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LAW REVIEW 1128
Erickson v. United
States Postal Service – Recent
Implications to 38 U.S.C. 4311 & 4312
BY LTC (NYARNG) & ROA Life member Mathew B. Tully and
Michael Macomber.
This article is a follow up to Law Review 0937.
1.1.1.8—Federal Government as Employer
1.2—USERRA Discrimination
1.3.1.2—Character & Duration of Service
1.3.1.3—Timely Application for Reemployment
1.4—USERRA Enforcement
In a recent decision before the Federal Circuit, the
Uniformed Services Employment and Reemployment Rights Act (hereinafter
“USERRA”) was retested and the service member yet again prevailed.
Sergeant Major (SGM) Richard Erickson has been pursuing his USERRA rights since
2006 when he filed an appeal with the Merit Systems Protection Board
(hereinafter “the Board”) for discrimination based on his service in the
uniformed services. SGM Erickson's claim arose because the USPS fired him
in writing for taking “excess military leave”.
While SGM Erickson has had some setbacks in pursuing his
claim for discrimination, the recent Federal Court decision was a big victory
in SGM Erickson's case and the second big win at the Federal Circuit (see Law
Review 0937). This article will explore the recent implications of SGM
Erickson's case, and the effects on USERRA as a result of the Federal Circuit’s
decision.
Background
SGM Erickson was employed by the USPS from 1988 until he was
terminated from his position in 2000. SGM Erickson served with both the
Army National Guard (ARNG) and the United States Army Reserve (USAR), prior to,
during, and after his termination from the USPS.
The crux of SGM Erickson's termination appeal revolves
around his military service while employed with the USPS. As a result of
SGM Erickson having served in the uniformed service, the USPS terminated SGM
Erickson's employment on March 31,
2000, citing excessive use of leave as the reason for his
termination. At the time, SGM Erickson was still on active duty and
therefore did not respond to the notification regarding his termination.
While SGM Erickson was absent on military leave for large
periods of time prior to his termination, it is imperative to point out that
SGM Erickson never exceeded the five-year limit for reemployment set forth in
38 U.S.C. § 4312. While SGM was absent from the USPS on military leave
for a period greater than five-years, the majority of this time was excluded
from the five-year reemployment determination as excepted service. See
38 U.S.C. § 4312(c).
In 2006, upon completion of his military service, SGM
Erickson filed an appeal with the Board against the USPS citing USERRA's
antidiscrimination provision for denial in retention of employment, and a
violation of USERRA's reemployment provision. See 38 U.S.C. §§4311,
4312, respectively. The administrative judge who was assigned SGM
Erickson's case originally found SGM Erickson had waived his USERRA rights due
to his abandonment of his civilian career. SGM Erickson filed a petition
for review by the full Merit Systems Protection Board (“the Board”).
The Board affirmed the administrative judge’s ruling but not
all of his reasoning. The Board's decision ignored the issue of whether
SGM Erickson abandoned his USERRA rights, and focused on the fact that the USPS
could not have violated USERRA as SGM Erickson was terminated based on his
absence from work and not his military service. As pointed out by the
Federal Circuit on appeal, “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.” Erickson v. United
States Postal Service, 571 F.3d
1364 (Fed. Cir. 2009) (hereinafter “Erickson I”). The Federal
Circuit rejected the Board's rationale and remanded the case to decide the
specific issue of whether SGM Erickson waived his USERRA rights by potentially
abandoning his civilian career with the USPS. Id.
On remand, the Board concluded that SGM Erickson had waived
his USERRA rights when he abandoned his career with the USPS. The Board
noted SGM Erickson's length of active service, his expressed preference for
military over civilian service, and SGM Erickson's failure to respond to the
USPS notice of proposed removal.
On SGM Erickson's second appeal to the Federal Circuit the
Court remanded the Board's decision again, as the Board's decision lacked
substantial evidence that SGM Erickson waived his USERRA rights. Erickson
v. United States
Postal Service, 2011
U.S. App. LEXIS 3815
(Fed. Cir. February 28, 2011)
(hereinafter “Erickson II”). The Court held that because SGM
Erickson’s military service never exceeded the five-year time limit for
reemployment, he could not have evidenced a clear intent to waive his USERRA
rights. Id.
Accordingly, the Federal Circuit remanded the case again for further
determination of SGM Erickson's discrimination claim.
