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LAW REVIEW 1028
A Case Study of 38 U.S.C. Sections 4311 and
4312: Erickson v. United States Postal Service, 571 F. 3d 1364 (Fed. Cir.
2009).
By Ariel E. Solomon, Esq.
1.1.1.8—USERRA—Applicability to Federal Government
1.2—USERRA-Discrimination Prohibited1.3—USERRA-Reinstatement
1.3.1.3—Timely Application for Reemployment
1.4—USERRA Enforcement
The right to reemployment after a period of military service
is derived from section 4312 of USERRA, 38 U.S.C. § 4312, while USERRA's
anti-discrimination provision is found in Section
4311, and provides as follows: "A person who is a member of . . . a
uniformed service shall not be denied initial employment, reemployment,
retention in employment, promotion, or any benefit of employment by any
employer on the basis of that membership." 38 U.S.C. §
4311(a). USERRA defines "benefit of employment" broadly as
"any advantage, profit, privilege, gain, status, account, or interest
(other than wages or salary for work performed) that accrues by reason of an
employment contract or agreement." 38 U.S.C. §
4303(2). This article
examines the distinction between Section 4311 and Section 4312.
An employer engages in a prohibited act under § 4311
"if the person's membership . . . 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." U.S.C. § 4311(c)(1).
Section
4311(c) was enacted in response to the Supreme Court's ruling in Monroe
v. Standard Oil Co., 452 U.S. 549, 101 S. Ct. 2510, 69 L. Ed. 2d 226
(1981), in which the Court held that under the Veterans Reemployment Rights Act
(VRRA), allegations of discrimination in employment based upon military service
could be proven only if the employee could establish that the discrimination
was "motivated solely by reserve status." Monroe, 452 U.S. at
559. USERRA assuaged this requirement by providing that violations can be
established if the individual's military service is a "motivating
factor" in the discriminatory action, even if it was not the only factor. Sheehan
v. Dep't of Navy, 240 F.3d 1009, 1012-13 (Fed. Cir. 2001). Patently,
Congress "intended to lessen, but not eliminate, a veteran's obligation to
show that the employer's adverse decision was related to his or her service in
the armed forces." Woodard v. N.Y. Health & Hosps. Corp., 554
F. Supp. 2d 329 (E.D. 2008); Curby v. Archon, 216 F.3d 549, 557 (6th
Cir. 2000).
In
contrast, Section 4312 provides for the right to reemployment so long as the
following requirements are satisfied:
- The
Service Member left a position of civilian employment for the purpose of
performing uniformed service, voluntary or involuntary.
- The
Service Member gave the employer prior oral or written notice.
- The
Service Member’s cumulative period or periods of uniformed service,
relating to the employer relationship for which the Service Member seeks
reemployment, must not have exceeded the five year statutory cap.
- The
Service Member was released from the period of service without a punitive
or other-than-honorable discharge.
- The
Service Member made a timely application for reemployment with the
pre-service employer, after release from the period of service.
Following a period of service of more than 180 days, the Service
Member must apply for reemployment within 90 days. 38 U.S.C. § 4312(e)(1)(D).
Shorter deadlines apply to less significant periods of time. Requests for reemployment may be extended in
the event of a Service Member’s hospitalization or convalescence from injury or
illness incurred (or aggravated) during the period of service. In such
instances, requests for reemployment may
be extended by the period of
convalescence, for up to two years. 38 U.S.C. 4312(e)(2)(A).
In a recent case decided by the United States Court of
Appeals for the Federal Circuit, Sergeant Major (SGM) Richard Erickson, ARNG
prevailed on appeal to establish that Sections 4311 and 4312 are, in certain
circumstances, properly deemed mutually exclusive violations of USERRA. In a favorable decision handed down by the
United States Court of Appeals for the Federal Circuit, the Erickson case is noteworthy in so much
as the Court found a Section 4311 violation, even though it rejected Erickson’s
Section 4312 argument that he was entitled to reemployment, after an untimely
request for reemployment. Only future
litigation will flesh out the nuances of the decision, however, Erickson may reasonably be read for the
proposition that an Employer can violate Section 4311 of USERRA, even when a Service
Member fails to meet the qualifications necessary to obtain reinstatement under
Section 4312. 38 U.S.C. 4312. The
distinction is particularly poignant for service members employed in a civilian
capacity by a Federal government agency.
The Erickson case is
instructive on this matter.
- i.
