LAW REVIEW February 2018

Transcription

1 LAW REVIEW February 2018 If Yu Are Claiming a USERRA Vilatin, the MSPB Has Jurisdictin T Review Yur Firing even if Yu Have Nt Cmpleted the Initial Year f Federal Emplyment By Captain Samuel F. Wright, JAGC, USN (Ret.) 2 Update n Sam Wright USERRA applies t the Federal Gvernment 1.2 USERRA frbids discriminatin 1.4 USERRA enfrcement 1.8 Relatinship between USERRA and ther laws/plicies Q: I am a Majr in the Army Reserve and a member f the Reserve Officers Assciatin (ROA). I have read with great interest many f yur Law Review articles abut the Unifrmed Services Emplyment and Reemplyment Rights Act (USERRA). I am particularly interested in tw very recent articles, Law Review (January 2018) and Law Review (February 2018). Thse articles discuss hw ne can enfrce USERRA against a federal executive agency (as emplyer) by means f an actin in the Merit Systems Prtectin Bard (MSPB). 1 I invite the reader s attentin t Yu will find mre than 1600 Law Review articles abut the Unifrmed Services Emplyment and Reemplyment Rights Act (USERRA), the Servicemembers Civil Relief Act (SCRA), the Unifrmed and Overseas Citizens Absentee Vting Act (UOCAVA), the Unifrmed Services Frmer Spuse Prtectin Act (USFSPA), and ther laws that are especially pertinent t thse wh serve ur cuntry in unifrm. Yu will als find a detailed Subject Index, t facilitate finding articles abut very specific tpics. The Reserve Officers Assciatin (ROA) initiated this clumn in I am the authr f mre than 1400 f the articles. 2 BA 1973 Nrthwestern University, JD (law degree) 1976 University f Hustn, LLM (advanced law degree) 1980 Gergetwn University. I served in the Navy and Navy Reserve as a Judge Advcate General s Crps fficer and retired in I am a life member f ROA. I have dealt with USERRA and the Veterans Reemplyment Rights Act (VRRA the 1940 versin f the federal reemplyment statute) fr 35 years. I develped the interest and expertise in this law during the decade ( ) that I wrked fr the United States Department f Labr (DOL) as an attrney. Tgether with ne ther DOL attrney (Susan M. Webman), I largely drafted the prpsed VRRA rewrite that President Gerge H.W. Bush presented t Cngress, as his prpsal, in February On 10/13/1994, President Bill Clintn signed int law USERRA, Public Law , 108 Stat The versin f USERRA that President Clintn signed in 1994 was 85% the same as the Webman-Wright draft. USERRA is cdified in title 38 f the United States Cde at sectins 4301 thrugh 4335 (38 U.S.C ). I have als dealt with the VRRA and USERRA as a judge advcate in the Navy and Navy Reserve, as an attrney fr the Department f Defense (DOD) rganizatin called Emplyer Supprt f the Guard and Reserve (ESGR), as an attrney fr the United States Office f Special Cunsel (OSC), as an attrney in private practice, and as the Directr f the Service Members Law Center (SMLC), as a full-time emplyee f ROA, fr six years ( ). Please see Law Review (June 2015), cncerning the accmplishments f the SMLC. My paid emplyment with ROA ended 5/31/2015, but I have cntinued the wrk f the SMLC as a vlunteer. Yu can reach me by at SWright@ra.rg.

2 I started a new federal jb n 10/1/2016, and I have never been a federal civilian emplyee befre that date. Almst a year later, in September 2017, the agency fired me, and I believe that the firing was mtivated by my Army Reserve service. During my 11.5 mnths f federal civilian emplyment, I was cntinually harassed by my direct supervisr and his supervisr abut my Army Reserve service and abut my absences frm wrk fr service and training in the Army Reserve. I was tld at least 15 times that yu must chse between wrking fr this agency and playing sldier yu cannt d bth. Whenever Nrth Krea r sme ther ptential ht spt was in the news, my supervisr r his supervisr asked me, When are yu ging t get called up? During my September 2017 Army Reserve drill weekend, I was ntified by my cmmanding fficer that it was likely that the unit wuld be called t active duty in early As instructed by my cmmanding fficer, I ntified my civilian supervisr f the likelihd f 2018 mbilizatin n the Mnday fllwing the drill weekend. Just ne week later, I was tld that I was fired frm my civilian jb. I prtested t the agency s persnnel ffice and general cunsel immediately after I was ntified that I was being fired. Bth tld me that the firing is unreviewable because I did nt have ne year f federal civilian emplyment under my belt when I was fired. Is that assertin crrect? A: N, that assertin is wrng. If yu are claiming that the firing vilated USERRA, yu have the right t appeal t the MSPB and that bard has the duty t hear evidence and adjudicate yur claim. Cngress created the MSPB in 1978, when it enacted the Civil Service Refrm Act (CSRA). That statute split the frmer Civil Service Cmmissin (CSC) int three separate agencies. The Office f Persnnel Management (OPM) inherited the CSC s headquarters building, mst f the staff and resurces, and the functins as the persnnel ffice f the Executive Branch f the Federal Gvernment. The MSPB inherited the adjudicatry functins f the CSC. The Office f Special Cunsel (OSC) inherited the CSC s investigatry and prsecutrial functins. A federal emplyee wh has cmpleted the initial year f federal civilian emplyment and wh has been fired r suspended withut pay fr 15 days r mre can appeal the firing r suspensin t the MSPB. 3 Hearing appeals f firings and suspensins, frm federal emplyees r frmer emplyees wh have cmpleted the initial year f federal emplyment, cnstitutes the bulk f the wrk f the MSPB. Prir t 1978, the bulk f the adjudicatry wrk f the CSC 3 5 U.S.C. 7511(a)(1)(A).

