Filed: Oct. 15, 2014
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID WAYNE YAGER, DOCKET NUMBER Appellant, CH-4324-14-0514-I-1 v. UNITED STATES POSTAL SERVICE, DATE: October 15, 2014 Agency. THIS ORDER IS NONPRECEDENTIAL * David Wayne Yager, Morganfield, Kentucky, pro se. James E. Campion, Jr., Esquire, Philadelphia, Pennsylvania, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member REMAND ORDER ¶1 The appellant has filed a petition for review of t
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID WAYNE YAGER, DOCKET NUMBER Appellant, CH-4324-14-0514-I-1 v. UNITED STATES POSTAL SERVICE, DATE: October 15, 2014 Agency. THIS ORDER IS NONPRECEDENTIAL * David Wayne Yager, Morganfield, Kentucky, pro se. James E. Campion, Jr., Esquire, Philadelphia, Pennsylvania, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member REMAND ORDER ¶1 The appellant has filed a petition for review of th..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID WAYNE YAGER, DOCKET NUMBER
Appellant, CH-4324-14-0514-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: October 15, 2014
Agency.
THIS ORDER IS NONPRECEDENTIAL *
David Wayne Yager, Morganfield, Kentucky, pro se.
James E. Campion, Jr., Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed, for lack of jurisdiction, his appeal challenging his nonselection for two
positions. For the reasons discussed below, we GRANT the appellant’s petition
for review. We AFFIRM the initial decision IN PART, VACATE 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
and REMAND the case to the regional office for further adjudication in
accordance with this Order.
¶2 The appellant is employed as a Supervisor of Distribution Operations at the
agency’s Evansville, Indiana facility. Initial Appeal File (IAF), Tab 1 at 1. The
appellant filed a Board appeal challenging his nonselection for two positions,
which allegedly were lateral transfers, promotions, or details within the agency.
Id. The appellant, a 50-year-old veteran, argued that his nonselection constituted
discrimination on the basis of his age and sex because the positions were filled by
younger females. Id. at 5. The administrative judge issued a series of
jurisdictional orders notifying the appellant of his burden to establish jurisdiction
and of the relevant proof requirements under 5 U.S.C. chapter 75, the Veterans
Employment Opportunities Act of 1998 (VEOA), and the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
§§ 4301-4333) (USERRA). See IAF, Tabs 2, 7-8. In response, the appellant filed
additional argument, further alleging that the agency discriminated against him on
the basis of age, sex, and veterans’ preference by selecting less qualified
nonveteran females. IAF, Tabs 4, 6, 10, 14. The agency moved to dismiss the
appeal for lack of jurisdiction. IAF, Tab 5 at 4-7, Tab 13 at 4.
¶3 After the close of the record, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction without holding the
requested hearing. IAF, Tab 15, Initial Decision (ID). The administrative judge
found that 5 U.S.C. chapter 75 does not provide employees a right to appeal
nonselections for promotions, lateral transfers, or details and that, in the absence
of an otherwise appealable action, the Board lacked jurisdiction over the
appellant’s age and sex discrimination claims. ID at 3. Regarding the appellant’s
service-related claims, the administrative judge found that, because the appellant
did not present any argument or evidence that he had exhausted his administrative
remedies with the Department of Labor (DOL), he failed to establish jurisdiction
under VEOA. ID at 4. The administrative judge further found that, because the
3
appellant failed to establish that “his military service was a substantial or
motivating factor in the agency’s failure to laterally transfer, detail, or promote
him to either of the two positions in question,” the appellant failed to establish
jurisdiction under USERRA. ID at 5-6.
¶4 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. The agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant reasserts his claims of discrimination on the basis
of age, sex, and veterans’ preference as the reasons for his nonselection. PFR
File, Tab 1 at 3. The appellant further contends that he is more qualified than the
two nonveteran females who were selected. Id. Furthermore, the appellant, who
is pro se, argues that he has sufficiently responded to the administrative judge’s
jurisdictional orders and established Board jurisdiction over his appeal; any
deficiency in his pleadings, he argues, is attributable to his not “know[ing] how to
address a judge.” Id.
