Opinion

William Jolley v. Department of Housing and Urban Development

Court: Merit Systems Protection Board
Filed: May 20, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM B. JOLLEY, DOCKET NUMBERS

Appellant, SF-0752-13-0583-M-1

SF-0752-14-0286-M-1

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, DATE: May 20, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

William B. Jolley, Brunswick, Georgia, pro se.

Jo Ann Riggs, Seattle, Washington, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The U.S. Court of Appeals for the Federal Circuit has remanded this case to

the Board for further adjudication. Jolley v. Merit Systems Protection Board and

Department of Housing & Urban Development, 636 F. App’x 567, 570 (Fed. Cir.

2016). The court affirmed the Board’s decision in part, but vacated it in part,

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

finding that the Board failed to properly address the appellant’s claim that the

agency’s action in directing his reassignment in 2008 was a violation of his rights

under the Uniformed Services Employment and Reemployment Rights Act of

1994 (USERRA). Id. at 6. Upon further review, we find that the appellant has

not established his claim that the agency violated his USERRA rights in this

regard and we therefore deny his request for corrective action.

BACKGROUND

¶2 In 2008, the agency directed the appellant’s reassignment from his

nonsupervisory GS-15 Operations Specialist position in Jacksonville, Florida to a

supervisory GS-15 Field Office Director position in Boise, Idaho. Jolley v.

Department of Housing & Urban Development, MSPB Docket No. SF-0752-13-

0583-I-1, Initial Appeal File (IAF), Tab 10 at 12, Tab 11 at 165. The agency

similarly directed the reassignments of several other nonsupervisory GS-15s to

supervisory positions in other geographical locations as part of its effort to

promote greater efficiency and better utilize human capital resources. The

appellant, who is a preference eligible, IAF, Tab 11 at 134, accepted the

reassignment but elected not to relocate his family. IAF, Tab 10 at 4. According

to the appellant, he sought different assignments so that he would be closer to

home, id. at 5, and, for the same reason, also asked to be allowed to “swap”

positions with a coworker, id. at 5-6, but was unsuccessful. Id. at 6. In 2010, he

retired. IAF, Tab 11 at 134. He claimed that he felt compelled to do so in order

“to be closer to family and personal interests.” IAF, Tabs 5, 9-10.

¶3 On appeal, the appellant challenged his retirement as involuntary and

argued, inter alia, that the action was in violation of 38 U.S.C. §§ 4311(a) and

(b). Specifically, he alleged that the agency was aware that he was a veteran and

that he had filed prior USERRRA appeals 2 and had assisted other employees in

Of the several USERRA appeals the appellant has filed, none were resolved in his

favor. See, e.g., Jolley v. Department of Justice, MSPB Docket No. SF-4324-14-0405-

their appeals and otherwise advocated for the rights of veterans. IAF, Tab 13.

The administrative judge issued a Notice of USERRA Proof Requirements, 3

setting forth the elements of proving a claim of retaliation for the performance of

uniformed service or the enforcing of a protection afforded under 38 U.S.C.

chapter 43, testifying in such a proceeding, assisting or participating in such an

investigation, or exercising such a right. 4 IAF, Tab 16.

¶4 After reviewing the parties’ written submissions, the administrative judge

issued an initial decision that dismissed the appeals for lack of jurisdiction. IAF,

Tab 36, Initial Decision (ID) at 3, 12. He found no evidence that the appellant’s

directed reassignment and the agency’s decisions not to transfer him or agree to

his suggested position “swap” were in any way motivated by a desire to coerce

his retirement, that the appellant had a choice to continue working in Boise or to

retire, and that the fact that he did not desire to do either d id not render his

decision to retire involuntary. ID at 8-9. Finally, the administrative judge found

that the appellant’s discrimination and retaliation claims did not support a finding

that his retirement was involuntary. ID at 9-12. The Board denied the appellant’s

petition for review of that decision. Jolley v. Department of Housing & Urban

I-1, Final Order (Aug. 28, 2014), aff’d, 602 F. App’x 805 (Fed. Cir. 2015); Jolley v.

Department of Housing & Urban Development, MSPB Docket No. AT-3443-08-0162-

I-1, Initial Decision (Mar. 25, 2008), aff’d, 299 F. App’x 966 (Fed. Cir. 2008); Jolley v.

Department of Housing & Urban Development, MSPB Docket No. AT-4324-08-0316-

I-1, Initial Decision (May 23, 2008), aff’d, 299 F. App’x 969 (Fed. Cir. 2008).

The appellant declined a hearing. IAF, Tab 1 at 2.

