David Wayne Yager v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID WAYNE YAGER, DOCKET NUMBER

Appellant, CH-4324-14-0514-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: October 15, 2014

Agency.

THIS ORDER IS NONPRECEDENTIAL *

David Wayne Yager, Morganfield, Kentucky, pro se.

James E. Campion, Jr., Esquire, Philadelphia, Pennsylvania, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed, for lack of jurisdiction, his appeal challenging his nonselection for two

positions. For the reasons discussed below, we GRANT the appellant’s petition

for review. We AFFIRM the initial decision IN PART, VACATE it IN PART,

*

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

2

and REMAND the case to the regional office for further adjudication in

accordance with this Order.

¶2 The appellant is employed as a Supervisor of Distribution Operations at the

agency’s Evansville, Indiana facility. Initial Appeal File (IAF), Tab 1 at 1. The

appellant filed a Board appeal challenging his nonselection for two positions,

which allegedly were lateral transfers, promotions, or details within the agency.

Id. The appellant, a 50-year-old veteran, argued that his nonselection constituted

discrimination on the basis of his age and sex because the positions were filled by

younger females. Id. at 5. The administrative judge issued a series of

jurisdictional orders notifying the appellant of his burden to establish jurisdiction

and of the relevant proof requirements under 5 U.S.C. chapter 75, the Veterans

Employment Opportunities Act of 1998 (VEOA), and the Uniformed Services

Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.

§§ 4301-4333) (USERRA). See IAF, Tabs 2, 7-8. In response, the appellant filed

additional argument, further alleging that the agency discriminated against him on

the basis of age, sex, and veterans’ preference by selecting less qualified

nonveteran females. IAF, Tabs 4, 6, 10, 14. The agency moved to dismiss the

appeal for lack of jurisdiction. IAF, Tab 5 at 4-7, Tab 13 at 4.

¶3 After the close of the record, the administrative judge issued an initial

decision dismissing the appeal for lack of jurisdiction without holding the

requested hearing. IAF, Tab 15, Initial Decision (ID). The administrative judge

found that 5 U.S.C. chapter 75 does not provide employees a right to appeal

nonselections for promotions, lateral transfers, or details and that, in the absence

of an otherwise appealable action, the Board lacked jurisdiction over the

appellant’s age and sex discrimination claims. ID at 3. Regarding the appellant’s

service-related claims, the administrative judge found that, because the appellant

did not present any argument or evidence that he had exhausted his administrative

remedies with the Department of Labor (DOL), he failed to establish jurisdiction

under VEOA. ID at 4. The administrative judge further found that, because the

3

appellant failed to establish that “his military service was a substantial or

motivating factor in the agency’s failure to laterally transfer, detail, or promote

him to either of the two positions in question,” the appellant failed to establish

jurisdiction under USERRA. ID at 5-6.

¶4 The appellant has filed a timely petition for review. Petition for Review

(PFR) File, Tab 1. The agency has not filed a response.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 On review, the appellant reasserts his claims of discrimination on the basis

of age, sex, and veterans’ preference as the reasons for his nonselection. PFR

File, Tab 1 at 3. The appellant further contends that he is more qualified than the

two nonveteran females who were selected. Id. Furthermore, the appellant, who

is pro se, argues that he has sufficiently responded to the administrative judge’s

jurisdictional orders and established Board jurisdiction over his appeal; any

deficiency in his pleadings, he argues, is attributable to his not “know[ing] how to

address a judge.” Id.

¶6 Based on our review of the record and applicable law, we agree with the

administrative judge’s findings that the appellant failed to nonfrivolously allege

jurisdiction under VEOA and over his age and sex discrimination claims.

However, we disagree with the administrative judge regarding the appellant’s

USERRA claims.

The appellant established jurisdiction over his USERRA appeal.