¶6 Based on our review of the record and applicable law, we agree with the
administrative judge’s findings that the appellant failed to nonfrivolously allege
jurisdiction under VEOA and over his age and sex discrimination claims.
However, we disagree with the administrative judge regarding the appellant’s
USERRA claims.
The appellant established jurisdiction over his USERRA appeal.
¶7 The Board’s jurisdiction is not plenary; it 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). The appellant bears
the burden of proving, by preponderant evidence, that the Board has jurisdiction
over his appeal. 5 C.F.R. § 1201.56(a)(2)(i). It is well settled that the Board
generally lacks jurisdiction to review an agency’s decision not to select a
particular applicant for a vacant position. Sapla v. Department of the Navy,
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118 M.S.P.R. 551, ¶ 8 (2012). Nonetheless, an exception to this general rule
exists in the context of a USERRA appeal. Id.
¶8 USERRA provides, in relevant part, that a person who has performed
service in a uniformed service shall not be denied a promotion, or other benefit of
employment, on the basis of that performance of service. 5 U.S.C. § 4311(a). To
establish Board jurisdiction over a nonselection for promotion under USERRA,
the appellant must at least allege that: (1) he performed duty in a uniformed
service of the United States; (2) he was not selected for a promotion; and (3) the
nonselection was due to the performance of duty in the uniformed service.
Hillman v. Tennessee Valley Authority, 95 M.S.P.R. 162, ¶ 5 (2003), overruled on
other grounds, Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660,
¶ 8 n.1 (2005). Here, as the administrative judge recognized, the appellant
alleged, and the agency did not dispute, that he was a disabled veteran and lost a
benefit of employment, i.e., a lateral transfer and a detail or promotion. ID at 5.
However, we disagree with the administrative judge’s finding that the appellant’s
statements “that he is a disabled veteran and two non-veteran females were
selected for the position in question” are insufficient “to establish the Board’s
jurisdiction over his claim that he was discriminated against because of his
military service.” ID at 5.
¶9 The administrative judge incorrectly interpreted the “non-selection was due
to the performance of duty in the uniformed service” jurisdictional element as
requiring the appellant to “make a non-frivolous allegation that his military
service was a substantial or motivating factor in the agency’s failure to select him
for a lateral transfer, detail, or promotion.” ID at 5. In order 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 action. Burroughs v. Department of the Army,
120 M.S.P.R. 392, ¶ 5 (2013) (citing McMillan v. Department of Justice,
5
120 M.S.P.R. 1, ¶ 19 (2013)). However, that showing is not required in order to
establish jurisdiction. See Hillman, 95 M.S.P.R. 162, ¶ 5.
¶10 In general, a claim under USERRA should be broadly and liberally
construed. Tindall v. Department of the Army, 84 M.S.P.R. 230, ¶ 6 (1999). As a
result, an argument that a nonveteran was selected over the appellant, who is a
veteran, is sufficient to meet the third prong of USERRA’s jurisdictional
requirement. See Durand v. Environmental Protection Agency, 106 M.S.P.R. 533,
¶ 8 (2007); see also Gaston v. Peace Corps, 100 M.S.P.R. 411, ¶¶ 7-8 (2005)
(alleging that a nonveteran was selected over the appellant, a veteran, was
sufficient to meet the nonselection due to the performance of duty in the
uniformed service prong); Martir v. Department of the Navy, 81 M.S.P.R. 421,
¶¶ 7-12 (1999) (finding that the appellant met the third prong of the USERRA
jurisdictional requirement by alleging that he was a veteran, the agency denied
him permanent appointment to a vacant position, and the agency offered the
appointments to similarly-situated nonveterans). Here, in light of the liberal
construction standard and the appellant’s pro se status, his contentions that less
qualified nonveterans were selected over him, IAF, Tabs 4, 6, 10, 14; PFR File
Tab 1, constitute an allegation that his nonselection was due to his prior
uniformed service, see Durand, 106 M.S.P.R. 533, ¶ 8; see also Gaston,
100 M.S.P.R. 411, ¶ 8; Martir, 81 M.S.P.R. 421, ¶ 9. Thus, the appellant has
established that his appeal is covered under 38 U.S.C. § 4311(a) and therefore, is
within the Board’s jurisdiction under 38 U.S.C. § 4324(b). Accordingly, we
VACATE the initial decision to the extent it found that the Board lacks
jurisdiction over the appellant’s USERRA claim.
