Shawn Gonzalez v. Department of Agriculture

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHAWN GONZALEZ, DOCKET NUMBER

Appellant, DC-4324-15-0636-I-1

v.

DEPARTMENT OF AGRICULTURE, DATE: November 23, 2015

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Shawn Gonzalez, Ruther Glen, Virginia, pro se.

Patricia Del Vecchio, Saint Louis, Missouri, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed her Uniformed Services Employment and Reemployment Rights Act of

1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA) appeal for lack of

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

1

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

petition for review, VACATE the initial decision, and REMAND the case to the

regional office for further adjudication in accordance with this Order.

BACKGROUND

¶2 Effective October 1, 2014, the agency terminated the appellant from a GS-5

Area Technician position in the competitive service during her probationary

period. Gonzalez v. Department of Agriculture, MSPB Docket

No. DC-315H-15-0114-I-1, Initial Appeal File, Tab 1 at 14-22, Tab 5 at 10-11.

The appellant filed a Board appeal challenging her termination, which the

administrative judge dismissed for lack of jurisdiction, finding that the appellant

had no right to appeal under 5 C.F.R. § 315.806 or 5 U.S.C. chapter 75. See

Gonzalez v. Department of Agriculture, MSPB Docket No. DC-315H-15-0114-I-

1, Initial Decision (Dec. 12, 2014). In an April 17, 2015 final order, the Board

denied the appellant’s petition for review of that initial decision, but forwarded

for docketing as a new appeal her USERRA claim, raised in the first instance on

review, that the agency had terminated her based on her military service. 2

Gonzalez v. Department of Agriculture, MSPB Docket No. DC-315H-15-0114-I-

1, Final Order at 6-7 (Apr. 17, 2015); Gonzalez v. Department of Agriculture,

MSPB Docket No. DC-315H-15-0114-I-1, Petition for Review File, Tab 1 at 4-6,

Tab 7. This appeal followed.

¶3 After the appellant withdrew her request for a hearing below, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction. Gonzalez v. Department of Agriculture, MSPB Docket No.

DC-4324-15-0636-I-1, Initial Appeal File (IAF), Tab 19 at 4, Tab 26, Initial

Decision (ID). She found that the appellant failed to establish jurisdiction over a

2

While a probationary termination is not an adverse action over which the Board has

jurisdiction under 5 U.S.C. chapter 75, the Board may have jurisdiction over an appeal

alleging, inter alia, that an agency’s action in terminating an employee during his

probationary period was discriminatory on the basis of his prior military service.

Wright v. Department of Veterans Affairs, 73 M.S.P.R. 453, 454 (1997).

3

USERRA discrimination claim under 38 U.S.C. § 4311(a) because, although the

appellant had alleged that her second-line supervisor terminated her employment

based on her military service, she did not “explain the basis for her belief,” or

otherwise raise a nonfrivolous allegation that her termination was due to her

military service. ID at 3-4. She further found that the appellant failed to raise a

nonfrivolous allegation that the agency retaliated against her in violation

of 38 U.S.C. § 4311(b). ID at 4.

¶4 The appellant has filed a timely petition for review, in which she argues,

among many other things, that the administrative judge erred in dismissing her

appeal for lack of jurisdiction. MSPB Docket No. DC-4324-15-0636-I-1, Petition

for Review (PFR) File, Tab 1. The agency has filed a response, and the appellant

has replied. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant failed to raise a nonfrivolous allegation of jurisdiction over her

USERRA retaliation claim under 38 U.S.C. § 4311(b).

¶5 On review, the appellant argues that she established jurisdiction over her

claim under 38 U.S.C. § 4311(b) because she alleged below that the agency

terminated her employment in retaliation for filing an equal employment

opportunity (EEO) complaint and for protected whistleblowing. PFR File, Tab 1

at 7-9; see IAF, Tab 23 at 11-14. We agree with the administrative judge that the

appellant failed to establish jurisdiction over her claim under 38 U.S.C.

§ 4311(b). ID at 4.