¶7 The Board’s jurisdiction is not plenary; it is limited to those matters over

which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears

the burden of proving, by preponderant evidence, that the Board has jurisdiction

over his appeal. 5 C.F.R. § 1201.56(a)(2)(i). It is well settled that the Board

generally lacks jurisdiction to review an agency’s decision not to select a

particular applicant for a vacant position. Sapla v. Department of the Navy,

4

118 M.S.P.R. 551, ¶ 8 (2012). Nonetheless, an exception to this general rule

exists in the context of a USERRA appeal. Id.

¶8 USERRA provides, in relevant part, that a person who has performed

service in a uniformed service shall not be denied a promotion, or other benefit of

employment, on the basis of that performance of service. 5 U.S.C. § 4311(a). To

establish Board jurisdiction over a nonselection for promotion under USERRA,

the appellant must at least allege that: (1) he performed duty in a uniformed

service of the United States; (2) he was not selected for a promotion; and (3) the

nonselection was due to the performance of duty in the uniformed service.

Hillman v. Tennessee Valley Authority, 95 M.S.P.R. 162, ¶ 5 (2003), overruled on

other grounds, Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660,

¶ 8 n.1 (2005). Here, as the administrative judge recognized, the appellant

alleged, and the agency did not dispute, that he was a disabled veteran and lost a

benefit of employment, i.e., a lateral transfer and a detail or promotion. ID at 5.

However, we disagree with the administrative judge’s finding that the appellant’s

statements “that he is a disabled veteran and two non-veteran females were

selected for the position in question” are insufficient “to establish the Board’s

jurisdiction over his claim that he was discriminated against because of his

military service.” ID at 5.

¶9 The administrative judge incorrectly interpreted the “non-selection was due

to the performance of duty in the uniformed service” jurisdictional element as

requiring the appellant to “make a non-frivolous allegation that his military

service was a substantial or motivating factor in the agency’s failure to select him

for a lateral transfer, detail, or promotion.” ID at 5. In order to prevail on the

merits of a USERRA claim under 38 U.S.C. § 4311(a), an appellant must prove,

by preponderant evidence, that his uniformed service was a substantial or

motivating factor in the agency action. Burroughs v. Department of the Army,

120 M.S.P.R. 392, ¶ 5 (2013) (citing McMillan v. Department of Justice,

5

120 M.S.P.R. 1, ¶ 19 (2013)). However, that showing is not required in order to

establish jurisdiction. See Hillman, 95 M.S.P.R. 162, ¶ 5.

¶10 In general, a claim under USERRA should be broadly and liberally

construed. Tindall v. Department of the Army, 84 M.S.P.R. 230, ¶ 6 (1999). As a

result, an argument that a nonveteran was selected over the appellant, who is a

veteran, is sufficient to meet the third prong of USERRA’s jurisdictional

requirement. See Durand v. Environmental Protection Agency, 106 M.S.P.R. 533,

¶ 8 (2007); see also Gaston v. Peace Corps, 100 M.S.P.R. 411, ¶¶ 7-8 (2005)

(alleging that a nonveteran was selected over the appellant, a veteran, was

sufficient to meet the nonselection due to the performance of duty in the

uniformed service prong); Martir v. Department of the Navy, 81 M.S.P.R. 421,

¶¶ 7-12 (1999) (finding that the appellant met the third prong of the USERRA

jurisdictional requirement by alleging that he was a veteran, the agency denied

him permanent appointment to a vacant position, and the agency offered the

appointments to similarly-situated nonveterans). Here, in light of the liberal

construction standard and the appellant’s pro se status, his contentions that less

qualified nonveterans were selected over him, IAF, Tabs 4, 6, 10, 14; PFR File

Tab 1, constitute an allegation that his nonselection was due to his prior

uniformed service, see Durand, 106 M.S.P.R. 533, ¶ 8; see also Gaston,

100 M.S.P.R. 411, ¶ 8; Martir, 81 M.S.P.R. 421, ¶ 9. Thus, the appellant has

established that his appeal is covered under 38 U.S.C. § 4311(a) and therefore, is

within the Board’s jurisdiction under 38 U.S.C. § 4324(b). Accordingly, we

VACATE the initial decision to the extent it found that the Board lacks

jurisdiction over the appellant’s USERRA claim.

