                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 68

                            Docket No. CH-4324-13-0386-I-1

                                  David O. Rassenfoss,
                                        Appellant,
                                             v.
                             Department of the Treasury,
                                         Agency.
                                     August 22, 2014

           David O. Rassenfoss, Florence, Kentucky, pro se.

           Daniel C. Mullenix, Esquire, Chicago, Illinois, for the agency.

                                         BEFORE

                          Susan Tsui Grundmann, Chairman
                          Anne M. Wagner, Vice Chairman
                             Mark A. Robbins, Member
                  Member Robbins issues a separate, dissenting opinion.



                                 OPINION AND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     denied his request for corrective action under the Uniformed Services
     Employment and Reemployment Rights Act of 1994 (USERRA). For the reasons
     set forth below, we GRANT the petition for review; AFFIRM the initial decision
     insofar as it found that the appellant failed to prove his USERRA discrimination
     claim; and REMAND the case to the Central Regional Office for further
     adjudication of the appellant’s USERRA reemployment rights claim in
     accordance with this Opinion and Order.
                                                                                        2

                                      BACKGROUND
¶2        The appellant is a GS-12 Appeals Officer. Initial Appeal File (IAF), Tab 1
     at 1, Tab 7, Subtab 4a. Effective January 19, 2010, 1 he took an extended period
     of leave to serve on active duty in the military. See IAF, Tab 7, Subtab 4h. He
     did not return to duty in his Appeals Officer position until March 4, 2011. IAF,
     Tab 7, Subtab 4c.   Thus, in December 2010, when the agency completed his
     performance appraisal for the period from December 1, 2009, to November 30,
     2010, it did not give him a performance rating, but rather, designated him as “Not
     Ratable.”   IAF, Tab 7, Subtab 4d, Tab 11 at 10, Tab 13 at 6.         Because the
     appellant did not receive a performance rating in 2010, the agency did not give
     him a Quality Step Increase (QSI) for that year. IAF, Tab 11 at 10, Tab 13 at 7.
¶3        The appellant filed an appeal with the Board alleging that the agency’s
     failure to award him a QSI in 2010 violated his rights under USERRA, in that he
     was improperly designated as “Not Ratable” due to his absence for military
     service and, as a direct result, was not awarded a QSI. IAF, Tab 1, Tab 4 at 4-5.
     He requested a hearing.      IAF, Tab 1 at 2.      After holding a hearing, the
     administrative judge issued an initial decision denying the appellant’s request for
     corrective action. IAF, Tab 15, Initial Decision (ID). She found that: (1) the
     Board had jurisdiction over the appellant’s USERRA appeal; (2) the appellant
     failed to meet his burden to establish that his military service was a motivating
     factor in the agency’s failure to award him a QSI for the 2010 appraisal period;
     and (3) the record did not support a finding that the agency violated USERRA by
     denying the appellant a QSI in 2010. See ID.
¶4        The appellant has filed a petition for review, which the agency opposes.
     Petition for Review (PFR) File, Tabs 1, 3. He argues that his 2009 performance
     rating should have been considered his rating of record for 2010 because he was

     1
       It appears that the appellant’s last workday was Friday, January 15, 2010, as
     January 18, 2010 was a federal holiday. See IAF, Tab 7, Subtab 4h at 1.
                                                                                           3

     absent performing military service and that he should have received a QSI
     because it is reasonably certain that he would have been awarded one had he not
     been absent due to his military service. PFR File, Tab 1. He claims that the
     agency’s designating him as “Not Ratable” in 2010 and consequently failing to
     award him a QSI constitutes discrimination based on military service. Id. He
     also argues that QSIs are awarded for sustained outstanding performance and,
     therefore, the administrative judge erred in finding that, in order to be eligible for
     a QSI, an employee must have a current annual performance appraisal rating of
     “Outstanding.” 2 Id.