While that appeal was pending, the appellant filed another appeal, again arguing that

his retirement was involuntary, this time claiming that it was in retaliation for his

protected whistleblowing disclosures. Jolley v. Department of Housing & Urban

Development, MSPB Docket No. SF-0752-14-0286-W-1, Initial Appeal File (0286

IAF), Tab 1. The appellant alleged that he disclosed a violation of law, rule, or

regulation, and gross mismanagement by the agency in connection with his directed

reassignment, and various irregularities in the Department of Justice’s Assistant U.S.

Attorney’s representation of the agency in separate litigation. Id. at 5, 7-10. Again, the

appellant specifically declined a hearing. Id. at 2. The administrative judge joined the

two appeals for adjudication. 0286 IAF, Tab 16, Initial Decision at 1 n.1.

Development, MSPB Docket Nos. SF-0752-13-0583-I-1, SF-0752-14-0286-I-1,

Final Order at 2 (June 16, 2015).

¶5 On appeal of the Board’s decision, the court found no basis to disturb the

Board’s determination that the appellant did not show that his retirement was

involuntary. Jolley, 636 F. App’x at 569. The court also did not disturb the

Board’s finding that the appellant failed to support, as an alleged basis for

involuntariness, his claim that the agency coerced his retirement in retaliation for

protected whistleblower disclosures. 5 Id. The court found, however, that the

Board incorrectly concluded that the appellant presented his appeal solely as an

involuntary retirement claim, and that it failed to address his assertion that his

reassignment to Boise was a USERRA violation. Id. The court considered the

appellant’s allegations that he was denied a benefit of employment in being

reassigned to Boise because “he was not allowed to choose from other available

and more geographically advantageous positions” and that he was reassigned

based on his USERRA-related activities, specifically his having previously filed

several USERRA claims against the agency. Id. at 570. Finding the appellant’s

allegations sufficient to establish the Board’s jurisdiction over his USERRA

reassignment claim, id., the court remanded this case to the Board for

consideration of the merits of the appellant’s USERRA challenge to his directed

reassignment.

ANALYSIS

¶6 Title 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,

Neither of these matters is implicated in the court’s remand order.

performance of service, application for service, or obligation [to

perform service].

¶7 Title 38 U.S.C. § 4311(b) provides that:

An employer may not discriminate in employment against or take

any adverse employment action against any person because such

person (1) has taken an action to enforce a protection afforded

any person under this chapter, (2) has testified or otherwise made

a statement in or in connection with any proceeding under this

chapter, (3) has assisted or otherwise participated in an

investigation under this chapter, or (4) has exercised a right

provided for in this chapter. . . .

¶8 To prevail on the merits of a USERRA claim under 38 U.S.C. § 4311(a), an

appellant must prove by preponderant evidence that his uniformed service was a

substantial or motivating factor in the agency’s action, unless the agency can

show that it would have taken the same action for a valid reason without regard to

his uniformed service. 38 U.S.C. § 4311(c); McMillan v. Department of Justice,

120 M.S.P.R. 1, ¶ 19 (2013). To prevail on the merits of a USERRA claim under

38 U.S.C. § 4311(b), an appellant must prove by preponderant evidence that his

protected activity was a motivating factor in the employer’s action, unless the

employer can prove that the action would have been taken in the absence of the

appellant’s protected activity. 38 U.S.C. § 4311(c)(2); Burroughs v. Department

of the Army, 120 M.S.P.R. 392, ¶ 7 (2013).

¶9 An employee’s military service is a motivating factor for an adverse

employment action if the employer “relied on, took into account, considered, or

conditioned its decision” on that service. McMillan, 120 M.S.P.R. 1, ¶ 20. The

factual question of discriminatory motivation or intent may be proven by either

direct or circumstantial evidence. Sheehan v. Department of the Navy, 240 F.3d

1009, 1014 (Fed. Cir. 2001). Discriminatory motivation under USERRA “may be

reasonably inferred from a variety of factors, incl uding 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 toward members protected by the statute

together with knowledge of the employee’s military activity, and disparate

treatment of certain employees compared to other employees. . . .” Id. In

determining whether the employee has proven that his protected status was part of

the agency’s motivation for the agency’s conduct, all record evidence may be

considered, including the agency’s explanation for the actions taken. Id. Because

the “motivating factor” language is identical in both statutory subsections,

Burroughs, 120 M.S.P.R. 392, ¶ 7, it is appropriate to apply the language in the

same fashion to the appellant’s claims regarding his protected activity under

38 U.S.C. § 4311(b).

¶10 We first examine the appellant’s claim that he was denied a benefit of

employment under 38 U.S.C. § 4311(a) when he was reassigned to Boise because

he was not allowed to choose from other available and more geographically

advantageous positions that were available. We construe this claim to also

include the appellant’s assertions that he was not selected for other positions after

his reassignment and that the agency denied his request for a “swap” of positions.