3 was adjudicating appeals f firings and suspensins f federal emplyees wh had cmpleted their initial prbatinary perids. As I have explained in Law Review (August 2015) and ther articles, Cngress enacted USERRA 4 and President Bill Clintn signed it n 10/13/1994, as a lng-verdue rewrite f the Veterans Reemplyment Rights Act (VRRA), which was riginally enacted in The VRRA applied t the Federal Gvernment, as an emplyer, but the VRRA lacked a specific enfrcement mechanism with respect t federal agencies as emplyers. If a federal emplyee culd therwise bring his r her claim t the MSPB r the CSC (prir t 1978), but MSPB r CSC wuld adjudicate the VRRA claim, but if the VRRA claimant had n appeal right t the MSPB r CSC there was n remedy fr a VRRA vilatin by a federal agency as emplyer. One f the big imprvements made in 1994 was t prvide a specific enfrcement mechanism fr USERRA claims against federal executive agencies as emplyers. Sectin 4324 f USERRA prvides: Enfrcement f rights with respect t Federal executive agencies (a) (2) (1) A persn wh receives frm the Secretary a ntificatin pursuant t sectin 4322(e) may request that the Secretary refer the cmplaint fr litigatin befre the Merit Systems Prtectin Bard. Nt later than 60 days after the date the Secretary receives such a request, the Secretary shall refer the cmplaint t the Office f Special Cunsel established by sectin 1211 f title 5. (A) If the Special Cunsel is reasnably satisfied that the persn n whse behalf a cmplaint is referred under paragraph (1) is entitled t the rights r benefits sught, the Special Cunsel (upn the request f the persn submitting the cmplaint) may appear n behalf f, and act as attrney fr, the persn and initiate an actin regarding such cmplaint befre the Merit Systems Prtectin Bard. (B) Nt later than 60 days after the date the Special Cunsel receives a referral under paragraph (1), the Special Cunsel shall-- (i) make a decisin whether t represent a persn befre the Merit Systems Prtectin Bard under subparagraph (A); and (ii) ntify such persn in writing f such decisin. (b) A persn may submit a cmplaint against a Federal executive agency r the Office f Persnnel Management under this subchapter directly t the Merit Systems Prtectin Bard if that persn-- 4 See ftnte 2.

4 (c) (1) has chsen nt t apply t the Secretary fr assistance under sectin 4322(a); (2) has received a ntificatin frm the Secretary under sectin 4322(e); (3) has chsen nt t be represented befre the Bard by the Special Cunsel pursuant t subsectin (a)(2)(a); r (4) has received a ntificatin f a decisin frm the Special Cunsel under subsectin (a)(2)(b) declining t initiate an actin and represent the persn befre the Merit Systems Prtectin Bard. (1) The Merit Systems Prtectin Bard shall adjudicate any cmplaint brught befre the Bard pursuant t subsectin (a)(2)(a) r (b), withut regard as t whether the cmplaint accrued befre, n, r after Octber 13, A persn wh seeks a hearing r adjudicatin by submitting such a cmplaint under this paragraph may be represented at such hearing r adjudicatin in accrdance with the rules f the Bard. (2) If the Bard determines that a Federal executive agency r the Office f Persnnel Management has nt cmplied with the prvisins f this chapter relating t the emplyment r reemplyment f a persn by the agency, the Bard shall enter an rder requiring the agency r Office t cmply with such prvisins and t cmpensate such persn fr any lss f wages r benefits suffered by such persn by reasn f such lack f cmpliance. (3) Any cmpensatin received by a persn pursuant t an rder under paragraph (2) shall be in additin t any ther right r benefit prvided fr by this chapter and shall nt diminish any such right r benefit. (4) If the Bard determines as a result f a hearing r adjudicatin cnducted pursuant t a cmplaint submitted by a persn directly t the Bard pursuant t subsectin (b) that such persn is entitled t an rder referred t in paragraph (2), the Bard may, in its discretin, award such persn reasnable attrney fees, expert witness fees, and ther litigatin expenses. (d) (1) A persn adversely affected r aggrieved by a final rder r decisin f the Merit Systems Prtectin Bard under subsectin (c) may petitin the United States Curt f Appeals fr the Federal Circuit t review the final rder r decisin. Such petitin and review shall be in accrdance with the prcedures set frth in sectin 7703 f title 5. (2) Such persn may be represented in the Federal Circuit prceeding by the Special Cunsel unless the persn was nt represented by the Special Cunsel befre the Merit Systems Prtectin Bard regarding such rder r decisin U.S.C