                                          ANALYSIS
     The appellant did not meet his burden to establish that the agency discriminated
     against him in violation of 38 U.S.C. § 4311(a).
¶5         Under 38 U.S.C. § 4311(a), a person who performs uniformed service
     may not be denied reemployment, retention in employment, promotion, or any
     benefit of employment by an employer on the basis of that service. An appellant
     raising a discrimination claim under 38 U.S.C. § 4311 bears the burden of proving
     that the contested agency decision was based on an improper motivation. Clavin
     v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 6 (2005). The appellant claims the
     agency discriminated against him on the basis of his military service by


     2
       The appellant also argues that the administrative judge erred in finding that a QSI
     is not a benefit of employment. PFR File, Tab 1 at 4. However, the administrative
     judge did not so find. To the contrary, her finding that the Board had jurisdiction over
     the appellant’s USERRA appeal necessarily required a determination that the
     appellant’s claim that he was denied a QSI constituted an allegation that he was denied
     a benefit of employment. See, e.g., Beck v. Department of the Navy, 120 M.S.P.R. 504,
     ¶ 8 (2014) (to establish Board jurisdiction over a USERRA appeal, an appellant must
     allege, inter alia, that he was denied initial employment, reemployment, retention in
     employment, promotion, or a benefit of employment). Further, she explicitly stated
     that, although a QSI is not specifically enumerated in the USERRA statute as a benefit
     of employment, a performance award could be considered a benefit of employment. ID
     at 4-5.
                                                                                      4

     designating him as “Not Ratable” and failing to award him a QSI in 2010. PFR
     File, Tab 1 at 4, 6-8.
¶6         The agency’s manual regarding performance management explains that an
     employee is “Not Ratable” if: (1) he has less than 60 days performance under a
     signed performance plan during the appraisal year; (2) his appraisal period has
     ended; and (3) he is not in work status on the appraisal period ending date. IAF,
     Tab 7, Subtab 4e at 4. A performance appraisal period may not be extended if the
     employee is not in work status on the appraisal period ending date.       Id.   An
     agency Human Resources (HR) Specialist testified at the hearing that the
     appellant was properly designated as “Not Ratable” in 2010 because his extended
     absence began less than 60 days after the 2010 appraisal period began, the
     appraisal period ended while the appellant was still absent, and the appellant
     was not in a work status on the last day of the appraisal period. See Hearing
     Compact Disc. He further testified that he conducted a review of the agency’s
     records and identified three employees who were absent for extended periods for
     reasons other than military service and, therefore, were designated as “Not
     Ratable.” Id. Moreover, he testified that he was unaware of any employees who
     met all three criteria to be designated as “Not Ratable” but were not so
     designated. Id.
¶7         A Lead HR Specialist employed by the agency explained, in a declaration
     made under penalty of perjury, that “[e]mployees who receive a ‘Not Ratable’
     designation on their current performance appraisals would not meet the threshold
     criterion [to qualify for a QSI], i.e., having received an ‘Outstanding’ rating of
     record on their current annual performance appraisal.”     IAF, Tab 13, Subtab 4
     at 1. She further explained that employees who are designated as “Not Ratable”
     on their current annual performance appraisal do not appear on a report of
     employees who are screened to determine their entitlement to a QSI. Id. She
     asserted that this procedure is “consistently applied” and, therefore, no employee
                                                                                             5

     who received a “Not Ratable” designation on their current annual appraisal has
     been granted a QSI. Id. at 1-2.
¶8         Based on the foregoing, we find that the appellant has failed to prove that
     the agency discriminated against him based on his military service.              He has
     produced no evidence establishing that the agency’s policies concerning “Not
     Ratable” designations and eligibility for QSIs are applied inconsistently based on
     military service. 3
     We remand this appeal for the administrative judge to adjudicate the appellant’s
     USERRA reemployment claim.
¶9         The appellant alleges on review that the agency should have granted him a
     QSI in 2010 because, based on his “sustained outstanding performance record,”
     including his “Outstanding” performance rating in 2009, this benefit of
     employment was reasonably certain to have been granted to him had he not been
     absent performing military service. PFR File, Tab 1 at 5-6. The appellant also
     raised this argument below. He asserted on his initial appeal form and in his
     prehearing submission that the agency violated 5 C.F.R. § 353.106, which,
     inter alia, requires agencies to provide a mechanism by which employees who are
     absent because of uniformed service can be considered for promotions and other