¶6 Pursuant to section 4311(b), an employer may not retaliate against an

employee for pursuing or assisting another individual in pursuing his USERRA

rights. Thus, to establish jurisdiction over a claim under section 4311(b), the

appellant must raise a nonfrivolous allegation that she engaged in activity

4

protected under 38 U.S.C. chapter 43. 3 See Shipley-Johnson v. Merit Systems

Protection Board, 405 F. App’x 479, 480 (Fed. Cir. 2010) (finding that an

appellant failed to establish jurisdiction over a section 4311(b) claim where she

alleged that an agency retaliated against her for helping to enforce rights under

the Servicemembers Civil Relief Act of 2003, 50 U.S.C. app. §§ 538 and 592,

because those rights were not afforded under 38 U.S.C. chapter 43); 4 Weed v.

Social Security Administration, 112 M.S.P.R. 323, ¶ 10 n.3 (2009) (concluding

that, for purposes of establishing jurisdiction under section 4311(b), a prior Board

appeal against an agency involving a claim under the Veterans Employment

Opportunities Act of 1998 was not an action to enforce a protection under

38 U.S.C. chapter 43).

¶7 The appellant failed to raise a nonfrivolous allegation that she engaged in

activities protected under 38 U.S.C. chapter 43. 5 PFR File, Tab 1 at 7-9; IAF,

Tab 23 at 11-14. Therefore, the administrative judge properly dismissed the

appellant’s claim that the agency violated section 4311(b) for lack of jurisdiction.

ID at 4; see Shipley-Johnson, 405 F. App’x at 480; Weed, 112 M.S.P.R. 323, ¶ 10

n.3.

3

The appellant alleged that she had not filed a USERRA complaint with the Secretary

of Labor. IAF, Tab 3 at 5; see 5 C.F.R. § 1208.11(b) (if an appellant first files a

USERRA complaint with the Secretary of Labor pursuant to 38 U.S.C. § 4322, she

may not file a USERRA appeal with the Board until the Secretary notifies the appellant

that the Secretary was unable to resolve the complaint). The agency does not dispute

this claim. See IAF, Tab 12 at 4-7; PFR File, Tab 3.

4

Although Shipley-Johnson is nonprecedential, the Board may follow a nonprecedential

decision of the U.S. Court of Appeals for the Federal Circuit where, as here, it finds it

persuasive. Dean v. Office of Personnel Management, 115 M.S.P.R. 157, ¶ 14 (2010).

5

On review, the appellant contends that the administrative judge did not consider EEO

affidavits that she submitted below in determining whether the Board had jurisdiction

over her claim under section 4311(b). PFR File, Tab 1 at 7-8. However, she has failed

to demonstrate that the affidavits, or any of her arguments regarding the affidavits, raise

a nonfrivolous allegation that she engaged in protected activity. Id.; see IAF, Tab 3

at 10-86.

5

The appellant established jurisdiction over her USERRA discrimination claim

under 38 U.S.C. § 4311(a).

¶8 On review, the appellant contends that the administrative judge erred in

finding that she failed to establish jurisdiction over her USERRA discrimination

claim under 38 U.S.C. § 4311(a). PFR File, Tab 1 at 4-6, 11, Tab 4 at 5-7.

We agree.

¶9 To establish jurisdiction under 38 U.S.C. § 4311(a), an appellant must

allege that: (1) she performed duty or has an obligation to perform duty in a

uniformed service of the United States; (2) the agency denied her initial

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

and (3) the denial was due to the performance of duty or obligation to perform

duty in the uniformed service. Williams v. Department of the

Treasury, 110 M.S.P.R. 191, ¶ 8 (2008). A claim of discrimination under

USERRA should be broadly construed in determining whether it is nonfrivolous,

particularly where, as here, the appellant is pro se. Id. Our reviewing court, the

U.S. Court of Appeals for the Federal Circuit, has agreed with the Board’s

“liberal approach in determining whether jurisdiction exists under USERRA.”

Yates v. Merit Systems Protection Board, 145 F.3d 1480, 1484-85

(Fed. Cir. 1998).

¶10 The administrative judge correctly found, and the agency does not dispute,

that the appellant nonfrivolously alleged the first two requirements for

establishing jurisdiction over a USERRA claim, i.e., that she had prior uniformed

service and that the agency denied her a benefit of employment by terminating

her employment during her probationary period. 6 ID at 3, see IAF, Tab 23 at 4.