5 USERRA (enacted in 1994) did nt create the MSPB that agency was created 16 years earlier (1978) by the CSRA. But USERRA greatly expanded the jurisdictin, authrity, and respnsibility f the MSPB, t include adjudicating claims that federal executive agencies (as emplyers) have vilated USERRA and awarding apprpriate relief in cases where vilatins have been fund. The MSPB s jurisdictin under sectin 4324 f USERRA is nt limited t cases that are therwise appealable t the MSPB, because the fired emplyee had cmpleted the initial year f federal civilian emplyment befre the firing. USERRA prvides a wrkable enfrcement mechanism fr all persns wh claim and can establish that a federal executive agency has vilated USERRA. This includes persns (like yu) wh cannt therwise get t the MSPB because they have nt cmpleted the initial year f federal civilian emplyment. This als includes emplyees, frmer emplyees, and unsuccessful applicants fr emplyment with nnapprpriated fund instrumentalities (NAFIs) f the Federal Gvernment. 6 The MSPB als has jurisdictin in a case where a federal executive agency is the jint emplyer f a persn wh is directly emplyed by a federal cntractr and where the federal agency as jint emplyer has vilated USERRA. 7 Brigadier General (BG) Michael J. Silva, USAR (a life member f ROA and later ROA s Natinal President) was the named appellant in the case f Silva v. Department f Hmeland Security. 8 Frm June 2005 t May 2006, Mr. Silva wrked fr SPS Cnsulting LLC (SPS) n a cntract with the United States Department f Hmeland Security (DHS). SPS prvided DHS with financial supprt services thrugh tw psitins, ne f which was titled Financial Manager (FM). SPS put Mr. Silva in the FM psitin, but under the cntract DHS retained the right t apprve r disapprve any substitutins f the persn serving as FM. In February 2006, BG Silva was selected t cmmand the 411th Engineers and immediately prepare fr mbilizatin and deplyment t Iraq. He immediately ntified SPS and DHS. Mr. Silva suggested a particular persn t fill his jb, and she was hired, with DHS' apprval. In May 2006, BG Silva was called t active duty and deplyed t Iraq. He was released frm active duty in August 2007, and he made a timely applicatin fr reemplyment with SPS and DHS. Althugh he met the eligibility criteria fr reemplyment under USERRA, 9 he was nt 6 By far the largest NAFI is the Army & Air Frce Exchange Service (AAFES). Prir t the enactment f USERRA in 1994, AAFES rutinely fluted the VRRA, knwing that there was n remedy available fr persns whse VRRA rights were vilated by AAFES. Please see Law Review (July 2015). 7 See Silva v. Department f Hmeland Security, 2009 MSPB 189 (Merit Systems Prtectin Bard September 23, 2009). I discuss this case in detail in Law Review 0953 (Octber 2009). 8 See ftnte 7. 9 As I have explained in Law Review (December 2015) and ther articles, a persn must meet five simple cnditins t have the right t reemplyment under USERRA. The persn must have left a civilian jb (federal, state, lcal, r private sectr) t perfrm vluntary r invluntary service in the unifrmed services and must have given the emplyer prir ral r written ntice. The persn must nt have exceeded USERRA s five-year cumulative limit n the duratin f the perid r perids f unifrmed service relating t the emplyer relatinship fr which the persn seeks reemplyment. There are nine exemptins kinds f service that d nt cunt tward exhausting the persn s limit. Please see Law Review (May 2016). The persn must have been

