Pittman v. Department of Justice

United States Court of Appeals for the Federal Circuit

2006-3263

GARY P. PITTMAN,

Petitioner,

v.

DEPARTMENT OF JUSTICE,

Respondent.

John O. Fronce, Abrams, Gorelick, Friedman & Jacobson, P.C., of New York,
New York, argued for petitioner.

Phyllis Jo Baunach, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
her on the brief were Peter D. Keisler, Assistant Attorney General, and Kathryn A.
Bleecker, Assistant Director. Of counsel on the brief was R. Suzanne Courtney,
Attorney, Labor Management Relations, Federal Bureau of Prisons, United States
Department of Justice, of Washington, DC.

Appealed from: United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit

2006-3263

GARY P. PITTMAN,

Petitioner,

v.

DEPARTMENT OF JUSTICE,

Respondent.

__________________________

DECIDED: May 15, 2007
__________________________

Before MAYER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and LINN, Circuit
Judge.

Opinion for the court filed by Circuit Judge LINN. Circuit Judge MAYER dissents.

LINN, Circuit Judge.

Gary P. Pittman (“Pittman”) seeks review of the initial decision of the

administrative judge (“AJ”) for the Merit Systems Protection Board (“Board”), Pittman v.

Dep’t of Justice, No. NY-3443-05-0113-I-1 (M.S.P.B. June 28, 2005) (“Initial Decision”),

which became the final decision of the Board after it denied Pittman’s petition for review,

Pittman v. Dep’t of Justice, No. NY-3443-05-0113-I-1 (M.S.P.B. Apr. 6, 2006) (“Final

Decision”). That decision denied Pittman’s request for relief under the Uniformed

Services Employment and Reemployment Rights Act of 1994 (“USERRA”) alleging that

the Federal Bureau of Prisons (“agency”) failed to reemploy him following his military
service and improperly removed him from his position. Because the AJ did not err in

finding that Pittman was reemployed following his military service, and because the

Board lacked jurisdiction over Pittman’s improper removal claims, we affirm in part,

vacate in part, and remand.

I. BACKGROUND

The facts of this case are largely undisputed. Pittman was employed as a Senior

Officer Specialist with the agency at the Metropolitan Detention Center in Brooklyn, New

York. Pittman also served in the U.S. Marine Corps Reserve and was activated in

March 2003 to participate in Operation Iraqi Freedom. Prior to that activation, Pittman’s

performance at the agency was more than satisfactory and had warranted a number of

performance-based awards.

During Operation Iraqi Freedom, Pittman was stationed at the Whitehorse

detention facility in Iraq. On September 3, 2004, Pittman was found guilty at a court-

martial proceeding of one count of dereliction of duty under the Uniform Code of Military

Justice (“UCMJ”) Article 92, 10 U.S.C. § 892, and one count of assault under UCMJ

Article 128, 10 U.S.C. § 928. A two-page summary of these convictions identified the

underlying conduct as the failure to safeguard the physical health, welfare, and

treatment of Iraqi prisoners and the unlawful striking of unknown Iraqi prisoners.

Pittman was reduced in rank from sergeant to private and sentenced to sixty days of

hard labor without confinement. Pittman nevertheless continued to remain a member of

the Marine Corps Reserve in good standing and was released from active duty status

under honorable circumstances.

2006-3263 2
 The agency received a copy of the two-page summary of Pittman’s court-martial

convictions in September 2004. On October 25, 2004, Pittman returned to active duty

at the agency and worked one shift. After that shift, Pittman was confronted about the

conduct underlying the court-martial convictions. At the agency’s request, Pittman

signed an affidavit acknowledging the convictions but declaring them to be unsupported

by evidence. Later that day, the agency placed Pittman on administrative leave and

issued a notice proposing indefinite suspension.

On November 14, 2004, the agency rescinded the proposed suspension and

issued a notice of proposed removal based on the following charges: (1) two

specifications of off-duty 1 misconduct as described in the two counts that resulted in the

court marital convictions; and (2) the convictions themselves. Pittman responded to the

charges orally and in writing and alleged that the agency’s proposed action violated

USERRA. He also submitted a supporting affidavit from his commanding officer that

described the mitigating circumstances surrounding his conduct in Iraq and a letter of

recommendation from the sheriff of Rockland County, New York.