While the Federal Circuit in Erickson I Extended
the 5-Year Reemployment Criterion of 38 U.S.C. 4312 to 38 U.S.C. 4311, the
Court in Erickson II Refused to Expand Upon its Previous Rationale
In Erickson I, the Court held that 38 U.S.C. 4312's
five-year reemployment criterion applied to SGM Erickson's claim for denial in
retention of employment as a matter of equity. The Court rationalized,
that “otherwise the five-year limit on an employer's obligation to rehire an
employee who left work would be meaningless.” Erickson I, 571 F.3d
at 1368. The Court's rationale raised questions as to the applicability
of the five-year reemployment criterion to cases other than discrimination
resulting in termination. Unfortunately, the Court has done little to
expand on its earlier decision. Regardless a brief review of USERRA is
important, as the Court in Erickson II
has again extended the five-year reemployment criterion to other aspects of
USERRA.
USERRA prohibits private employers from discriminating
against their employees on the basis of military service. Erickson II.
USERRA's antidiscrimination provision provides “[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 that accrues by reason of an
employment contract or agreement.” 38 U.S.C. 4302(2).
Supplementing the antidiscrimination provision, USERRA's
reemployment protection in Section 4312 provides for the right to reemployment
so long as the service member meets each of the qualifying conditions:
1. The
service member left civilian employment in order to perform service in the
uniformed services;
2. The
service member gave the employer prior oral or written notice;
3. The
cumulative period of service for which the service member is performing military
service, absent certain statutory exemptions, does not exceed five years;
4. The
service member was released from service with a discharge other than a punitive
or other-than-honorable discharge;
5. The
service member timely applied for reemployment after release from service.
The deadline to apply for reemployment, after release from a
period of service, depends upon the duration of the period of service from
which the individual is returning. If
the period of service was 181 days or more, the individual has 90 days,
starting on the date of release, to apply for reemployment.
Although Sections 4311 and 4312 provide similar protection
to service members who have been discriminated against on the basis of their
service in the uniformed service, it is important to note that Sections 4311
and 4312 provide distinctive relief. As evidenced by SGM Erickson's case,
a service member can pursue a cause of action for an employer's violation of
the antidiscrimination protections of 4311 and simultaneously pursue a claim
for denial of reemployment under 4312.
Although the two provisions are mutually exclusive, the
court in Erickson I found that the five-year cap for reemployment also
applied to section 4311's antidiscrimination provision in the limited case of
SGM Erickson, where “the alleged discrimination consists of the employee's
removal because of his military related absence.” Erickson I, 571
F.3d at 1369. The Court justified the application of
Section 4312's five-year eligibility criterion because “otherwise, the
five-year limit on an employer's obligation to rehire an employee who left work
to serve in the military would be meaningless.” Id.
The Court in Erickson II has done nothing to expand upon this extension
of the five-year requirement of 4312 to 4311 other than to reiterate its
previous dicta. Erickson II, 2011 U.S.
App. LEXIS 3815.
Erickson II
Applies 4312's 5-Year Reemployment Cap to Abandonment Inquiry
The administrative judge, who was initially assigned SGM
Erickson's appeal, and subsequently the full Board, held that SGM Erickson had
abandoned his military career and accordingly waived his USERRA rights.
In Erickson II, the Federal Circuit reversed the decision and found
insubstantial evidence to support abandonment. Accordingly, SGM Erickson
was entitled to retain his USERRA antidiscrimination rights and his case was
remanded again.
In a further expansion of USERRA's statutory language, the
court in Erickson II extended the five-year reemployment cap to its
interpretation of the abandonment doctrine. The abandonment doctrine
provides that a civilian employee who abandons his civilian job in favor of a
career in the military can waive his USERRA rights. See Woodman v.
Office of Personnel Management, 58 F.3d 1372 (Fed. Cir. 2001). Although
Woodman was decided under USERRA's predecessor, the Veteran's
Reemployment Rights Act of 1974 (“VRRA”), both statutes draw the same
distinction between career and non-career service.
USERRA's introductory paragraph sets forth its purpose; “to
encourage noncareer service in the uniformed services by eliminating or
minimizing the disadvantages to civilian careers and employment which can
result form such service.” 38 U.S.C. 4301 (emphasis added).
It is clear that Congress intended for USERRA, much like the VRRA, to apply
only with respect to non-career military service. Woodman v. Office of
Personnel Management, 258 F.3d 1372, 1377 (Fed Cir. 2001).
In reaching its decision, the court in Woodman looked
to legislative authority and prior treatment of noncareer status under the
VRRA. The court particularly noted Paisley v. City of Minneapolis,
wherein the court held that VRRA's reemployment rights did not extend to an
employee who served in the military for over fourteen (14) years. The Paisley
court stated:
There is a legally significant
distinction between an intent to take a true leave of absence from civilian
employment, the length of which is not subject to a reasonableness standard,
and an intent to make the military a career, which suggests a choice to forsake
one's civilian job and any reemployment rights attached thereto.
