Hayden v. Department of the Air Force, 2016 U.S. App. LEXIS 2450

Background

Hayden, an Air Force Reserve member, worked as a protocol specialist at Wright-Patterson AFB; his position was upgraded from GS-9 to GS-11 after a 2010 transfer.
In March 2012 Hayden’s supervisor requested a further upgrade to GS-12 due to accretion of duties; Hayden began active reserve duty April 2012 and was unavailable for an in-person desk audit the classifier preferred.
While Hayden was on duty, AFSAC duties were transferred away from his unit (July 2012) and one B-Flight GS-12 employee became surplus; the office’s workload decreased.
Hayden returned December 2012; the upgrade request was not resubmitted, and after a March 2013 reserve absence his supervisor cited his absences as a reason not to recommend promotion; performance concerns were raised and documented.
Hayden filed USERRA claims (denial of promotion/discrimination, denial of reemployment benefit, and retaliation for seeking ESGR assistance); the MSPB denied relief on all three claims; on appeal the Federal Circuit affirmed two claims and vacated/remanded the discrimination claim for further factfinding.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether agency discriminated under USERRA by not upgrading Hayden to GS-12 because of military service	Hayden: agency considered his military absences and canceled/failed to pursue the upgrade for that reason; desk audit was discretionary so absence cannot justify denial	Air Force: upgrade delayed/canceled because desk audit couldn’t be completed while Hayden was unavailable and workload later reduced; even if processed, position may have been competitive	Court: Board erred — sufficient evidence that military service was a motivating factor; agency was not held to its burden to show it would have taken same action absent service; vacated and remanded for further factfinding
Whether Hayden was entitled to reemployment in GS-12 upon return	Hayden: upgrade was reasonably certain and effectively a benefit he should have received on return	Air Force: upgrade was not a generally granted benefit; workload change and surplus GS-12s meant no available GS-12; he would have had to compete	Court: affirmed MSPB — substantial evidence supports that upgrade was not a generally granted benefit and it was not reasonably certain he would have received it
Whether agency retaliated for Hayden’s ESGR request/enforcement activity	Hayden: after seeking ESGR help he was immediately treated adversely (negative performance feedback)	Air Force: performance problems were documented and supervisors sought to help him improve; no evidence of retaliatory animus	Court: affirmed MSPB — Hayden failed to meet initial burden for retaliation claim; substantial evidence supports MSPB findings
Whether an in-person desk audit (discretionary) may justify adverse action when employee absent for military service	Hayden: discretionary audit could have been done by phone or via supervisor interview; denying upgrade because of military absence violates USERRA	Air Force: classifier typically required in-person audit for GS-12+ upgrades; unavailability prevented processing	Court: held an optional in-person audit cannot lawfully justify disadvantaging an employee on military leave; employer cannot treat military leave like non‑military leave for adverse action purposes

Key Cases Cited

Sheehan v. Dep’t of the Navy, 240 F.3d 1009 (Fed. Cir.) (sets USERRA burden-shifting framework and evidentiary factors to infer discriminatory motivation)
Erickson v. U.S. Postal Serv., 571 F.3d 1364 (Fed. Cir.) (military absence cannot be the basis for adverse employment action; employer must show it would have acted same absent service)
Petty v. Metro. Gov’t of Nashville–Davidson Cty., 538 F.3d 431 (6th Cir.) (definition of employer reliance on protected status as motivating factor)
Allen v. U.S. Postal Serv., 142 F.3d 1444 (Fed. Cir.) (employer may remove for prolonged non-military leave but may not treat military leave alike)