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Yates v. Merit Systems Protection Board

June 23, 1998


Before Clevenger, Circuit Judge, Smith, Senior Circuit Judge, and Schall, Circuit Judge.

The opinion of the court was delivered by: Schall, Circuit Judge.

Appealed from: Merit Systems Protection Board

Sonya L. Yates petitions for review of the final decision of the Merit Systems Protection Board (Board) that dismissed for lack of jurisdiction her appeal of her removal by the United States Postal Service (Postal Service or agency). Yates v. United States Postal Serv., No. AT-0752-96-0929-I-1 (Apr. 4, 1997). Because we conclude that Ms. Yates presented a claim within the Board's jurisdiction under the Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. No. 103-353, 1994 U.S.C.C.A.N. (108 Stat.) 3149 (USERRA) (codified at 38 U.S.C. §§ 4301-33 (1994)), *fn1 we reverse the Board's decision and remand the case to the Board for an adjudication of the merits of the appeal.


The facts relating to the jurisdictional issue are not in dispute. At all times relevant to this appeal, Ms. Yates was a reservist in the United States Army. She began her employment with the Postal Service on January 27, 1996, when she entered on duty as a transitional, or part-time, employee. On May 25, 1996, her status was converted to that of a career employee, subject to a 90-day probationary period. Also on May 25th, she accepted transfer into a program in which she was to be trained as a Data Conversion Operator. During the training period, she was required to achieve a minimum level of proficiency with a key punch system in order to earn a permanent position with the agency. When Ms. Yates entered the program, she was told that her training progress would be evaluated at 30-day, 60-day, and 90-day intervals.

On July 6, 1996, some 40 days after beginning the training program, Ms. Yates went on duty with her Reserve unit. She served with her unit until July 23, 1996. While she was on duty, she missed her 30-day evaluation. After she returned from Reserve duty, she received her 60-day evaluation and continued with the training program. However, the agency did not extend the training period to make up for the two weeks that she had lost while she was on Reserve duty. Near the end of the training period, the Postal Service evaluated Ms. Yates' performance. Shortly thereafter, on August 21, 1996, she was removed from her position as a Data Conversion Operator for unacceptable performance during her probationary period.

Ms. Yates timely appealed her removal to the Board. In Box 27 of the appeal form, she was asked to explain why she thought that the Postal Service was wrong in removing her. In response, she stated in relevant part as follows:

I was absent (2) two-week periods for military duty, once during probation. I didn't realize I wouldn't have the option to extend for those days, if this was addressed to me, I probably would have declined the career position and stayed employed as a transitional emp. working part-time and kept my full-time job of ten years, or would have spoken with my reserve commander to see about scheduling my duty at a later date.

In Box 30.b, Ms. Yates stated why she believed the Postal Service had committed harmful procedural error in her case:

If I had received my 30 day eval. I would have thought twice about resigning from my other job. Looking at the last edit I received prior to becoming career, I was nowhere close to the required performance levels they were asking for.

In addition, Ms. Yates attached to her appeal form a letter addressed to the "Board Members." In the letter, she explained that the Postal Service had promised her that she would receive 30, 60, and 90-day evaluations. She stated that she had been "scheduled to go on military duty (July 6-21), and [she] hadn't had [her] first evaluation prior to that date." She further stated that she had "assumed that [she] would [be] given the chance to complete the two weeks that [she] had missed." Finally, Ms. Yates reiterated in her letter that she never received a 30-day evaluation because she was on Reserve duty when the other individuals in the training program received their 30-day evaluations. In neither her appeal form nor her letter did Ms. Yates mention any statutes or regulations under which she believed she was entitled to relief.

On September 26, 1996, the administrative Judge (AJ) to whom the appeal was assigned issued an acknowledgment order. Addressing the issue of jurisdiction, the AJ informed Ms. Yates in the order that she had the burden of establishing the Board's jurisdiction and that the Board might not have jurisdiction over her appeal:

Because you are a Postal Service employee, the Board may not have jurisdiction to decide your appeal. You must 1) be a preference-eligible employee, a management or supervisory employee or an employee engaged in personnel work in other than a purely non-confidential clerical capacity and 2) have completed one year of current, continuous service in the same or a similar position for the Board to exercise jurisdiction over your appeal. See 39 U.S.C. § 1005(a) and 5 U.S.C. § 2108.

The AJ's order did not mention the possibility of jurisdiction under USERRA. The acknowledgment order directed Ms. Yates "to file evidence and argument" to establish that the appeal was within the Board's ...

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