Does Federal Employment Equate to Military Service?

A fired Postal Service worker claimed discrimination based on her military service. But, as the Administrative Judge pointed out, she had not been in the military. The fired fed did not see that as a problem limiting her appeal rights but a court took a different approach.

If you petition the Merit Systems Protection Board to overturn removal based on violation of USERRA (Uniformed Services Employment and Reemployment Rights Act of 1994), it’s probably a good idea to be able to prove that you actually did serve in the military. In Burnett v. Merit Systems Protection Board, C.A.F.C. No. 2007-3232 (nonprecedential), 10/22/07, a fired USPS mail handler from Houston, Texas, learned this the hard way.

Burnett was fired based on a false workers’ compensation claim. She appealed to the Board. Belatedly, she tried to add a claim that her removal violated USERRA, which prohibits discrimination based on an employee’s military service and provides an appeal right to the Board.

The Administrative Judge, pointing out that Burnett’s file had no evidence of military service, directed her to submit a DD-214 or some other evidence of her military service. She did not cough up the evidence. Meanwhile, the Postal Service submitted personnel file documents showing that she had no military service obligation, nor any evidence of past military service. The AJ dismissed Burnett’s appeal for lack of jurisdiction under USERRA, and the full Board opted not to review the dismissal. (Opinion p. 2)

Burnett took her case to court. Some might call her argument creative; others might call it wasting a court’s time. In any case, she did not dispute that she had no military service. Instead, she argued that USERRA applies to federal employees who suffered an injury or disability “in the line of duty,” equating “duty” with federal employment. Hence, if you are a federal employee, you have the right to appeal under USERRA. (p. 3)

Patiently explaining that USERRA appeals are only available to those federal employees who actually meet the military service test, the court wasted little ink in affirming the Board’s dismissal of Burnett’s case. (p. 3)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.