38
U.S.C. § 4311
SGM Erickson’s case stemmed from a wrongful termination
appeal regarding his employment with the United States Postal Service (Postal
Service). During his employment,
Erickson served concomitantly with the Army National Guard (ARNG) and the
United States Army Reserve (USAR); he was a member of the Special Forces Group,
received the Bronze Star for combat valor, and was the recipient of two Army
Commendation Medals for valor and the Purple Heart for injuries sustained while
performing in the National Guard. During Erickson’s remarkable military service
Erickson, he was also fired from his employment with the Postal Service because
of his continued absences for military service. In a highly criticized decision,
the Postal Service deemed Erickson’s “excessive absence without foreseeable
end” as grounds for a removal for cause.
This mar on Erickson’s otherwise pristine personnel file will have
lasting implications for future employment with any governmental agency, or
private employer for that matter.
The Postal Service premised its assertions on the erroneous
assertion that Erickson could be removed from federal service because he
exceeded the 5-year statutory cap implicit within Section 4312 and was no longer
entitled to retention in employment under Section 4311. Although SGM Erickson
had been away from his civilian job for military service for more than 60
months (five years) cumulatively, he did not exceed the five-year limit at the
time of his termination by the Postal Service in 2000. Notably, Section 4312(c)
of USERRA sets forth eight exemptions from the five-year limit. Most of the service SGM Erickson performed
was exempt from the five-year limit, and that time which was not exempt fell
unambiguously below the five-year cap.
The five-year limit is an eligibility criterion for
reemployment. Notwithstanding, it stands
to reason that service beyond the five-year limit, and should not constitute
grounds for a misconduct charge by an employer, and least of which, by a
federal government agency. On March 31, 2000, SGM Erickson was still on
active duty, and had not applied for reemployment. Unless, and until, the
Service Member applies for reemployment, no determination should be made
concerning the eligibility criteria for reemployment, including the five-year
limit.
On appeal, the Postal Service argued that Erickson was
actually fired because of his extended absences and not because of military
service, per se. In response Erickson
argued, through counsel, that the Agency cannot avoid the mandates of Section
4311 by claiming their action was motivated solely by the inconvenience of Mr.
Erickson’s absence from employment rather than because of military service.
Such an argument was attempted in McLain,
where a city claimed it had not violated § 4311 by refusing to hire a
serviceman because would be absent from employment during a particular time
period. The court rejected this argument because the applicant's
"unavailability [was] due to active service in the military" and
hence § 4311(a) was violated under "USERRA's plain terms." McLain
v. City of Somerville, 424
F. Supp. 2d 329, at 333 (D. Mass.
2006). Compare Carlson v. N.H. Dep't
of Safety, 609 F.2d 1024, 1027 n.5 (1st Cir. 1979)["We are aware of
defendants' purported distinction that the reason for plaintiff's
transfer was not his military obligation per se but was the needs of the
service occasioned by his two six-week absences. This semantic distinction does
not change that but for plaintiff's reserve commitment he would not have been
transferred"]. See also Gillie-Harp
v. Cardinal Health, Inc., 249 F. Supp. 2d 1113, 1120 (W.D. Wis. 2003) ["there is a difference between holding members
of the armed services in high esteem and being eager to accommodate a
reservist's absences from work"; even an otherwise sympathetic employer
may "develop hostility towards an employee's reserve duties after
experiencing the inconvenience that those duties can cause"]; Fink v. City
of N.Y., 129 F. Supp. 2d 511, 522 (E.D.N.Y. 2001)[holding
that overt animus is not a necessary component of determining a USERRA
violation, "a facially neutral
policy that just happens to systematically discriminate against a particular
group can be discriminatory without being intentionally discriminatory";
"it simply cannot be the case that the injury suffered is not redressable
under USERRA"]
The court held that Erickson unequivocally established that
his service in the military was a motivating factor in the Agency’s decision to
remove him when he introduced into the record the Agency’s removal letter,
which stated, inter alia, that he was being removed from federal service
because of extended absence to perform military obligations. The Agency then
failed to prove, or even assert, the affirmative defense that it would have
taken the same action based on the other reasons alone and without regard to
Erickson's protected status. The Agency instead argued that USERRA does not
apply to Mr. Erickson.
The Federal Circuit held: “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 absence when that absence
was for military service. … The most significant—and predictable—consequence of
reserve service with respect to the employer is that the employee is absent to
perform that service. To permit an employer to fire an employee because of his
military absence would eviscerate the protections afforded by USERRA.”
The Federal Circuit held that the Postal Service violated
section 4311 when it terminated SGM Erickson’s employment on March 31, 2000.
ii. 38 U.S.C. § 4312
In a separate analysis from that espoused under Section 4311
unlawful termination aspect of the decision, the Court examined whether the
USPS violated Section 4312 when it denied him reemployment in 2006, thereby
drawing the obvious distinction between firing SGM Erickson and denying him
reemployment.
