U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Stephen Fox v. United States Postal Service, BN-3443000064-I-1, May 4, 2001

In the case of a USERRA appeal, where a violation of USERRA is raised as an affirmative defense, an administrative judge (AJ) must inform an appellant of the burdens of proof and the different methods of proving a USERRA claim.

The appellant used 392 hours of Leave Without Pay (LWOP) during his active military service in Kosovo. Upon returning, the appellant found the agency had prorated his merit pay increase and economic value added (EVA) bonus based on the fact he had used more than the allowed 80 hours of LWOP for the fiscal year 1999. The appellant filed a petition for remedial action with the Merit Systems Protection Board (MSPB) claiming the prorating was a violation of Uniform Services Employment and Reemployment Rights Act of 1994, 38 USC § 4301, et seq. (USERRA).

The AJ determined the MSPB had jurisdiction. The appellant acknowledged that other agency employees who had used LWOP status over the allowed 80 hours were treated no differently by the agency's 1999 fiscal year policy. Thus, the AJ issued a show cause order requesting the appellant to demonstrate why the case should not be dismissed for failure to state a claim upon which relief could be granted. The AJ explained the jurisdictional requirement for a USERRA claim but did not explain the methods of proving or the burdens of proof under USERRA to the appellant before issuing a dismissal for failure to state a claim upon which relief can be granted. The appellant filed a petition for review.

The full Board found the AJ had both applied the wrong burden of proof analysis and had failed to inform the appellant of the burden of proof, the burden of going forward with the evidence, and the type of evidence necessary to prove the affirmative defense. It noted that recent a Federal Circuit decision, Sheehan v. Department of the Navy, 240 F.3d 1009 (Fed. Cir. 2001), rejected the use of the Title VII McDonnell Douglas analysis for USERRA cases. The court found instead that Congress adopted a "but for" test as the standard of proof of discrimination or retaliation under USERRA. Under such a standard, the employee has the initial burden of showing by a preponderance of evidence that the employee's military service was a "substantial or motivating factor" in the adverse action employment action. This discriminatory motive or intent can be proven by either direct or indirect (circumstantial) evidence. If this initial burden is met, the employer then has the opportunity to come forward with evidence to show that the employer would have taken the action anyway, for a valid reason.

In this case, the AJ presumed the appellant was asserting an "indirect evidence" case, applied the Title VII burdens of proof, and failed to inform the appellant of either the burdens of proof or the different methods of proving a USERRA claim. He also rejected an attempt by the appellant to prove, through discovery, that the intent of the 1999 policy violated USERRA. The Board remanded the case back to the AJ to apply the correct standards and inform the appellant of the methods and burdens of proof in establishing a USERRA claim. Presumably this would include allowing the appellant to pursue his discovery request.