Peter A. McMillan v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PETER A. MCMILLAN, DOCKET NUMBER

Appellant, DC-4324-11-0726-B-1

v.

DEPARTMENT OF JUSTICE, DATE: October 16, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Adam A. Carter, Esquire, and R. Scott Oswald, Esquire, Washington, D.C.,

for the appellant.

William G. Hughes, III, Esquire, Springfield, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

remand that denied his request for corrective action under the Uniformed Services

Employment and Reemployment Rights Act (USERRA). Generally, we grant

petitions such as this one only when: the initial decision contains erroneous

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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 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. See 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, and based on the following

points and authorities, 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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 An employee who claims that an agency violated 38 U.S.C. § 4311(a) 2 in

taking an adverse employment action bears the initial burden of showing by a

preponderance of the evidence that the employee’s military service was “a

substantial or motivating factor” in the action. Sheehan v. Department of the

Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). If the appellant meets his initial

burden, the employer can avoid liability by demonstrating, as an affirmative

defense, that it would have taken the action for a valid reason without regard to

the employee’s military service. Erickson v. U.S. Postal Service, 571 F.3d 1364,

1368 (Fed. Cir. 2009); Sheehan, 240 F.3d at 1013; see 38 U.S.C. § 4311(c).

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38 U.S.C. § 4311(a) provides that “[a] person who is a member of, applies to be a

member of, performs, has performed, applies to perform, or has an obligation to

perform service in a uniformed service shall not be denied initial employment,

reemployment, retention in employment, promotion, or any benefit of employment by

an employer on the basis of that membership, application for membership, performance

of service, application for service, or obligation to perform service.”

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¶3 On review, the appellant contests the administrative judge’s finding that his

first-level supervisor, Group Supervisor J.A., did not demonstrate animus toward

the appellant or his military service in his response to the appellant’s request for a

total of 4 weeks leave. Petition for Review (PFR) File, Tab 1 at 12. In particular,

he contends that the administrative judge failed to consider the documentary

evidence that he “needed 4 weeks and had to settle for 3 weeks.” Id. However,

the appellant conceded at the remand hearing that the 3 weeks leave he was

granted (2 weeks military leave plus 1 week annual) were enough to meet his

military obligations for a “good year.” Remand Hearing Transcript (RHT) at 46.

The appellant also asserts that the administrative judge glossed over testimonial

evidence that, when he first requested 4 weeks leave, J.A. responded that he had

just been out on “vacation” (technically home leave) and that he was not inclined

to approve “more.” PFR File, Tab 1 at 12. However, the fact that the

administrative judge did not expressly refer to that testimony does not mean that

she did not consider it in reaching her decision. See Marques v. Department of

Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062

(Fed. Cir. 1985) (Table). Moreover, the testimony in question concerns J.A.’s

initial request that the appellant take the 2 weeks annual leave he requested at a

later date, see RHT at 113-14, and does not suggest that J.A. considered the

appellant’s military leave or the performance of military obligations to be

vacation.

¶4 The appellant further contends that the administrative judge erred in finding

that he was required to follow the agency chain of command in soliciting

assistance with his military assignment. PFR File, Tab 1 at 12-15. He does not

contest the administrative judge’s finding that he would be required to go through

the chain of command if he were (1) acting in his capacity as a Drug Enforcement

Administration (DEA) agent, and (2) seeking to disseminate DEA information

outside the agency. See Initial Decision (ID) at 11. The appellant argues,

however, that, when he approached Field Intelligence Manager M.W. for

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assistance, he made it clear that his request for information was for his military

assignment, not DEA business. PFR File, Tab 1 at 12-13. He further notes that

he did not have the intent of disseminating DEA information when he first

approached M.W. and that it was M.W. himself who suggested using the Foreign

Situation Report (FSR). Id. Hence, the appellant argues, it was M.W., and M.W.

alone, who was obliged to obtain approval for the release of the FSR. Id. at 13.

The appellant further notes that M.W. considered it appropriate to approach

Regional Director P.S. directly without first approaching his own direct

supervisor. Id. at 13-14.

