In an action brought by a former postal service employee under the Uniformed Services Employment and Reemployment Rights Act (USERRA), Merit Systems Protection Board judgment is affirmed in part and reversed in part where: 1) the Board erred in rejecting plaintiff's claim of unlawful discrimination based on his military service as plaintiff's cumulative military absence at the time of his removal did not exceed five years and thus he retained employment rights under USERRA; 2) the Board properly held that plaintiff failed to make a timely application for reemployment under USERRA and thus defendant did not unlawfully refuse to reemploy him after his service; and 3) the case is remanded so that the Board can explicitly address whether plaintiff waived his USERRA rights by abandoning his civilian career to pursue one in the military.
Petition for review of the Merit Systems Protection Board.
Decided July 14, 2009
Before BRYSON,and GAJARSA, Circuit Judges, and ST. EVE, District Judge.
Opinion by BRYSON, Circuit Judge.
For Petitioner: Ariel E. Solomon, Tully Rinckey P.L.L.C.
For Respondent: Tara K. Hogan, United States Department of Justice.