Federal Circuit: Preselection Coupled With Service Discrimination Violates USERRA
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
The United States Court of Appeals for the Federal Circuit described the litigation of a case it adjudicated on May 14, 2021 as “the decade-long journey of a hard-working man who served his country honorably, only to face workplace discrimination on the basis of that service.” In its opinion, the Federal Circuit held that the Merit Systems Protection Board (MSPB) erred in finding that the candidate’s nonselection for a position at the Department of the Navy would have occurred “regardless of his prior military service.”
On May 15, 2011, Navy posted a job announcement for an Event Forum Project Chief (EFPC). The candidate, who was already an employee of Navy, applied. So did another employee, who he had previously trained to replace him in a prior post in 2007. Internally, HR issued a certificate of eligible candidates that only listed the employee the candidate had previously trained. The candidate was later informed that the announcement had closed, and that he was ineligible. He immediately contacted HR, and HR determined that the certification was erroneous; he was indeed qualified and should have been listed.
HR issued a new certificate of eligible candidates, listing the candidate as “best qualified” and his former trainee as “qualified.” Nevertheless, although neither candidate was interviewed, Navy selected the trainee.
The appeals court recounted the relationship between the candidate and the selecting official, one that allegedly soured in September 2010 when the selecting official learned that although both men had served on a P-3 Orion (a large naval aircraft), the candidate had served as a cook. According to the candidate, from that conversation on, the selecting official “undermine[d the candidate’s] authority” on major projects, spied on him with a “shadow” employee, and demeaned him in front of contractors and third parties.
After Navy did not select him for the EFPC position, the candidate raised his concerns about improper animus from the selecting official to the HR specialist working under the selecting official. The candidate also filed a formal EEO complaint alleging race, gender, age, and disability discrimination. However, according to the candidate, these actions only further “engendered a retaliatory and hostile work environment,” wherein the selecting official “ridiculed [the candidate] at office meetings, challenged his responsibilities and workplace authority, and attempted to denigrate him before his superiors and co-workers.” Because the candidate perceived his opportunities at advancement were foreclosed by the selecting official’s presence at the Department, he resigned and took a lower, GS-11 position with the Army in Germany.
In 2012, after retaining counsel, the candidate withdrew his EEO cause of action and filed a claim at the MSPB under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). At MSPB, the candidate was met with delays and allegedly, comments from the MSPB AJ that “one service member could not discriminate against another.” In March 2013, the MSPB AJ dismissed the case, holding that “rank-based discrimination was not a violation of the USERRA.” The candidate petitioned for review to the full Board. In January 2014, the Board reversed the AJ’s decision and remanded it. The MSPB AJ took no action, and the case sat for two years before the candidate filed a petition for a writ of mandamus with the Federal Circuit. The case was immediately assigned to a new AJ, the candidate withdrew his petition for a writ of mandamus, and a decision issued in September 2015 denying him corrective action. The candidate once again appealed to the full Board, but the full Board never adjudicated his case due to the lack of quorum, which persists to this day.
On September 26, 2018, the candidate requested permission to withdraw the petition for review so he could file an appeal with the Federal Circuit. The Board granted his request, and the Federal Circuit took jurisdiction to review the AJ’s decision.
The appeals court agreed with the AJ that “no objective reviewer could have reasonably concluded that [the selectee’s] experience, as a whole, was more substantial than the [candidate’s].” Because the Navy’s “proferred rationale and evidence for selecting [the selectee]” did not show that she would have been hired in the absence of the selecting official’s personal opinion about the candidate’s military service, the appeals court found that Navy failed to establish its evidentiary burden under USERRA.
However, the appeals court parted ways with the AJ’s next finding, which was “an alternate theory of preselection to deny [the candidate’s] request for corrective action under [USERRA].” (emphasis original). The AJ, during the hearing, stated her view that the Navy had “preselected” the selectee, and requested additional briefing on the impact of that determination on the USERRA claim. “Preselection” is, essentially, a different illegal motive than discrimination based on military service. Under the AJ’s theory, the USERRA claim could fail even if the underlying motive was illegal, as long as it was illegal for reasons other than military service discrimination. Ultimately, the AJ held that the Navy would have hired the selectee regardless of who else applied (in other words, the selectee was preselected), and thus denied the candidate’s request for corrective action.
The appeals court disagreed, described the AJ’s “one-paragraph determination” as “hollow,” and found that the AJ “ignored numerous other instances in the record that either detract from, or contradict, the Board’s preselection finding.” Thus, the appeals court held that the Board’s preselection finding was not supported by substantial evidence.
The appeals court held that “preselection is a category of personnel practices that can give rise to a USERRA claim when, as here, the plantiff has established that the preselection was coupled to unlawful discrimination based on an individual’s current or past military service,” and noted that their holding was “grounded in well-known Supreme Court jurisprudence interpreting Title VII of the Civil Rights Act of 1965, 42 U.S.C. § 2000e-e-17.” According to the appeals court “preselection can buttress an agency’s personnel decision to hire a less qualified candidate, but only when the preselection is not tainted by an unlawful discriminatory intent.”
Finally, the appeals court addressed the Navy’s argument that USERRA did not “extend to acts of discrimination against a service member based on military rank or status.” (emphasis added). The appeals court disagreed, and noted that USERRA explicitly protects the “performance of service.”
In a rare maneuver, the appeals court declined to vacate the AJ’s opinion and remand the case back to the Board for an appropriate adjudication of the preselection determination. Instead, because “this case is not ordinary,” the appeals court skipped that step, held that the Board erred in denying the claim for corrective action, and instructed the Board to enter corrective action for the candidate consistent with the appeals court’s opinion.
Read the full case: Beck v. Navy.
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