David Hendy v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID M. HENDY, DOCKET NUMBER

Appellant, CH-4324-18-0228-I-1

v.

DEPARTMENT OF VETERANS DATE: May 2, 2024

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

David M. Hendy , Chicago, Illinois, pro se.

Zane Perry Schmeeckle , Esquire, Kansas City, Missouri, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

dismissed for lack of jurisdiction his appeal under the Uniformed Services

Employment and Reemployment Rights Act of 1994 (USERRA). For the reasons

discussed below, we GRANT the appellant’s petition for review, VACATE the

initial decision, and REMAND the case to the regional office for further

adjudication in accordance with this Remand Order.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

Effective June 8, 2016, the appellant resigned from the Industrial Hygienist

position at the agency’s Edward Hines, Jr. Veterans Affairs Hospital because of

“ongoing medical care for service[-]connected medical conditions and a number

of appointments.” Initial Appeal File (IAF), Tab 4 at 16, 18, 20. He

subsequently applied for a number of positions at the agency, but he was not

selected. On October 25, 2017, the appellant filed with the Department of Labor

(DOL) a USERRA complaint raising allegations of a failure to reinstate,

discrimination based on a military disability, and a hostile work environment.

IAF, Tab 1 at 1-2. In a letter dated January 19, 2018, DOL informed the

appellant that it had completed its investigation of his USERRA complaint and

had determined that his allegations were not supported by the evidence. Id.

The appellant thereafter filed an appeal with the Board, which was

docketed by the regional office as a USERRA appeal. 2 IAF, Tab 1. In a

jurisdictional order, the administrative judge informed the appellant that the

Board may lack jurisdiction over his appeal. IAF, Tab 3 at 1. She apprised the

appellant of his burden of proving the Board’s jurisdiction over a USERRA

appeal and she ordered him to file evidence and argument on the issue. Id. at 2-7.

The appellant did not respond.

Based on the written record, the administrative judge issued an initial

decision dismissing this USERRA appeal for lack of jurisdiction. IAF, Tab 5,

Initial Decision (ID) at 1, 5. Specifically, she found that the appellant failed to

make a nonfrivolous allegation that the agency took an action against him that

was motivated by his military status. ID at 3-5.

The appellant has filed a petition for review, and he has included

supplemental documentation. Petition for Review (PFR) File, Tabs 7-14. The

2

Based on the appellant’s submission, the administrative judge also docketed a separate

appeal under the Veterans Employment Opportunities Act of 1998, Hendy

v. Department of Veterans Affairs, MSPB Docket No. CH-3330-18-0110-I-1. IAF,

Tab 5 at 2 & n.1.

3

agency has responded to the petition for review, and the appellant has filed a

reply to the agency’s response. 3 PFR File, Tabs 18, 20.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s burden in a USERRA appeal

There are two types of USERRA cases—reemployment cases under

38 U.S.C. §§ 4312-4318 and discrimination cases under 38 U.S.C. § 4311(a)-(b).

Bostwick v. Department of Agriculture, 122 M.S.P.R. 269, ¶ 5 (2015). An

appellant must make nonfrivolous allegations of Board jurisdiction over a

USERRA claim. 5 C.F.R. § 1201.57(b). The Board takes a “liberal approach

in determining whether jurisdiction exists under USERRA.” Beck v. Department

of the Navy, 120 M.S.P.R. 504, ¶ 8 (2014) (quoting Yates v. Merit Systems

Protection Board, 145 F.3d 1480, 1484 (Fed. Cir. 1998)). The relative weakness

of the specific factual allegations initially made by an appellant in his USERRA

claim should not serve as the basis for dismissing the appeal for lack of

jurisdiction; rather, if he fails to develop those allegations, his USERRA claim

should be denied on the merits. Beck, 120 M.S.P.R. 504, ¶ 8. Once an appellant

has established the Board’s jurisdiction over his USERRA claim, he has a right to

a hearing on the merits of his claim. Id., ¶ 10; Gossage v. Department of Labor,

118 M.S.P.R. 455, ¶ 10 (2012).

We will consider the appellant’s evidence and argument regarding jurisdiction on

review because he did not have sufficient jurisdictional notice below.

