Opinion

Rigoberto Vindiola v. Department of State

Court: Merit Systems Protection Board
Filed: Oct 24, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 31.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RIGOBERTO M. VINDIOLA, DOCKET NUMBER

Appellant, SF-4324-19-0537-I-1

DEPARTMENT OF STATE, DATE: October 24, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tyler Buck and D.N. Brady , Esquire, San Diego, California,

for the appellant.

Anna Katherine Drake , Camille V’Estres , and Marianne Perciaccante ,

Washington, D.C., for the agency.

Gerard E. Riddick , Clarksburg, Maryland, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

Chairman Harris issues a separate dissenting opinion.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed for lack of jurisdiction his Uniformed Services Employment and

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.

§§ 4301-4335) (USERRA) appeal. Generally, we grant petitions such as this one

only in the following circumstances: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

On review, the appellant asserts that his coworker’s “false and defamatory”

statements against him—namely, that he committed war crimes in Vietnam—were

made only because his coworker knew of his military service. Petition for

Review (PFR) File, Tab 1 at 7-8. He asserts that, because he was falsely accused

of being a “war criminal,” the agency initiated an “inquiry,” and he was

constructively terminated. Id. at 8. In addition, the appellant provides a number

of documents on review, including copies of the various initial decisions, his

declaration, a May 24, 2019 letter from the Department of Labor, and

correspondence from various agencies. Id. at 10-86. These documents are not

new evidence because they are included in the record below. Initial Appeal File

(IAF), Tab 5; see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256

(1980).

Moreover, a different outcome is not warranted. We agree with the

administrative judge’s finding that the appellant failed to make a nonfrivolous

allegation that any agency denial was due to his uniformed service. The

evaluation worksheet reflects that the agency terminated his candidacy for the

Visa Specialist position in 2003 because of several acts of misconduct, including

selling green cards and visas, making slanderous statements about other

employees, making statements about his battlefield service that were disruptive to

the work place, and asking another employee to obtain cocaine and marijuana for

him. IAF, Tab 1 at 10. Even if we focus on the portion of this worksheet that

referenced his service, i.e., that the appellant “made statements about his alleged

battlefield service in Vietnam that were disruptive to the workplace, because of

the alleged criminal nature of his actions,” id., such statements do not constitute a

nonfrivolous allegation of discrimination based on his uniformed service.

Significantly, the documentation reflects that it was the “disruptive” impact of the

appellant’s statements on the work place, and not his uniformed service, that was

the basis for the termination of his candidacy. 2 For the reasons stated herein and

in the initial decision, the appellant has not made a nonfrivolous allegation of

jurisdiction under 38 U.S.C. § 4311(a), and Lubert v. U.S. Postal Service,

Even if we considered the appellant’s assertion that the statements in question

involved war crimes, USERRA does not prohibit an employer from considering events

which occur during a period of service but do not constitute performance of military

duty, or from taking action against an employee for gratuitous misconduct in the course

of performing military duties. McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶ 17

(2013).

110 M.S.P.R. 430, ¶ 11 (2009). 3 He is therefore not entitled to a hearing. 4 Downs

v. Department of Veterans Affairs, 110 M.S.P.R. 139, ¶ 18 (2008).

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

The Board Chairman has filed a dissent to this Final Order, finding that the appellant’s

conclusory assertion constitutes a nonfrivolous allegation under USERRA. While we

certainly support the fulsome use of USERRA rights, we believe the standard

articulated by the Chairman would result in a jurisdictional bar that does not distinguish

between allegations relating to an appellant’s service obligations and those relating to

his descriptions of his service conduct. USERRA protects the former, not the latter.

Because the appellant resigned on April 19, 2003, the agency subsequently terminated

his candidacy on suitability grounds on May 30, 2003, and the Board has already

determined that it did not have jurisdiction over the appellant’s 2003 involuntary

resignation appeal, there is a question as to whether the agency denied him initial

employment, reemployment, retention, promotion, or any benefit of employment under

38 U.S.C. § 4311(a) after he resigned. We need not resolve this issue in light of our

decision to affirm the administrative judge’s decision to dismiss the appeal for lack of

jurisdiction.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 6 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the