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 

accrued during the employee’s absence. 4

¶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. § 353.1065 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. REP. NO. 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. NO. 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-KansasTexas 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). 
7

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