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). An appellant must receive

explicit information on what is required to establish an appealable jurisdictional

issue. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed.

3

The appellant has filed motions to waive the deadlines for filing his petition for

review and his reply brief. PFR File, Tabs 15, 19. We find that the appellant’s petition

and reply were both timely filed, and therefore no waiver is required. Accordingly, we

deny the appellant’s motions.

4

Cir. 1985). In this case, the administrative judge dismissed the appeal for lack of

jurisdiction after the appellant failed to respond to her jurisdictional order. ID

at 1, 3-5. In his petition for review, however, the appellant claims that he did not

receive proper jurisdictional notice because the jurisdictional order was served on

an incorrect mailing address. PFR File, Tab 7 at 5, 7-8, 19-22. The agency does

not dispute the appellant’s claim that the jurisdictional order was served on an

incorrect mailing address. PFR File, Tab 18 at 5, 9. Moreover, the certificates of

service for the acknowledgment order, the jurisdictional order, the agency’s

response to the jurisdictional order, and the initial decision all contain the same

allegedly incorrect mailing address for the appellant. IAF, Tab 2 at 17, Tab 3

at 9, Tab 4 at 21, Tab 6. Thus, we conclude that the appellant did not receive

proper jurisdictional notice below, and we will therefore consider the evidence

and argument that he has filed on review. See Fleming v. Department of Labor, 97

M.S.P.R. 341, ¶¶ 8-9 (2004).

The appellant has proven exhaustion of his administrative remedies before DOL.

An appellant may either file a USERRA complaint with the Secretary of

Labor pursuant to 38 U.S.C. § 4322 or file an appeal directly with the Board

pursuant to 38 U.S.C. § 4324(b). Gossage, 118 M.S.P.R. 455, ¶ 8. If, as here, an

appellant first files a USERRA complaint with the Secretary of Labor under 38

U.S.C. § 4322, he may not file a USERRA appeal with the Board until the

Secretary notifies him that DOL has not resolved the complaint. 38 U.S.C.

§ 4324(b)(2); Gossage, 118 M.S.P.R. 455, ¶ 8; 5 C.F.R. § 1208.11(b). USERRA

does not provide for exhaustion of the complaint before DOL as a matter of time;

it instead requires notification from DOL that the Secretary’s efforts did not

resolve the appellant’s complaint. 38 U.S.C. § 4324(b)(2); Gossage,

118 M.S.P.R. 455, ¶ 8. Thus, under 38 U.S.C. § 4324(b)(2), the Board does not

acquire jurisdiction over an appellant’s USERRA claim until he receives the

required notification from DOL. 38 U.S.C. §§ 4322(e), 4324(b)(2); Gossage,

118 M.S.P.R. 455, ¶ 8. Here, it is undisputed that the appellant’s submission of

5

the DOL close-out letter satisfies the USERRA exhaustion requirement. IAF, Tab

1 at 1-2; see 5 C.F.R. § 1201.57(c)(1) (providing that an appellant bears the

burden of proving by preponderant evidence exhaustion of a statutory complaint

process that is preliminary to a Board appeal).

The appellant has failed to establish jurisdiction over a USERRA reemployment

claim.

In his petition for review, the appellant alleges that the agency violated his

right to reemployment under 38 U.S.C. § 4312 and various regulatory provisions

found at 5 C.F.R. part 353 by failing to reemploy him after he resigned.

PFR File, Tab 7 at 8-10, 14, 20-22.

USERRA provides reemployment rights to “any person whose absence

from a position of employment is necessitated by reason of service in the

uniformed services.” 38 U.S.C. § 4312(a). An appellant must allege that an

agency has not met its reemployment obligations under 38 U.S.C. §§ 4312-4318

following his absence from civilian employment to perform uniformed service.

Bostwick, 122 M.S.P.R. 269, ¶ 5.