38
U.S.C. § 4312(e)(1)(D) requires servicemembers whose absence from employment
exceeds 181 days to submit an application for reemployment with the agency no
later then 90 days after the completion of military service. Mr. Erickson
completed military service on December 31, 2005. However, 38
U.S.C. 4312(e)(2)(A) extends the application period for an additional two years
in order to permit an injured to recuperate prior to submitting a request for
reemployment.
Mr.
Erickson’s two year time period began upon his return from service in December
of 2005. Mr. Erickson argued before the
Board that he was awarded a Purple Heart, which is given only to service men
and women who are injured while at war.
He asserted further that he suffered injuries from which he was still
recovering, thereby entitling him to two years, not 90 days, to re-apply for
his position. On May
18, 2007, Mr. Erickson
invoked his right to re-employment by expressly requesting reemployment and
citing to 38 USC 4312(e)(2)(A). Mr. Erickson unambiguously stated that he
wished to be returned to the position that he would have been entitled to but
for his military service during the global war on terrorism and but for the
Agency’s unlawful termination in 2000.
With
respect to the 4312 violation the Federal Circuit found that: “Because Mr. Erickson completed his military
service on December 31, 2005, he was required to submit an application for
reemployment with the agency [USPS] by April 1, 2006, but there is no evidence that he did so. Although he
suggested in a deposition that he had asked an agency official for his job back
shortly after his removal, he conceded at oral argument that he had merely
‘expressed a concern’ that he was unlawfully removed in violation of USERRA and
that he did not affirmatively request to be reemployed by the agency.
Similarly, while Mr. Erickson states that he was in frequent contact with his
union regarding alleged violations of his USERRA rights (both before and after
his removal), he has not provided any evidence that the union sought his
reemployment with the agency. An application for reemployment under section
4312 requires more than ‘a mere inquiry.’ McGuire v. United Parcel Service,
152 F.3d 673, 676 (7th Cir. 1998), and Mr. Erickson’s actions were
insufficient to constitute requests for reemployment under the statute.”
As
a result, the Court of Appeals concluded that Erickson was not entitled to
reemployment.
- iii.
Practical
Considerations in the Wake of Erickson
The five-year limit is an eligibility criterion for
reemployment. Notwithstanding, it stands
to reason that service beyond the five-year limit, should not constitute
grounds for a misconduct charge by an employer, and least of which, by a
federal government agency. On March 31, 2000, SGM Erickson was still on
active duty, and had not applied for reemployment. Unless, and until, the
Service Member applies for reemployment, no determination may be made
concerning the eligibility criteria for reemployment, including the five-year
limit
Although drawing the clear distinction between violations
under Sections 4311 and 4312, it is worthy to note that the Federal Circuit’s
decision in Erickson departed from
this premise in so much as the Court stated, unambiguously, not exceeding the
5-yr. statutory cap (a prerequisite to validly requesting reemployment under
4312) was a prerequisite to falling under the protections envisioned by Section
4311. The Court reasoned that to hold
otherwise would render the 5-year limit on an employer’s obligation to rehire
meaningless. However, the court went on
to state further that failure to timely request reemployment as necessitated by
Section 4312 (an additional prerequisite of validly obtaining reemployment
under 4312) would not operate to exclude protections afforded under Section
4311; including protections against denials of employment retention, or in
Erickson’s particular case, protections against termination.
As a practical matter however, Service Members should attempt
to avoid the same hardships endured by SGM Erickson. The fact remains that nearly one decade after
the Postal Service’s unlawful violation of USERRA, Erickson’s employment with
the Postal Service remains the subject of litigation.
In Erickson’s case, it may have been more advantageous to
voluntarily resign as opposed to permitting termination. Although resignation may give the impression
of acquiescence to an Employer’s unlawful violation of USERRA, the effect of
the action is two-fold: (i) First, and foremost, a Service Member’s rights
under USERRA do not vest until they return from active military service and the
resignation is, in essence, meaningless; and, (ii) avoiding termination will
effectively create an opportunity to recover from a USERRA violation by
potentially obtaining employment more readily.
For Federal Employees especially, the ability to obtain employment in another
Federal Agency may be particularly important in relation to TSP and
FERS retirement annuities.
Ariel E. Solomon, Esq. served as the principal attorney in Erickson v. United States Postal Service, 571 F. 3d 1364 (Fed.
Cir. 2009) before the
US Court
of Appeals for the Federal Circuit. She
is currently a Senior Attorney with the law firm of Tebano & Associates,
PLLC, and concentrates her practice in the area of Federal Employment law. Ariel may be contacted at 518-250-4281 or
asolomon@tebanolaw.com.
If you have questions, suggestions, or comments, please contact Captain Samuel F. Wright, JAGC, USN (Ret.) (Director of the Servicemembers’ Law Center) at swright@roa.org or 800-809-9448, ext. 730.
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