In a letter dated December 20, 2004, the agency sustained the charges and

found a nexus between Pittman’s off-duty misconduct and his duties as a correctional

officer at the agency. The agency also found that removal was warranted to promote

the efficiency of the service. The letter informed Pittman that he had a right to grieve his

removal under the negotiated grievance procedure or to file an appeal to the Board, but

1
In the context of the agency’s letter proposing removal, “off duty” refers to
conduct committed outside the scope of Pittman’s employ as a correctional officer at the
agency.

2006-3263 3
that only one procedure could be elected. Pittman’s removal became effective

December 22, 2004.

Pittman grieved the removal under the applicable collective bargaining

agreement on January 18, 2005 by a union letter that was sent on his behalf. On

January 20, 2005, Pittman filed an appeal with the Board arguing that his removal was

improper because it violated USERRA. The government moved to dismiss that appeal

for lack of jurisdiction, arguing that Pittman’s election to grieve the removal precluded an

appeal to the Board of the same matter.

The AJ found that the parties agreed that jurisdiction was lacking over a direct

appeal from the removal under 5 U.S.C. § 7513(d) due to Pittman’s election to grieve

the removal. Initial Decision, slip op. at 5. The AJ noted, however, that the Board might

have jurisdiction over Pittman’s separate USERRA claims under 38 U.S.C. § 4324(b).

Id. The AJ therefore addressed Pittman’s claims that the agency violated USERRA by

failing to reemploy him following his military service and by removing him on the basis of

his military service.

The AJ found that the agency had reemployed Pittman following his military

service as reflected by his approved leave status from September 7 through October

24, 2004, his shift of duty on October 25th, and his administrative leave status from

October 25 until his removal on December 22, 2004. Id., slip op. at 8-9. With respect to

Pittman’s improper removal claim, the AJ noted that the government had raised a

defense under 38 U.S.C. § 4316(c) that the removal was for cause. Id., slip op. at 7-8.

The AJ found that an inquiry into whether there was cause for Pittman’s removal would

involve the same matter that Pittman had elected to grieve and that it was therefore not

2006-3263 4
a proper inquiry for the Board. Id., slip op. at 10. The AJ nevertheless assumed that it

was properly before the Board and found that there was cause for Pittman’s removal.

Id., slip op. at 10-12. The AJ also found that Pittman failed to establish that his military

service was a motivating or substantial factor in his removal. Id., slip op. at 14-19.

Accordingly, the AJ concluded that Pittman did not prove that the agency violated

USERRA and denied his request for relief. Id., slip op. at 19-20. The Board denied

review, and the decision became final. Final Order, slip op. at 2. We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9) and 38 U.S.C. § 4324(d)(1).

II. DISCUSSION

Pittman’s arguments on appeal identify two separate agency actions that he

asserts violated USERRA. First, Pittman argues that the agency failed to reemploy him

following his military service, thereby violating 38 U.S.C. § 4312(a). Second, Pittman

argues that his removal from the agency was in violation of 38 U.S.C. §§ 4311(a) and

4316(c). On the merits, we must affirm the Board’s decision unless it is (1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained

without procedures required by law, rule or regulation having been followed; or (3)

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Hayes v. Dep’t of the Navy,

727 F.2d 1535, 1537 (Fed. Cir. 1984). Whether the Board has jurisdiction is a question

of law that we review de novo. Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed.

Cir. 1998).

A. Failure to Reemploy

Pittman argues that the AJ erred in considering his “failure to reemploy” claim

under 38 U.S.C. § 4312(a). Specifically, Pittman argues that the AJ only considered

2006-3263 5
such a claim under 38 U.S.C. § 4311(a), not under section 4312(a), and that substantial

evidence does not support the AJ’s finding that the agency reemployed Pittman

following his military service.

Pittman’s argument that the AJ failed to consider his claim under section 4312(a)

is without merit. The AJ specifically noted that Pittman “argued that he was not

reemployed with the agency following his military service as contemplated by

. . . [section] 4312.” Initial Decision, slip op. at 8-9. Furthermore, the AJ’s finding that

Pittman was reemployed by the agency following his military service is supported by

substantial evidence. As the record reflects, Pittman was restored to paid duty status

as a correctional officer, effective September 5, 2004. Pittman then requested and

received paid approved leave from the agency through October 24, 2004. Pittman

returned to work on October 25 and worked one shift before being placed on

administrative leave with full pay and benefits. On December 22, 2004, Pittman was

officially removed from his position. On this record, we conclude that substantial

evidence supports that Pittman was reemployed in his previous position at the agency

following his military service.

