The case involved an Air Force Reservist who became eligible for a within-grade increase while on active duty. Image: Heidi Besen/Shutterstock.com
A federal appeals court has overturned an MSPB decision in a dispute over a delay in a promotion that an employee asserted was related to his military duty, saying that the employee need not prove that the promotion would have been granted automatically at his first eligibility.
Case No. 2023-1160 before the U.S. Court of Appeals for the Federal Circuit involved an Air Force Reservist who became eligible for a within-grade increase while on active duty but which wasn’t paid until two months late.
That proved to be significant because in the interim a change in promotion policy was pending; he argued that he would have been promoted soon afterward under the first policy but that delaying until the second policy took effect resulted in the promotion being delayed by years.
An MSPB hearing officer—in a decision that became final because it was not appealed to the MSPB board—held that even under the earlier policy promotions were discretionary, not automatic, and that the employee had not been denied an employment right protected by the Uniformed Services Employment and Reemployment Rights Act.
The court, though, said that the issue is not whether the promotion would have been automatic but whether he “may have been entitled to” it. That in turn depends on whether the promotion was generally granted to all employees, whether the employee was treated the same as he had remained at work, and whether it was reasonably certain that the benefit would have accrued, the court said.
In sending the case back to the MSPB for an assessment of those issues, the court however agreed with the hearing officer that the employee had not suffered a discriminatory action due to his military service.
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