We find that the appellant also raised a nonfrivolous allegation that her uniformed

6

In addition, the agency submitted documentation below reflecting that the appellant

performed military service in the U.S. Marine Corps, and received an honorable

discharge in 2002. IAF, Tab 13 at 23.

6

service was a motivating factor in the agency’s decision to terminate her

employment. ID at 3-4.

¶11 The administrative judge found, and the agency does not dispute, that the

appellant alleged that her second-line supervisor was motivated by her military

service in terminating her employment. ID at 3; IAF, Tab 23 at 8-10. Although

the administrative judge found that the appellant did not “explain the basis for her

belief,” she was not required to do so at the jurisdictional stage of her appeal. ID

at 3; see Patterson v. Department of the Interior, 424 F.3d 1151, 1155, 1161 (Fed.

Cir. 2005) (reversing a finding that the appellant’s “vague and generalized

statements” were insufficient to establish jurisdiction under USERRA); Searcy v.

Department of Agriculture, 115 M.S.P.R. 260, ¶ 8 (2010) (finding jurisdiction

under USERRA even though the appellant’s allegations were “vague and lacking

in specificity”); Wilson v. Department of the Army, 111 M.S.P.R. 54, ¶ 10 (2009)

(finding that a claim by an appellant that “agency officials didn’t like the fact” of

his military service was sufficient to establish jurisdiction over his

USERRA appeal).

¶12 Furthermore, as the appellant argues on review, she raised specific

allegations below that her second-line supervisor was motivated by her military

service in terminating her employment. PFR File, Tab 1 at 5-6, Tab 4 at 6. We

recognize that the appellant’s pleadings below were not a model of clarity and

that she raised numerous arguments that were not pertinent to the issue of the

Board’s jurisdiction over her USERRA appeal. However, in her submissions

below, the appellant alleged that, in terminating her employment, her second-line

supervisor was improperly influenced by a coworker with anti-military animus. 7

7

The appellant also alleged, as she does on review, that the agency treated another

similarly situated employee more favorably than her. PFR File, Tab 1 at 11, Tab 4 at

6-7; IAF, Tab 23 at 10-11. As she concedes, however, that employee also had prior

uniformed service in the U.S. Marine Corps and also was a disabled veteran. IAF,

Tab 12 at 9, 11, Tab 13 at 22. Therefore, the appellant’s claim that the agency treated

that other employee more favorably than her fails to raise a nonfrivolous allegation that

7

IAF, Tab 5 at 15-16, Tab 23 at 8-9. She claimed that her second-line supervisor

“showed a particular preference” for this coworker, and “took her feelings into

consideration.” IAF, Tab 23 at 8. The appellant further alleged that her coworker

had voiced anti-military animus to her second-line supervisor and that

the second-line supervisor was “trying to please” her coworker. 8 IAF, Tab 5

at 15-16, Tab 23 at 8.

¶13 On review, the agency contends that the appellant’s claims that her

uniformed service was a motivating factor in the decision to terminate her

employment lack merit. 9 PFR File, Tab 3 at 4-13. However, the weakness of the

assertions in support of a claim is not a basis to dismiss a USERRA appeal for

lack of jurisdiction; rather, if the appellant fails to develop her contentions, her

USERRA claim should be denied on the merits. Searcy, 115 M.S.P.R. 260, ¶ 7.

¶14 Below, the appellant requested a decision on the written record, and

therefore, waived her right to a hearing. IAF, Tab 19 at 5; see Taynton v.

she was terminated due to her military service. See Daniels v. U.S. Postal Service,

88 M.S.P.R. 630, ¶¶ 5-6 (an appellant failed to establish jurisdiction over a USERRA

claim where he alleged that another veteran was “a favorite” of the supervisor who

terminated him, and his allegations suggested animus against the appellant specifically,

as opposed to veterans generally), aff’d, 25 F. App’x 970 (Fed. Cir. 2001).

8

The appellant analogizes her case to Staub v. Proctor Hospital, 562 U.S. 411 (2011),

in which the U.S. Supreme Court found that, where immediate supervisors took actions

against an employee that were motivated by anti-military animus, they intended their

acts to adversely affect the employee, and their acts were the proximate cause of the

deciding official’s decision to terminate the employee, the employer violated USERRA

even though the deciding official was unaware of, and did not share, the anti-military

animus. IAF, Tab 23 at 8-10; PFR File, Tab 1 at 5-6, Tab 4 at 6; see Staub, 562 U.S.

at 413-17, 422. However, in Staub, the Supreme Court explicitly declined to address

whether its holding would apply in cases where the employee exhibiting discriminatory

animus was not a supervisor, but was merely a coworker. Staub, 562 U.S. at 422 n.4.

