Sergeant Major Richard Erickson was serving overseas with U.S. Special Forces when he received a letter from the Postal Service telling him that he was being fired for excessive use of military leave.
In the latest wrinkle in this long running case, the Merit Systems Protection Board (MSPB) has denied the contention of the Postal Service (USPS) that it did not violate the Uniformed Services Employment and Reemployment Rights Act (USERRA) in removing the Army Special Forces (Green Beret) from employment. The appellant had been employed as a distribution clerk at a mail processing facility in Florida.
The MSPB initially denied the appeal on the grounds that the appellant’s military service was not a key factor in the decision to fire him and that he had not asked for his job back after active-duty service in 2005. The federal appeals court later reversed that decision and sent the case back to the MSPB.
By providing full relief to the appellant, the MSPB award may be one of the of the largest awards in an employment discrimination case against the Postal Service and the federal government according to the law firm that represented him.
The Board’s latest decision in Erickson v. U.S. Postal Service centered on service members’ protections against discrimination based on military duty under USERRA. SGM Erickson, whose service in Afghanistan earned him three medals for combat distinguished valor and the Purple Heart for combat injuries, now stands to receive as much as two million dollars in back pay, benefits, attorney fees, and retirement enhancements. The final amount of the award has not been determined. The MSPB concluded:
“We…find the appellant’s post-removal military service does not limit the period of time for which the appellant must be reinstated. While the agency was not required to hold the appellant’s job for him indefinitely, it is undisputed that the appellant’s nonexempted military absences did not exceed the 5-year limit at the time of his removal.”
Since 2007, MSPB administrative judges have twice ruled on the case (2007, 2012) and the most recent decision marked the Board’s third ruling (2008, 2010, 2013). Two of those Board decisions were prompted by remands from the U.S. Court of Appeals for the Federal Circuit (2009, 2011).
More than seven years and three months have passed since SGM Erickson filed his initial appeal with the MSPB in September 2006. A representative of the Tully Rinckey law firm says it has not asked for nor received any money from Sergeant Major Erickson for its representation despite the substantial legal and litigation costs. The founding partner of the law firm has also received a Purple Heart award for wounds he sustained in a suicide bombing attempt while serving in Afghanistan. (See FedSmith.com Author Mathew Tully Awarded Purple Heart)
The Board gave the Postal Service 20 days to reinstate Sergeant Major Erickson and 60 days to provide him with back pay and benefits. However, the Postal Service could still decide to appeal the latest MSPB decision.
“It has been a long, hard fight for Sergeant Major Erickson to get to this point but we are very pleased that the Board has finally granted him the remedy that he justly deserves. The final step now is for the Postal Service to do the right thing by complying with the Board’s decision so we can avoid additional appeals or subsequent litigation regarding the Postal Service’s compliance. The Postal Service had voiced its concern regarding the cost of additional litigation in this matter, including as a basis for not reinstating Sergeant Major Erickson after the administrative judge’s decision a year ago, and we hope that concern will be reflected in their efforts to fully and promptly comply with the Board’s decision and the law.” said Tully Rinckey PLLC Senior Associate Matthew D. Estes, who represented SGM Erickson before the Board during the most recent legal victory.