Corey Stoglin v. Department of Agriculture

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

COREY D. STOGLIN, DOCKET NUMBER

Appellant, CH-3330-17-0501-I-1

v.

DEPARTMENT OF AGRICULTURE, DATE: January 31, 2023

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Corey D. Stoglin, Minneapolis, Minnesota, pro se.

Martin A. Gold, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

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

denied his request for corrective action in his appeal under the Veterans

Employment Opportunities Act of 1998 (VEOA) and dismissed his appeal under

the Uniformed Services Employment and Reemployment Rights Act of 1994

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

(USERRA) for lack of jurisdiction. For the reasons discussed below, we GRANT

the appellant’s petition for review, AFFIRM the finding that the appellant is not

entitled to corrective action under VEOA, VACATE the jurisdictional dismissal

of the appellant’s USERRA claim, and REMAND the case to the Central

Regional Office for further adjudication in accordance with this Remand Order.

BACKGROUND

¶2 The appellant, a 30% disabled preference-eligible veteran, is employed as a

GS-12 Equal Opportunity Specialist. Initial Appeal File (IAF), Tab 6 at 8, 10,

Tab 10 at 21. On October 19, 2016, the appellant applied under vacancy

announcement AG OASCR-2016-0292 for the GS-14 Equal Opportunity

Specialist (Team Lead) position. IAF, Tab 10 at 10, 26-30. On or around

February 1, 2017, the appellant learned that the agency did not select him for the

position. IAF, Tab 6 at 4, 40. He requested that the agency reconsider its

determination. Id. at 40. The agency reevaluated his application and aff irmed its

determination on February 7, 2017. Id. at 40-41.

¶3 On June 29, 2017, the appellant filed a complaint with the Department of

Labor (DOL), alleging that the agency violated his veterans’ preference rights.

IAF, Tab 1 at 6. On July 20, 2017, DOL closed the appellant’s complaint,

determining that the evidence did not support his allegation that the agency

violated his veterans’ preference rights. Id. at 7-8. On August 5, 2017, the

appellant filed the instant Board appeal. IAF, Tab 1.

¶4 The administrative judge issued an order informing the appellant of the

criteria required to meet his burden of proving jurisdiction over his appeal,

including the exhaustion and timeliness prerequisites that must be fulfilled to

pursue a VEOA claim with the Board. IAF, Tab 4 at 1-6. In his response, the

appellant reiterated his belief that the agency violated his rights under a statute or

regulation relating to veterans’ preference and raised a claim that the agency may

have violated USERRA. IAF, Tab 6 at 4-7. The agency moved to dismiss the

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appeal on the grounds that the appellant’s DOL complaint was untimely filed and

equitable tolling was inapplicable. IAF, Tab 9 at 9-11.

¶5 Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision that denied the appellant’s request for corrective action

under VEOA, finding that he did not file his VEOA complaint with the Secretary

of Labor within 60 days of the alleged violation, as required by statute, and failed

to provide a basis for the 60-day deadline to be equitably tolled. IAF, Tab 12,

Initial Decision (ID) at 4-7. He also dismissed the appellant’s USERRA claim for

lack of jurisdiction. ID at 7-8.

¶6 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1 at 4. The agency has filed a response to the petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly denied the appellant’s claim for corrective

action under VEOA.

¶7 Under VEOA, a preference eligible who alleges that an agency violated his

or her rights under any statute or regulation relating to veterans’ preference may

file a complaint with the Secretary of Labor. 5 U.S.C. § 3330a(a)(1)(A). Such a

complaint “must be filed within 60 days after the date of the alleged violation.”

5 U.S.C. § 3330a(a)(2)(A). The 60-day deadline is not jurisdictional; rather, it is

similar to a statute of limitations that is subject to equitable tolling. Kirkendall v.

Department of the Army, 479 F.3d 830, 842-43 (Fed. Cir. 2007); Bent v.