¶5 We find the appellant’s arguments on this point unconvincing. First, as we

noted in the remand order, the appellant was on duty in his civilian position when

he approached M.W., and the appellant himself stated in his email

correspondence with M.W. that he viewed himself acting in a dual capacity as a

military officer and DEA agent. See McMillan v. Department of Justice,

120 M.S.P.R. 1, ¶ 21 (2013). Moreover, even if it were M.W. who first suggested

using the FSR in the military report, it was the appellant, not M.W., who intended

to disseminate that information outside the agency. Thus, even if the appellant

had acted within the bounds of the agency’s open door policy when he first

approached M.W., he was nonetheless obliged to proceed through his own chain

of command prior to approaching P.S. for approval to use the FSR.

¶6 The appellant also contests the administrative judge’s finding that the

agency’s action was not based on the content and performance of his military

assignment. PFR File, Tab 1 at 15-23. He argues that, while the agency

contended that the denial of the tour extension was based in part on alleged

performance issues, his performance ratings had been outstanding, and the goals

he allegedly failed to meet were arbitrary, unstated, and undocumented. Rather,

he contends, his tour extension was denied exclusively because of management’s

disapproval of behavior relating to his military assignments—specifically, his

approaching M.W. for sources of information on Bolivia and his subsequent email

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exchanges with P.S. The appellant reasons that management would not have

denied his tour request but for his military assignment because “had there never

been these military assignments there never would have been any issue with a

chain-of-command, nor any issue with being disrespectful of [P.S.], nor any

reason to write the Memo, and [the appellant’s] tour request would likely have

been approved.” Id. at 21.

¶7 It is true that an employer violates section 4311(a) if it would not have

taken the adverse employment action but for the employee’s military service or

obligation. Erickson, 571 F.3d at 1368; see H.R. Rep. No. 103-65, at 23 (1993),

as reprinted in 1994 U.S.C.C.A.N. 2449, 2457. However, as we explained in our

remand order in this case, USERRA does not prohibit an employer from taking

action against an employee for gratuitous misconduct in the course of performing

military duties. See McMillan, 120 M.S.P.R. 1, ¶ 17; cf. Escher v. BWXT Y-12,

LLC, 627 F.3d 1020, 1024-25, 1032 (6th Cir. 2010) (employer did not violate

section 4311(b) when it terminated the employee for doing Naval Reserve

business at work in violation of agency policy). Protection under USERRA is

contingent on the employee’s compliance with the reasonable and ordinarily

accepted standards of personal conduct and performance of all employees.

McMillan, 120 M.S.P.R. 1, ¶ 17 (citing Figueroa Reyes v. Hosp. San Pablo del

Este, 389 F. Supp. 2d 205, 212 (D.P.R. 2005)). Hence, assuming arguendo that

management denied the tour extension based solely on the appellant’s conduct in

connection with his military assignments, and not on performance issues, there

was no USERRA violation if the appellant failed to comply with ordinary

accepted standards of personal conduct and performance in the course of

fulfilling his military assignments. See McMillan, 120 M.S.P.R. 1, ¶ 18.

¶8 We discern no error in the administrative judge’s finding that the appellant

did not comply with those standards. First, as discussed above, even if the

appellant acted within the bounds of the agency’s open door policy when he

initially approached M.W., he nonetheless violated the chain of command by

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seeking P.S.’s approval to use the FSR without first going through his first- and

second-level supervisors. Second, we agree with the administrative judge that the

appellant’s July 20, 2012 email to P.S. was disrespectful in tone and content. See

ID at 15; see also MSPB Docket No. DC-4324-11-0726-I-2, Initial Appeal File,

Tab 7, Ex. W. On review, the appellant contends that the email was not improper

because it was sent while he was on military duty and concerned his military

assignment. PFR File, Tab 1 at 25. However, as we noted in our remand order,

the appellant identified himself in the July 20, 2010 email as a Special Agent (his

civilian job title), and he had also indicated in previous correspondence with

M.W. that he was acting in his dual capacity as a military officer and DEA agent.

See McMillan, 120 M.S.P.R. 1, ¶¶ 5-6, 21. Given the appellant’s failure to

comply with the ordinarily accepted standards of conduct in the course of

performing his military duties, we find that he has not shown that the

administrative judge erred in finding that he is not entitled to corrective action

under USERRA.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit. You must submit your request to

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

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and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.

Additional information 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, and 11.

If you are interested in securing pro bono representation for your court

appeal, you may visit our website at http://www.mspb.gov/probono for a list of

attorneys who have expressed interest in providing pro bono representation for

Merit Systems Protection Board appellants before the court. The Merit Systems

Protection Board neither endorses the services provided by any attorney nor

warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.