Opinion

Jacob Aloko v. United States Postal Service

Court: Merit Systems Protection Board
Filed: May 21, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JACOB ALOKO, DOCKET NUMBER

Appellant, DA-4324-18-0521-I-1

UNITED STATES POSTAL SERVICE, DATE: May 21, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jacob Aloko , Richmond, Texas, pro se.

Yvette K. Bradley , Esquire, Dallas, Texas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

denied his request for corrective action under the Uniformed Services

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

we VACATE the initial decision that denied the appellant corrective action under

USERRA and instead DISMISS the appellant’s appeal under USERRA for lack of

jurisdiction.

BACKGROUND

The appellant, a Mail Processing Clerk, filed an appeal alleging that the

agency discriminated against him based on his status as a disabled military

veteran in violation of USERRA. 2 Initial Appeal File (IAF), Tab 1 at 5. The

administrative judge identified the allegedly discriminatory actions in dispute to

include the following: offering the appellant a light duty assignment outside his

medical restrictions; denying his request for accommodation of his disability; and

proposing his removal. IAF, Tab 1 at 5, Tab 16. Initially, the appellant requested

a hearing; however, during the proceedings below he withdrew his request. IAF,

Tab 1 at 2, Tab 14. Based on the written record, the administrative judge found

that the appellant did not show by preponderant evidence that his military service

or disabled veteran status was a factor in the agency’s light duty offer, the

response to his request for accommodation, or the proposed removal. 3 IAF,

Tab 23, Initial Decision (ID) at 11-14.

In his petition for review, the appellant contends that the reason for his

mistreatment by the agency was discrimination on the bases of race and national

origin (African). Petition for Review (PFR) File, Tab 1 at 3. He also alleges that

the administrative judge failed to address his assertion that the agency prevented

him from speaking directly with the Plant Manager, who, according to the

The administrative judge docketed a separate appeal regarding what she characterized

as the appellant’s claim that he had been constructively suspended. Aloko v. U.S. Postal

Service, MSPB Docket No. DA-0752-19-0023-I-1, Tabs 1, 3. The administrative judge

dismissed the appeal for lack of jurisdiction. Aloko, MSPB Docket No. DA-0752-19-

0023-I-1, Initial Decision (Feb. 15, 2019). That decision became the final decision of

the Board when neither party filed a petition for review.

After the close of record, the appellant submitted a letter, dated January 3, 2019,

removing him from his position. IAF, Tab 22. That matter was docketed as a separate

appeal. Aloko v. U.S. Postal Service, MSPB Docket No. DA-0752-19-0179-I-1.

appellant, would have gotten him a light duty assignment in a different unit. Id.

Additionally, he alleges that the agency officials lied in their affidavits. Id.

ANALYSIS

There are two types of cases that arise under USERRA: reemployment

cases under 38 U.S.C. §§ 4312-4318 and discrimination cases under 38 U.S.C.

§ 4311(a) and (b). Bostwick v. Department of Agriculture, 122 M.S.P.R. 269, ¶ 5

(2015). This appeal involves a discrimination claim. The Board employs a

liberal approach to determine whether an appellant has established the Board’s

jurisdiction under USERRA, and the relative weakness of an appellant’s

assertions in support of his claim is not a basis for a jurisdictional dismissal.

Beck v. Department of the Navy, 120 M.S.P.R. 504, ¶ 8 (2014); Swidecki v.

Department of Commerce, 113 M.S.P.R. 168, ¶ 6 (2010). Rather, if an appellant

fails to develop his contentions, his claim should be denied on the merits. 4 Beck,

120 M.S.P.R. 504, ¶ 8; Swidecki, 113 M.S.P.R. 168, ¶ 6. Nevertheless, not every

reference to USERRA brings a matter within the Board’s jurisdiction.

Under 38 U.S.C. § 4311(a), “[a] person who . . . has performed . . . 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 . . . performance of service.” Gossage v.

Department of Labor, 118 M.S.P.R. 455, ¶ 10 (2012) (quoting 38 U.S.C.

§ 4311(a)). To establish jurisdiction over a USERRA discrimination claim before

the Board, 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 his

performance of duty or obligation to perform duty in the uniformed service. Id.

Once an appellant has established the Board’s jurisdiction over his USERRA appeal,

he has a right to a hearing on the merits of his claim. Gossage v. Department of Labor,

118 M.S.P.R. 455, ¶ 10 (2012).

To establish a USERRA violation, the appellant must prove these elements by a

preponderance of the evidence. Sheehan v. Department of the Navy, 240 F.3d

1009, 1013 (Fed. Cir. 2001). If the appellant makes this showing, the agency can

avoid liability by showing, as an affirmative defense, that it would have taken the

same action for a valid reason without regard to his uniformed service.

