Andy L. Smith v. United States Postal Service

United States Court of Appeals for the Federal Circuit
2007-3238
ANDY L. SMITH,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Thomas E. Vanderbloemen, Gallivan, White & Boyd, P.A., of Greenville, South
Carolina, argued for petitioner.
Tara J. Kilfoyle, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Steven J. Gillingham, Assistant Director.
Appealed from: Merit Systems Protection Board

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United States Court of Appeals for the Federal Circuit
2007-3238
ANDY L. SMITH,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in
DA3443070139-I-1
___________________________
DECIDED: September 4, 2008
___________________________
Before LOURIE, BRYSON, and PROST, Circuit Judges.
BRYSON, Circuit Judge.
Andy L. Smith appeals from a decision of the Merit Systems Protection Board
denying his request for compensation under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301-33. He sought an
award of compensation for working irregular hours in a part-time position upon his
return from military service when he should have been placed in a full-time position with
regular hours. The Board held that he was not entitled to compensation because he
would not have had an irregular work schedule if he had been timely appointed to the
full-time position to which he was entitled and therefore would not have earned premium
pay. We agree with Mr. Smith, however, that he is entitled to compensation because he
was denied a benefit of the full-time position, i.e., a regular schedule of work. We

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2007-3238 2
therefore vacate the Board’s decision and remand for a determination of the amount of
compensation owed to Mr. Smith.
I
Mr. Smith was a member of the U.S. Army Reserve who was called to full-time
military duty on October 22, 2001. He left his position with the United States Postal
Service and entered on active duty on December 12, 2001. At that time, Mr. Smith was
working as a flexible mail processing clerk at the East Texas Processing and
Distribution Center in Tyler, Texas. During his absence for military duty, Mr. Smith bid
on a full-time position as a custodian. Upon his return from military service, Mr. Smith
was not given the custodian position, but was placed in a part-time clerk’s position. He
served in that position from January 8, 2005, until August 20, 2005. At that time,
pursuant to a successful grievance filed by his union, Mr. Smith was transferred to a full-
time custodian position, working the Tour 2 shift (6:30 a.m. to 3:00 p.m.).
Mr. Smith subsequently filed an administrative complaint with the Merit Systems
Protection Board, which has jurisdiction over complaints alleging USERRA violations by
federal executive agencies. See 38 U.S.C. § 4324. In his complaint and in the
subsequent proceedings before the Board, Mr. Smith argued that, based on the
application he submitted while he was in the military, he was entitled to return to the full-
time custodian position immediately upon his return from military service.
In the course of the litigation, the Postal Service conceded that Mr. Smith should
have been rehired directly into the custodian position as a full-time employee with
higher pay and regular hours. Accordingly, the Postal Service gave him seniority rights
retroactive to the date of his application in December 2003 and back pay representing

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2007-3238 3
the difference between the pay of the full-time and part-time positions, for a total of
$1,465.05. The Postal Service also reimbursed him for the health insurance premiums
it conceded it should not have charged him during his military absence, which amounted
to $1,453.37.
In view of those concessions by the Postal Service, the only remaining issue
before the Board was Mr. Smith’s contention that he was entitled to out-of-schedule
premium pay for the time he had worked irregular hours as a part-time employee
following his return from the military. During the seven and one-half months between
the time of his return and the time he was placed into the full-time custodian position,
Mr. Smith was working in a part-time position with a schedule that alternated between
the Tour 1 shift (11:00 p.m. to 6:30 a.m.) and the Tour 3 shift (4:30 p.m. to 1:00 a.m.).
During that period, Mr. Smith argues, he should have been assigned to Tour 2, which
would have been the case if he had been put in the custodian position immediately
upon his return from military service. According to Mr. Smith, compensation for working
irregular tours was required under the Postal Service’s Employee Labor Relations
Manual and was necessary to redress the inconvenience he suffered by having to work
the erratic hours and multiple shifts that he would not have worked if he had been
reemployed in the proper position at the outset.
The Board rejected his argument. It concluded that he was not entitled to out-of-
schedule premium pay while he was employed as a part-time clerk, because only full-
time employees were eligible for out-of-schedule premium pay. The Board also
determined that because no full-time custodians in the East Texas Processing and
Distribution Center received out-of-schedule premium pay for the period during which

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2007-3238 4
Mr. Smith was improperly assigned to part-time work as a clerk, the Postal Service’s
retroactive compensation did not need to be adjusted to include an amount representing
out-of-schedule premium pay. Mr. Smith now petitions for review by this court.
II
USERRA represents Congress’s most recent effort to create a comprehensive
statutory scheme to provide civilian reemployment rights for those who serve in the
armed forces in order “to encourage noncareer service in the uniformed services by
eliminating or minimizing the disadvantages to civilian careers and employment which
can result from such service.” 38 U.S.C. 4301(a). The Act also aims “to minimize the
disruption to the lives of persons performing service,” and “to prohibit discrimination
against persons because of their service.” Id. USERRA was enacted specifically to
“restructure, clarify, and improve” the prior reemployment benefits statutes. S. Rep. No.
102-203, at 27 (1991). While Congress intended to expand and clarify the prior
statutes, the legislative history stated that the “extensive body of case law” under the
predecessor statutes “would remain in full force and effect to the extent consistent” with
USERRA. Id. at 31.
Under USERRA, Mr. Smith was entitled to be reemployed in a position of “like
seniority, status and pay.” 38 U.S.C. § 4313(a)(2)(A). Implementing regulations define
“status” to include “opportunities for advancement, general working conditions, job
location, shift assignment, rank responsibility, and geographical location.” 20 C.F.R.
§ 1002.193 (emphasis added). Case law establishes that “shift assignment” and regular
hours are benefits of employment. See Hill v. Michelin N. Am., Inc., 252 F.3d 307, 313
(4th Cir. 2001) (“we believe that the Q-Laboratory's more regular schedule is properly

