Fedweek

Yokosuka, Japan - March 2017: Sailors assigned to forward-deployed aircraft carrier, USS Ronald Reagan (CVN 76), prepare for a petty officer second class advancement exam at James D. Kelly Fleet Recreation Center. The court stressed that the USERRA law broadly protects individuals against negative employment decisions arising from their “performance of service” in the armed forces and makes no distinctions about rank.

A federal appeals court has taken a broader view of federal workplace protections for veterans than was advocated by one of the military services, the Navy, in a dispute with an employee over his non-selection for a position he was seeking.

In case No. 19-1205, the Court of Appeals for the Federal Circuit overturned an MSPB decision in a case turning on the scope of protections under the Uniformed Services Employment and Reemployment Rights Act, which bars personnel actions against current federal employees or job seekers because of their current or past military service.

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The MSPB had found that the employee was the more highly qualified of the two who were considered for the vacancy and that a hiring official’s “animus” toward his prior military service as a cook and chief petty officer—as below the level of responsibility the new position required—“was a motivating or substantial factor” in passing over him to hire the other candidate. However, the MSPB found that the other candidate would have been hired in any case.

The court said there was conflicting evidence of whether the other candidate had been pre-selected for the position but that regardless, “When an employer couples unlawful discrimination with preselection to foreclose an applicant’s access to employment, the employer cannot disentangle the discrimination from actions that would otherwise constitute benign preselection.”

The Navy argued that USERRA does not extend to acts of discrimination against a service member based on military rank or status in the uniformed services. But the court stressed that the USERRA law broadly protects individuals against negative employment decisions arising from their “performance of service” in the armed forces and makes no distinctions about rank.

“An individual’s commitment and obligation to, for example, provide health care (nurse), fly aircraft during armed conflict (fighter pilot), write legal briefs (Judge Advocate General’s officer), or even cook meals for fellow service members ought not to diminish the significant contributions of that person’s service in the armed forces” for purposes of the law’s protections, it said.

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