MSPB: Postal Employee Not Entitled To Military Leave Provisions Under USERRA

Below is an MSPB finding the military pay provisions of USERRA inapplicable to the USPS and therefore, upholding the USPS denial paid military time off for non-scheduled days for USPS as the USPS policy and regulations did not provide for it.

Merit System Protection Board decision:

Welshans vs U. S. Postal Service (PDF)

In his initial appeal, the [Victor Welshans] appellant stated that he has been a Postal employee since 1981, and was a member of the U.S. Army Reserve from August 1983 through August 2004. He indicated that he is seeking compensation for improperly charged military leave during this period,but he did not specify the dates he was charged military leave, the amount of leave charged, or his leave status on those dates. Id. The administrative judge (AJ) ordered the appellant to provide the missing information. IAF, Tab 4. The appellant responded that he had attended annual training on the following days:

August 20 to September 2, 1984; July 7 to July 20, 1985; August 31 to September 13, 1986; November 6 to November 22, 1987; March 27 to April 9, 1988; April 8 to April 21, 1989; January 20 to February 3, 1990; June 16 to June 28, 1990; July 8, 1993; and August 14 to August 29, 1999.  He indicated that he did not know the exact dates when he was incorrectly charged military leave for non-workdays, as he had rotating days off, but that he was charged military leave for 2 Sundays during each of the annual training periods.

The agency moved to dismiss the appeal on the grounds that the military  leave provisions of 5 U.S.C. § 6323, as interpreted by the U.S. Court of Appeals for the Federal Circuit in Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003), do not apply to Postal employees.* IAF, Tab 5. The AJ ordered * Under 5 U.S.C. § 6323, federal employees are to be given up to 15 days of paid leave a year to attend training sessions required of them as members of military reserves or the National Guard. Until this section was amended in 2000, the Office of Personnel Management interpreted it as providing 15 calendar days of leave each year, rather than 15 work days, and federal agencies therefore followed the practice of charging employees military leave for absences on non-workdays (e.g., weekends and holidays) when those days fell within a period of absence for military training. See Butterbaugh,336 F.3d at 1333-34. The Federal Circuit held that, even before the 2000 amendment, agencies were not entitled to charge employees military leave for days when they would not otherwise have been required to work.

¶4 Under USERRA, the Board has jurisdiction over an appellant’s claim that he was denied “any benefit of employment” on the basis of his membership in the uniformed services. See 38 U.S.C. §§ 4311(a), 4324(b). Military leave afforded under 5 U.S.C. § 6323(a) is a benefit of employment. Pucilowski v. Department of Justice, 498 F.3d 1341, 1344 (Fed. Cir. 2007). Where an agency has improperly denied an employee military leave benefits, the Board has the authority to order the agency to correct its records to reflect a proper accounting of the individual’s military leave, and to order compensation for any resulting lost wages or benefits. 38 U.S.C. § 4324(c); Pucilowski, 498 F.3d at 1344.
Because the appellant is a Postal employee, he is not entitled to military leave under 5 U.S.C. § 6323(a). See Miller v. U.S. Postal Service, 105 M.S.P.R. 89, ¶ 8 (2007). The statute provides, in relevant part, as follows:

[A]n employee as defined by section 2105 of this title or an individual employed by the government of the District of Columbia, permanent or temporary indefinite, is entitled to leave . . . for active duty . . . or engaging in field or coast defense training . . . as a Reserve of the armed forces or member of the National Guard.

The definition of “employee” under 5 U.S.C. § 2105(e) expressly excludes employees of the U.S. Postal Service, “[e]xcept as otherwise provided by law,” 4and Congress has not extended coverage of 5 U.S.C. § 6323 to Postal employees.Miller, 105 M.S.P.R. 89, ¶ 8.
 The record nonetheless reflects that, during the relevant time period, the agency had a policy in effect for the administration of paid military leave. Prior to fiscal year 2002, the ELM included the following provisions:
517.41 General Allowance
Eligible full-time and part-time employees receive credit for paid military leave as follows:
a. Full-time employee other than D.C. National Guard—15 calendar days (120 hours) each fiscal year.
. . . .
517.53 Leave Charge for Nonworkdays
Nonworkdays falling within a period of absence for active duty are charged against the paid military leave allowed full-time employees during the fiscal year, but nonworkdays falling at the beginning and end of an active duty period are not charged . . . . Nonworkdays are charged during continuous active duty periods, even when mixed or other leave is taken or when paid military leave is taken

Petition for Review File (PFRF), Tab 3, Ex A. Effective September 8, 2001, the agency modified § 517.41 to allow employees to carry over unused military leave from one fiscal year to the next, and deleted § 517.53 altogether.

The Board will enforce employee rights derived from agency rules, regulations, procedures, and negotiated collective bargaining agreements. See Campbell v. U.S. Postal Service, 75 M.S.P.R. 273, 279 (1997); Dwyer v. U.S. Postal Service, 32 M.S.P.R. 181, 185 (1987). The fact that the appellant in this case is not covered by 5 U.S.C. § 6323(a), but instead is covered by an agency rule, does not affect our authority to consider this case under USERRA. Miller, 105 M.S.P.R. 89, ¶ 11; see also Pratt v. Department of Transportation, 103 M.S.P.R. 111, ¶ 10 (2006); Plezia v. Department of Veterans Affairs, 102 M.S.P.R. 125, ¶ 10 (2006). The issue before us then is whether the agency improperly administered military leave under its own rules.

Taking the appellant’s allegations as true, we find nothing to suggest that the agency failed to comply with its own rules concerning military leave. Unlike 5 U.S.C. § 6323(a)(1), the former ELM § 517.53 unambiguously required that non-workdays falling within a period of absence for active duty be charged against the paid military leave allowed full-time employees. Following the deletion of ELM § 517.53, the agency ceased charging military leave for any nonworkdays.

On the specific dates at issue in this appeal, however, the provision was still in effect. Thus, the agency was required under its own rules to charge military leave for non-workdays falling within absences for active duty.

Because the appellant’s factual allegations, taken as true, do not support a conclusion that he is entitled to corrective action, we dismiss his appeal for failure to state a claim upon which relief can be granted. See Young v. Federal
Mediation and Conciliation Service, 93 M.S.P.R. 99, ¶ 5 (2002), aff’d, 66 F. App’x 858 (Fed. Cir. 2003).

¶10 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).