6 reemplyed. SPS initially tld Mr. Silva that it wuld reemply him in the FM psitin that he had left, but the cmpany changed its psitin and tld him that it wuld nt reemply him because DHS had disapprved his reemplyment. The new emplyee apparently did a fine jb during Mr. Silva's absence, and the DHS cntract administratr did nt want her t be displaced. The lack f a current vacancy in the FM psitin, at the time Mr. Silva applied fr reemplyment, in n way excused SPS frm its bligatin t reemply Mr. Silva. 10 In sme circumstances, reemplying the returning veteran necessarily means displacing anther emplyee, and this was apparently ne f thse cases. If an emplyer culd defeat the reemplyment rights f the emplyee called t the clrs simply by filling the psitin, USERRA wuld be f little value. As I explained in Law Review 154 (December 2004), and as the Department f Labr (DOL) USERRA regulatins prvide, 11 it is pssible fr an individual emplyee t have tw emplyers, in the same jb, at the same time. This is called the "jint emplyer" situatin, and Mr. Silva's situatin is a gd example. SPS and DHS were Mr. Silva's jint emplyers at the time he was called t the clrs, in that each entity had cntrl ver certain aspects f his emplyment situatin. Bth SPS and DHS had respnsibilities under USERRA. By standing in the way f the reemplyment f the returning veteran, DHS vilated USERRA, even thugh Mr. Silva never wrked fr DHS in the traditinal sense-he was nt a federal civilian emplyee. In accrdance with MSPB rules, Mr. Silva s case was presented t an Administrative Judge (AJ) f the MSPB. The AJ cnducted a hearing n the merits f Mr. Silva's claim but then granted the DHS mtin t dismiss based n an asserted lack f MSPB jurisdictin ver cases f this nature (invlving "jint emplyees" wh are nt federal emplyees in the traditinal sense). The OSC appealed, n behalf f Mr. Silva, t the MSPB itself. The MSPB cnsists f three members, each f whm is appinted by the President with Senate cnfirmatin. On September 23, 2009, the MSPB agreed with OSC and fund that it had jurisdictin t hear Mr. Silva's case against DHS. The MSPB remanded the case t the AJ t make findings n the merits f Mr. Silva's claim. On remand, the case settled. DHS made a substantial payment (f an undisclsed amunt) t Mr. Silva t settle his claim against DHS. released frm the perid f service withut having received a disqualifying bad discharge frm the military and must have made a timely applicatin fr reemplyment after release frm service. It is clear beynd any questin that Mr. Silva met these five cnditins in August See Nichls v. Department f Veterans Affairs, 11 F.3d 160, 163 (Fed. Cir. 1993) C.F.R

7 Q: What d I need t prve t shw that firing me vilated USERRA? A: The pertinent sectin f USERRA is sectin 4311, which frbids discriminatin in emplyment based n past, present, r prjected future service in a unifrmed service. USERRA text and legislative histry As I have explained in Law Review (August 2015) and ther articles, Cngress enacted USERRA in 1994 as a lng-verdue rewrite f the Veterans Reemplyment Rights Act (VRRA), which was riginally enacted in Under the VRRA, a persn wh was drafted r wh vluntarily enlisted in the armed frces was entitled t reemplyment in the pre-service civilian jb after hnrable service. In 1955 and 1960, Cngress expanded the VRRA t apply als t initial active duty training, active duty fr training, and inactive duty training perfrmed by Reserve and Natinal Guard members. When leaving a jb fr service and returning t the jb became a recurring phenmenn rather than a nce-in-a-lifetime experience, Cngress amended the VRRA in 1968, adding a prvisin making it unlawful fr an emplyer t fire a Reserve Cmpnent service member r t deny such a persn prmtin r incidents r advantages f emplyment based n any bligatin as a member f a Reserve Cmpnent f the Armed Frces. In 1986, Cngress amended this prvisin t frbid discriminatin in hiring. The VRRA nly frbade discriminatin based n any bligatin as a member f a Reserve Cmpnent f the armed frces. USERRA s anti-discriminatin prvisin is much brader. It frbids the denial f initial emplyment, retentin in emplyment, prmtin, r a benefit f emplyment based n membership in a unifrmed service, applicatin t jin a unifrmed service, perfrmance f service, r applicatin r bligatin t perfrm service. 12 Just prir t the enactment f USERRA in 1994, the pertinent sectin f the VRRA read as fllws: Any persn wh seeks r hlds a psitin described in clause (A) [a psitin with the United States Gvernment, any territry r pssessin f the United States r a plitical subdivisin f a territry r pssessin, r the Gvernment f the District f Clumbia] r (B) [a state, a plitical subdivisin f a state, r a private emplyer] f subsectin (a) f this sectin shall nt be denied hiring, retentin in emplyment, r any prmtin r ther incident r advantage f emplyment because f any bligatin as a member f a Reserve cmpnent f the Armed Frces U.S.C. 4311(a) U.S.C. 4321(b)(3) (1988 editin f the United States Cde) (emphasis supplied).