     3
        Relying on Article 18, Section 2(B)(1)(a) of the 2009 Collective Bargaining
     Agreement (CBA) between the agency and the National Treasury Employees Union, the
     administrative judge concluded that an employee is only eligible for a QSI if, inter alia,
     he receives an annual performance rating of “Outstanding” for the current year. ID
     at 5; see IAF, Tab 7, Subtab 4j at 7. However, as the appellant notes on review,
     Article 18, Section 2(B)(1)(a) of the CBA was modified in 2010. PFR File, Tab 1 at 5;
     IAF, Tab 7, Subtab 4f. The amended provision only states that an employee’s “[m]ost
     recent [Internal Revenue Service] rating of record” must be “Outstanding.” IAF, Tab 7,
     Subtab 4f at 1 (emphasis added). It does not state that an employee who does not have
     a rating of record for the current year is ineligible for a QSI. To the extent that the
     agency’s procedure for determining QSI eligibility is inconsistent with Article 18,
     Section 2(B)(1)(a), we find that such a violation is immaterial to the question of
     whether the agency discriminated against the appellant based on his military service
     because he has proffered no evidence to dispute the agency’s claim that the procedure is
     applied consistently.
                                                                                      6

      benefits of employment that were reasonably certain to have accrued but for the
      absence for military service. IAF, Tab 1 at 3, Tab 11 at 5. The administrative
      judge noted in her summary of the prehearing conference the appellant’s
      argument “that had he remained at work it would have been reasonably certain he
      would have been awarded a QSI.” IAF, Tab 14 at 1.
¶10         Based on the foregoing, we find that, in addition to a discrimination claim,
      the appellant raised a reemployment claim under USERRA.          A reemployment
      claim arises under USERRA when an employee claims that an agency has not met
      its obligations under 38 U.S.C. §§ 4312-4318 following his absence from civilian
      employment to perform uniformed service. Clavin, 99 M.S.P.R. 619, ¶ 5. Unlike
      discrimination cases, an individual’s rights under USERRA’s reemployment
      provisions do not depend on the motivation for an agency’s action (or inaction),
      and the agency bears the burden of proving that it met its statutory obligations.
      Id., ¶ 6.   Although the administrative judge concluded that the record did not
      support a finding that the agency violated the anti-discrimination provisions of
      USERRA, she did not address the question of whether the agency met its burden
      to prove that it met its reemployment obligations under USERRA.           See ID.
      Rather, she stated that the Board has jurisdiction over appeals of any person
      alleging discrimination in federal employment on account of prior military
      service and that the appellant bears the burden of proving by preponderant
      evidence that his military service was a substantial and motivating factor in the
      agency’s decision to deny him a benefit of employment.       ID at 3.   Thus, she
      appears to have analyzed only whether the appellant met his burden to establish
      his discrimination claim.
¶11         When an administrative judge fails to adjudicate a claim that was properly
      raised below, it may be necessary to remand the appeal if the record is not
      sufficiently developed or if the administrative judge’s error was prejudicial to a
      party’s substantive rights.     See Social Security Administration v. Long,
      113 M.S.P.R. 190, ¶ 25 (2010) (when the record is sufficiently developed and the
                                                                                          7

