FH+H Partner Kevin Bynres and Associate Rachel Leahey successfully appealed a ruling by a Merit Systems Protection Board (MSPB) Administrative Judge excluding evidence of anti-military bias on the part of the employer, a ruling that resulted in the MSPB denying our client all relief.
The U.S. Court of Appeals for the Federal Circuit vacated the evidentiary ruling. Read the Court of Appeal's Opinion.
The military reservist was litigating several claims before the MSPB, including claims of non-promotion due to anti-military bias. Rather than admit all relevant evidence – as the Administrative Judge should have done – she repeatedly stopped counsel from discussing or questioning agency witnesses about a key piece of evidence. In the end, the Administrative Judge denied all claims – providing no relief.
The Federal Circuit agreed with the argument offed by Byrnes and Leahey that the evidence in question was relevant and its exclusion was an abuse of discretion by the Administrative Judge. Opinion, page 5.
The case will go back to the MSPB for further proceedings, where an Administrative Judge will be required to comply with the Federal Circuit's opinion, allow the introduction of all relevant evidence, and issue a new decision. Our client will get another – better – chance at justice.
“Unfortunately, both in the public and private sector, many military reservists face hostility, limited job prospects, and termination simply because of their commitment to our nation's Armed Forces,” Byrnes said. “This firm is dedicated to eradicating discrimination, retaliation, and reprisal against current and former members of the Armed Forces, and we will continue to strongly advocate their rights.”
Winning isn't easy, but skilled advocates make a difference. In line with FH+H's history and commitment to members of the Armed Forces, our firm has an extensive practice related to USERRA.
The Uniformed Services Employment and Reemployment Rights Act (USERRA), is a federal law that protects employees from being discriminated against based on their current or prior uniformed military service.
Led by Byrnes, FH+H's USERRA practice group helps government and private sector employees who are current or past members of the Armed Forces on matters related to their employment.