8 USERRA (enacted in 1994) cntains a much brader and strnger anti-discriminatin prvisin, as fllws: Discriminatin against persns wh serve in the unifrmed services and acts f reprisal prhibited (a) A persn wh is a member f, applies t be a member f, perfrms, has perfrmed, applies t perfrm, r has an bligatin t perfrm service in a unifrmed service shall nt be denied initial emplyment, reemplyment, retentin in emplyment, prmtin, r any benefit f emplyment by an emplyer n the basis f that membership, applicatin fr membership, perfrmance f service, applicatin fr service, r bligatin. (b) An emplyer may nt discriminate in emplyment against r take any adverse emplyment actin against any persn because such persn (1) has taken an actin t enfrce a prtectin affrded any persn under this chapter, (2) has testified r therwise made a statement in r in cnnectin with any prceeding under this chapter, (3) has assisted r therwise participated in an investigatin under this chapter, r (4) has exercised a right prvided fr in this chapter. The prhibitin in this subsectin shall apply with respect t a persn regardless f whether that persn has perfrmed service in the unifrmed services. (c) An emplyer shall be cnsidered t have engaged in actins prhibited-- (1) under subsectin (a), if the persn's membership, applicatin fr membership, service, applicatin fr service, r bligatin fr service in the unifrmed services is a mtivating factr in the emplyer's actin, unless the emplyer can prve that the actin wuld have been taken in the absence f such membership, applicatin fr membership, service, applicatin fr service, r bligatin fr service; r (2) under subsectin (b), if the persn's (A) actin t enfrce a prtectin affrded any persn under this chapter, (B) testimny r making f a statement in r in cnnectin with any prceeding under this chapter, (C) assistance r ther participatin in an investigatin under this chapter, r (D) exercise f a right prvided fr in this chapter, is a mtivating factr in the emplyer's actin, unless the emplyer can prve that the actin wuld have been taken in the absence f such persn's enfrcement actin, testimny, statement, assistance, participatin, r exercise f a right.

9 (d) The prhibitins in subsectins (a) and (b) shall apply t any psitin f emplyment, including a psitin that is described in sectin 4312(d)(1)(C) f this title. 14 Sectin 4321(b)(3) f the VRRA frbade discriminatin by emplyers nly if such discriminatin was because f any bligatin as a member f a Reserve cmpnent f the Armed Frces. Sectin 4311 f USERRA frbids discriminatin based n any ne f the fllwing statuses r activities: a. Membership in a unifrmed service. 15 b. Applicatin t jin a unifrmed service. c. Perfrming unifrmed service. d. Having perfrmed unifrmed service in the past. e. Applicatin t perfrm unifrmed service. f. Obligatin t perfrm unifrmed service. g. Having taken an actin t enfrce a USERRA prtectin fr any persn. h. Having testified r therwise made a statement in r in cnnectin with a USERRA prceeding. i. Having assisted r therwise participated in a USERRA investigatin. j. Having exercised a USERRA right. Under sectin 4311(c) f USERRA, 16 it is nt necessary t prve that ne f the prtected statuses r activities was the reasn fr the firing, denial f initial emplyment, r denial f a prmtin r a benefit f emplyment. It is sufficient t prve that ne f the prtected activities r statuses was a mtivating factr in the emplyer s decisin. If the plaintiff prves mtivating factr, the burden f prf shifts t the emplyer t prve (nt just say) that it wuld have made the same decisin in the absence f the prtected status r activity. USERRA s legislative histry explains sectin 4311 as fllws: Current law [the VRRA] prtects Reserve and Natinal Guard persnnel frm terminatin frm their civilian emplyment r ther frms f discriminatin based n their military bligatins. Sectin 4311(a) wuld reenact the current prhibitin against discriminatin which includes discriminatin against applicants fr emplyment (see U.S.C (emphasis supplied). 15 As defined by USERRA, the unifrmed services include the Army, Navy, Marine Crps, Air Frce, and Cast Guard, as well as the cmmissined crps f the Public Health Service (PHS). 38 U.S.C. 4303(16). The cmmissined crps f the Natinal Oceanic and Atmspheric Administratin (NOAA) is nt a unifrmed service fr USERRA purpses, althugh it is a unifrmed service as defined in 10 U.S.C. 101(a)(5). Please see Law Review (January 2015) fr an explanatin f hw it came t pass that USERRA applies t the PHS Crps but nt the NOAA Crps. Under mre recent amendments, Intermittent Disaster Respnse Appintees f the Natinal Disaster Medical System under the cgnizance f the Department f Health and Human Services and persns wh serve in the Natinal Urban Search and Rescue Respnse System under the cgnizance f the Federal Emergency Management Agency in the Department f Hmeland Security have reemplyment rights under USERRA. Please see Law Review (February 2017) U.S.C. 4311(c).

