MSPB held that USERRA’s anti-retaliation provision encompasses a hostile work environment claim. Image: Bumble Dee/Shutterstock.com
By: FEDweek StaffThe MSPB has refined federal employees’ rights under the Uniformed Services Employment and Reemployment Rights, holding that that law’s protections against retaliation for military service extends to claims alleging a “hostile work environment.”
Case No. 2023 MSPB 13 involved an employee who alleged retaliation for filing prior appeals under that law, which provides reinstatement and other rights for those who serve on active military duty during their federal careers. He contended that two agency actions were retaliatory: placing of a device in his car allegedly intended to track his movements, and an order that he appear at an internal review.
The MSPB said that harassment that is “sufficiently pervasive to alter the conditions of employment and create an abusive working environment” violate the USERRA law, noting that federal courts have ruled that hostile work environment claims may be pursued under other similar anti-retaliation provisions in federal employment law, including under the Civil Rights Act and the Whistleblower Protection Act.
“Thus, the Board held that USERRA’s anti-retaliation provision encompasses a hostile work environment claim to the extent that a hostile work environment amounts to a denial of a benefit of employment,” said an MSPB summary.
That requires a showing that the employee was subjected to “a pattern of ongoing and persistent harassing behavior that was sufficiently severe or pervasive” to amount to an adverse employment action or discrimination in employment; and that the protected activity “was a motivating factor in the alleged acts of hostility. Such allegations are to be liberally construed,” it said.
However, it said that in the present case the employee did not meet those standards.
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