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Court Says Victory for TELG Client Is Only Reasonable Outcome in Military Bias Case


Posted on February 17, 2016
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DISCLAIMER: THIS POST CONCERNS A CLIENT OF THE EMPLOYMENT LAW GROUP® LAW FIRM. THE RESULTS OF ALL CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST SUCCESSES DO NOT PREDICT OR GUARANTEE FUTURE SUCCESSES.

DEA graphicA federal appeals court ruled that the U.S. Drug Enforcement Agency (DEA) violated the law when it refused to extend an investigator’s overseas posting because of conflicts that arose over his duties as a U.S. Army reservist.

In an emphatic opinion, the U.S. Court of Appeals for the Federal Circuit said it could not accept “after-the-fact” explanations of the DEA’s actions, which it said were “fraught with … overstatements and inconsistencies.” Instead it sided squarely with the investigator, Lt. Col. Peter McMillan, who was represented by The Employment Law Group® law firm.

“[W]hile the DEA may have been unhappy with McMillan’s military assignment,” the court said, “it was not entitled to punish him for attempting to fulfill it.”

The case was decided under the Uniformed Services Employment and Reemployment Rights Act of 1994, commonly known as USERRA, which prohibits bias against employees who take time away from the workplace to fulfill military duties.

Lt. Col. McMillan now will return to the government’s Merit Systems Protection Board (MSPB), which will determine the remedy to which he is entitled.

Lt. Col. McMillan’s case was notable for the Fed Circuit’s muscular application of its Sheehan burden-shifting framework, in which employees have an initial obligation to show that their military service was a “substantial or motivating” factor in an adverse employment action. Over a period of years, the MSPB had held that Lt. Col. McMillan failed to meet this obligation — a conclusion that the Fed Circuit bluntly overruled.

The evidence “permits only one reasonable finding,” it said: Lt. Col. McMillan had shown that he faced bias for his service.

Unusually, the Fed Circuit then plowed ahead to apply the second half of the Sheehan framework, although the MSPB’s previous deliberations had not gotten that far. And on this standard, too — whether the DEA would have acted the same way even without the dispute over military duties — the court ruled strongly for Lt. Col. McMillan.

“What this case makes clear is that the U.S. government is not immune from discriminating against its own military members,” said Adam Augustine Carter, a principal of The Employment Law Group who argued the appellate case for Lt. Col. McMillan. “Indeed, the situation may even be worse in government, where discriminatory instincts can be sharpened by intra-agency rivalries — as in this case, where the DEA seemed unwilling to share information with the U.S. Army.”

R. Scott Oswald, TELG managing principal, was Lt. Col. McMillan’s other primary attorney in the case. “Peter McMillan climbed a long road to the Federal Circuit,” said Mr. Oswald, “but in the end he was rewarded for keeping faith in himself, and in the arc of the moral universe. This court weighed all the evidence and found the DEA had discriminated against one of our country’s warriors — and for what amounted to the pettiest of reasons, a turf battle. His victory is overdue, but it is very sweet.”

Lt. Col. McMillan himself was elated.

“I remember sitting in Lima in 2010, feeling the injustice and isolation of my situation and wondering if I could win a discrimination battle against the DEA,” he said. “This decision by the Federal Circuit is a testament to the power of perseverance. It is more than a legal win; it is vindication — a full affirmation of my personal and professional honor.

“I am grateful to Adam Carter, Scott Oswald, and everyone at The Employment Law Group for the strength of their legal arguments — but even more, for their belief in me. I would never have gotten here without them.”

» Read the Federal Circuit’s opinion

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