Department of State, 123 M.S.P.R. 304, ¶ 12 (2016). The U.S. Supreme Court

has explained that Federal courts have typically applied equitable reli ef only

sparingly and that it is allowed only in situations “where the claimant has actively

pursued his judicial remedies by filing a defective pleading during the statutory

period, or where the complainant has been induced or tricked by his adversary’s

misconduct into allowing the filing deadline to pass.” Irwin v. Department of

Veterans Affairs, 498 U.S. 89, 96 (1990); see Heimberger v. Department of

Commerce, 121 M.S.P.R. 10, ¶ 10 (2014). When, as here, the appellant failed to

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timely file a VEOA complaint with the Secretary of Labor and did not establish

grounds for equitable tolling, the Board must deny the request for corrective

action. Garcia v. Department of Agriculture, 110 M.S.P.R. 371, ¶ 13 (2009).

¶8 It is undisputed that the appellant did not timely file his VEOA complaint

with the Secretary of Labor. 2 IAF, Tab 6 at 4. There is neither argument nor

evidence that the appellant filed a defective complaint within the statutory

period. 3 The appellant argues on review, however, that the agency engaged in

“trickery” when it provided incomplete facts and denied knowledge of his equal

employment opportunity (EEO) activity. IAF, Tab 9 at 11; PFR File, Tab 1

at 4-5. While the agency has acknowledged that it incorrectly wrote in its

response below that the appellant had not filed an EEO complaint, PFR File,

Tab 3 at 6, he does not explain how the agency’s action provides a basis for the

60-day deadline to be equitably tolled. Because the agency’s misstatement

occurred after the filing deadline already had passed, he could not have been

induced or tricked into missing the deadline by the agency’s misstatement. See

Hayes v. Department of the Army, 111 M.S.P.R. 41, ¶ 11 (2009). Thus, it appears

2

The record shows that the agency notified the appellant of his nonselection on or

around February 1, 2017, and then reaffirmed its decision on February 7, 2017, in

response to his request for reconsideration. IAF, Tab 6 at 40-41. The appellant did not

file a complaint with the DOL until June 29, 2017. Id. at 108. Thus, the filing of the

appellant’s VEOA complaint with the Secretary of Labor was well beyond the statutory

deadline outlined in 5 U.S.C. § 3330a(a)(2)(A). It occurred more than 60 days from the

date of the alleged violation.

3

A defective pleading is one that does not satisfy the criteria for such a pleading but

nevertheless manifests an intention for it to serve as such a pleading. See Gingery v.

Office of Personnel Management, 119 M.S.P.R. 43, ¶ 18 n.5 (2012); Greco v.

Department of Homeland Security, 110 M.S.P.R. 135, ¶ 8 (2008). For instance, the

appellant’s pursuit of his remedies in the wrong forum within the limitations period

may qualify as a defective pleading. See Irwin, 498 U.S. at 96 n.3; Brown v. U.S.

Postal Service, 110 M.S.P.R. 381, ¶ 14 (2009). While the appellant has alleged that he

initiated an EEO complaint on March 13, 2017, there is no evidence that this complaint

amounted to a defective pleading that he intended to file with DOL. IAF, Tab 6 at 4;

see Brown, 110 M.S.P.R. 381, ¶ 13. He does not proffer the EEO complaint or show

that his EEO complaint encompassed a veterans’ preference claim. Id.

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that the appellant’s failure to file a timely complaint with DOL was the result of

his own lack of due diligence in preserving his legal rights, which is not grounds

for equitable tolling. Brown v. U.S. Postal Service, 110 M.S.P.R. 381, ¶ 12

(2009).

¶9 We have considered the appellant’s allegation that he was wrongly denied a

hearing. PFR File, Tab 1 at 3. A VEOA complainant does not have an

unconditional right to a hearing before the Board, and the Board may dispose of a

VEOA appeal on the merits without a hearing. Coats v. U.S. Postal Service,

111 M.S.P.R. 268, ¶ 13 (2009). Disposition of a VEOA appeal without a hearing

is appropriate when, as here, there is no genuine dispute of material fact and one

party must prevail as a matter of law. Id.