      Board does not rely upon witness demeanor, the Board may adjudicate the case on
      the record and need not remand it to the administrative judge), aff’d,
      635 F.3d 526 (Fed. Cir. 2011); Panter v. Department of the Air Force,
      22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a
      party’s substantive rights provides no basis for reversal of an initial decision).
      We first turn to the question of whether the appellant was entitled to a QSI as part
      of the agency’s obligations to restore him upon his return from military service.
¶12         USERRA authorizes the Secretary of Labor to promulgate regulations
      governing its application to State and private employers. 38 U.S.C. § 4331(a). It
      similarly authorizes the Director of Office of Personnel Management (OPM) to
      prescribe implementing regulations applicable to federal agencies. 38 U.S.C.
      § 4331(b).    However, the statute plainly provides that, in exercising this
      authority, the OPM Director must consult with the Secretaries of Labor and
      Defense, and that any resulting regulations “shall be consistent with the
      regulations pertaining to the States as employers and private employers, except
      that employees of the Federal Government may be given greater or additional
      rights.”   Id. OPM’s regulation stipulates that “agencies have an obligation to
      consider employees absent on military duty for any incident or advantage of
      employment that they may have been entitled to had they not been absent.”
      5 C.F.R. § 353.106(c).     It further instructs that this can be achieved by
      considering the following three factors: whether the benefit is generally granted
      to all employees; whether the employee is being treated the same as if he had
      remained at work; and whether it is reasonably certain that the benefit would have
      accrued to the employee but for the absence. Id. In ascertaining the scope of a
      federal agency’s obligation to a service member upon his or her return to the
      federal workforce, the Board has historically distinguished between benefits that
      are dependent on fitness, ability or the exercise of managerial discretion and
      those that are based on seniority, rewards for length of service, or would have
      accrued through the mere passage of time. West v. Department of the Air Force,
                                                                                                8

      117 M.S.P.R. 24,      ¶¶ 8-9    (2011);    Leite    v.   Department      of   the    Army,
      109 M.S.P.R. 229, ¶¶ 10-11 (2008).          Specifically, the Board has applied the
      “escalator principle” only to the latter category of benefits on the theory that
      these are the only benefits which would have been reasonably certain to have
                                                   4
      accrued during the employee’s absence.
¶13         However, in 2005, the Department of Labor (DOL) promulgated USERRA
      regulations that conflict with the Board’s precedent. Specifically, DOL rejected
      the discretionary/nondiscretionary distinction undergirding the Board’s approach,
      and instead, directs employers to adopt a case-by-case approach to determine
      whether a benefit was reasonably certain to have accrued absent military service.
      70 Fed. Reg. 75,246, 75,271. Under DOL’s regulations, the reasonable certainty
      test applies to both discretionary and nondiscretionary benefits and personnel
      actions. Id. For example, relevant factors to consider when assessing whether it
      is reasonably certain that an employee would have received a discretionary
      promotion include the returning employee’s work history, his or her history of
      merit increases, and the work and pay history of employees in the same or similar
      position. 20 C.F.R. § 1002.236(a). We recognize that OPM regulations govern
      our adjudication of USERRA appeals of federal employees.                 However, given
      USERRA’s express mandate that OPM’s USERRA regulations be consistent with
      those issued by DOL, we believe that it would undermine Congress’ intent for the
      Board to continue to interpret 5 C.F.R. § 353.106 5 in a manner that is not only at


      4
        In the context of reemployment rights, the so-called “escalator principle” refers to the
      concept that an employee who has been absent due to military service or a work-related
      injury is entitled to be restored to the position that he or she would have attained but for
      the absence.
      5
        In his dissent, Member Robbins argues that OPM’s regulation governing the issuance
      of a QSI effectively precludes the consideration of such a benefit where the employee
      was absent during the rating period. However, this case is governed by OPM’s
      USERRA regulations which entitle the appellant to any benefit which would have been
      reasonably certain to have accrued to him but for his military absence. The only
                                                                                         9

