FEDweek

MSPB Told to Reconsider Alleged Violation of Veteran’s Rights

A federal appeals court has told the MSPB to reconsider a case in which an employee argued that his agency had created a hostile work environment that aggravated his illness and his veterans’ disability, making his work circumstances intolerable.

A hearing officer, and then the full board, treated the complaint as two separate cases, one involving involuntary resignation and the other involving Uniformed Services Employment and Reemployment Rights Act violations.

The first was rejected on grounds that the employee had failed to nonfrivolously allege that he was subjected to a discriminatory/retaliatory hostile work environment so coercive in nature that he had no choice but to resign. The second was then rejected on grounds that he had failed to make a nonfrivolous allegation that a reasonable person in his position would have felt compelled to resign due to USERRA-based discrimination or reprisal.

However, the Court of Appeals for the Federal Circuit found that the case should not have been divided into two, and that MSPB should have considered the totality of the situation.

The court held that “all of the evidence relevant to the constructive discharge–including evidence related to the allegations of USERRA-violating retaliation–must be considered,” according to a summary by the MSPB.