Pittman also argues that he is entitled to the “full protections of USERRA,

including reemployment” because the honorable character of his military service met the

requirements of 38 U.S.C. § 4304 and because the government failed to assert

defenses under 38 U.S.C. § 4312(d)(1) that allow an employer to deny a claim for

reemployment. Because substantial evidence supports that Pittman was reemployed,

however, Pittman has received the full protections of his reemployment benefit under

2006-3263 6
section 4312(a) and his arguments based on sections 4304 and 4312(d) are not

relevant.

Accordingly, we hold the AJ did not err in denying Pittman’s request for relief

under USERRA based on an alleged failure to reemploy him after completion of his

military service.

B. Improper Removal

Pittman argues that the AJ erred in addressing his claim for improper removal

under 38 U.S.C. §§ 4311(a) and 4316(c). Specifically, Pittman argues that “for cause”

in section 4316(c) relates only to post-reemployment activity and not pre-reemployment

activity, that “cause” in that section means “just and sufficient cause” as defined by the

collective bargaining agreement, and that the agency’s evidence was insufficient to

demonstrate that cause existed or that removal was the proper penalty. With respect to

section 4311(a), Pittman argues that the AJ failed to consider that his conduct during

military service, as well as his military status, may serve as a predicate for

discrimination under that section, and that substantial evidence does not support the

AJ’s finding that Pittman failed to prove that military service was a motivating or

substantial factor in his removal.

The government counters that the Board lacks jurisdiction to consider whether

the agency had “cause” for Pittman’s removal because 5 U.S.C. § 7121(e) precludes

the Board from addressing matters that an employee has elected to resolve through the

negotiated grievance procedure. The government also counters that nothing in

USERRA prevents an agency from looking at pre-reemployment activities for “cause,”

that substantial evidence supports the AJ’s findings that valid cause existed for

2006-3263 7
Pittman’s removal, and that Pittman failed to prove he was terminated because of his

military service.

We begin by examining the Board’s jurisdiction over Pittman’s improper removal

claims under sections 4311(a) and 4316(c). Section 7121 of Title 5 governs the

grievance procedures for governmental employees that are members of a collective

bargaining agreement. That section provides, in relevant part, that:

Matters covered under sections 4303 and 7512 of this title which also fall
within the coverage of the negotiated grievance procedure may, in the
discretion of the aggrieved employee, be raised either under the appellate
procedures of section 7701 of this title or under the negotiated grievance
procedure, but not both. Similar matters which arise under other
personnel systems applicable to employees covered by this chapter may,
in the discretion of the aggrieved employee, be raised either under the
appellate procedures, if any, applicable to those matters, or under the
negotiated grievance procedure, but not both.

5 U.S.C. § 7121(e) (emphasis added). Here, because Pittman elected to grieve his

removal—an action covered under 5 U.S.C. § 7512—it is undisputed that his removal

cannot be appealed under 5 U.S.C. § 7701. The AJ, however, found jurisdiction over

Pittman’s USERRA claims under 38 U.S.C. § 4324(b), a provision of the personnel

system protecting veterans’ benefits. 2 We therefore must consider whether the matter

raised in Pittman’s improper removal claims under 38 U.S.C. §§ 4311(a) and 4316(c) is

similar to the matter raised in Pittman’s grievance; if so, the Board lacks jurisdiction over

the appeal of those claims.

Section 4311(a) prohibits discrimination on the basis of military service and

states:

2
See S. Rep. No. 95-969 (1978) (discussing “matters similar to those listed
above which may arise under other personnel systems, such as those provided in title
38, United States Code [relating to veterans’ benefits]”).

2006-3263 8
 A person who is a member of, applies to be a member of, performs, has
performed, applies to perform, or has an obligation to perform service in a
uniformed service shall not be denied initial employment, reemployment,
retention in employment, promotion, or any benefit of employment by an
employer on the basis of that membership, application for membership,
performance of service, application for service, or obligation.

38 U.S.C. § 4311(a). As we held in Sheehan v. Department of the Navy, section

4311(a) requires an employee making a claim under that provision to “bear the initial

burden of showing by a preponderance of the evidence that the employee’s military

service was ‘a substantial or motivating factor’ in the adverse employment action.” 240

F.3d 1009, 1013 (Fed. Cir. 2001) (citing NLRB v. Transp. Mgmt. Corp., 462 U.S. 393,

400-01 (1983)). “If this requirement is met, the employer then has the opportunity to

come forward with evidence to show, by a preponderance of the evidence, that the

employer would have taken the adverse action anyway, for a valid reason.” Id.; see

also 38 U.S.C. § 4311(c)(1) (“An employer shall be considered to have engaged in

actions prohibited under subsection (a) . . . unless the employer can prove that the

action would have been taken in the absence of [military status].”). Therefore, the

inquiry presented here under section 4311 is, at bottom, a question of cause.

