Sidenote: Richard Erickson has “served in the military for over two decades, during which time he achieved the highest rank possible for a non-commissioned officer [Sergeant Major], and was awarded the Silver Star and the Army Commendation Medal for Valor.” source: Erickson v. U.S. Postal Service, MSPB Docket No. AT-3443-07-0016-I-2 (Initial Decision, Sept. 26, 2007).
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. MSPB denied Erickson’s appeal TWICE and the Court of Appeals has remanded this case back to MSPB TWICE. Read on….
According to the Federal Court Of Appeals 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.
On July 15, 2009,The United States Court of Appeals for the Federal Circuit affirmed in part and reversed in part MSPB’s decision. The Appeals Court held 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.
Read full decision issued 7/15/09 (PDF) Erickson vs USPS
On January 7, 2010, MSPB denied Erickson’s case again finding that he had abandoned his civilian career in favor of one in the military. The MSPB Board cited 3 factors:
- the length of the appellant’s absences from his civilian employment;
- his failure to respond to the notice of proposed removal, or to grieve or file a chapter 75 appeal of the removal action;
- and his expressed preference for military over civilian service.
Here is the conversation between Erickson and USPS Labor Relations Specialist that MSPB relied upon to conclude he preferred the military over USPS :
Roslyn Warner, a labor relations specialist at the Postal Service, regarding his federal civilian career. Ms. Warner summarized the conversation in an e-mail that she sent to a supervisor. She wrote that “[Mr. Erickson] told me he is staying in the military until his orders expire . . . he likes the military and said that he did not like working for the [Postal Service]. He doesn’t care for the way they treat their employees.” Mr. Erickson testified before the Board that when Ms. Warner asked him why he did not resign from his position with the Postal Service, he replied that he did not wish to quit and that he believed his job was with the Postal Service. Following the conversation between Mr. Erickson and Ms. Warner, the Postal Service issued a notice of proposed removal to Mr. Erickson, citing excessive use of leave as the reason for his termination.
Erickson argued that substantial evidence does not support the Board’s finding that he abandoned his civilian career and therefore waived his USERRA protections.
On February 28, 2011, the US Court of Appeals for the Federal Circuit agreed::
In finding that he intended to abandon his civilian career, the Board also relied on Mr. Erickson’s failure to contest his removal for a period of six years. USERRA provides a window of time during which noncareer ser-vicemembers must assert their section 4312 reemploy-ment rights. 38 U.S.C. § 4312(e)(1). By contrast, there is no statutory timeframe during which a section 4311 discrimination claim must be asserted, and there is no statute of limitations on filing a USERRA complaint or claim.
Finally, the Board found Mr. Erickson’s “expressed preference for military over civilian service especially significant” to its determination that he abandoned his career with the Postal Service. 113 M.S.P.R. at 44. While an employee’s unequivocal statement that he intends to leave his civilian job permanently is perhaps the best evidence of an intention to abandon a civilian career (and thus waive USERRA’s protections), Mr. Erickson’s re-marks fall far short of such an unequivocal expression of intent. His statement that he liked the military and did not like the way employees were treated in the Postal Service cannot be regarded as equivalent to an expression of intention to resign from his civilian position. That is particularly so in light of his testimony, not discredited by the Board, that when Ms. Warner asked him why he did not resign his position with the Postal Service, he replied that he believed his “job was at the post office.”
In sum, while it was legitimate for the Board to consider evidence such as Mr. Erickson’s failure to contest his removal immediately and his remarks to Ms. Warner, that evidence, viewed in context, is not sufficient to justify an inference that Mr. Erickson intended to abandon his civilian career. That is the case particularly in light of the fact that, at the time of his removal, he had not ex-ceeded the five-year period set forth in USERRA during which an employee is entitled to continue in military service without losing his USERRA reemployment rights. We therefore vacate the Board’s determination that Mr. Erickson abandoned his civilian career in favor of a career in military service, and we remand to the Board for further proceedings on Mr. Erickson’s USERRA discrimination claim.