for the discriminatory conduct. The 1994 enactment broadened the statute by providing that a violation occurs when a person's military service is a "motivating factor" in the discriminatory action, even if not the sole factor. See 38 U.S.C. § 4311(c)(1).

The 1994 enactment also confirmed "that the standard of proof in a discrimination or retaliation case is the so-called `but-for' test and that the burden of proof is on the employer, once the employee's case is established," the legislative history citing the procedures and allocation of burdens of proof for actions under the National Labor Relations Act as discussed by the Supreme Court in National Labor Relations Bd. v. Transportation Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (modified by Director, Office of Workers' Compensation v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994)). H.R.Rep. No. 65, 103d Cong., 2d Sess. 24 (1994), reprinted in 1994 USCCAN 2449 at 2457; S.Rep. No. 158, 103d Cong., 2d Sess. 45 (1994); see also Gummo, 75 F.3d at 105-06 (discussing legislative history); Petersen, 71 M.S.P.R. at 239-240 (same). Thus the USERRA provides that even if prohibited discrimination was a factor, the employer does not violate the statute if "the employer can prove that the action would have been taken in the absence of military status." 38 U.S.C. § 4311(c)(1).

Precedent interpreting and applying the USERRA is sparse. Those courts that have applied it, as well as the MSPB, have implemented the legislative intent to adopt the Transportation Management evidentiary scheme for cases arising under the National Labor Relations Act. The Court in Transportation Management in turn had adopted and approved the National Labor Relations Board's reasoning in Wright Line, 251 N.L.R.B. 1083, 1089 (1980), enforced, 662 F.2d 899 (1st Cir. 1981). We apply this precedent to the appellants' USERRA claims.

The procedures established by precedent require an employee making a USERRA claim of discrimination to bear the initial burden of showing by a preponderance of the evidence that the employee's military service was "a substantial or motivating factor" in the adverse employment action.³See Transportation Management, 462 U.S. at 400-01, 103 S.Ct. 2469. If this requirement is met, the employer then has the opportunity to come forward with evidence to show, by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason. See id.; Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Holo-Krome Co. v. Nat'l Labor Relations Bd., 954 F.2d 108, 110-12 (2d Cir.1992); see also Matson Terminals, Inc. v. Nat'l Labor Relations Bd., 114 F.3d 300, 303 (D.C.Cir.1997); FPC Holdings, Inc. v. Nat'l Labor Relations Bd., 64 F.3d 935, 942 (4th Cir.1995); Mississippi Transport, Inc. v. Nat'l Labor Relations Bd., 33 F.3d 972, 979 (8th Cir. 1994); Union-Tribune Pub. Co. v. Nat'l Labor Relations Bd., 1 F.3d 486, 490 (7th Cir.1993).

The factual question of discriminatory motivation or intent may be proven by either direct or circumstantial evidence. See FPC Holdings, Inc., 64 F.3d at 942 ("Motive may be demonstrated by circumstantial as well as direct evidence and is a factual issue which the expertise of the Board NLRB is peculiarly suited to determine."); Matson Terminals, 114 F.3d at 303-04; see also Kumferman v. Dep't of Navy, 785 F.2d 286, 290 (Fed.Cir.1986) (intent is a question of fact to be found by the MSPB). Circumstantial evidence will often be a factor in these cases, for discrimination is seldom open or notorious. Discriminatory motivation under the USERRA may be reasonably inferred from a variety of factors, including proximity in time between the employee's military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer's expressed hostility towards members protected by the statute together with knowledge of the employee's military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses. Cf. W.F. Bolin Co. v. Nat'l Labor Relations Bd., 70 F.3d 863, 871 (6th Cir.1995). In determining whether the employee has proven that his protected status was part of the motivation for the agency's conduct, all record evidence may be considered, including the agency's explanation for the actions taken.

When the employee has met this burden, the burden shifts to the employer to prove the affirmative defense that legitimate reasons, standing alone, would have induced the employer to take the same adverse action. Transportation Management, 462 U.S. at 400, 103 S.Ct. 2469; Mt. Healthy, 429 U.S. at 285-86, ...