The evidence of record clearly reflects that the appellant is a preference eligible,

IAF, Tab 11 at 134, and the agency has not challenged his claim that he served in

the U.S. Air Force from 1950 to 1954. IAF, Tab 1 at 8.

¶11 Regarding the appellant’s directed reassignment and the related actions, he

has not produced any direct evidence that the agency was motivated by or

intended to discriminate against him because of his military service. As to

circumstantial evidence, there are decades between the appellant’s military

service and the actions of which he complains and therefore no proximity. Nor

has the appellant submitted evidence reflecting any expressed hostility by agency

officials toward those with military service. He acknowledges that other

nonsupervisory employees also received directed reassignments when he did, and,

although he suggests that theirs were not so personall y onerous, IAF, Tab 20

at 8-9, he has not indicated whether any of those individuals had military service.

Id. The appellant alleges that, following his directed reassignment, he applied for

other positions but was not selected, IAF, Tab 5 at 5, Tab 10 at 5, Tab 20 at 8, but

he has submitted no evidence supporting his claim or otherwise demonstrating

that the reason he was not selected was his military service. As to the appellant’s

assertion that the agency denied his request to “swap” positions, he has shown

that he and another Field Office Director who was located in Springfield, Illinois,

first proposed the “swap” to management in August 2009, and the appellant

alleges that the Deputy Director and the two Regional Directors affected

approved the request. IAF, Tab 20 at 11. However, the agency submitted

evidence that the Assistant Deputy Secretary notified the appellant on August 28,

2009, that the matter was “on hold” and that the Deputy was putting all

field-related movements on hold until “the broader transformation initiative is

determined.” IAF, Tab 11 at 148. The agency also submitted evidence that the

Acting Assistant Deputy Secretary notified the appellant in February 2010, that

she had discussed the matter with the Deputy Secretary and the Secretary who

both indicated a desire to make no permanent moves until they decided how the

Office of Field and Policy Management “will fare in the Transformation

initiative.” Id. at 140-41, 145-57. Even if we were to find that the appellant has

shown that the agency in fact denied his request for a job “swap” (he retired on

March 31, 2010), he has not shown that the reason f or the denial was his military

service. In sum, as to the appellant’s directed reassignment and his claims that he

was not thereafter selected for other positions and that the agency denied his

request for a job “swap,” we find that he has not proven by preponderant evidence

that his military service was a motivating factor in those actions.

¶12 We now examine the appellant’s claim that, by these same actions, the

agency violated his rights under 38 U.S.C. § 4311(b). We already have found,

and the agency does not dispute, that the appellant has fi led several USERRA

appeals. IAF, Tab 9 at 7-8, Tab 11 at 10. The appellant also alleges that he

exhibited activism as to veterans’ issues and assisted other employees in their

appeals, IAF, Tab 1 at 2, Tab 5 at 5, Tab 9 at 15, Tab 10 at 6, Tab 11 at 16-17,

and that “it is likely” that his activities in that regard were known to agency

management. IAF, Tab 13 at 17. Notwithstanding, the appellant has not provided

any evidence in support of this part of his claimed protected activity. Burroughs,

120 M.S.P.R. 392, ¶ 6.

¶13 Neither has the appellant produced any direct evidence that , regarding his

directed reassignment and related actions, the agency was motivated to or

intended to discriminate against him because of his prior USERRA appeals and

related activity. As to circumstantial evidence, at least some of the appeals he

filed were in close proximity to the timing of the actions of which the appellant

complains. However, he has submitted no evidence reflecting hostility by agency

officials toward him because of his prior USERRA activity. We already have

addressed, and found unsupported by the record evidence, the appellant’s claims

that other employees received more favorable directed reassignments than did he,

that he was not selected for other positions, and that the agency denied his request

to “swap” positions. As we found that, as to these actions, the appellant failed to

demonstrate that the agency was motivated to or intended to discriminate against

him because of his military service, we similarly find that he has not

demonstrated that the agency was motivated to or intended to retaliate against

him for his protected activity. Burroughs, 120 M.S.P.R. 392, ¶ 6.

¶14 We conclude, therefore, that on the record presented, the appellant has not

proven by preponderant evidence that the agency, by its actions, violated his

rights under 38 U.S.C. § 4311(a) or (b). Sheehan, 240 F.3d at 1015. Therefore

his request for corrective action is denied.

NOTICE OF APPEAL RIGHTS 6

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, th e

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 7 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the