The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY P. TURNER, DOCKET NUMBER
Appellant, AT-4324-15-0675-I-1
v.
DEPARTMENT OF VETERANS DATE: June 2, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jerry Girley, Esquire, Orlando, Florida, for the appellant.
Luis E. Ortiz, Esquire, Orlando, Florida, 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 Uniform Services Employment
and Reemployment Rights Act of 1994 (USERRA). Generally, we grant petitions
such as this one only when: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 On July 8, 2015, the appellant filed an appeal alleging that, because of his
military service, the agency: (1) distributed more overtime hours to nonveterans;
(2) failed to select him for two vacancies for which he was qualified; and
(3) required him to work an undesirable shift for more time than a nonveteran. 2
Initial Appeal File (IAF), Tab 1. After allowing the parties to submit evidence
and argument, and following a hearing, the administrative judge denied the
appellant’s request for corrective action. IAF, Tab 26, Initial Decision (ID). The
administrative judge found that the appellant failed to show that his military
service was a substantial or motivating factor in the agency’s actions. ID at 1, 7.
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded in opposition to the petition for review.
PFR File, Tab 3.
2
As found by the administrative judge, the appellant served in the U.S. Marine Corps
from 1981 through 1984. Initial Appeal File, Tab 26, Initial Decision at 3; Hearing
Compact Disc (testimony of the appellant).
3
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 Under USERRA, a person who has performed service in a uniformed
service shall not be denied any benefit of employment by an employer on the
basis of that performance of military service. 38 U.S.C. § 4311(a). The appellant
bears the initial burden of showing by a preponderance of the evidence that his
military service was a substantial or motivating factor in the agency’s action.
McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶ 19 (2013). The appellant’s
military service is a motivating factor in the agency’s action if the employer
“relied on, took into account, considered, or conditioned its decision” on that
service. Id., ¶ 20 (citing Erickson v. U.S. Postal Service, 571 F.3d 1364, 1368
(Fed. Cir. 2009)). Discriminatory motivation under USERRA may be established
by direct evidence or reasonably inferred through a variety of factors, including
proximity in time between the employee’s military activity and the adverse
employment action, inconsistencies between the proffered reason and other
actions of the employer, an employer’s expressed hostility towards members
protected by the statute together with knowledge of the employee’s military
activity, and disparate treatment of certain employees compared to other
employees with similar work records or offenses. Id.; see Sheehan v. Department
of Navy, 240 F.3d 1009, 1014 (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. McMillan, 120 M.S.P.R. 1, ¶ 19.
¶5 On review, the appellant argues that he met his prima facie case because he
presented evidence that another employee, L.C., who was not a veteran, was
assigned more overtime than was the appellant. PFR File, Tab 1 at 1, 3. The
appellant also asserts that he presented evidence before the administrative judge
that the way the agency distributed overtime was in violation of the master labor
agreement. Id. at 3‑4.
4
¶6 The administrative judge found, based on the appellant’s former
supervisor’s sworn statement in an equal employment opportunity investigation,
that the appellant did not want to work overtime and that overtime was given to
employees, including L.C., who expressed a desire to work overtime. ID at 5; see
IAF, Tab 14 at 140‑42. The administrative judge also found that the appellant
testified that every employee identified by his former supervisor as wanting to
work overtime, with the exception of L.C., were veterans. ID at 5; HCD
(testimony of the appellant). The appellant does not contest these findings on
review, and we discern no reason to disturb them.
¶7 The administrative judge also found that the appellant failed to present any
direct evidence of discrimination based on his military service, such as statements
by agency managers suggesting an animus against individuals with prior military
service. ID at 5. The administrative judge further found that the fact that
four other veterans were afforded overtime by the appellant’s former supervisor
“seriously erodes any inference that the real reason [the appellant’s former
supervisor] provided overtime to L.C. was because of the appellant’s military
service.” ID at 6. The administrative judge concluded that the record failed to
raise even an inference of anti-military animus regarding the allocation of
overtime. Id.
¶8 As explained above, under USERRA, when an appellant meets his initial
burden of proof, the agency may avoid liability by showing, as an affirmative
defense, that it would have taken the same action for a valid reason without
regard to the appellant’s military service. McMillan, 120 M.S.P.R. 1, ¶ 19. Here,
as the administrative judge correctly found, the appellant did not meet his initial
burden of proof by a preponderance of the evidence. ID at 7. Thus, the burden of
production did not shift to the agency.
¶9 Regarding the appellant’s claim that the agency’s method of assigning
overtime violated the master labor agreement, the administrative judge found that,
while those claims might constitute an unfair labor practice, absent more, they
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are not evidence that the agency acted because of the appellant’s military service.
ID at 6 n.1. On review, the appellant does not allege error in the administrative
judge’s finding.
¶10 Concerning the appellant’s nonselection claim raised below, the
administrative judge found that the individuals selected for the positions were
veterans and therefore the appellant did not present even the inference that
anti-military animus was a motivating factor. ID at 6. The appellant does not
challenge this finding on review. Similarly, the appellant does not challenge the
administrative judge’s finding that, while there may have been favoritism in the
assignment of the less desirable second shift, there was no evidence that the
favoritism was based on the appellant’s military service. ID at 6.
¶11 In sum, after carefully considering the appellant’s arguments on review, we
discern no reason to disturb the administrative judge’s well-reasoned initial
decision denying the appellant’s request for corrective action. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 105‑06 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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,
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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 and 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 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
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.