10 Beattie v. The Trump Shuttle, Inc., 758 F. Supp. 30 (D.D.C. 1991), current emplyees wh are active r inactive members f Reserve r Natinal Guard units, current emplyees wh seek t jin Reserve r Natinal Guard units (see Byle v. Burke, 925 F.2d 497 (1 st Cir. 1991), r emplyees wh have a military bligatin in the future such as a persn wh enlists in the Delayed Entry Prgram which des nt require leaving the jb fr several mnths. See Trulsn v. Trane C., 738 F.2d 770, 775 (7 th Cir. 1984). The Cmmittee [Huse Cmmittee n Veterans Affairs] intends that these antidiscriminatin prvisins be bradly cnstrued and strictly enfrced. The definitin f emplyee, which als includes frmer emplyees, wuld prtect thse persns wh were frmerly emplyed by an emplyer and wh have had adverse actin taken against them by the frmer emplyer since leaving the frmer emplyment. If the emplyee is unlawfully discharged under the terms f this sectin prir t leaving fr military service, such as under the Delayed Entry Prgram, that emplyee wuld be entitled t reinstatement fr the remainder f the time the emplyee wuld have cntinued t wrk plus lst wages. Such a claim can be pursued befre r during the emplyee s military service, even if nly fr lst wages. Sectin 4311(b) [nw 4311(c), as amended in 1996] wuld reaffirm that the standard f prf in a discriminatin r retaliatin case is the s-called but fr test and that the burden f prf is n the emplyer, nce a prima facie case is established. This prvisin is simply a reaffirmatin f the riginal intent f Cngress when it enacted current sectin 2021(b)(3) [later renumbered 4321(b)(3)] f title 38, in See Hearings n H.R Befre Subcmmittee N. 3 f the Huse Cmmittee n Armed Services, 89 th Cng., 1 st Sessin at 5320 (February 23, 1966). In 1986, when Cngress amended sectin 2021(b)(3) t prhibit initial hiring discriminatin against Reserve and Natinal Guard members, Cngressman G.V. Mntgmery (spnsr f the legislatin and Chairman f the Huse Cmmittee n Veterans Affairs) explained that, in accrdance with the 1968 legislative intent cited abve, the curts in these discriminatin cases shuld use the burden f prf analysis adpted by the Natinal Labr Relatins Bard and apprved by the Supreme Curt under the Natinal Labr Relatins Act. See 132 Cng. Rec (Octber 7, 1986) (statement f Cng. Mntgmery) citing Natinal Labr Relatins Bard v. Transprtatin Management Crp., 462 U.S. 393 (1983). This standard and burden f prf is applicable t all cases brught under this sectin regardless f the date f accrual f the cause f actin. T the extent that curts have relied n dicta frm the Supreme Curt s decisin in Mnre v. Standard Oil C., 452 U.S. 549, 559 (1981), that a vilatin can ccur nly if the military bligatin is the sle factr (see Sawyer v. Swift & C., 836 F.2d 1257, 1261 (10 th Cir. 1988), thse decisins

11 have misinterpreted the riginal legislative intent and histry f 38 U.S.C. 2021(b)(3) and are rejected n that basis. 17 USERRA Regulatins Tw sectins f the Department f Labr (DOL) USERRA Regulatins address hw t prve a vilatin f sectin 4311: Wh has the burden f prving discriminatin r retaliatin in vilatin f USERRA? The individual has the burden f prving that a status r activity prtected by USERRA was ne f the reasns that the emplyer tk actin against him r her, in rder t establish that the actin was discriminatin r retaliatin in vilatin f USERRA. If the individual succeeds in prving that the status r activity prtected by USERRA was ne f the reasns the emplyer tk actin against him r her, the emplyer has the burden t prve the affirmative defense that it wuld have taken the actin anyway What must the individual shw t carry the burden f prving that the emplyer discriminated r retaliated against him r her? (a) In rder t prve that the emplyer discriminated r retaliated against the individual, he r she must first shw that the emplyer's actin was mtivated by ne r mre f the fllwing: (1) Membership r applicatin fr membership in a unifrmed service; (2) Perfrmance f service, applicatin fr service, r bligatin fr service in a unifrmed service; (3) Actin taken t enfrce a prtectin affrded any persn under USERRA; (4) Testimny r statement made in r in cnnectin with a USERRA prceeding; (5) Assistance r participatin in a USERRA investigatin; r, (6) Exercise f a right prvided fr by USERRA. (b) If the individual prves that the emplyer's actin was based n ne f the prhibited mtives listed in paragraph (a) f this sectin, the emplyer has the burden t prve the affirmative defense that the actin wuld have been taken anyway absent the USERRA-prtected status r activity Huse Cmmittee Reprt, April 28, 1993 (H.R. Rep. N , Part 1), reprinted in Appendix B-1 f The USERRA Manual by Kathryn Piscitelli and Edward Still. The quted paragraphs can be fund n pages f the 2017 editin f the Manual C.F.R (bld questin in riginal) C.F.R (bld questin in riginal).

