Fedweek Legal

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) guarantees federal employees various reemployment rights following a period of service in a uniformed service and prohibits discrimination based on such service. This prohibition on discrimination applies with respect to initial employment, reemployment, retention in employment, promotion, or any benefit of employment. A person entitled to the rights and benefits under USERRA may file a complaint with the Department of Labor, or file an appeal directly with the Merit Systems Protection Board (“MSPB”) alleging that a federal agency or the Office of Personnel Management has failed to comply with that law.

Accordingly, although the MSPB already had jurisdiction to hear a case if an employee was subject to certain adverse actions (such as termination or suspensions over 14 days), the MSPB also has jurisdiction over other actions (such as nonselections or a three-day suspension) if the employee alleges that the reason for the action was discrimination based on service in a uniformed service. Unlike adverse action appeals, where the employee must file an appeal within 30 days of the effective date of the action, there is no time limit for filing an appeal with the MSPB asserting that an agency violated USERRA–although of course, the appeal should be filed as expeditiously as possible.

In many instances, employees believe that the negative action they have been subject to is a result of more then one motivating factor. For example, an employee may believe that not only did they not engage in the behavior charged in the termination documents, but the agency was motivated by discrimination in proposing and effectuating the termination in the first place. In that case, the MSPB may hear the adverse action appeal, as well as the employee’s “affirmative defense” of discrimination. But an employee doesn’t have the same right, according to the MSPB, if she brings her claim under USERRA.

What happens if a supervisor does not believe that women should serve in the military, and thus prevents a female employee from receiving a promotion? The supervisor may be discriminating against the employee on the basis of military service and because the employee is a woman. The MSPB has found that such an employee may file her complaint that the agency violated USERRA with the MSPB, but has no right to allege that the agency also violated other discrimination laws, such as Title VII. The MSPB has held that its authority with regard to USERRA complaints does not extend beyond the complained-of discrimination because of military status, does not allow for a decision on the merits of the underlying matter except to the extent necessary to address the appellant’s military status discrimination claims, and thus does not include a review of other claims of prohibited discrimination. See Metzenbaum v. Department of Justice, 89 M.S.P.R. 285 (2001).

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **