Joe Allen v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOE ALLEN, DOCKET NUMBER

Appellant, DC-4324-16-0698-I-1

v.

DEPARTMENT OF THE NAVY, DATE: July 20, 2023

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Brian J. Lawler, Esquire, San Diego, California, for the appellant.

Adrianne Michelle Mittelstaedt, Norfolk, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

dismissed his Uniformed Services Employment and Reemployment Rights Act of

1994 (USERRA) appeal as moot. For the reasons discussed below, we GRANT

the appellant’s petition for review, VACATE the initial decision, and REMAND

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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the case to the regional office for further adjudication in accordance with this

Remand Order.

BACKGROUND

¶2 The appellant is employed by the agency as a Firefighter and performs

military service as a member of the U.S. Coast Guard Reserve. Initial Appeal

File (IAF), Tab 1 at 3, Tab 5 at 67. According to the appellant, he typically

works a 24-hour shift from 7 a.m. to 7 a.m. and performs Coast Guard Reserve

duty at a location about a 1-hour drive away from his work location. IAF, Tab 8

at 7. In June 2016, he filed an appeal with the Board alleging that the agency

violated his rights under USERRA and subjected him to a hostile work

environment on the basis of his membership in the uniformed services by

repeatedly engaging in the following conduct: demanding that he provide

military orders before and after performing his service obligations to justify his

military leave for periods of less than 31 days; calling or demanding to speak

with his reserve command to verify the timing and purpose of his military leave

absences; ordering him to report to work during a regularly scheduled shift on the

same day he completed his military service obligations; requiring him to take

annual or sick leave for absences due to his military s ervice; requiring him to

“request” permission for military leave by completing leave forms; denying his

request for military leave or other leave without pay (LWOP) to perform his

military service obligations; and harassing him about his military service

obligations. IAF, Tab 1 at 7-8, Tab 8 at 5-7.

¶3 The administrative judge held two status conferences to clarify the issues,

identify the relevant legal standards, and discuss settlement. IAF, Tabs 7, 10. In

an order and summary of the second status confere nce, she set forth and

interpreted the pertinent statutory and regulatory provisions, noting that, pursuant

to the plain language of those provisions, several of the alleged agency actions

would be impermissible. IAF, Tab 10. Thereafter, on September 16, 2016, the

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agency filed a “Notice of Compliance,” in which it outlined the following

corrective actions that it had taken or directed in order to resolve the appellant’s

concerns and to make him whole: (1) terminated an administrative investigation

regarding the appellant; (2) directed that, upon his return from military service,

he would not be expected to report back to work until the beginning of his next

full shift; (3) directed that, if he was scheduled to work on the day before his

period of military service, he would be expected to work only a half shift;

(4) directed that he would not be required to provide his military orders before or

after he performed military service; (5) directed that any periods of absence

without leave related to the USERRA issues in this appeal would be converted to

LWOP unless he wished to elect another appropriate form of paid leave;

(6) directed that he may elect to convert to LWOP any period of annual leave or

compensatory time previously taken to cover a period of milit ary service;

(7) directed that, while leave submission and approval procedures remained in

effect, the leave approval authority would engage the appellant prior to taking any

action to not fully approve a military service-related leave form he submitted; and

(8) directed that USERRA rights posters be posted on the bulletin board of every

firehouse in the Fire District in which the appellant was employed. IAF, Tab 5

at 59, Tab 11 at 4-7. On October 14, 2016, the agency moved to dismiss the

appeal as moot, certifying that it had completed all of the actions identified in its

Notice of Compliance and arguing that the appellant had now received all of the

relief to which he would be entitled if he had prevailed in his USERRA appeal.

IAF, Tab 12.

¶4 The appellant moved for entry of a consent decree declaring him to be a

prevailing party, which the agency opposed as untimely filed, not in accordance

with law, and superfluous in light of the agency’s Notice of Compliance. IAF,

Tabs 14, 16. The appellant also responded in opposition to the agency’s motion

to dismiss, arguing that the agency had not provided him all of the relief to w hich

he would be entitled if he were to prevail on the merits . IAF, Tab 15. Among

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other things, he argued that his harassment and hostile work environment claims

were still live. Id. at 6.

¶5 The administrative judge issued an initial decision dismissing the appeal as

moot. IAF, Tab 18, Initial Decision (ID). She found that the agency had

provided the appellant with all of the relief that he could have received had he

prevailed on the merits. ID at 5-6. The appellant has filed a petition for review,

arguing that the administrative judge erred in dismissing his appeal as moot and

in denying his request for a consent decree. Petition for Review (PFR) File,

Tab 1 at 5-6. 2 The agency has filed a response. PFR File, Tab 4.

ANALYSIS

The administrative judge acted within her authority by discussing the law and

narrowing the issues in a status conference.

¶6 The appellant argues the administrative judge abused her discretion by

issuing the September 16, 2016 order and summary of status conference , which

“prematurely and improperly indicated how she would rule on the case,” thereby

allowing the agency an opportunity to “cut Appellant off from his rights and

further cut Appellant’s counsel off from the attorneys’ fees to which he is legally

and rightfully entitled.” PFR File, Tab 1 at 6, 9. As noted above, the

September 16, 2016 order and summary set forth and interpreted the applicable

law and stated that certain alleged agency actions were improper pursuant to the

plain language of the relevant statutes and regulations. IAF, Tab 10.

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A petition for review of the initial decision was due no later than December 9, 2016.

ID at 7. The appellant, through counsel, filed his petition for review on December 10,

2016, at 2:37 a.m. Eastern Standard Time. PFR File, Tab 1. He moved that the Board

accept the petition for review as timely filed pursuant to 5 C.F.R. § 1201.14(m), which

provides that the timeliness of a pleading will be determined based on the time zone

from which the pleading was submitted. PFR File, Tab 1 at 4, Tab 3. Because the

record reflects that the appellant’s counsel is located in California, we accept the

appellant’s petition for review as timely filed at 11:37 p.m. Pacific Standard Time on

December 9, 2016. See 5 C.F.R. § 1201.14(m); PFR File, Tab 1.

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¶7 An administrative judge has broad discretion to control the proceedings

before her and is, among other things, authorized to conduct a prehearing

conference “for the settlement and simplification of issues,” in order to identify,

narrow, and define the issues. 5 C.F.R. § 1201.41(b)(12); Merit Systems

Protection Board Judges’ Handbook, Chapter 9, Prehearing and Status

Conferences. The Board has likened the administrative judge’s authority to hold

prehearing conferences to Federal Rule of Civil Procedure 16, whic h, among

other things, allows pretrial conferences to be used for “formulating and

simplifying the issues, and eliminating frivolous claims or defenses.” Marr v.

U.S. Postal Service, 49 M.S.P.R. 196, 200 (1991); Fed. R. Civ. P. 16(c)(2)(A).

¶8 In this case, we find that the administrative judge did not abuse her

discretion by discussing the plain meaning of relevant statutory and regulatory

provisions in the status conference and the order and summary memorializing the

status conference. We find that she acted appropriately within her authority to

narrow and refine the issues on appeal. See 5 C.F.R. § 1201.41(b).

The appellant is not entitled to a consent decree.

¶9 The appellant also argues on review, as he did below, that he is entitled to a

consent decree declaring him to be the prevailing party in this appeal because, in

effect, the parties entered into a “judicially sanctioned settlement” and because

the status conference and the order and summary memorializing it were the

“judicial imprimatur” that led the agency to comply with its obligations under

USERRA. PFR File, Tab 1 at 8-9. In the initial decision, the administrative

judge noted that, although the appellant requested a consent decree, he failed to

identify any basis for the Board to issue such a decree. ID at 4. On review, the

appellant argues that the administrative judge erred by improperly placing the

burden on him to explain how she could issue a consent decree. PFR File, Tab 1

at 9.

¶10 A consent decree is a final judgment resulting from an agreement between

the parties that “the parties desire and expect will be reflected in, and be

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enforceable as, a judicial decree that is subject to the rules generally applicable to

other judgments and decrees.” Rufo v. Inmates of Suffolk County Jail, 502 U.S.

367, 378 (1992); United States v. Armour & Co., 402 U.S. 673, 681-82 (1971)

(stating that“[c]onsent decrees are entered into by parties to a case after careful

negotiation has produced an agreement on their precise terms”); Black’s Law

Dictionary 441 (10th ed. 2014) (defining “consent decree” as “[a] court decree

that all parties agree to”). Although the Board’s regulations do not provide for

the entry of a “consent decree,” the Board may enter a settlement agreement into

the record and will retain jurisdiction for enforcement purposes. See 5 C.F.R.

§ 1201.182(a). In some cases, an appellant who obtains enforce able relief

through a settlement agreement that is entered into the record for purposes of

enforcement by the Board may be considered a prevailing party for purposes of an

award of attorney fees. See Griffith v. Department of Agriculture, 96 M.S.P.R.

251, ¶ 10 (2004).

¶11 Here, however, there is no indication that the parties entered into a

settlement agreement. Settlement agreements are contracts and are governed by

contract law. See Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir.