We need not decide this issue at this stage of the appeal, because in the present case,

unlike in Staub, the appellant alleged that her second-line supervisor was aware of her

coworker’s anti-military animus, and terminated the appellant with specific intent to

please the coworker. IAF, Tab 5 at 15-16, Tab 23 at 8-9.

9

In response to the petition for review, the agency also has submitted documentation,

some of which was not included in the record below. See, e.g., PFR File, Tab 3 at 20.

8

Department of the Air Force, 101 M.S.P.R. 547, ¶ 6 (2006) (denying a petition

for review requesting a hearing in a USERRA appeal where the appellant

withdrew her hearing request below). Ordinarily, under these circumstances, we

could adjudicate the merits of the appellant’s USERRA claims in the first

instance on review based on the written record. See Haebe v. Department of

Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (holding that, when an

administrative judge’s findings are not based on the observation of witnesses’

demeanor, the Board is free to reweigh the evidence and substitute its own

judgment on credibility issues). In the present case, however, we are unable to do

so because, below, the appellant filed a motion to compel discovery responses,

which the administrative judge declined to rule on, pending a decision on the

issue of jurisdiction. IAF, Tab 21 at 4-26, Tab 25. Accordingly, we remand this

appeal for the administrative judge to rule on the appellant’s motion to compel

discovery and, following any discovery that the administrative judge deems

necessary, for adjudication of the appellant’s USERRA appeal on the merits.

The Board lacks jurisdiction over the appellant’s claims regarding criminal

actions and harmful procedural errors.

¶15 On review, the appellant raises a number of claims that the Board lacks

jurisdiction to consider. See, e.g., PFR File, Tab 1 at 4, 8-9, 10-11. For example,

as she did below, the appellant contends that her first- and second-line

supervisors committed a crime by lying under oath during her EEO investigation,

in violation of 18 U.S.C. § 1001. PFR File, Tab 1 at 4; IAF, Tab 3 at 10, Tab 14

at 9. Further, on review, she claims that the agency committed harmful

procedural errors in effectuating her termination. PFR File, Tab 1 at 10-11.

¶16 The Board’s jurisdiction 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 Board’s jurisdiction over

USERRA claims does not extend to non-USERRA issues, such as claims of

discrimination under title VII and its progeny. Bodus v. Department of the Air

9

Force, 82 M.S.P.R. 508, ¶¶ 15-17 (1999); see Metzenbaum v. Department of

Justice, 89 M.S.P.R. 285, ¶¶ 2-3, 15 (2001) (finding that the Board lacked

jurisdiction to consider an appellant’s claims of disability discrimination and

EEO reprisal in the context of a USERRA appeal). As the administrative judge

properly concluded, the appellant has not explained how these other claims relate

to her claims that she was terminated due to her military status. PFR File, Tab 1

at 10-11; ID at 3-4. 10

ORDER

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

office for further adjudication in accordance with this Remand Order. In her

remand initial decision, the administrative judge may adopt her prior findings

concerning the appellant’s claim under section 4311(b) of USERRA and her

claims of harmful procedural error and of violations of non-USERRA laws.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.

10

On review, the appellant attempts to raise again a claim of whistleblower reprisal.

PFR File, Tab 1 at 8. The Board, on two occasions, previously has dismissed her

claims that she was terminated in reprisal for protected whistleblowing for lack of

jurisdiction on the ground that she failed to demonstrate that she exhausted her

administrative remedies with the Office of Special Counsel (OSC). See Gonzalez v.

Department of Agriculture, MSPB Docket NoDC-315H-15-0114-I-1, Final Order (Apr.

17, 2015); Gonzalez v. Department of Agriculture, MSPB Docket No. DC-4324-15-

0879-W-1, Initial Decision (July 9, 2015). The appellant has not provided evidence that

she exhausted her administrative remedies with OSC on review. We again remind the

appellant that, if she wishes to pursue an individual right of action appeal before the

Board, she must first exhaust her administrative remedies with OSC.