Postal Worker Fired For Excessive Use Of Military Leave Wins Partial Court Victory
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
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.
ANALYSIS
¶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
intermittently.
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).
ORDER
¶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)).
Fired Postal Worker Featured in Push to Expand Reservist Job Rights
The plight of two reservists who appear to have lost their civilian jobs as a result of military service will be featured at a Thursday press conference to rally support for a bill that would increase penalties for employers who violate federal employment and re-employments rights laws for military personnel.
One of the men, Army National Guard Staff Sgt. Eric Grenesko, was laid off from a job as a service manager for a Pittsburgh company while he was away on military training. The second man, Richard Erickson of Fort Myers, Fla., was fired from the U.S. Postal Service for what his termination letter says was excessive use of military leave.
In Grenesko’s case, his termination notice made no clear link made to his military service, although he suspects that was the case. He received the layoff notice while away at a military training course for noncommissioned officers.
Erikson’s military service clearly was an issue. A National Guard Special Forces sergeant major who already had served one tour in Afghanistan, Erikson was terminated because postal officials calculated he had missed more than five years of work since 1991 because of his military service and was about to be mobilized for another 18 months.
Both men would be helped by the Reservists Access to Justice Act, sponsored by Rep. Artur Davis, D-Ala., which would strengthen the rights of service members to seek legal remedies if they believe their employment and re-employment rights were violated.
Those rights to hold onto a job are granted by the Uniformed Services Employment and Re-employment Rights Act, known as USERRA, which has a major loophole because some private-sector and government employers require workers to seek arbitration instead of suing over employment issues.
Under Davis’ bill, HR 3993, mandatory arbitration would not apply to USERRA cases and employers could face up to $20,000 in damages if they are found by a court to have violated a service member’s rights.
The bill, which Davis hopes to get passed through the House of Representatives this year, faces some jurisdictional issues. The House Veterans’ Affairs Committee has ultimate jurisdiction over USERRA, but the House Judiciary Committee on which Davis serves is responsible for some of the legal issues.
House leaders hope to work out an agreement for quick passage, Davis aides said.
source: Army Times
Some Reservists May Be Due Back Pay From 1980
An estimated 100,000 to 300,000 current and former reservists employed as federal government civilians may be able to recoup money for leave days that were improperly charged to them dating back to 1980.
The Federal Circuit Court of Appeals ruled Aug. 28 that Jose Hernandez, a retired Air Force civilian aircraft mechanic, was entitled to be considered for reimbursement for leave that was charged to him from 1980 to 2001, and sent his case back to the federal Merit Systems Protection Board for reconsideration “This is the largest victory for federal employees in the history of the federal civil service system,” said Hernandez’s attorney, Mathew Tully, who practices in Albany, N.Y. Tully, who has represented reservists in thousands of similar cases, said he estimates from 100,000 to 300,000 people could be eligible to receive refunds ranging from $1,500 to $3,000.
The Federal Circuit Court of Appeals, in its decision Tuesday, ruled that the federal Merit Systems Protection Board does have the authority to consider cases that pre-date USERRA, and that the department’s practice of charging military leave also violated the law before USERRA.
Tully said the reimbursements could eventually apply to leave improperly charged before 1980. “We’re litigating a case now that’s from 1972 to 1992. We’re going to push the envelope,” he said. Full story: Federal Times
According to Tully, current federal employees will be compensated with either military or annual leave, with cash payments only in very rare circumstances. Generally, only retired or former federal employees will be compensated with cash, he said.
Archive: Postal Employee Challenges USPS Over Military Leave
APWU: Military Leave Ruling Applies to Postal Employees
by Greg Bell APWU Industrial Relations Director
In the March/April 2006 issue of the American Postal Worker, I wrote about a 2003 court decision that overturned the federal government’s longstanding practice of charging employees “military leave” for non-workdays spent training in the armed forces. The Postal Service, however, had taken the position that the court decision does not apply to its workforce. We initiated a national-level dispute over the matter, which is now pending national-level arbitration.
Since that article appeared, there have been several new developments in the law, including a Merit Systems Protection Board ruling that indicates that postal employees are indeed eligible for back pay for non-workdays during a time when they are undergoing armed forces training.
USERRA
The Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA), prohibits discrimination against employees of federal agencies, including the Postal Service, who are in the armed forces. Among other things, the law specifically prohibits the denial of any employer benefit on the basis of an employee’s military service.
Title 5, Section 6323, of the U.S. Code grants federal employees who are in the National Guard or the armed forces reserves up to “15 days” of paid military leave.
Although the federal code does not apply to postal employees, USPS regulations provide the same entitlement of paid military leave. Read more