12 Case law under sectin 4311 f USERRA Staub v. Prctr Hspital 20 While emplyed by Prctr Hspital as an angigraphy technician, Vincent Staub (a nncmmissined fficer in the Army Reserve) was required t attend ne drill weekend per mnth and tw r three weeks f full-time training per year. Because the angigraphy department f the hspital required weekend staffing, Staub s military bligatins impsed sme burden n the hspital. Bth Janice Mulally, Staub s immediate supervisr, and Michael Krenchuk, Mulally s supervisr, were hstile t Staub s military bligatins. Mulally scheduled Staub fr additinal shifts withut ntice s that he wuld have t pay back the department fr everyne else having t bend ver backward t cver his schedule fr the Reserves. She als infrmed Staub s c-wrker (Leslie Swedebrg) that Staub s military duty has been a strain n the department and she asked Swedebrg t help her get rid f Staub. Krenchuk referred t Staub s military bligatins as a bunch f smking and jking and a waste f the taxpayers mney and he stated that he was aware that Mulally was ut t get Staub. 21 In January 2004, Prctr Hspital issued Staub a crrective actin disciplinary warning fr purprtedly vilating a cmpany rule requiring him t stay in his wrk area whenever he was nt wrking with a patient. In April 2004, Prctr Hspital fired Staub fr allegedly vilating the crrective actin. Staub cntended that bth the crrective actin and the allegatin that he had vilated it were invented by Mulally and Krenchuk based n their animus against him because f his Army Reserve service. Prctr Hspital cntended that the decisin t fire Staub was made by Linda Buck, the hspital s human relatins directr, and that Buck was nt infected by any f the anti-military animus that Krenchuk and Mulally had exhibited. But Krenchuk and Mulally clearly initiated the prcess that led t the firing f Staub, and Buck must have relied primarily n adverse reprts abut Staub s wrk perfrmance that she received frm Krenchuk and Mulally. Staub sued the hspital in the United States District Curt fr the Central District f Illinis, claiming that the firing vilated sectin 4311 f USERRA, 38 U.S.C The case was tried befre a jury, and Staub prevailed. After hearing the evidence in multi-day trial, and after hearing the District Judge s instructins, the jury fund that Staub had prved, by a prepnderance f the evidence, that his Army Reserve service was a mtivating factr in U.S. 411 (2011). This is a 2011 decisin f the United States Supreme Curt. The citatin means that yu can find the decisin in Vlume 562 f United States Reprts (where Supreme Curt decisins are published), and the decisin starts n page 411. I discuss this case in detail in Law Review 1122 (March 2011). 21 These facts cme directly frm the majrity pinin, written by Justice Antnin Scalia. At the utset, Justice Scalia wrte: Staub and Prctr htly dispute the facts surrunding the firing, but because the jury fund fr Staub in his claim f emplyment discriminatin against Prctr, we describe the facts in the light mst favrable t him.

13 Prctr Hspital s decisin t terminate his emplyment, and that the hspital had nt prved that it wuld have fired him anyway, fr lawful reasns, in the absence f his membership in the Army Reserve, his perfrmance f unifrmed service, and his bligatin t perfrm future service. The District Judge denied Prctr s mtin fr new trial and mtin fr judgment ntwithstanding the verdict. Prctr then appealed t the United States Curt f Appeals fr the 7 th Circuit. 22 A three-judge panel f the 7 th Circuit reversed the District Curt verdict fr Staub, hlding that under the cat s paw dctrine 23 Prctr Hspital culd nt be held liable fr discriminatin by Krenchuk and Mulally unless Staub prved that Buck was singularly influenced by the tw direct supervisrs. Staub applied t the 7 th Circuit fr rehearing en banc, but that mtin was denied. Staub applied t the Supreme Curt fr discretinary review, which was granted. Briefs fr the parties and friends f the curt (including ROA) were filed in July and August The ral argument was held n Nvember 2, 2010, and the decisin came dwn March 1, Justice Antnin Scalia wrte the majrity decisin, and his pinin was jined by Chief Justice Jhn Rberts, Justice Anthny Kennedy, Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Snia Stmayr. The majrity decisin relied n principles f agency law and trt law and fund that the emplyer (Prctr Hspital) was liable fr the discriminatry actins f supervisry emplyees Krenchuk and Mulally and that requiring Staub t prve that Buck was singularly influenced by the tw immediate supervisrs was incnsistent with thse principles. Near the end f the majrity pinin, Justice Scalia summarized the Curt s hlding as fllws: We therefre hld that if a supervisr perfrms an act mtivated by anti-military animus that is intended by the supervisr t cause an adverse emplyment actin, and if that act is a prximate cause f the ultimate emplyment actin, then the emplyer is liable under USERRA. 24 Justice Samuel Alit, jined by Justice Clarence Thmas, wrte a cncurring decisin, agreeing with the result (reversal f the 7 th Circuit) but relying n the text f USERRA rather than general principles f agency law and trt law. Justice Elena Kagan did nt participate. 22 The 7 th Circuit is the federal appellate curt that sits in Chicag and hears appeals frm district curts in Illinis, Indiana, and Wiscnsin. 23 The cat s paw reference is t a fable written by Aesp abut 25 centuries ag and put int verse by LaFntaine in In the fable, a clever mnkey induces a cat by flattery t extract rasting chestnuts frm the fire. After the cat has dne s, burning its paws in the prcess, the mnkey makes ff with the chestnuts and leaves the cat with nthing. See ftnte 1 f the majrity pinin. 24 Staub, 562 U.S. at 422 (emphasis in riginal).