      odds with DOL’s prescribed approach, but which affords service members
      returning to federal employment less protection under USERRA than their State
      government and private sector counterparts.      Therefore, to the extent that our
      holdings in West and Leite are premised on the assumption that discretionary
      personnel actions inherently fail the reasonable certainty test, they are
      hereby OVERRULED.
¶14         Although not precedential and not binding upon us, we note that other
      federal courts    have applied    DOL’s     regulations    concerning   discretionary
      promotions and reached similar conclusions.         In Anderson v. Sanford L.P.,
      No. 3:06-cv-466, 2008 WL 351227, at *7 (E.D.              Tenn.   Feb. 7, 2008), the
      defendant moved for summary judgment in a USERRA appeal concerning the
      employer’s failure to provide a returning service member with a pay increase. In
      relevant part, the defendant argued that pay increases were awarded at the
      employee’s supervisor’s discretion after a performance evaluation and that the
      employee did not receive a performance evaluation while absent performing
      military service. Id. Applying 20 C.F.R. § 1002.236, the District Court denied
      the defendant’s motion, reasoning that the employee would have received a
      performance evaluation were it not for his military service and that a reasonable
      jury could conclude, based on his history of salary increases following
      performance evaluations, that he was reasonably certain to have received a pay
      increase were it not for his military service. Id. In particular, the employee had
      received raises in each of the three years immediately preceding his military
      service, as well as in the year immediately following the completion of his
      military service. Id.



      question presented here is whether to interpret OPM’s “reasonably certain” test in a
      manner consistent with DOL’s USERRA regulations. We believe that USERRA on its
      face compels us to do so. Any potential resulting conflict with other OPM regulations
      is not for us to resolve.
                                                                                       10

¶15        Similarly, in Talley v. Shaw Maintenance, Inc., No. 1:11-cv-1044,
      2012 WL 3961280, at *7 (W.D. Ark. Sept. 10, 2012), the District Court explicitly
      rejected the defendant’s argument that merit-based pay raises cannot be
      reasonably certain for purposes of USERRA because their discretionary nature
      makes them inherently uncertain, noting that this argument overlooks the relevant
      factors set forth in 20 C.F.R. § 1002.236 to determine whether a merit increase
      was reasonably certain to have occurred.      The District Court thus denied the
      defendant’s motion for summary judgment, finding that, because the employee
      had a long history of pay increases prior to his military leave and all of his
      co-workers received at least one merit-based pay raise during his absence, a
      question of fact existed as to whether he was reasonably certain to have received
      a pay increase if not for his military leave, and a jury could reasonably so
      conclude. Id. at 6-7.
¶16        In the instant appeal, there are some factors weighing in favor of finding
      that the appellant was reasonably certain to have received a QSI had he not been
      absent performing military service.     The appellant’s overall performance was
      rated as “Outstanding” in both 2008 and 2009—the two years immediately
      preceding his military absence. IAF, Tab 7, Subtabs 4i, 4k. Further, when the
      appellant returned from military service, he again received an overall rating of
      “Outstanding” in 2011 and was offered a QSI. 6 IAF, Tab 7, Subtab 4b.
¶17        Notwithstanding these factors, we find it necessary to remand this appeal
      for further adjudication because we do not have sufficient information to reach a
      conclusion regarding the appellant’s entitlement to a QSI as part of his restoration
      to duty.   For instance, we have no information regarding the actual frequency
      with which QSI-eligible employees in the same or similar position as the
      appellant are granted or denied QSIs.

      6
        The appellant elected to receive a time-off award in lieu of a QSI.   IAF, Tab 7,
      Subtab 4b at 6.
                                                                                     11

¶18         Moreover, in a USERRA appeal, an administrative judge should inform the
      parties of their respective burdens of proof and the type of evidence necessary to
      satisfy   those    burdens.      Brasch   v.   Department     of   Transportation,
      101 M.S.P.R. 145, ¶ 14 (2006). The administrative judge issued a jurisdictional
      order identifying the two types of USERRA claims and stating that, with respect
      to reemployment claims, the agency bears the burden of proving by a
      preponderance of the evidence that it met its statutory obligations under
      USERRA. IAF, Tab 3 at 2-4. However, she did not cite to or discuss the relevant
      provisions of 20 C.F.R. part 1002, so the agency was not notified of the
      information to be considered in determining whether a personnel action was
      reasonably certain to have occurred absent military service. Id.
¶19         We therefore remand this appeal to the Central Regional Office for further
      adjudication.     If appropriate, the administrative judge may allow the parties
      limited discovery solely on the appellant’s reemployment claim, and may conduct
      an additional hearing.