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2007-3238 5
viewed as an advantage of the job under USERRA's definition of ‘benefit of
employment.’”); Allen v. United States Postal Serv., 142 F.3d 1444, 1447 (Fed. Cir.
1998) (stating that “daytime hours,” which “most workers consider desirable” are an
“incident or advantage of employment.”); Carlson v. N.H. Dep’t of Safety, 609 F.2d
1024, 1027 (1st Cir. 1979) (“We cannot say that the transfer, due to plaintiff’s reserve
training, from a basically 8 to 5 weekday job to one with weekend work and shifts which
may fall during any hour of the day or night is not a denial of an incident or advantage of
employment”). In the event that an agency does not comply with its obligations under
USERRA, the Board is required “to compensate such person for any loss of wages or
benefits suffered by such person by reason of such lack of compliance.” 38 U.S.C. §
4324(c)(2).
The Postal Service contends that the Board correctly held that Mr. Smith would
be entitled to compensation only if other employees in the East Texas Processing and
Distribution Center who held the full-time custodian position worked irregular shifts
during the period that Mr. Smith was in his part-time position. Because the evidence
indicated that none of those employees worked irregular shifts during that time, and
thus none earned premium pay for working irregular shifts, the Postal Service argues
that Mr. Smith is likewise not entitled to any award of premium pay.
That argument misses the point. The employees in the full-time custodian
positions enjoyed a benefit that Mr. Smith did not—a regular tour of duty. With respect
to that benefit, Mr. Smith was worse off than the employees in the full-time custodian
positions. The applicable regulations, binding on the Postal Service, define “status” for
USERRA purposes to include “shift assignment,” indicating that a favorable shift

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2007-3238 6
assignment is a benefit, and section 4324(c)(2) of USERRA directs that loss of benefits
must be compensated.
Similar compensation has been provided under other federal labor laws providing
relief for discrimination. Gaffney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 462 (7th
Cir. 2006) (where employee earned more money by working longer hours at a lower
rate at his post-termination job, the backpay award under 46 U.S.C. § 2114 was
properly adjusted to account for the number of hours he would have worked in his
original job); Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1111 (8th Cir. 1994)
(compensation awarded for “job search” expenses under the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq.); F.E. Hazard, Ltd. v. NLRB, 917 F.2d 736,
738 (2d Cir. 1990) (compensation awarded for ordinary and necessary business
expenses incurred during period of interim earnings under National Labor Relations Act,
29 U.S.C. § 158(a)(1), (3), (4)). Similar compensation has also been awarded under the
predecessor compensation statute to USERRA, which used virtually identical language.
Eidukonis v. Se. Pa. Transp. Auth., 757 F. Supp. 634, 640 (E.D. Pa. 1991), aff’d, 944
F.2d 896 (3d Cir. 1991) (table) (compensation awarded for out-of-pocket medical
expenses under 38 U.S.C. § 2022).
The fact that none of the custodians in the East Texas Processing and
Distribution Center during the period in question received out-of-schedule premium pay
is irrelevant. Unlike the full-time custodians, Mr. Smith worked irregular shifts without
compensation and thus did not enjoy the benefit that they enjoyed (and that he would
have enjoyed if he had been placed directly into the custodian position). The
deprivation of that benefit is compensable as a loss of a “shift assignment” benefit.

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What remains unresolved is how to calculate the value of the lost benefit. Mr.
Smith relies on section 434.612(a) of the Postal Service’s Employee Labor Relations
Manual, which provides that eligible workers are entitled to premium pay if they work
hours outside of their normal shift, provided they have been given notice of the schedule
change at least a week in advance.1 According to Mr. Smith, he should receive
premium pay for any time worked outside of his current Tour 2 shift. Because Mr.
Smith’s schedule rotated between Tours 1 and 3, his proposed calculation would mean
that he would receive premium pay for all the hours he worked in the temporary clerk
position. Mr. Smith’s analysis, however, fails to account for the fact that, as the Postal
Service notes, Mr. Smith was only entitled to work a regular schedule; he was not
entitled to work any particular regular schedule. Because it appears Mr. Smith worked
two separate shifts on a rotating basis as a part-time employee, it would seem that only
one of those shifts would be considered “out-of-schedule.” As for the valuation of the
time that Mr. Smith worked out of schedule, the out-of-schedule premium pay is the
amount that the Postal Service pays to persons who are required to work out-of-
schedule shifts. For that reason, treating one of his shifts as his primary, normal shift
and the other as the out-of-schedule shift would appear to be a reasonable basis for
valuing the benefit that Mr. Smith lost. However, there may be other factors bearing on
1 In passing, the government notes that full-time employees are required to
work irregular shifts only if they are given timely notice by management of a temporary
schedule change and argues that because Mr. Smith was not given such notice, he is
not entitled to premium pay for out-of-schedule work. Mr. Smith, however, is not directly
seeking pay for his out-of-schedule work, but is seeking compensation for a lost benefit.
The “notice” requirement serves as an additional benefit to full-time employees by
ensuring that they will not be required to work different schedules unless given advance

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2007-3238 8
the proper analysis of the amount owed to Mr. Smith, and we leave it to the Board to
determine in the first instance the proper compensation for the loss of the benefit to
which he was entitled.
VACATED and REMANDED.
notice of the requirement. Thus, the “notice” provision does not in any way undermine
Mr. Smith’s argument that he was denied a benefit to which he was legally entitled.

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