Section 4316(c) is a specific benefit for employees that are absent due to military

service and provides that “[a] person who is reemployed by an employer under this

chapter shall not be discharged from such employment, except for cause” for periods of

either a year or half of a year depending on the length of the employee’s military

service. 38 U.S.C. § 4316(c) (emphasis added). Much like section 4311, the benefit

provided by section 4316(c) is subject to an employer’s ability to show that valid cause

exists for discharging the employee.

2006-3263 9
 Pittman’s election to grieve his removal under the applicable collective bargaining

agreement challenged that he was “terminated without just cause for Off-Duty

Misconduct and Conviction.” The collective bargaining agreement provides that

adverse actions may only be taken “for just and sufficient cause and to promote the

efficiency of the service.” As Pittman’s election makes clear, the underlying agency

action that Pittman raised under the negotiated grievance procedure—his termination—

is the same underlying agency action that is challenged in Pittman’s improper removal

claims under sections 4311(a) and 4316(c). That is further demonstrated by the

inquiries presented by Pittman’s improper removal claims, which are similar to, and

overlap with, the inquiry facing the arbitrator—whether Pittman’s termination was for

cause. We therefore conclude that Pittman’s USERRA claims for improper removal

under sections 4311(a) and 4316(c) are “similar matters which arise under other

personnel systems” that he had previously elected to raise under the negotiated

grievance procedure. 5 U.S.C. § 7121(e). Because of that election, Pittman is

precluded by 5 U.S.C. § 7121(e) from bringing those claims before the Board under 38

U.S.C. § 4324(b). Accordingly, the Board lacked jurisdiction to consider Pittman’s

improper removal claims, and the AJ’s denial of those claims on the merits was in error.

Having concluded that the Board lacked jurisdiction over Pittman’s improper

removal claims, we need not—and do not—address the question of whether an

employee can be removed for cause under USERRA predicated on the employee’s

conduct during military service that results in an adjudication by a military tribunal but

does not disqualify the employee from a separation under honorable conditions.

2006-3263 10
 III. CONCLUSION

Because the AJ did not err in finding that the agency reemployed Pittman

following the completion of his military service, we affirm the Board’s denial of Pittman’s

“failure to reemploy” claim under USERRA. Because the Board under 5 U.S.C.

§ 7121(e) lacked jurisdiction over Pittman’s improper removal claims, we vacate the

Board’s denial of Pittman’s improper removal claims under USERRA and remand with

instructions to dismiss those claims.

AFFIRMED-IN-PART, VACATED-IN-PART, AND REMANDED

COSTS

No costs.

2006-3263 11
 United States Court of Appeals for the Federal Circuit

2006-3263

GARY P. PITTMAN,

Petitioner,

v.

DEPARTMENT OF JUSTICE,

Respondent.

MAYER, Circuit Judge, dissenting.

Shortly after the events of September 11, 2001, twelve employees of the Federal

Bureau of Prisons’ Metropolitan Detention Center (“MDC”) in New York assaulted

several detainees suspected of terrorism ties who were in their custody. The warden

took no action against them for years. Only in response to a Department of Justice

Inspector General’s investigation did the warden belatedly act, and then only two lost

their positions.

Shortly after 9/11, Gary Pittman, an exemplary, award-winning employee of the

MDC and a Marine Corps reservist, was called up for active duty in Iraq. While in the

field under dangerous, isolated, primitive circumstances, he was accused of striking

suspected enemy detainees. He was punished by court-martial but was retained on

duty, and he ultimately received an honorable discharge from active duty and remained

in the Reserves. In direct contravention of the Uniformed Services Employment and

Reemployment Rights Act of 1994 (“USERRA”), the warden refused to return him to his
civilian job because of his military service. Instead, he chose to punish him a second

time, notwithstanding his reluctance and refusal to punish similar – if not more

egregious – conduct in his own facility. It is ironic that the Department of Justice

blatantly distorts USERRA to support this perversion of Congress’ clarion mandate, in

time of war no less. It is beyond ironic that this court lets them get away with it. I

dissent.