A person’s entitlement to reemployment rights is dependent on, among

other things, whether the person “has given advance written or verbal notice of

[uniformed] service” to the employer. 5 U.S.C. § 4312(a). Here, the appellant

admits that the reason for his resignation was not to perform uniformed service,

but was to treat service-connected injuries. IAF, Tab 4 at 16; PFR File, Tab 7

at 9-10, 13-14, 24, Tab 9 at 5. Because the appellant concedes that he did not

resign due to uniformed service, and his resignation letter does not satisfy the

notice requirement in section 4312(a), the appellant has failed to nonfrivolously

allege that the agency had any reemployment obligations. Therefore, he has

failed to meet his burden in a USERRA reemployment claim. See, e.g., Bostwick,

122 M.S.P.R. 269, ¶¶ 8-9 (interpreting the USERRA reemployment provisions as

requiring that an individual’s absence from a position of employment be

necessitated by reason of service in the uniformed services); Duncan v. U.S.

6

Postal Service, 73 M.S.P.R. 86, 90 (1997) (finding that the USERRA provision on

reemployment rights did not apply to the appeal when the appellant left his

position because of his disability retirement and not by reason of military

service), overruled on other grounds by Fox v. U.S. Postal Service, 88 M.S.P.R.

381 (2001).

The appellant has established jurisdiction over a USERRA discrimination claim

under 38 U.S.C. § 4311(a).

The appellant further alleges on review that the agency discriminated

against him under 38 U.S.C. § 4311(a). PFR File, Tab 7 at 20. To establish

jurisdiction over a USERRA discrimination claim under section 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 States, (2) the

agency denied him 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. Gossage, 118 M.S.P.R.

455, ¶ 10. Here, it is undisputed that the appellant has satisfied the first two

jurisdictional elements described above. Specifically, the record shows that the

appellant received an honorable discharge from active-duty service with the

U.S. Army in 1979, and the agency does not dispute that it did not hire or rehire

him following his resignation. IAF, Tab 4 at 13, 20. Thus, the relevant question

here is whether the appellant has made a nonfrivolous allegation that his prior

uniformed service was “a substantial or motivating factor” in the agency’s

decision not to hire or rehire him. Kitlinski v. Merit Systems Protection Board,

857 F.3d 1374, 1379-80 (Fed. Cir. 2017).

After considering the appellant’s petition for review, we find that he has

nonfrivolously alleged that his prior uniformed service was a motivating factor in

the agency’s decision not to select him for any positions. Specifically, the

appellant asserts that a Human Resources Officer (HRO) deceived him,

deliberately failed to advise him of his reinstatement rights, and falsely portrayed

7

the relevant hiring authority for a vacancy announcement—which led to him not

being selected for any positions to which he had applied—because the HRO

disliked and resented his uniformed service; the appellant also alleges that the

agency discriminated against him based on his uniformed service when, on

December 5, 2017, a nonveteran was hired for the position that he previously

held. PFR File, Tab 7 at 6-7, 11-12, 14. We find, based on these allegations, that

the appellant made a nonfrivolous allegation of jurisdiction over a USERRA

discrimination claim under 38 U.S.C. § 4311(a). See, e.g., Beck, 120 M.S.P.R.

504, ¶ 9 (finding jurisdiction over the appellant’s USERRA claim that his

nonselection was due to his prior military service and that his qualifications were

superior to the nonveteran selectee); Swidecki v. Department of Commerce,

113 M.S.P.R. 168, ¶ 9 (2010) (finding jurisdiction over the appellant’s USERRA

appeal when he alleged that the agency denied his application to be reemployed in

a position that he previously held, in part, because of his prior uniformed

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

(finding that the appellant’s claim that he was terminated during his probationary

period because “agency officials didn’t like the fact” of his military service was

sufficient to constitute a nonfrivolous allegation of a USERRA violation).

Although unclear, it appears that the appellant is also asserting a USERRA

discrimination claim based on his service-connected conditions. PFR File, Tab 7

at 10, 15-17. However, such a claim is not cognizable under USERRA. See, e.g.,

Mims v. Social Security Administration, 120 M.S.P.R. 213, ¶ 22 (2013) (finding

that a claim of discrimination based on a disability arising from military service

is not cognizable under USERRA); Ray v. Department of Veterans Affairs, 84

M.S.P.R. 108, ¶ 3 (1999) (noting that a claim of discrimination based on a

military-connected disability was a claim of disability discrimination, not a claim

covered under USERRA).