                                            ORDER
¶20         For the reasons discussed above, we REMAND this case to the Central
      Regional Office for further adjudication in accordance with this Opinion
      and Order.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.
               DISSENTING OPINION OF MEMBER MARK A. ROBBINS

                                              in

                    David O. Rassenfoss v. Department of the Treasury

                          MSPB Docket No. CH-4324-13-0386-I-1

¶1         I cannot subscribe to the notion that someone who was not given an annual
     performance rating due to an absence from the workplace (for whatever reason),
     could be assumed with reasonable certainty to have achieved a specific level of
     performance but for his absence.        As is said in the financial investment
     community, “past performance is not a guarantee of future results.”
¶2         Inviting consideration of a reasonable certainty that the appellant would
     have received an outstanding rating but for his leave of absence to serve in the
     armed forces is contrary to uniformly applied agency policy and, in my opinion,
     neither required by law or regulation, nor consistent with good public policy.
¶3         For over a decade, the federal government has struggled to bring annual
     employee ratings back into the world of objective, standardized, measurable
     reality. Myriad studies illustrate the grade inflation that has infested this annual
     process over the years. Underlying this problem is the assumption that once a
     rating level is attained an employee’s achievement remains at that level absent the
     emergence of astounding professional deficiencies in succeeding years.
¶4         Without questioning the ratings of the appellant’s past professional
     performance, or an assumption that upon resuming his responsibilities he will
     again achieve an outstanding rating for his work, it is simply not possible to
     determine with reasonable certainty how he would have performed in his more
     than 1 year away from the agency. No one is outstanding always.
¶5         As the majority opinion notes, the agency’s manual regarding performance
     management explains that an employee is “Not Ratable” if: (1) he has less than
     60 days performance under a signed performance plan during the appraisal year;
     (2) his appraisal period has ended; and (3) he is not in work status on the
                                                                                        2

     appraisal period ending date. Initial Appeal File (IAF), Tab 7, Subtab 4e at 4.
     This policy applies to all employees regardless of the reason for their absence.
¶6         The majority relies on regulations promulgated by the Department of Labor
     (DOL), and overrules agency policy and long-standing Board case law precedent,
     citing the Uniformed Services Employment and Reemployment Rights Act’s
     (USERRA) mandate that the DOL’s and the Office of Personnel Management’s
     (OPM) regulations on the subject must “be consistent.” Majority Opinion, ¶ 13.
     Yet, although likely not intentional, the DOL regulations are internally
     inconsistent, contrary to OPM regulations setting forth the criteria for granting
     quality step increases (QSIs), and at odds with the requirements of USERRA and
     the legislative intent behind them.     And even without these shortcomings, I
     question the level of deference the Board owes to DOL regulations given the fact
     that appellants may bring USERRA actions either to the DOL or the Board, and if
     they come to the Board after exhausting the DOL process, we review the matter
     de novo.
¶7         DOL regulations state:
           [i]f the employee is reemployed in the escalator position, the
           employer must compensate him or her at the rate of pay associated
           with the escalator position. The rate of pay must be determined by
           taking into account any pay increases, differentials, step increases,
           merit increases, or periodic increases that the employee would have
           attained with reasonable certainty had he or she remained
           continuously employed during the period of service. In addition,
           when considering whether merit or performance increases would
           have been attained with reasonable certainty, an employer may
           examine the returning employee's own work history, his or her
           history of merit increases, and the work and pay history of
           employees in the same or similar position.
     20 C.F.R. § 1002.236(a) (emphasis added). 1


