DID MSPB JUST EXPAND USERRA PROTECTION?
We will leave that to those who argue about how many angels can fit on the head of a pin. As union reps, it is important to know that the Board has apparently held that it violates USERRA for a selecting official to hold one’s military record against him. The case began when a selecting official passed over a current federal employee applicant, who had been an enlisted sailor, in favor of a non-veteran, for a Dept. of Navy civilian job. The employee alleged selecting official had said he could not conceive of “…a mere Chief Petty Officer in the U.S. Navy” capable filling the vacant position. Stated differently, the employee did not allege he was discriminated against because of his service in the military, but because of his rank in the service.
The agency argued that USERRA does not prohibit selecting officials from considering the level or quality of one’s service and it convinced the Administrative Judge to dismiss the employee’s appeal. The Board began its analysis by noting that it and the Federal Circuit court have both endorsed a liberal approach to determining whether an act is covered by USERRA. It said that to establish USERRA jurisdiction the employee need on allege: 1- he served in the military, 2- he was denied some benefit, such as a promotion, and 3- the denial was due to his military service. It then said that USERRA prohibits discrimination not only based on the fact of military service, but also “on the particulars of that service.” Consequently, it ordered the Administrative Judge to reopen the case and give the employee an opportunity to prove the selecting official said what was alleged and made the decision based on the particulars of one’s military service.
It will be interesting to see where this precedent goes. Can a selecting official consider that an employee served in the military, but never in a combat zone, or that the applicant suffered a reduction in rank while in service, or even that she did not achieve as high a military rank as other candidates did while in service or how long one served, etc.?
Union reps should remember this decision whenever a grievance investigation reveals that an employee’s military record and achievements were considered in making a decision that harmed him or her. See Jerry Beck v. Dept. of Navy, 2014 MSPB 3.