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

An allegation that an appellant’s employer took or failed to take various

actions “on the basis of” his performance of his duty in a uniformed service

would constitute a nonfrivolous allegation entitling the appellant to Board

consideration of his USERRA claim. See Duncan v. U.S. Postal Service,

73 M.S.P.R. 86, 92 (1997), overruled on other grounds by Fox v. U.S. Postal

Service, 88 M.S.P.R. 381 (2001). However, as discussed below, a claim that an

employee was discriminated against based solely on a disability arising from his

military service is not cognizable under USERRA.

The USERRA statutory language prohibits discrimination in employment

on the basis of service in a uniformed service. 38 U.S.C. § 4311(a). “Service in

a uniformed service” is defined as “performance of duty . . . in a uniformed

service . . . .” 38 U.S.C. § 4303(13). Thus, the statute prohibits the denial of a

benefit of employment based on an employee’s “performance of [military] duty,”

not the denial of a benefit of employment based on a veteran’s disability arising

out of his performance of duty. See McBride v. U.S. Postal Service, 78 M.S.P.R.

411, 415 (1998). This interpretation is consistent with the purposes of the statute,

which mentions “service,” and not “injuries or disabilities arising from service.”

See 38 U.S.C. § 4301(a)(3); McBride, 78 M.S.P.R. at 415. The Board has

consistently interpreted USERRA so as to find a lack of jurisdiction over claims

of discrimination based on a disability, even if the injury was incurred in military

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

(finding that the Board lacks jurisdiction over the appellant’s USERRA claim

because, to the extent he claimed he was discriminated against based on disability

arising from his military service, such a claim is not cognizable under USERRA);

Henson v. U.S. Postal Service, 110 M.S.P.R. 624, ¶¶ 8-9 (2009) (determining that

USERRA did not authorize the Board to adjudicate the appellant’s claim that the

agency discriminated against him based on his service-connected “medical

problems”); Noble v. U.S. Postal Service, 93 M.S.P.R. 693, ¶ 14 (2003)

(concluding that USERRA did not authorize the Board to adjudicate the

appellant’s claim of discrimination based on his service-connected disability

alone); Ray v. Department of Veterans Affairs, 84 M.S.P.R. 108, ¶ 3 (1999)

(determining that the appellant’s claim of discrimination based on a

military-connected disability was not a claim covered under USERRA); McBride,

78 M.S.P.R. at 415 (stating that USERRA does not authorize the Board to

adjudicate a claim of discrimination based on disability alone, even if the

underlying disability arose from military service).

In the instant appeal, the administrative judge found that, while the

appellant asserts, and the agency’s Standard Form 50 reflects, that the appellant is

a veteran, the appellant does not allege that he lost a benefit of employment due

to the performance of duty in a uniformed service; rather, he alleges that he was

treated improperly due to the disability or disabilities attributable to his prior

military duties. ID at 7. Nonetheless, without explanation, the administrative

judge found that the appellant nonfrivolously alleged that he was denied a benefit

of employment by the agency on account of his disabled veteran status. ID at 8.

Although the appellant indicated that he was a disabled veteran and that he

was denied a light duty assignment within his medical restrictions and

accommodation of his disability, and issued a notice of proposed removal, he

failed to make an allegation of fact to support his assertion that the agency denied

him these benefits of employment based on his military service or his “status” as

a veteran. He did not allege that he was treated differently than non-veterans

regarding these benefits of employment and stated that he is not the only veteran

working in the plant with military disabilities and that the others are treated with

respect. IAF, Tab 7 at 2. The appellant further stated that his case is one of equal

employment opportunity discrimination. Id. He made no allegation of fact that

directly connects the alleged denial of benefits of employment to his military

service rather than to the disability that he incurred while in military service. 5

Thus, consistent with the discussion of the statute and Board precedent

above, we find that the appellant has failed to raise a nonfrivolous allegation that

the denial of a benefit of employment was due to his performance of duty or

obligation to perform duty in a uniformed service. Accordingly, the appellant has

not raised a valid claim under USERRA, and the administrative judge erred by

finding that the appellant nonfrivolously alleged that he was denied a benefit of

employment. Rather, we find that the appellant’s appeal is properly dismissed for

lack of jurisdiction. 6

NOTICE OF APPEAL RIGHTS 7

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

The appellant also alleged that his supervisor stated that he “brought” his disability to

the agency from his military service and that he sought to have the agency stop telling

him that “the origin” of his medical disability was from the military. IAF, Tab 1 at 5,

Tab 7 at 2. Importantly, the appellant does not deny that his disability resulted from his

military service and does not explain how, if true, the statements show discrimination

based on his military service.

Regarding the appellant’s claims of race and national origin discrimination, the Board

lacks the authority to review other claims of prohibited discrimination in connection

with a USERRA appeal. Metzenbaum v. Department of Justice, 89 M.S.P.R. 285, ¶ 15

(2001); see Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 18 (2006).

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.

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:

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. 420 (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, the

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. 8 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

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