Former Army Special Forces SGT Wins Reinstatement With Postal Service

View this article online at and visit to sign up for free news updates

The U.S. Court of Appeals for the Federal Circuit recently
held that the U.S. Postal Service incorrectly terminated a member of the
National Guard under false assumptions in that he abandoned his position. This
huge win for veterans and service members means that federal agencies will find
it harder to base their discriminatory terminations of military members on
circumstantial evidence that the employee abandoned their civilian position.

In the case of Erickson
v. United States Postal Service
, Docket # 2010-3096 (Federal Circuit,
February 28, 2011), Army Special Forces Sergeant Major Richard Erickson, who
has been awarded multiple medals for Combat Valor and is a Purple Heart
recipient, joined the Postal Service in 1988.

Due to his military service, he
was absent from this position for various periods of time for the purposes of Special
Forces training and drug eradication missions. While on active duty in January
2000, Erickson had a telephone conversation with Roslyn Warner, a labor
relations specialist with the Postal Service, which she later summarized in an
e-mail: “[Mr. Erickson] told me he is staying in the military until his orders
expire…he likes the military and said that he did not like working for the
[Postal Service]. He doesn’t care for the way they treat their employees.”

Postal Service tried to argue that these comments indicated that Erickson would
not be returning to his civilian position and had abandoned it in favor of a
career in the military. Shortly after this conversation, the Postal Service proposed
Erickson’s removal from federal service. With Erickson out of the country on
military duty, he did not respond to the proposal and was terminated in March

Six years later, Erickson appealed his removal to the Merit
Systems Protection Board on the grounds that the Postal Service violated the
anti-discrimination provisions in the Uniformed Services Employment and
Reemployment Rights Act (USERRA). The administrative judge in that case held
that he had in fact abandoned his position which disqualified him for the
protections of USERRA.

In Erickson’s appeal to the full Board, they affirmed
the result of the initial decision not on the grounds that he abandoned his
position but rather that he failed to show that his military status was a
motivating factor in his termination. Erickson further appealed to the Federal
Circuit, which reversed the Board on the claim of discrimination and held that
his military service was a motivating factor in his removal. The court also
remanded the case back to the Board to determine if he abandoned his position
as held by the original Administrative Judge. On remand, the Board affirmed Erickson’s
termination due to alleged abandonment and relied on three key pieces of
evidence: (1) length of military service, (2) failure to challenge or appeal
his termination for six years, and (3) expressed dissatisfaction with the
Postal Service. Once again, Erickson appealed to the Federal Circuit to protect his USERRA rights.

Most recently, the Federal Circuit again vacated the Board’s
decision denying Erickson his protection from discrimination and held that Erickson
did not abandon his civilian position in favor of a career in the military. The
Federal Circuit pointed out that Erickson’s service did not exceed the five-year
cap, when considering periods that were exempt, which results in a service
member forfeiting his or her reemployment rights. The court also disagreed that
Erickson’s dissatisfaction with how the Postal Service treated its employees
and his failure to challenge his termination while deployed were not sufficient
to establish that Erickson abandoned his civilian career. 

As the court noted, the USERRA statute does not set-forth
any time limits by which a service member may appeal their discrimination
claim. The Board completely failed to take this into consideration, prematurely
concluding that Erickson’s failure to act was abandonment in and of itself when
in fact he was still overseas fulfilling his military obligations at the time
of his removal. The Federal Circuit explained, “Because an employee who is in
military service retains his USERRA antidiscrimination rights despite the
passage of time, an employee’s failure to promptly challenge an adverse action by
his employer should not be given undue weight in the abandonment inquiry.”

The court also relied upon the fact that Erickson
specifically stated that he would return to the Postal Service when his orders
were up and Erickson testified that “his job was with the Postal Service,”
which supported his argument that he never intended to abandon his position.

Finally, the Federal Circuit believed the Board relied too
heavily on circumstantial evidence to connect the dots to support the Postal
Service’s argument that Erickson abandoned his position. Taken as a whole,
expressed dissatisfaction with an agency coupled with a time lapse in appealing
a removal does not constitute a waiver of USERRA rights. In previous cases
where the abandonment principle was upheld, and which the Postal Service tried
to rely, the employees had formally resigned as well as withdrew their personal
retirement contributions. In the absence of both, as well as the affirmative evidence
that suggested Erickson never intended to leave his position, the court held
that he did not abandon the Postal Service and remanded the case yet again to
the Board. If Erickson is reinstated into his previous position, he may be
entitled to eleven years of back pay and benefits that could cost the Postal
Service over $1 million in damages when attorney fees are included.

What does this mean for the half-million people currently
serving in the National Guard and Reserves?

The Federal Circuit’s decision should make it much more
difficult for an employer to discriminate against a service member and then attempt to argue that the employee abandoned his or
her position in order to avoid liability under USERRA. In a poignant rebuttal against such future
arguments, the Federal Circuit highlighted that the five-year cap on military
service for purposes of reemployment was also relevant to whether the employee
abandoned their civilian position. Specifically, the Federal Circuit held: “Because the five-year period
provides a distinct termination point for USERRA’s reemployment rights, the
enactment of that statutory period makes it reasonable to assume that, absent
clear evidence to the contrary, employees who have not exceeded that period do
not intend to abandon their civilian positions.” This language should make it
increasingly more difficult for employers to discriminate against service
members and will make it easier for soldiers, sailors and airmen to serve
without fear of discrimination. 

While the Board is expected to issue a final decision in
favor of Erickson, the recent decision by the Federal Circuit should help
protect many service members from discrimination going forward. 


© 2017 Mathew B. Tully, Esq.. All rights reserved. This article may not be reproduced without express written consent from Mathew B. Tully, Esq..

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at [email protected]. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.