8

The appellant has established jurisdiction over a USERRA retaliation claim under

38 U.S.C. § 4311(b).

The appellant also alleges on review that the agency retaliated against him

under 38 U.S.C. § 4311(b). PFR File, Tab 7 at 20. Under section 4311(b):

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.

38 U.S.C. § 4311(b). If an appellant engages in one or more forms of the protected

activity described above, an agency violates section 4311(b) if his protected

activity “is a motivating factor in the employer’s action, unless the employer can

prove that the action would have been taken in the absence of [his protected

activity].” 38 U.S.C. § 4311(c)(2); Burroughs v. Department of the Army, 120

M.S.P.R. 392, ¶ 7 (2013). Thus, to establish jurisdiction over a USERRA

retaliation claim under section 4311(b), an appellant must nonfrivolously allege

that he engaged in protected activity (as described in section 4311(b)) and that

such protected activity was a motivating factor in the agency’s action.

The appellant alleges on review that the agency discriminated in

employment against him, i.e., did not hire or rehire him, in reprisal for taking an

action to enforce a protection afforded under USERRA, assisting or otherwise

participating in a USERRA investigation, and exercising a right provided for by

USERRA. PFR File, Tab 7 at 20, 27. Specifically, the appellant alleges that,

after complaining on October 21, 2017, to Human Resources and an office

director that the agency was discriminating against him and violating his

USERRA rights, he was not selected for a position on December 5, 2017. 4

PFR File, Tab 7 at 19. The appellant’s statement suggests that his complaints

motivated the agency’s decision not to select him. Coupled with the

4

It is unclear whether these complaints were made in conjunction with the appellant’s

October 25, 2017 DOL complaint. IAF, Tab 1 at 1.

9

liberal pleading standard afforded to such claims at the jurisdictional stage,

Beck, 120 M.S.P.R. 504, ¶ 8, we find that the appellant has met his burden to

make a nonfrivolous allegation of jurisdiction over his USERRA retaliation

claim.

We have also considered the appellant’s assertion that he engaged in

protected USERRA activity by resigning to treat his service-connected

injuries and by exercising a right to reemployment, which led to the agency’s

decision not to select him for any positions. PFR File, Tab 7 at 9-10, 22; see

Hayden v. Department of the Air Force, 812 F.3d 1351, 1354-55, 1362-63 (Fed.

Cir. 2016) (considering the appellant’s efforts to enforce his USERRA

reemployment rights following his return from military service as part of the

analysis of his USERRA retaliation claim). However, as discussed above, the

appellant has failed to nonfrivolously allege that he was entitled to reemployment

rights as a “person whose absence from a position of employment [was]

necessitated by reason of service in the uniformed services.” 38 U.S.C.

§ 4312(a); see supra ¶¶ 13-14. Because the appellant did not make a nonfrivolous

allegation that he was entitled to USERRA reemployment rights, we find that his

resignation and efforts to be hired or rehired do not constitute activity protected

by section 4311(b).

The administrative judge should consider on remand whether the appellant’s

remaining claims are relevant to his USERRA discrimination or retaliation

claims.

The Board’s authority in pure USERRA cases involving personnel actions

that are not otherwise appealable to the Board is limited to determining whether

the agency has violated USERRA. Bodus v. Department of the Air Force,

82 M.S.P.R. 508, ¶ 12 (1999); see Ruffin v. Department of the Treasury,

89 M.S.P.R. 396, ¶ 10 (2001) (observing that, in USERRA appeals, the Board

may review only claims that an agency has failed or refused, or is about to fail or

refuse, to comply with certain USERRA provisions). Thus, the USERRA statute

10

does not confer jurisdiction on the Board to address an agency’s underlying

personnel action when the merits of that action are not otherwise appealable to

the Board. Wooten v. Department of Veterans Affairs, 102 M.S.P.R. 131, ¶ 13

(2006).