¶11 Because the appellant has established Board jurisdiction over his USERRA

appeal, he is entitled to the hearing that he requested to further develop the record

regarding his USERRA claim. See Kirkendall v. Department of the Army,

479 F.3d 830, 844-46 (Fed. Cir. 2007) (finding that an individual who brings a

6

USERRA appeal has an unconditional right to a hearing); see also Downs v.

Department of Veterans Affairs, 110 M.S.P.R. 139, ¶¶ 17-18 (2008) (same).

The administrative judge correctly dismissed the appellant’s VEOA claim for

lack of jurisdiction.

¶12 The administrative judge found that the appellant did not satisfy VEOA’s

jurisdictional requirements because he failed to show that he had exhausted his

administrative remedies with DOL. ID at 4. To establish Board jurisdiction over

an appeal brought under VEOA, an appellant must: (1) show that he exhausted

his remedy with DOL; and (2) make nonfrivolous allegations that (i) he is a

preference eligible within the meaning of the VEOA, (ii) the action(s) at issue

took place on or after October 30, 1998, and (iii) the agency violated his rights

under a statute or regulation relating to veterans’ preference. Hillman,

95 M.S.P.R. 162, ¶ 9. As the appellant has not offered any argument or evidence

showing that he exhausted his administrative remedies with DOL, we agree with

the administrative judge that the appellant failed to establish jurisdiction over his

VEOA claim.

The Board lacks jurisdiction to consider the appellant’s other discrimination

claims.

¶13 Finally, the appellant claims that the agency discriminated against him

based on his age and sex when it failed to select him for the two positions. IAF,

Tabs 4, 6, 10, 14; PFR File, Tab 1. Absent an otherwise appealable action to the

Board, these allegations of discrimination cannot be considered. See Lowe v.

Department of the Navy, 27 M.S.P.R. 223, 225 n.5 (1985) (citing Charles v.

Department of the Navy, 3 M.S.P.R. 113, 114 (1980)). Because a nonselection is

not an adverse action appealable to the Board, the appellant’s nonselection is not

a basis for conferring Board jurisdiction over the appellant’s age and sex

discrimination claims. See Elliott v. Department of the Air Force, 102 M.S.P.R.

364, ¶ 5 (2006). Furthermore, as the Board’s jurisdiction over USERRA

complaints or appeals does not extend beyond the complained-of discrimination

because of military status, USERRA also is not a basis for raising pendant age

7

and sex discrimination claims. Metzenbaum v. Department of Justice,

89 M.S.P.R. 285, ¶ 15 (2001). Thus, we agree with the administrative judge that

the Board lacks jurisdiction over the appellant’s age and sex discrimination

claims.

¶14 Therefore, we VACATE the portion of the initial decision addressing the

appellant’s USERRA appeal, and we AFFIRM the portions of the initial decision

addressing the appellant’s VEOA and sex and age discrimination claims. The

appellant is entitled to notice regarding the USERRA methods of proof and his

burden of proving his USERRA claim. See Matz v. Department of Veterans

Affairs, 91 M.S.P.R. 265, ¶¶ 8-9 (2002). After holding a hearing on the

appellant’s USERRA appeal, the administrative judge shall issue a new initial

decision.

ORDER

For the reasons discussed above, we REMAND this case to the regional

office for further adjudication in accordance with this Remand Order. The

administrative judge should incorporate her prior analysis and disposition of the

appellant’s VEOA claim and sex and age discrimination claims in the new initial

decision on the USERRA claim so that the appellant will have a single decision

with appropriate notice of appeals rights addressing all of his claims. See

Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660, ¶ 12 (2005).

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.