¶11 Because the appellant has established Board jurisdiction over his USERRA
appeal, he is entitled to the hearing that he requested to further develop the record
regarding his USERRA claim. See Kirkendall v. Department of the Army,
479 F.3d 830, 844-46 (Fed. Cir. 2007) (finding that an individual who brings a
6
USERRA appeal has an unconditional right to a hearing); see also Downs v.
Department of Veterans Affairs, 110 M.S.P.R. 139, ¶¶ 17-18 (2008) (same).
The administrative judge correctly dismissed the appellant’s VEOA claim for
lack of jurisdiction.
¶12 The administrative judge found that the appellant did not satisfy VEOA’s
jurisdictional requirements because he failed to show that he had exhausted his
administrative remedies with DOL. ID at 4. To establish Board jurisdiction over
an appeal brought under VEOA, an appellant must: (1) show that he exhausted
his remedy with DOL; and (2) make nonfrivolous allegations that (i) he is a
preference eligible within the meaning of the VEOA, (ii) the action(s) at issue
took place on or after October 30, 1998, and (iii) the agency violated his rights
under a statute or regulation relating to veterans’ preference. Hillman,
95 M.S.P.R. 162, ¶ 9. As the appellant has not offered any argument or evidence
showing that he exhausted his administrative remedies with DOL, we agree with
the administrative judge that the appellant failed to establish jurisdiction over his
VEOA claim.
The Board lacks jurisdiction to consider the appellant’s other discrimination
claims.
¶13 Finally, the appellant claims that the agency discriminated against him
based on his age and sex when it failed to select him for the two positions. IAF,
Tabs 4, 6, 10, 14; PFR File, Tab 1. Absent an otherwise appealable action to the
Board, these allegations of discrimination cannot be considered. See Lowe v.
Department of the Navy, 27 M.S.P.R. 223, 225 n.5 (1985) (citing Charles v.
Department of the Navy, 3 M.S.P.R. 113, 114 (1980)). Because a nonselection is
not an adverse action appealable to the Board, the appellant’s nonselection is not
a basis for conferring Board jurisdiction over the appellant’s age and sex
discrimination claims. See Elliott v. Department of the Air Force, 102 M.S.P.R.
364, ¶ 5 (2006). Furthermore, as the Board’s jurisdiction over USERRA
complaints or appeals does not extend beyond the complained-of discrimination
because of military status, USERRA also is not a basis for raising pendant age
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and sex discrimination claims. Metzenbaum v. Department of Justice,
89 M.S.P.R. 285, ¶ 15 (2001). Thus, we agree with the administrative judge that
the Board lacks jurisdiction over the appellant’s age and sex discrimination
claims.
¶14 Therefore, we VACATE the portion of the initial decision addressing the
appellant’s USERRA appeal, and we AFFIRM the portions of the initial decision
addressing the appellant’s VEOA and sex and age discrimination claims. The
appellant is entitled to notice regarding the USERRA methods of proof and his
burden of proving his USERRA claim. See Matz v. Department of Veterans
Affairs, 91 M.S.P.R. 265, ¶¶ 8-9 (2002). After holding a hearing on the
appellant’s USERRA appeal, the administrative judge shall issue a new initial
decision.
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order. The
administrative judge should incorporate her prior analysis and disposition of the
appellant’s VEOA claim and sex and age discrimination claims 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 all of his claims. See
Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660, ¶ 12 (2005).
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