¶10 We also decline to consider any argument or evidence that the appellant

submits for the first time on review because he has failed to show that it was

unavailable, despite his due diligence, when the record closed. See Banks v.

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); Avansino v. U.S.

Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d).

The administrative judge did not issue proper Burgess notice for the appellant’s

USERRA claim.

¶11 Under USERRA, the Board has jurisdiction over a person alleging

discrimination in Federal employment on account of prior military service or

military obligations. 38 U.S.C. §§ 4311(a), 4324(b)(1); Henderson v. U.S. Postal

Service, 95 M.S.P.R. 454, ¶ 5 (2004). USERRA provides, in relevant part, that

“[a] person who . . . has performed . . . service in a uniformed service shall not be

denied initial employment . . . on the basis of that . . . performance of

service . . . .” 38 U.S.C. § 4311(a).

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

must nonfrivolously allege that: (1) he performed duty or has an obligation to

perform duty in a uniformed service of the United Sta tes; (2) the agency denied

him initial employment, reemployment, retention, promotion, or any benefit of

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

to perform duty in the uniformed service. Swidecki v. Department of Commerce,

113 M.S.P.R. 168, ¶ 6 (2010). A claim of discrimination under USERRA should

be broadly and liberally construed to determine whether it is nonfrivolous,

particularly when, as here, the appellant is pro se. Id. The weakness of the

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

lack of jurisdiction; rather, if the appellant fails to develop h is contentions, his

USERRA claim should be denied on the merits. Id.

¶13 The appellant argues on review that the administrative judge did not

correctly adjudicate the USERRA issue. PFR File, Tab 1 at 4. For the reasons

set forth below, we agree.

¶14 Although the appellant raised a USERRA claim in his response to a VEOA

jurisdiction order, IAF, Tab 6 at 6-7, the administrative judge did not issue

another order apprising the appellant of the showing he was required to make to

establish Board jurisdiction over his USERRA claim. See Burgess v. Merit

Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (explaining that

an appellant must receive explicit information on what is required to establish an

appealable jurisdictional issue). Neither the agency’s response nor the initial

decision set forth the burdens and elements of proof to establish Board

jurisdiction over the USERRA claim. IAF, Tab 9 at 8; ID at 7; see Scott v.

Department of Justice, 105 M.S.P.R. 482, ¶ 6 (2007) (finding that an

administrative judge’s failure to provide an appellant with proper Burgess notice

can be cured if the agency’s pleadings contain the notice that was lacking in the

acknowledgment order, or if the initial decision itself put the appellant on notice

of what he must do to establish jurisdiction so as to afford him the opportunity to

meet his jurisdictional burden for the first time on petition for review).

¶15 Rather, in the initial decision, the administrative judge states that the

appellant must make an initial showing that his military obligation was a

“substantial or motivating factor” in the agency action—a requirement that does

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not arise at the jurisdictional stage. ID at 7-8; see Lazard v. U.S. Postal Service,

93 M.S.P.R. 337, ¶ 9 (2003). The administrative judge’s determination that the

appellant failed to make the requisite initial showing may be relevant to the

merits of the USERRA claim, but it does not necessarily preclude a finding of

jurisdiction. ID at 7-8; see Swidecki, 113 M.S.P.R. 168, ¶¶ 8-9.

¶16 We therefore remand this appeal so that the administrative judge can inform

the appellant of his burdens and elements of proof on his USERRA claim, afford

him an opportunity to show that his appeal is within the Board’s jurisdiction, and,

if the appellant makes the requisite showing, adjudicate the claim on the merits.

ORDER

¶17 For the reasons discussed above, we remand the case to the Central

Regional Office for further adjudication in accordance with this Remand Order.

The administrative judge should incorporate by reference our analysis and

disposition of the appellant’s VEOA claim 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 both of his claims. See Goldberg v.

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

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.