Congress has long recognized that reserve military personnel may be

disadvantaged in their civilian employment, particularly when military service requires

an absence from their jobs. Accordingly, it has seen fit since 1940 to provide them with

reemployment protections. See Nichols v. Dep’t of Veterans Affairs, 11 F.3d 160, 162

(Fed. Cir. 1993) (chronicling history of military reemployment statutes). Even earlier,

however, Congress required the federal government to reemploy service members after

a military absence. Pub. L. No. 6-642, 39 Stat. 619, 624 (1916) (providing that “all

officers and enlisted men of the National Guard and of the Medical Reserve Corps of

the Army who are Government employees and who respond to the call of the President

for service shall, at the expiration of the military service to which they are called, be

restored to the positions occupied by them at the time of the call”). Although the

reemployment statutes have evolved and expanded through the years, the underlying

purpose has remained consistent: A service member is “not to be disadvantaged by

serving his country.” McKinney v. Mo.-Kan.-Tex. R.R. Co., 357 U.S. 265, 270 (1958);

see also 38 U.S.C. § 4301(a); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S.

275, 284 (1946) (“He who was called to the colors was not to be penalized on his return

by reason of his absence from his civilian job.”).

2006-3263 2
 The most recent enactment of such protections is USERRA, Pub. L. No. 103-

353, 108 Stat. 3149 (codified as amended at 38 U.S.C. §§ 4301-4333). USERRA

applies to the federal government as well as private employers, and Congress expressly

expected that the federal government would serve as a “model employer.” 38 U.S.C. §§

4301(b), 4314. 1 In addition to its other protections, USERRA continues to provide an

expansive reemployment right. 2 When “absence from a position of employment is

necessitated by reason of service in the uniformed services,” civilian employers must

promptly provide reemployment upon completion of the service. 3 Id. §§ 4312-4213.

However, reemployment is not limited to returning a service member to gainful

employment. It requires reemployment in the position that would have been attained

absent the military service, “or a position of like seniority, status and pay, the duties of

which the person is qualified to perform.” Id. § 4313(a)(2)(A); 20 C.F.R. § 1002.193

(“The reemployment position includes the seniority, status, and rate of pay that an

employee would ordinarily have attained in that position given his or her job history,

including prospects for future earnings and advancement.”). This is in keeping with

USERRA’s predecessor statute, under which we recognized that “a subsequent position

must carry with it like responsibility, duties and authority if it is to be of like status.”

1
The President has recognized the importance of the federal government’s
adherence to USERRA. Memorandum for the Heads of Executive Departments and
Agencies, 39 Weekly Comp. Pres. Doc. 47 (Nov. 14, 2003) (“The Federal Government
will continue to be the model for employer support to the Guard and Reserve. We are
the guarantors of the rights of returning service members under [USERRA].”).
2
USERRA also provides anti-discrimination protection, 38 U.S.C. § 4311,
and requires cause to remove a person for certain periods after reemployment, id. §
4316. It also protects anyone who assists in enforcing its provisions from employer
retaliation. Id. § 4311(b).
3
USERRA does provide exceptions to the reemployment right, none of
which are at issue here. 38 U.S.C. § 4312(d); see also infra note 6.

2006-3263 3
Nichols, 11 F.3d at 164. This interpretation is wholly consistent with, if not mandated

by, USERRA’s statutorily expressed purpose of eliminating or reducing any employment

disadvantages resulting from military service. 4

Employers bear the burden of establishing compliance with the reemployment

obligation. Here, the government, as Pittman’s employer, has failed to establish that he

was properly reemployed, and it certainly has obliterated any pretense that it is a model

employer.

There is no merit to the government’s contention that Pittman was not entitled to

reemployment due to his conduct while on military duty. Congress addressed the

relationship between a person’s military conduct and USERRA rights by making those

rights terminable only upon a separation from service under less than honorable

conditions. 38 U.S.C. § 4304. 5 In so doing, it made the military departments the sole

4
Congress statutorily stated the purposes of USERRA as:

(1) to encourage noncareer service in the uniformed services by
eliminating or minimizing the disadvantages to civilian careers and
employment which can result from such service;
(2) to minimize the disruption to the lives of persons performing service
in the uniformed services as well as to their employers, their fellow
employees, and their communities, by providing for the prompt
reemployment of such persons upon their completion of such service; and
(3) to prohibit discrimination against persons because of their service in
the uniformed services.

