United States Merit Systems Protection Board

Case Report for March 4, 2011

These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.



Appellant: Milo D. Burroughs

Agency: Department of the Army

Decision Number: 2011 MSPB 30

Docket Number: AT-3330-10-0523-I-1

Issuance Date: February 28, 2011

Appeal Type: Veterans Employment Opportunities Act

VEOA/Veterans’ Rights
- Exhaustion of DOL Remedy
- Minimum Educational Requirement
Employment Practices

The appellant petitioned for review of an initial decision that denied his request for corrective action under VEOA. The agency issued a vacancy for a single GS-14 Aerospace Engineer position under merit promotion procedures, specifying that the position was open only to current agency employees with competitive status. The appellant, a 5-point preference eligible veteran who was not a current agency employee, applied for the position and the agency placed him on a referral list. The agency ultimately selected another individual for the appointment. After filing a complaint with the Department of Labor (DOL) and receiving notice from DOL that it was unable to resolve his complaint, the appellant filed a Board appeal and requested a hearing. He alleged that the agency improperly passed him over for selection without OPM approval, that the agency failed to afford him the veterans’ preference points to which he was entitled, that the agency denied him his right to compete for the vacancy, and that the minimum educational requirement violated his veterans’ preference rights. He also appeared to allege that the minimum educational requirement constituted an unlawful employment practice.

The administrative judge issued an initial decision denying the appellant’s request for corrective action on the merits without a hearing. He found that the appellant established jurisdiction over his appeal but that veterans’ preference points and passover requirements do not apply to merit promotion announcements like the one at issue, that the appellant had no right to compete for the position because it was open only to current agency employees, and that, even if the appellant did have the right to compete, the agency afforded him that right. Having previously instructed the appellant to file a separate appeal if he wished to raise an employment practices claim, the administrative judge did not address that issue.

Holdings: The Board dismissed for lack of jurisdiction some of the claims that the administrative judge adjudicated on the merits because the appellant had not exhausted his DOL remedy, and denied the appellant’s request for corrective action in his remaining claim:

1. The appellant failed to exhaust his DOL remedy with respect to most of his claims.

a. The first step of the exhaustion process is for the appellant to file a complaint with DOL containing “a summary of the allegations that form the basis for the complaint.” The purpose of this requirement is to afford DOL the opportunity to conduct an investigation that might lead to corrective action before involving the Board in the case.

b. The appellant’s complaint to DOL challenged only the minimum educational requirement prescribed for the Aerospace Engineer position.

c. Because the appellant failed to exhaust his administrative remedy with respect to his claims of improper passover, failure to apply veterans’ preference points, and denial of his right to compete for the position, the Board lacks jurisdiction over these particular claims.

2. The appellant failed to establish entitlement to corrective action as to the minimum educational requirement for the position.

a. 5 U.S.C.  3308 generally prohibits the prescription of minimum educational requirements, but makes an exception for “scientific, technical, or professional position[s]” whose duties “cannot be performed by an individual who does not have a prescribed minimum education.”

b. Section 3308 is a statute relating to veterans’ preference.

c. The Aerospace Engineer position is clearly “scientific, technical, or professional” in nature, and the minimum educational requirement of which the appellant complains was not an invention of the agency. It was established by OPM, which published its reasons for doing so, i.e., that professional work in this series requires use of an “organized body of knowledge” that is “uniquely acquired through extensive education or training at an accredited college or university.”

d. The challenged minimum educational requirement falls within the exception to the general rule and did not violate  3308.

3. The Board forwarded the appellant’s employment practices claim to the regional office for docketing and adjudication as a separate appeal.