1988). “[T]he formation of a contract requires a bargain in which there is a

manifestation of mutual assent to the exchange and a consideration.” Restatement

(Second) of Contracts § 17(1) (1981). Despite what one party might believe as to

the existence of a contract, one party’s unilateral promise to provide a benefit to

another party does not create a contract. See, e.g., Black v. Department of

Transportation, 116 M.S.P.R. 87, ¶ 18 (2011); Thompson v. Department of the

Treasury, 100 M.S.P.R. 545, ¶ 9 (2005). Accordingly, the agency’s unilateral

promise to change its conduct during the pendency of the appeal and voluntary

correction of its potential USERRA violations did not create a settlement

agreement, and there is no merit to the appellant’s contention that the parties

entered into a “judicially sanctioned settlement agreement.” Moreover, the fact

that the agency may have voluntarily provided the corrective action that the

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appellant was seeking through litigation does not establish that he is a prevailing

party. See Buckhannon Board and Care Home, Inc. v. West Virginia Department

of Health and Human Resources, 532 U.S. 598, 605 (2001) (rejecting the

“catalyst theory,” whereby a party could be found to have prevailed on the basis

of the opposing party’s voluntary change of conduct after the filing of a lawsuit ).

The appeal is not moot and must be remanded for adjudication of the appellant’s

hostile work environment claim.

¶12 An appeal will be dismissed as moot when, by virtue of an intervening

event, the Board cannot grant any effectual relief in favor of the appellant, as

when the appellant, by whatever means, obtained all of the relief he could have

obtained had he prevailed before the Board and thereby lost any legally

cognizable interest in the outcome of the appeal. Washburn v. Department of the

Air Force, 119 M.S.P.R. 265, ¶ 12 (2013). An appellant who has prevailed in a

USERRA claim is entitled to “an order requiring the agency . . . to comply with”

the violated USERRA provisions and “to compensat[ion] . . . for any loss of

wages or benefits suffered by such person by reason of such lack of compliance.”

38 U.S.C. § 4324(c)(2); Murphy v. Department of Justice, 107 M.S.P.R. 154, ¶ 8

(2007).

¶13 Although we agree with the administrative judge that the agency has

provided the appellant much of the relief that he sought in this appeal, we also

agree with the appellant that he could potentially receive further relief in

connection with his hostile work environment claim. Specifically, if the appellant

were to prove his claim of a hostile work environment based on his uniformed

service, the Board could order the agency to cease its harassment, in compliance

with 38 U.S.C § 4311(a). See 38 U.S.C. § 4324(c)(2). We observe that the

appellant’s hostile work environment claim is grounded not only in the matters

already resolved pursuant to the Notice of Compliance, but also includes alleged

chiding and derogatory comments directed by agency officials toward him and his

military service obligations. IAF, Tab 1 at 6. Nowhere has the agency admitted

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that any of its employees engaged in such conduct toward the appellant or

promised to remedy the situation going forward. Therefore, even assuming that

the agency could have unilaterally provided full relief for the appellant’s hostile

work environment claim, it did not do so.

¶14 On petition for review, the agency argues that the appellant failed to

establish jurisdiction over his hostile work environment claim because his

allegations were not sufficiently specific and were not supported by an affidavit

or other evidence. PFR File, Tab 4 at 16-17. The Board has held that, to

establish jurisdiction over a hostile work environment claim under USERRA, an

appellant must nonfrivolously allege that he was subjected to a p attern of ongoing

and persistent harassing behavior that was sufficiently sever e or pervasive to

amount to an adverse employment action or discrimination in employment on

account of his uniformed service. Kitlinski v. Department of Justice, 2023 MSPB

13, ¶ 14. 3 In considering whether an appellant has nonfrivolously alleged that he

was subjected to a hostile work environment, the Board will take a liberal

approach, under which the relative weakness of the appellant’s allegations

concerning the seriousness of the alleged acts will not serve as a basis for

jurisdictional dismissal. See id.

¶15 In this case, we find that the appellant’s allegations of a hostile work

environment were sufficiently specific to satisfy the USERRA pleading

requirement. “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 app ellant

fails to develop his contentions, his USERRA claim should be denied on the

merits.” Searcy v. Department of Agriculture, 115 M.S.P.R. 260, ¶ 7 (2010). On

remand, the appellant will have the opportunity to further develop the record on

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Kitlinski concerned an alleged hostile work environment in violat ion of USERRA’s

anti-retaliation provision at 38 U.S.C. § 4311(b). 2023 MSPB 13, ¶ 14. Apart from the

motive for creating the hostile work environment (discrimination versus retaliation), we

find it appropriate to apply the same standard for a hostile work environment claim

arising from USERRA’s antidiscrimination provision at 38 U.S.C. § 4311(a).

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the merits of his hostile work environment claim, through both documentary

evidence and hearing testimony.

ORDER

¶16 For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.