14 Sheehan v. Department f the Navy 25 In an imprtant precedential decisin, the Federal Circuit set frth the mde f prving a vilatin f sectin 4311, as fllws: Discriminatry mtivatin under USERRA may be reasnably inferred frm a variety f factrs, including (1) prximity in time between an emplyee s military activity and the adverse emplyment actin, (2) incnsistencies between the prffered reasns [the reasns the emplyer asserts were the reasns fr the adverse emplyment actin] and ther actins f the emplyer, (3) an emplyer s expressed hstility twards members prtected by the statute, and (4) disparate treatment f certain emplyees cmpared t ther emplyees with similar wrk recrds r ffenses. 26 Ericksn v. United States Pstal Service 27 Sme emplyers argue: We did nt fire Je Smith because f his military service. We fired him because he was absent frm wrk while perfrming that service. In an imprtant USERRA case, the United States Pstal Service made that argument, and the MSPB accepted it. On appeal, the Federal Circuit firmly rejected this nnsensical argument, hlding: We reject that argument. An emplyer cannt escape liability under USERRA by claiming that it was merely discriminating n the basis f absence when the absence was fr military service. The mst significant and predictable cnsequence f reserve service with respect t the emplyer is that the emplyee is absent t perfrm that service. T permit an emplyer t fire an emplyee because f his military absence wuld eviscerate the prtectins affrded by USERRA. 28 Q: A lawyer that I cnsulted tld me that the firing will be fund t vilate USERRA nly if I can find and prve a smking gun shwing that the firing was mtivated by my Army Reserve service. Is that true? A: N, that is nt true. Yu d nt need a smking gun t prve a vilatin f sectin The Federal Circuit has held: The factual questin f discriminatry mtivatin r intent may be prven by either direct r circumstantial evidence. See FPC Hldings, Inc., 64 F.3d at 942 ("Mtive may be F.3d 1008 (Fed. Cir. 2001). This is a 2001 decisin f the United States Curt f Appeals fr the Federal Circuit, the federal appellate curt that sits in ur natin s capital and has natinwide jurisdictin ver certain kinds f cases, including appeals frm the Merit Systems Prtectin Bard. The citatin means that yu can find this decisin in Vlume 240 f Federal Reprter, Third Series, and this decisin starts n page Sheehan, 240 F.3d at F.3d 1364 (Fed. Cir. 2009). Lieutenant Clnel Mathew Tully and I discuss this case in detail in Law Review (December 2014). 28 Ericksn, 571 F.3d at 1368.

15 demnstrated by circumstantial as well as direct evidence and is a factual issue which the expertise f the Bard [NLRB] is peculiarly suited t determine."); Matsn Terminals, 114 F.3d at ; see als Kumferman v. Dep't f Navy, 785 F.2d 286, 290 (Fed. Cir. 1986) (intent is a questin f fact t be fund by the MSPB). Circumstantial evidence will ften be a factr in these cases, fr discriminatin is seldm pen r ntrius. Discriminatry mtivatin under the USERRA may be reasnably inferred frm a variety f factrs, including prximity in time between the emplyee's military activity and the adverse emplyment actin, incnsistencies between the prffered reasn and ther actins f the emplyer, an emplyer's expressed hstility twards members prtected by the statute tgether with knwledge f the emplyee's military activity, and disparate treatment f certain emplyees cmpared t ther emplyees with similar wrk recrds r ffenses. Cf. W.F. Blin C. v. Nat'l Labr Relatins Bd., 70 F.3d 863, 871 (6th Cir. 1995). In determining whether the emplyee has prven that his prtected status was part f the mtivatin fr the agency's cnduct, all recrd evidence may be cnsidered, including the agency's explanatin fr the actins taken. 29 It sunds like yu have mre than enugh evidence t shw that yur Army Reserve service was a mtivating factr in the agency s decisin t fire yu. The strngest evidence that yu have is the prximity in time between yur ntificatin f yur supervisr f the likelihd f a 2018 mbilizatin and the decisin t fire yu. Yu als have the yu must chse remarks by yur supervisr and his supervisr. Thse remarks may nt amunt t a smking gun, but they at least amunt t an dr shwing that the gun was recently fired. I think that the MSPB AJ and the MSPB will find that yur firing was mtivated at least in part by yur military service and bligatins. Thus, yu will prevail unless the emplyer can prve (nt just say) that yu were fired fr demnstrable miscnduct r inefficiency and that yu wuld have been fired anyway even if yu had nt been a member f a Reserve Cmpnent f the armed frces. 29 Sheehan, 240 F.3d at 1014.