The Merit Systems Protection Board recently clarified the threshold for establishing Board jurisdiction over a discrimination appeal arising under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Palumbo, Jr. v. Department of the Interior, 2009 MSPB 171 (August 28, 2009). USERRA is a federal law that grants certain rights and protection to persons who serve or have served in the uniformed services. It seeks to ensure that such persons do not experience discrimination or disadvantage in civil employment because of their service.
In Palumbo, a disabled veteran had been working in intermittent status under term appointments. Palumbo alleged that the agency had failed to consider him for any career conditional appointments during his employment, in violation of USERRA. The Agency moved to dismiss the appeal for lack of jurisdiction, alleging that Mr. Palumbo had not asserted sufficient facts to show that the agency had discriminated against him because of his military service. In response to the agency's allegations that the Board lacked jurisdiction over his claim, Mr. Palumbo restated that he was a disabled veteran, and had applied for a career conditional position, for which the agency then selected a non-veteran. The administrative judge dismissed the claim for lack of jurisdiction, finding that Mr. Palumbo had not presented enough evidence to show that his military service lead to his non-selection.
On appeal, the Board found that the dismissal for lack of jurisdiction had been improper. The Board held that, in order to establish Board jurisdiction over a USERRA discrimination appeal, an employee need only allege: 1) that the employee performed duty or has an obligation to perform duty in a uniformed service of the United States; 2) the agency denied the employee initial employment, reemployment, retention, promotion, or any benefit of employment; and 3) the denial was due to the performance of duty or obligation to perform duty in the uniformed service.
The Board found that Palumbo had established jurisdiction merely by claiming that the agency had denied him employment, and that it had hired a non-veteran for the position he sought. Because the employee had established Board jurisdiction over his appeal, the Board found that he had an unconditional right to a hearing.
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