McMillan v. Department of Justice
2016 U.S. App. LEXIS 2605
| Fed. Cir. | 2016Background
- Peter McMillan, a GS-13 DEA criminal investigator and Army Reserve major, was assigned to Lima, Peru (LCO); he requested a two-year tour extension on Sept. 14, 2010, which DEA denied the next day.
- While on military orders (July 17–26, 2010) at SOUTHCOM, McMillan prepared an intelligence assessment about DEA’s expulsion from Bolivia; he sought and received initial input from DEA FIM Michael Walsh and (apparently) tentative approval from Regional Director Patrick Stenkamp to cite a DEA Foreign Situation Report (FSR).
- Email exchanges during McMillan’s military leave produced sharp rebukes from Stenkamp (ordering McMillan not to represent DEA) and later direction to remove all FSR references; McMillan rewrote the report to comply.
- Upon return, LCO issued a memorandum restricting McMillan from representing DEA in military contexts; two months later his extension request was denied and his rating was lowered from Outstanding to Significantly Exceeds Expectations.
- McMillan filed a USERRA claim; the MSPB initially denied relief, the Board remanded for additional factfinding, and after a second AJ decision the Board again denied relief. McMillan appealed to the Federal Circuit.
Issues
| Issue | McMillan’s Argument | DOJ/DEA’s Argument | Held |
|---|---|---|---|
| Whether McMillan’s military service/obligation was a motivating factor in denial of his tour extension under USERRA §4311 | McMillan: denial followed closely after his military activity and related interactions; evidence meets Sheehan factors permitting inference of discriminatory motivation | DEA: denial based on non-military reasons — poor performance, chain-of-command violations, and disrespectful emails | Court: McMillan met his initial burden; record supports inferences on all four Sheehan factors (timing, inconsistencies, expressed hostility, disparate treatment) |
| Whether DEA rebutted the inference by proving it would have denied the extension absent McMillan’s military service | McMillan: DEA’s proffered reasons are inconsistent, after-the-fact, or tied to the military assignment | DEA: alleged legitimate reasons (performance metrics, chain-of-command breach, misconduct) | Court: DEA failed to prove by preponderance it would have acted the same; reasons were inconsistent or arose after the events, and misconduct evidence was insufficient |
| Whether an employee may be denied USERRA protection for misconduct while performing military duties (i.e., compliance with "ordinarily accepted standards") | McMillan: his emails and conduct were situational, prompted by supervisors, and not egregious; protections apply | DEA: USERRA does not shield employees who fail to comply with reasonable standards of conduct while performing military duties | Court: USERRA does not create blanket immunity, but here conduct was not shown to be sufficiently egregious or independent of the military-related activity to justify denial |
| Remedy / Next step | McMillan: seeks corrective action under USERRA (remedy) | DEA: opposed | Court: Reversed MSPB denial and remanded to determine appropriate remedy (no further remand to permit DEA rebuttal requested) |
Key Cases Cited
- Sheehan v. Dep’t of Navy, 240 F.3d 1009 (Fed. Cir. 2001) (framework for USERRA claims: plaintiff must show military service was a motivating factor; employer may then prove it would have acted anyway)
- Erickson v. U.S. Postal Serv., 571 F.3d 1364 (Fed. Cir. 2009) (employer may not treat military leave like non‑military leave; military-related acts that motivate adverse action can violate USERRA)
- Allen v. U.S. Postal Serv., 142 F.3d 1444 (Fed. Cir. 1998) (distinguishing treatment of military leave from non-military leave under USERRA principles)
- Petty v. Metro. Gov’t of Nashville–Davidson Cty., 538 F.3d 431 (6th Cir. 2008) (defining when military service is a motivating factor: relied on, took into account, considered, or conditioned decision)
- Figueroa Reyes v. Hosp. San Pablo del Este, 389 F. Supp. 2d 205 (D.P.R. 2005) (discussing that USERRA protection is conditioned on compliance with ordinarily accepted standards of conduct)