The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STANLEY C. BRASCH, DOCKET NUMBER
Appellant, CH-4324-14-0175-I-1
v.
DEPARTMENT OF DATE: September 28, 2015
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Stanley C. Brasch, St. Louis, Missouri, pro se.
Parisa Naraghi-Arani, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
§§ 4301-4333) (USERRA). Generally, we grant petitions such as this one only
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
when: 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. 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, 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).
¶2 In this USERRA appeal, the appellant, a computer specialist at the agency’s
Federal Aviation Administration (FAA), argued that the agency denied him
“Excused Absence for medical care as a result of service connected disabilities
and/or injuries.” Initial Appeal File (IAF), Tab 1 at 1, 5. He also contended that
the agency denied him “Excused Absence … to assist and attend a U.S.
Department of Defense, Employer Support of the Guard and Reserve Leadership
Training[.]” Id. at 5. He asserts that he was forced to use sick or annual leave to
seek medical care and to attend the cited training program. Id. Concerning both
claims, the appellant argued that the agency was providing “Excused Absences
for non-military employees of the FAA” for medical examinations and for
training, both defense and nonmilitary related. Id. The administrative judge
provided the appellant with notice of the elements and burdens of establishing
jurisdiction over and proving his USERRA claims, and both parties replied. IAF,
Tabs 5, 10-11.
¶3 The administrative judge found that the appellant established jurisdiction
and held a 2-day hearing. She denied his request for corrective action because
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she found that the agency did not discriminate against the appellant due to his
military service when it denied his requests to change the sick and annual leave,
which it approved for the appellant to seek medical care and attend training, to
paid administrative leave. IAF, Tab 41, Initial Decision (ID). In his petition for
review, the appellant reasserts the arguments he made below. Petition for Review
(PFR) File, Tab 1; see IAF, Tab 27. The agency responds in opposition to the
appellant’s petition for review. PFR File, Tab 4.
¶4 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.
38 U.S.C. § 4311(a). Under 38 U.S.C. § 4311, military service is a motivating
factor for an employment action if the employer “relied on, took into account,
considered, or conditioned its decision” on the employee’s military–related
absence or obligation. Erickson v. U.S. Postal Service, 571 F.3d 1364, 1368
(Fed. Cir. 2009).
¶5 The appellant asserts that he was denied certain benefits of employment on
the basis of his military service. He asserted that the agency treated military and
nonmilitary employees differently as to allowing excused absences
(administrative leave) for medical care and training. We agree with the
administrative judge that the appellant failed to meet his burden to show that the
agency discriminated against him based on his military service or status.
ID at 11.
¶6 On the appellant’s first claim, based on hearing testimony and the plain
language of the pertinent agency regulation, the administrative judge found that
an excused absence only is available for induction, enlistment, or other required
periodic examinations related to military duty. ID at 5-8; see IAF, Tab 9 at 59.
Excused absences are not authorized for individuals receiving treatment for
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military-related injuries, and agency policy required the appellant to use personal
leave for his medical treatment. ID at 8; IAF, Tab 10 at 16-20. The record
therefore shows that the agency did not deny the appellant any benefit of
employment concerning leave for medical treatment.
¶7 As to the appellant’s second claim, the administrative judge found that,
because the training the appellant sought to attend was not related to his agency
position and he was no longer detailed to the Department of Defense, agency
policy did not require it to grant him an excused absence to attend this training.
ID at 8-10. As the administrative judge recounted, the employee whom the
appellant cited as having been allowed excused absence to attend the training at
issue testified how the training related to his position involving monitoring
agency contracts. ID at 9. By contrast, the administrative judge found that the
appellant failed to explain how the training at issue related to his information
technology position. Id. Again, the record shows that the agency did not deny
the appellant any benefit of employment, this time regarding excused absence
for training.
¶8 Accordingly, we affirm the administrative judge’s decision to deny the
appellant’s request for 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.
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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 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 an appeal to the
United States 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 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.