     1
       As the majority correctly notes, Majority Opinion, ¶ 12 n.4, under the “escalator
     principle” concept, a returning service member “does not step back on the seniority
     escalator at the point he stepped off. He steps back on at the precise point he would
                                                                                           3

¶8             I agree with the majority that these provisions have moved away from our
      historic focus on whether the action is discretionary or nondiscretionary. But the
      consideration of rate of pay following military service is still linked to reasonable
      certainty. In addition, the language regarding both merit increases and employee
      work history is permissive, not mandatory.            In this case, the agency has
      considered this possibility and as a matter of policy has rejected it.
¶9             Following this permissive language, however, is a potentially ambiguous
      example: “if the employee missed a merit pay increase while performing service,
      but qualified for previous merit pay increases, then the rate of pay should include
      the merit pay increase that was missed” (emphasis added). It is interesting that
      DOL uses the term “should” rather than the unequivocal terms “must” or “shall.”
      Ambiguity is avoided if “should” is “[u]sed to express conditionality or
      contingency,” 2 thereby denoting merely a guideline or recommendation whenever
      noncompliance with the specification is permissible. This definition is consistent
      with the permissive nature of the controlling DOL regulation language and unlike
      the alternative, does not completely abandon any element of reasonable
      certainty. Id.
¶10            In contrast to DOL’s confusing regulatory guidance are the regulations
      promulgated by OPM regarding QSIs:
               A quality step increase shall not be required but may be granted
               only to--(a) An employee who receives a rating of [outstanding] . . .
               or (b) An employee who, when covered by a performance appraisal
               program that does not use [outstanding] -- (1) Receives a rating of
               record at the highest summary level used by the program; and
               (2) Demonstrates sustained performance of high quality significantly

      have occupied had he kept his position continuously during the war.” Tilton v. Missouri
      Pacific Railroad Co., 376 U.S. 169, 174 (1964). However, the escalator principle
      “moves” in both directions, because it also could mean that, but for the period of
      uniformed service, the employee could have been demoted, transferred, or laid off from
      his or her job, depending upon the circumstances. 20 C.F.R. § 1002.191.
      2
          Websters II New Riverside University Dictionary (1984) at 1078.
                                                                                         4

            above that expected at the “Fully Successful” level in the type of
            position concerned, as determined under performance-related
            criteria established by the agency.
      5 C.F.R. § 531.504 (emphasis added).
¶11         OPM regulations make clear that a QSI is not required under any
      circumstances. And when given it must be consistent with performance-related
      criteria in a performance appraisal program. An employee’s absence from his or
      her position during the appraisal year precludes the performance of work-related
      responsibilities.   In such a case there are no performance-related criteria to
      consider and there is no appraisal program to apply.
¶12         Regarding regulatory deference, it seems to me we owe the same amount of
      deference to OPM regulations and Department of Treasury policy in this manner
      as we owe to conflicting regulatory guidance from the DOL. See Gose v. U.S.
      Postal Service, 451 F.3d 831, 840 (Fed. Cir. 2006).
¶13         But finally, and in my opinion most persuasively, the statutory language
      and legislative intent of USERRA itself, and the history of its judicial and Board
      application, are clear and unambiguous, and under the circumstances need not be
      overruled.
¶14         USERRA provides that a person who performed uniformed service for
      more than 90 days is entitled to reemployment in the position in which he would
      have been employed if his continuous employment had not been interrupted by
      such service, or a position of like seniority, status and pay, the duties of which he
      is qualified to perform. 38 U.S.C. § 4313(a)(2)(A). A Senate Report indicates
      that section 4313 was intended to reaffirm the escalator principle as first
      enunciated by the Supreme Court in Fishgold v. Sullivan Drydock & Repair
      Corp., 328 U.S. 275, 284-85 (1946).       S. R EP . N O. 103-158, at 52 (1993).    In
      Fishgold, the Supreme Court explained that the escalator principle protects a
      returning service member from receiving “a job inferior to that which he had
                                                                                            5