Appellant: Sharon E. Simmons

Agency: Small Business Administration

Decision Number: 2011 MSPB 29

Docket Number: DC-1221-10-0351-W-1

Issuance Date: February 25, 2011

Appeal Type: Individual Right of Action (IRA)

Jurisdiction - Whistleblower Protection Act
Collateral Estoppel

The appellant petitioned for review of an initial decision that dismissed her IRA appeal in which she also raised a claim of involuntary resignation. In 1998, the parties reached a settlement agreement in the appellant’s removal appeal in which the appellant agreed to resign and “waived, released and forever discharged” the agency and its officials from any appeals or other actions arising out of her employment. The appellant later filed multiple actions with the Board and in the courts making a variety of complaints against the agency relating to her employment and her resignation, and which challenged the validity of the settlement agreement. She did not prevail in any of these actions. In the current appeal, the appellant alleged that her alleged involuntary resignation and the agency’s failure to reinstate her were the result of whistleblowing reprisal. The administrative judge processed the submission as an IRA appeal and did not docket the involuntary resignation claim as a separate appeal. In dismissing the appeal, the administrative judge concluded that the agency’s failure to reinstate the appellant was not a covered personnel action because the appellant was not entitled to reinstatement, and that the appellant’s resignation was voluntary and therefore not a covered personnel action. She further found that the appellant’s claims were precluded by the release clause of the 1998 settlement agreement, but she did not explicitly address the appellant’s challenge to the validity of that agreement.

Holdings: The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1. The doctrine of collateral estoppel bars the appellant from relitigating the validity of the 1998 settlement agreement, which removes her involuntary resignation claim from the Board’s jurisdiction.

2. The Board lacks jurisdiction over the IRA appeal because the appellant did not make a nonfrivolous allegation that a protected disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action.


Petitioner: Vincent E. Staub

Respondent: Proctor Hospital

Tribunal: United States Supreme Court

Docket Number: 09-400

Issuance Date: March 1, 2011

USERRA – Motivating Factor

At issue were the circumstances under which an employer may be held liable for employment discrimination under 38 U.S.C.  4311(a) based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.

Holdings: The court held that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under Uniformed Services Employment and Reemployment Rights Act.

Petitioner: Richard Erickson

Respondent: United States Postal Service

Tribunal: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2010-3096

Issuance Date: February 28, 2011

USERRA – Reemployment – Abandonment of Civilian Position

At issue in this case was whether the agency discriminated against Erickson because of his military service when it removed him for excessive use of military leave. At the time of his removal, the appellant was serving his fifth consecutive voluntary reenlistment in the Army National Guard Reserve, and had been serving full-time in the active guard reserve for 6 of the past 10 years, the last 4 years continuously. In its decision, 113 M.S.P.R. 41 (2010), the Board found that Erickson had abandoned his civilian career in favor of one in the military, thereby waiving his USERRA rights. In so finding, the Board cited 3 factors, none of which may have been sufficient by itself: the length of the appellant’s absences from his civilian employment; his failure to respond to the notice of proposed removal, or to grieve or file a chapter 75 appeal of the removal action; and his expressed preference for military over civilian service.

Holdings: The court found that substantial evidence does not support the Board’s finding that Erickson abandoned his civilian career and therefore waived his USERRA protections:

1. The reemployment provisions of 38 U.S.C.  4312 apply only if the period of cumulative military service, excluding exempted periods, does not exceed 5 years. The 5-year cap also applies to section 4311’s antidiscrimination in situations such as Erickson’s.

2. Erickson’s period of military service did not exceed the 5-year limit, taking into account the statutory exclusions. The agency apparently believed that his military service had exceed the 5-year cap and predicated his removal on that assumption. Thus, the agency’s stated reason for removing Erickson – excessive use of military leave – was improper. By statute, he was entitled to retain his USERRA antidiscrimination and reemployment rights until the period of his military service exceeded the 5-year cap.

3. Although an employee may abandon his civilian career and the accompanying USERRA protections even when an employee falls within the 5-year period, abandonment in that setting can be found only if the circumstances demonstrate a clear intention on the employee’s part to abandon his civilian career in favor of a career in the military. The court did not find evidence of such a clear intention in this case.