Paisley v. City of Minneapolis,
79 F. 3d 722, 725, n. 5 (8th Cir. 1996).
Relying on the holdings of Woodman and its progeny, Erickson
II analyzes SGM Erickson's noncareer status in determining whether or not
SGM Erickson abandoned his USERRA rights. In contrast to SGM Erickson,
the courts in Moravec v. Office of Personnel Management, 393 F.3d 1263
(Fed. Cir. 2004), and Dowling v. Office of Personnel Management, 393
F.3d 1260 (Fed. Cir. 2004) found that both employees had abandoned their
civilian careers, and therefore waived their USERRA rights after particularly
long absences from their civilian service. Mr. Moravec and Mr. Dowling served
for sixteen (16) years and twelve (12) years, respectively, on active duty
before rejoining civilian service.
The Court in Erickson II reaffirmed that “the
duration of an employee’s military service is frequently relevant to the
abandonment inquiry.” Erickson II, 2011 U.S.
App. LEXIS 3815. While “there is no minimum period of military service
that will trigger the assumption that the employee has abandoned their civilian
career,” the Court needed some framework to evaluate when a service member has
evidenced their intent to abandon their civilian career. Id.
In analyzing SGM Erickson’s case the Court in Erickson II
extended the five-year reemployment criterion of section 4312 to its
interpretation of the abandonment inquiry. The Court held that “absent
clear evidence to the contrary, employees who have not exceeded [the five-year]
period do not intend to abandon their civilian positions.” As SGM
Erickson’s absence at the time of his termination from the USPS was less than
the five-year reemployment cap of Section 4312, the court found it reasonable
to assume that SGM Erickson did not intend to abandon his civilian
career.
The courts in Dowling, Moravec, and Woodman,
found absences of twelve (12), sixteen (16) and twenty (20) years sufficient to
establish abandonment. Juxtaposed this line of cases, the Court in Erickson
II found absences less than five years to create a presumptive bar to
the abandonment inquiry. Noticeably, the Court's decision in Erickson
II is silent on how much weight should be given to absences greater than
five-years and less than twelve-years. Erickson II, 2011 U.S.
App. LEXIS 3815. We are left to wonder how the Court will evaluate these
‘gray area’ military absences in future abandonment inquiries.
Conflicts Between Erickson
II and Prior Case Law
While the decision reached in Erickson II is
favorable, the Court's interpretation of the abandonment doctrine contradicts
long-standing USERRA case law. As set forth in the quintessential case of
Leonard v. United Air Lines, a service member’s USERRA rights cannot be
waived absent “clear, convincing, specific, unequivocal, and [a waiver] not
under duress.” Leonard v. United Air Lines, 972, F.2d 155, 159 (7th
Cir. 1992). Furthermore, only known rights, which are already in
existence, may be waived. Id.
In a particularly enlightening discussion as to the
rationale behind USERRA’s waiver policy, the court stated in Leonard:
War is hell, and a call to arms is harrowing. Faced
with this unavoidable disruption in their lives, inductees may make choices
that are sensible when death looms, but cease to make sense when they discover
that they have survived. The reemployment rights provided by the act are
necessarily directed to the survivors, and Congress intended that they be able
to return to civilian life as easily as possible. Veterans should not be
burdened by the choices they make when called to arms.
Leonard, 972 F.2d at 159-60. Two years after Leonard,
this same principle, that an employee cannot waive USERRA’s rights until they
have matured, was codified by USERRA’s enactment. See generally 20 CFR
§§ 1002.88, 1002.152. Congress clearly intended to afford service
members the greatest protections available in returning to the civilian world
after leaving military service.
In contrast to the long-standing principles regarding waiver
of USERRA rights, the Court's dicta in Erickson II suggests that an
employee maybe able to abandon his civilian career, and waive his USERRA
rights, merely upon a showing of “clear evidence” on the employee's part to
abandon his civilian career in favor of a career in the military. Erickson
II, 2011 U.S.
App. LEXIS 3815. The Court’s language not only contradicts Leonard’s
strict requirements for a waiver, but also contradicts the principle that a
waiver can only be effective for “rights already in existence.” Leonard,
F.2d at 159.
The fact that the Court in Erickson II, does not even
raise the long-standing waiver principle or cite the most quintessential USERRA
case law on the matter, suggests that the Court failed to consider these
implications in rendering its decision. Accordingly, the long-standing
‘waiver’ precedent set forth in Leonard, and subsequently codified,
should remain binding, and “in all but the most unusual circumstances, a
veteran cannot expressly or impliedly waive” his USERRA rights. Leonard,
972 F.2d at 159.
In light of Erickson
II, a clear intent to give up your civilian job will likely result in
abandonment based on this latest legal development. USERRA is extremely
complex and if you have a complex case only a handful of attorneys in the country
are truly qualified to handle a USERRA case from start to finish, so ensure you
find an attorney like me that has more favorable precedent setting USERRA wins
than nearly any other attorney.
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