Crawford v. Department of the Army
2013 U.S. App. LEXIS 11679
| Fed. Cir. | 2013Background
- Crawford, a federal employee since 1986, served in IT Specialist, GS-2210-11, before his uniformed service began in 2006.
- During his absence, the Army abolished his old IT position as part of an A-76 overhaul and transferred related duties to Lockheed Martin, forming ACE-IT to provide IT services.
- After completing service in 2008, Crawford was reassigned to a Program Support Specialist, GS-0301-11, which he challenged as not being of like status to his old IT position under USERRA.
- An AJ held the new position was not of like status and ordered corrective action, including placement in a like-status IT position or, if unavailable, placement assistance via OPM.
- The Agency reported compliance, but Crawford petitioned for enforcement arguing the search for like-status positions was unduly limited to vacant positions.
- The Board ultimately concluded the Agency had complied, finding Crawford’s new ACE-IT IT position and his old position to be of like status, and the MSPB affirmed the Board’s decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether old and new positions are of like status under USERRA | Crawford argues the duties differ, so status is not like. | Agency contends the totality of circumstances shows like status. | Yes; like status found despite some duty differences. |
| Appropriateness of the Board's 'totality of the circumstances' standard for like status | Totality-of-circumstances test improperly balances factors. | Totality-of-circumstances is proper and consistent with USERRA history. | Proper framework; Board’s approach upheld. |
| Adequacy of the agency's search for like-status positions | Search limited to vacant positions; not truly comprehensive. | Agency conducted an agency-wide search within ACE-IT and related IT roles. | Agency's search reasonable; compliance affirmed. |
| Whether Crawford was qualified or could be qualified for the new duties | Crawford argued he lacked qualification for the new software-focused duties. | Record shows Crawford performed similar duties and could be trained as needed. | Qualified or capable of qualification; not arbitrary to conclude so. |
Key Cases Cited
- Nichols v. Dep’t of Veterans Affairs, 11 F.3d 160 (Fed. Cir. 1993) (broad interpretation of USERRA; preference to return veteran to prior position and status)
- Smith v. U.S. Postal Serv., 540 F.3d 1364 (Fed. Cir. 2008) (shift assignment and hours considered in status analysis)
- Consolidated Edison Co. v. NLRB, 305 U.S. 197 (Sup. Ct. 1938) (substantial evidence standard and importance of legitimate evidence)
- Serricchio v. Wachovia Sec. LLC, 658 F.3d 169 (2d Cir. 2011) (contextual, totality-of-circumstances approach in status inquiries)