      before entering the armed services.” 3 328 U.S. at 284. Thus, he must be restored
      without any loss of seniority. Id.
¶15         A related statutory provision provides that, with respect to “rights and
      benefits not determined by seniority,” a returning service member is entitled to
      the same rights and benefits generally provided to employees having similar
      seniority, status and pay who are on furlough or leave of absence. 38 U.S.C.
      § 4316(b)(1)(B); Fishgold, 328 U.S. at 284 (a returning service member shall be
      considered as having been on furlough or leave of absence during his period of
      service, with all of the insurance and other benefits accruing to employees on
      furlough or leave of absence). Indeed, the Senate Report states that the escalator
      principle applies to perquisites of seniority, which may be determined by
      considering whether it is reasonably certain that the benefit would have accrued
      but for the military service and whether the benefit is a reward for length of
      service rather than a form of short-term compensation for services rendered.
      S. REP. N O. 103-158, at 57-58; see also Foster v. Dravo Corp., 420 U.S. 92
      (1975) (returning veteran not entitled to full vacation benefits for years in
      question, even though his failure to satisfy substantial work requirement upon
      which the benefits were conditioned was due to his serving in the military for
      portions of those years, as vacation benefits were intended as a form of short-term
      deferred compensation for work performed and the right to benefits did not accrue
      automatically as function of continued association with employer).
¶16         A    QSI   is   not   a   perquisite   of   seniority.   Under    the   agency’s
      uniformly-applied policy, employees returning from extended leaves of absence,

      3
        While a returning service member is not expected to be placed in an inferior job, that
      does not mean he would be entitled to a promotion. McKinney v. Missouri-Kansas-
      Texas Railroad, 357 U.S. 265 272 (1958) (promotion to a new or vacant job for
      returning veteran was explicitly dependent not “simply on seniority or some other form
      of automatic progression” but also on “fitness and ability and the exercise of a
      discriminating managerial choice” and in keeping with the applicable collective
      bargaining agreement providing for bidding process).
                                                                                               6

      including for leave due to military service, are not considered for QSIs because
      they do not receive performance ratings for that period. Thus, the appellant is not
      entitled to a QSI because other employees who are on furlough or an extended
      leave of absence are not entitled to this benefit. See 38 U.S.C. § 4316(b)(1)(B);
      see also Rogers v. City of San Antonio, 392 F.3d 758, 764 (5th Cir. 2004)
      (“USERRA does not grant escalator protection to service members’ non-seniority
      rights and benefits but provides only that the employer treat employees absent
      because of military service equally with employees having similar seniority,
      status, and pay who are on comparable non-military leaves of absence”); 4 see also
      20 C.F.R. § 1002.150 (the non-seniority rights and benefits to which an employee
      is entitled during a period of military service are those that the employer provides
      to similarly-situated employees).
¶17          In the present matter, I would simply modify the initial decision to address
      the appellant’s reemployment claim, and affirm the denial of the appellant’s
      request for corrective action.          I agree with the administrative judge’s
      determination that “the appellant is entitled to a QSI on the same terms of any
      other employee who is on furlough or leave of absence.” IAF, Tab 15, Initial
      Decision. That is to say, he is not entitled to a QSI. Although the initial decision
      improperly analyzes the reemployment claim by omitting the agency’s burden of
      proof and by conflating the discrimination and reemployment concepts, these
      errors were not harmful because the appellant was not entitled to a QSI. In so
      finding, we would not need to reach the question of whether Leite v. Department




      4
        Decisions by circuits other than the Federal Circuit are persuasive, but not controlling,
      authority before the Board. Gende v. Department of Justice, 35 M.S.P.R. 518, 523
      (1987).
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of the Army, 109 M.S.P.R. 229 (2008), and other Board case law must be
overruled in light of the Department of Labor’s 2005 regulations.



______________________________
Mark A. Robbins
Member
