Everyone knows that you can’t mistreat military veterans in the federal workplace because of their military duty. In fact, Congress has passed two separate and independent laws somewhat recently to protect the rights of veterans, and there’s an important difference between the two. First, the laws, in abbreviated form:
USERRA (Uniformed Services Employment and Reemployment Rights Act): Prohibits an agency from discriminating against an individual because of that individual’s status as a military veteran relative to any benefit of employment.
VEOA (Veterans Employment Opportunities Act of 1998): Prohibits an agency from violating a veteran’s rights to preference over non-veterans in certain hiring and RIF situations.
Sometimes I see practitioners sort of lump these together into a no-veteran-discrimination concept, and I can understand that. If an agency abides by the merit systems principles and regulations in everything it does, it will automatically not violate either USERRA or VEOA. However, there is an important difference between the two protections if the employee chooses to push back against an agency decision by filing an appeal with MSPB. Let’s see if you know it.
Pop Quiz No. 1: What should an agency representative do if an employee files a USERRA appeal?
Pop Quiz No. 2: What should an agency representative do if an employee files a VEOA appeal?
[Pause for you to formulate you answers. Keep in mind, you longer remember pop quiz questions you miss than those you get right. I’m still carrying with me a wrong answer I gave to a pop quiz question in physics class in high school, in case anyone needs to know the name of the force that keeps a satellite in orbit.]
Pop Answer No. 1: Prepare for a hearing. An individual who brings a USERRA appeal has an unconditional right to a hearing on the merits. Kirkendall v. Army, 479 F.3d 830 (Fed. Cir. 2007).
Pop Answer No. 2: Review the appellant’s appeal to determine if there are any material allegations with which you disagree. If none, file a Motion for Summary Judgment with the judge. The Board has the authority to decide a VEOA claim on the merits, without a hearing, when there is no genuine dispute of material fact and one party must prevail as a matter of law. Davis v. DoD, 105 MSPR 604 (2007).
The summary judgment motion is a standard tool in the world of EEOC law. As most MSPB appeals provide for an automatic right to a hearing if the appellant requests one, we don’t often associate that standard tool with MSPB. However, as no agency representative in government actually wants to go to a hearing if she doesn’t have to, keep in mind this exception to MSPB’s pro-hearing rule. If confronted with a strictly VEOA claim in an appeal to the Board, review those factual claims closely and then file for summary judgment if none are in dispute. [email protected]