On review, the appellant raises the following additional claims against the

agency: (1) harmful error; (2) prohibited personnel practices; (3) due process

violations; (4) disability and age discrimination; (5) violations of certain statutory

and regulatory provisions in its recruitment and selection procedures (set forth at

5 U.S.C. chapter 33 and 5 C.F.R. part 332); (6) violation of his restoration rights

under 5 C.F.R. part 353, based on a compensable injury; (7) violation of

his veterans’ preference rights; and (8) violations of 5 C.F.R. §§ 315.201,

315.401, 352.208, and Executive Order 5396. E.g., PFR File, Tab 7 at 5-6, 8-9,

13-15, 17-18, 20-21, 23-26, 28, Tab 8 at 6, Tab 20 at 6-8, 11, 14, 25-26. Based

on the current record, we are unable to determine whether the consideration of

such claims is necessary, if at all, to adjudicate the appellant’s USERRA

discrimination or retaliation claims. See Davison v. Department of Veterans

Affairs, 115 M.S.P.R. 640, ¶¶ 12-15 (2011) (finding jurisdiction over the

appellant’s USERRA retaliation claim based on his assertion that he exercised his

right as a disabled veteran to leave without pay under Executive Order 5396); but

see Metzenbaum v. Department of Justice, 89 M.S.P.R. 285, ¶ 15 (2001) (finding

the Board’s jurisdiction does not extend beyond the complained-of discrimination

because of military status, does not allow for a decision on the merits of the

underlying matter except to the extent necessary to address the appellant’s

military-status discrimination claims, and, thus, does not include a review of

other claims of prohibited discrimination). On remand, the administrative judge

should determine in the first instance whether any of the appellant’s additional

claims are relevant to his USERRA discrimination or retaliation claims. To the

extent the appellant believes that any of the documentation that he submitted on

11

review is relevant to the merits of his USERRA discrimination or retaliation

claims, he may resubmit such documentation on remand.

The appellant is entitled to engage in discovery on remand.

The appellant has made a request to engage in discovery. PFR File, Tab 7

at 13. The Board’s regulations make no provision for discovery during the

petition for review process, Mosby v. Department of Housing and Urban

Development, 114 M.S.P.R. 674, ¶ 4 (2010), and we deny this request. The

record reflects that the administrative judge granted the appellant 30 days from

the date of the acknowledgment order to initiate discovery; however, the order

was sent to the same incorrect mailing address as the jurisdictional order. IAF,

Tab 2 at 3, 17, Tab 3 at 9. Moreover, the administrative judge issued the initial

decision before the expiration of that deadline and, thus, the administrative judge

deprived the appellant of the full opportunity for discovery. IAF, Tab 2 at 3; ID

at 1; see Lynch v. Department of Defense, 114 M.S.P.R. 219, ¶ 8 (2010) (finding

that, by issuing the initial decision before the close of the discovery period, the

administrative judge effectively denied the appellant the opportunity to finalize

his discovery efforts). Accordingly, the administrative judge shall provide the

parties with an opportunity to engage in discovery on remand.

The appellant’s remaining arguments do not warrant a different outcome.

We decline to address the appellant’s claims regarding a violation of

Veterans Employment Opportunities Act of 1998 (VEOA) and equitable tolling,

e.g., PFR File, Tab 7 at 16, 23, Tab 20 at 5, 10, because such claims are not

relevant to the jurisdictional issue in this matter.

We also decline to consider the appellant’s new argument and evidence

regarding his alleged nonselection in 2018 for an Industrial Hygienist Green

Environmental Management Systems Coordinator position advertised under

vacancy announcement HN-10151155-18-BM. E.g., PFR File, Tab 7 at 12, 19,

Tab 20 at 6-11, 15, 18-20. This vacancy announcement is the subject of Hendy v.

12

Department of Veterans Affairs, MSPB Docket No. CH-3330-18-0514-I-1, and

Hendy v. Department of Veterans Affairs, MSPB Docket No. CH-4324-18-0541-I-

1.

Further, we deny the appellant’s request to join this USERRA appeal with

his other Board appeals because doing so would not expedite processing of the

cases. PFR File, Tab 7 at 22-23, Tab 20 at 5; 5 C.F.R. § 1201.36(b). In addition,

we deny the appellant’s request for a stay. PFR File, Tab 7 at 29.

ORDER

For the reasons described herein, we vacate the initial decision and remand

the case to the regional office for further adjudication on the merits of the

appellant’s USERRA discrimination and retaliation claims. On remand, the

administrative judge shall provide the parties an opportunity to engage in

discovery and shall provide the appellant with his requested hearing.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.