Richard Erickson, a distribution Clerk was removed from his position at Fort Myers Processing and Distribution Center (Fort Myers, Florida). Erickson filed an MSPB appeal under Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), asserting that he was improperly removed because of his military service and requesting that he be reinstated. The MSPB administrative judge (AJ) found that USPS violated USERRA by removing Erickson from his position but nevertheless denied him any relief. The AJ’s decision was based on the determination that Erickson subsequently waived his reemployment rights under USERRA by abandoning his civilian employment in favor of a military career.
According to the court records:
Mr. Erickson was employed by the Postal Service from 1988 until he was removed from his position in 2000. Throughout his employment with the agency, Mr. Erickson served in the Army National Guard Reserve. During that period, he was absent from his position with the Postal Service for lengthy periods of time while he was on active duty with the National Guard. Between 1991 and 1995, he was absent from his Postal Service position for a total of more than 22 months, and between 1996 and the date of his removal in 2000, he worked at the Postal Service for no more than four days. In January 2000, a labor relations specialist from the Postal Service contacted Mr. Erickson by telephone to determine whether he intended to return to his position with the agency or continue serving in the military. Mr. Erickson responded that he would not report back to work with the agency until he completed his current tour of duty in September 2001. In the course of that conversation, he stated that he preferred military service to working for the Postal Service.
Shortly thereafter, the Postal Service issued a notice proposing to remove Mr. Erickson from his position because of excessive use of military leave. The notice stated that in the course of his tenure with the agency, he had been on military leave for more than five years, excluding weekend drills and annual training. Because USERRA contains a five-year limit on the amount of military leave an employee may use while retaining employment rights, the agency advised Mr. Erickson that he was no longer entitled to occupy his position with the Postal Service. Mr. Erickson did not respond to the notice of proposed removal, and on March 31, 2000, the agency issued a final decision removing him from his position because of his absence. Mr. Erickson subsequently re-enlisted with the National Guard and remained on active military duty until December 31, 2005.
On September 28, 2006, nine months after the end of his military duty, Mr. Erickson filed an appeal with the Merit Systems Protection Board alleging that the agency had violated his USERRA rights by removing him from his position based on his military service. The administrative judge who was assigned to the appeal found that at the time of Mr. Erickson’s removal in 2000, his cumulative military leave did not exceed the five-year cap set by USERRA, because some of Mr. Erickson’s military service was statutorily exempt from the five-year service limit. See 38 U.S.C. § 4312(c). The administrative judge further concluded that the agency had violated USERRA’s nondiscrimination provision, 38 U.S.C. § 4311, when it removed Mr. Erickson for excessive use of military leave: “Because appellant was removed solely because of his military service, the evidence of record supports a finding that appellant’s military service was ‘a substantial factor’ in appellant’s termination from the Postal Service.” However, the administrative judge concluded that Mr. Erickson had waived his USERRA rights by abandoning his civilian career in favor of one in the military. The administrative judge therefore issued an initial decision denying Mr. Erickson’s USERRA appeal.
The United States Court of Appeals for the Federal Circuit affirmed in part and reversed in part MSPB’s decision. The court ruled that ..
1) MSPB erred in rejecting Erickson’s claim of unlawful discrimination based on his military service as his cumulative military absence at the time of his removal did not exceed five years and thus he retained employment rights under USERRA;
2) MSPB was correct in its ruling that Erickson failed to make a timely application for reemployment under USERRA. Therefore The Postal Service did not unlawfully refuse to reemploy him after his service; and
3) the court remanded case so that MSPB can address whether Erickson waived his USERRA rights by abandoning his civilian career to pursue one in the military.
See full decision issued 7/15/09 (PDF) Erickson vs USPS