38 U.S.C. § 4301(a).
5
The phrase “less than honorable conditions” is used merely for
convenience. Section 4304 specifically provides:

A person's entitlement to the benefits of this chapter by
reason of the service of such person in one of the uniformed
services terminates upon the occurrence of any of the
following events:

2006-3263 4
judges of a person’s military conduct, and it is for neither the employer nor this court to

reevaluate military service that has already been deemed honorable. See id.; see also

id. § 4311 (providing that reemployment may not be denied based on the performance

of military service); 20 C.F.R. § 1002.136. Congress further confirmed this by

specifically providing grounds on which an employer may deny reemployment rights,

none of which are based on military conduct or present here. 6 See Venatas, Inc. v.

(1) A separation of such person from such uniformed
service with a dishonorable or bad conduct discharge.
(2) A separation of such person from such uniformed
service under other than honorable conditions, as
characterized pursuant to regulations prescribed by the
Secretary concerned.
(3) A dismissal of such person permitted under section
1161(a) of title 10.
(4) A dropping of such person from the rolls pursuant to
section 1161(b) of title 10.
6
The statutory exceptions are set forth in 38 U.S.C. § 4312(d), which
provides:

(d) (1) An employer is not required to reemploy a person
under this chapter if—
(A) the employer's circumstances have so changed as to
make such reemployment impossible or unreasonable;
(B) in the case of a person entitled to reemployment
under subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313,
such employment would impose an undue hardship on the
employer; or
(C) the employment from which the person leaves to
serve in the uniformed services is for a brief, nonrecurrent
period and there is no reasonable expectation that such
employment will continue indefinitely or for a significant
period.
(2) In any proceeding involving an issue of whether—
(A) any reemployment referred to in paragraph (1) is
impossible or unreasonable because of a change in an
employer's circumstances,

2006-3263 5
United States, 381 F.3d 1156, 1161 (Fed. Cir. 2004) (“Where Congress includes certain

exceptions in a statute, the maxim expressio unius est exclusio alterius presumes that

those are the only exceptions Congress intended.”). Because Pittman was entitled to

be reemployed but was not, the board should have ordered the agency to comply with

USERRA, and reinstate him with payment for lost wages and benefits. 38 U.S.C. §

4324(c)(2).

The government’s quibble that returning Pittman to paid duty status with his

previous title satisfies the reemployment obligation necessarily fails. It is insufficient to

merely return him to the payroll. Instead, he must be placed in the correct job,

considering seniority, status, and pay rate. See 20 C.F.R. § 1002.194 (noting factors

relevant in determining the like status of a reemployment position, including

opportunities for advancement, working conditions, job location, shift assignment, rank,

and responsibility); see also Nichols, 11 F.3d at 164 (concluding that an employee was

not properly reemployed under a predecessor statute due to the diminished

responsibility, duties, and authority of the reemployment position); Duarte v. Agilent

Techs., Inc., 366 F. Supp. 2d 1039, 1045-46 (D. Colo. 2005) (finding a USERRA

violation due to the veteran’s diminished duties in his reemployment position).

(B) any accommodation, training, or effort referred to in
subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313 would
impose an undue hardship on the employer, or
(C) the employment referred to in paragraph (1)(C) is for
a brief, nonrecurrent period and there is no reasonable
expectation that such employment will continue indefinitely
or for a significant period,
the employer shall have the burden of proving the
impossibility or unreasonableness, undue hardship, or the
brief or nonrecurrent nature of the employment without a
reasonable expectation of continuing indefinitely or for a
significant period.

2006-3263 6
Accordingly, it borders on absurd for the government to contend that Pittman was fully

restored to the position of a correctional officer, with its status and duties, when his

“duty station” was changed from the prison to his home. For the same reasons,

Pittman’s time spent on military and administrative leave fail to satisfy the agency’s

reemployment duty.

The fact that he worked a single shift, after which he was indefinitely suspended

and removed, also is insufficient to constitute proper reemployment under USERRA.

His supervisor testified that the agency determined prior to his shift that he would not be

allowed to return to work. He testified that “Pittman should not have worked that shift”

and that he had “put out instruction that upon [Pittman’s] return we should have him

meet with [an agency person] and that he should not enter the institution.” The

testimony makes clear that the agency made a personnel decision to prohibit him from

performing any actual job duties, and that it was only by accident that he completed a

shift. This does not satisfy the agency’s reemployment obligation.

2006-3263 7