Air Force Loses Round on Military Service Discrimination Claim

An appeal against the Air Force for discrimination based on military service has been kept alive by a recent federal appeals court decision.

In Hayden v. Department of the Air Force (CAFC No. 2015-3073, 2/12/16), the plaintiff contended that his agency had violated his reemployment rights, discriminated against him for his military service, and retaliated against him for filing those claims. The appeals court has sent the case back to the Merit Systems Protection Board only with respect to the claim of military service discrimination, calling for more fact-finding.

The facts reported below are taken from the court’s recent decision.

Hayden was a reservist who was a 10-year employee at Wright-Patterson Air Force Base when his supervisor formally requested that Hayden’s position be upgraded from a GS-11 to GS-12 due to accretion of duties. As the supervisor said in his request to the HR office, “He is working above his pay grade and has shown he is capable of performing at a GS-12 grade level.” (Opinion p. 3)

A few days later Hayden was called up to active service, and, as these things often happen, his military duty was extended a couple of times, resulting in an absence from his civilian duties of about 8 months. Meanwhile, in his absence, the classification specialist was not able to conduct the required desk audit of Hayden’s job since he was not available for interview, so the supervisor withdrew the request. At the time Hayden was informed that it would be resubmitted when he returned from military duty. Subsequently, duties were switched around at Wright-Patterson and Hayden’s unit now no longer needed GS-12s.

When he returned from active duty, Hayden asked his supervisor to try again on the request for a GS-12 for him. He testified that his supervisor responded “that she did not recommend his promotion because he had been absent too often for his Reserve duties.” (p. 4) Hayden also claims that new performance concerns were now being raised and he received a feedback memo that said he was no longer performing GS-12 level work. (p. 4)

The agency contended that it no longer needed GS-12s in Hayden’s unit, and even if it did it would be required to compete any such position.

Hayden appealed to the MSPB. The Board held a hearing but the Administrative Judge found that Hayden had not proved his case. On appeal to the full Board, Hayden fared a bit better, but he did not prevail.

Addressing only the discrimination claim that eventually was remanded by the appeals court, the Board found there was evidence that could lead to a conclusion that Hayden’s military service factored into the failure to promote him, calling it a “temporal link between the appellant’s extended period of Reserve duty and the agency’s decision not to upgrade his position.” The Board concluded that this evidence showed the agency considered his absence in deciding not to upgrade his position. (p. 6) However the Board went on to find that there were other valid reasons cited by the agency to support its decision other than his service in the Air Force Reserve. (pp. 5-6)

Ultimately, in its decision, the appeals court held that the Board did not properly hold the agency to its burden to justify its actions in light of the evidence of military service discrimination. Once Hayden showed evidence of bias, the burden shifts to the agency to prove, notwithstanding the evidence of bias, that it has valid, non-discriminatory reasons for its actions.

The court goes into considerable length parsing the evidence. It agreed with the Board on two of Hayden’s claims, but disagreed on how it handled the military service discrimination claim. (Those hungry for more facts should see the court’s decision.) Summarizing, the court concluded that the Board “failed to make sufficient fact-findings” to support its conclusion that the agency had not discriminated with regard to Hayden’s military service. It therefore has shipped the case back to the Board to do it right.

The law at issue here is USERRA ((Uniformed Services Employment and Reemployment Rights Act of 1994). A conclusion that the Air Force denied Hayden a promotion because of his military service would be a violation of this law. The court cites 38 U.S.C. section 4311(a), which reads in part:

“A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that … performance of service…”

One would think that the Department of the Air Force would be particularly alert to living up to its USERRA obligations. It remains to be seen how this case comes out on remand to the MSPB.

Hayden v. Air Force (2015-3073)

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.