Filed: May 15, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BENJAMIN JACKSON KNIGHT, DOCKET NUMBER Appellant, PH-3443-14-0849-I-1 v. DEPARTMENT OF VETERANS DATE: May 15, 2015 AFFAIRS, Agency. THIS ORDER IS NO NPRECEDENTIAL 1 Benjamin Jackson Knight, Dunbarton, New Hampshire, pro se. Hayden Wallace, Manchester, New Hampshire, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismis
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BENJAMIN JACKSON KNIGHT, DOCKET NUMBER Appellant, PH-3443-14-0849-I-1 v. DEPARTMENT OF VETERANS DATE: May 15, 2015 AFFAIRS, Agency. THIS ORDER IS NO NPRECEDENTIAL 1 Benjamin Jackson Knight, Dunbarton, New Hampshire, pro se. Hayden Wallace, Manchester, New Hampshire, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismiss..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN JACKSON KNIGHT, DOCKET NUMBER
Appellant, PH-3443-14-0849-I-1
v.
DEPARTMENT OF VETERANS DATE: May 15, 2015
AFFAIRS,
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Benjamin Jackson Knight, Dunbarton, New Hampshire, pro se.
Hayden Wallace, Manchester, New Hampshire, for the agency.
BEFORE
Susan Tsui Grundmann, 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 treatment following
military service. For the reasons discussed below, we GRANT the appellant’s
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
petition for review and REMAND the case to the regional office for further
adjudication in accordance with this Order.
BACKGROUND
¶2 The appellant is an Auditor with the agency’s Veterans Health
Administration. Initial Appeal File (IAF), Tab 1 at 1. 2 In August 2014, he filed a
Board appeal alleging that the agency failed to provide him with a performance
appraisal and award while he was on military leave in October 2011. Id. at 3, 5.
With his appeal form, the appellant submitted a Certificate of Release or
Discharge from Active Duty (Form DD-214), which indicated that he performed
active duty military service with the Air Force Reserve between April 4, 2011,
and January 4, 2012. 3 Id. at 28. The appellant also submitted a draft
memorandum that a Human Resources Specialist prepared for his former
supervisor’s signature, which stated that she was unable to complete his
performance appraisal for fiscal year (FY) 2011, because he was on military leave
at the end of the fiscal year. Id. at 10, 12; see IAF, Tab 4 at 18 (indicating that
the appellant’s supervisor changed positions). The memorandum stated that the
appellant’s former supervisor had expected to give him an outstanding rating and
requested that Human Resources issue him an $800 performance award. IAF,
Tab 1 at 12.
¶3 The agency moved to dismiss the appeal, arguing that the appellant failed to
raise a nonfrivolous allegation that he was subject to an action appealable to the
Board, and that his appeal was untimely. IAF, Tab 5 at 4-7. Alternatively, the
agency argued that it could not provide the appellant with a performance
2
Prior to a promotion in August 2011, the appellant was an Accounting Technician with
the agency. IAF, Tab 1 at 12, Tab 4 at 49.
3
The appellant also submitted a second Form DD-214, wh ich indicated that he
performed additional active duty military service with the Air Force Reserve between
January 9, 2012, and April 29, 2012. IAF, Tab 1 at 29. However, the appellant did not
allege that the agency failed to provide him with a performance appraisal or award for
work performed during that time period. See id. at 5 (the appellant’s allegations).
3
appraisal for FY 2011, because 5 C.F.R. § 430.208(a) prohibits agencies from
issuing a performance rating based on an “assumed level of performance.” Id.
at 7. In addition, the agency submitted evidence indicating that the appellant’s
former supervisor never signed the draft memorandum requesting his performance
award due to a dispute regarding which supervisor should have been responsible
for evaluating his performance during the time period at issue. IAF, Tab 4 at 3-4,
15-18.
¶4 The administrative judge issued an order to show cause, which provided
information regarding Board jurisdiction over adverse actions under 5 U.S.C.
chapter 75 and ordered the appellant to submit evidence and argument indicating
that the Board had jurisdiction over his appeal. IAF, Tab 6. The appellant did
not respond to the order, and the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID).
In the initial decision, the administrative judge did not reference the Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA), but
stated that the appellant did not allege that there was any relationship between his
military leave and the agency’s failure to issue his FY 2011 performance
appraisal or award. ID at 1 n.1.
¶5 The appellant has filed a petition for review, in which he requests guidance
regarding where to pursue his claims. Petition for Review (PFR) File, Tab 1 at 4.
The agency has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred in dismissing this appeal for lack of jurisdiction
because the appellant was not placed on notice of his burden to establish
jurisdiction over a USERRA claim.
¶6 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. Cir. 1985). In the present case, the appellant
alleged that he was on military leave and “never received a performance appraisal
4
in October 2011 and award like I would normally have.” IAF, Tab 1 at 5. He
also submitted the draft memorandum stating that his former supervisor was
unable to complete his performance appraisal because he was on military leave
and requesting authority to issue him an award for his performance. Id. at 12.
Two types of cases arise under USERRA: (1) reemployment cases, in which the
appellant claims that an agency has not met its obligations under 38 U.S.C.
§§ 4312-4318 following the appellant’s absence from civilian employment to
perform uniformed service; and (2) so-called “discrimination” cases, in which the
appellant claims that an agency has taken an action prohibited by 38 U.S.C.
§ 4311(a) or (b). Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 5 (2005). We
construe the appellant’s allegation and submissions as a claim that the agency
either discriminated against him based upon his military obligations or denied
him reemployment rights and benefits after a period of absence due to military
service, in violation of USERRA. See 38 U.S.C. §§ 4311(a), 4312(a).
¶7 While the appellant did not explicitly reference USERRA in his pleadings,
both the U.S. Court of Appeals for the Federal Circuit and the Board have found
that an appellant need not do so, where, as here, his allegations should have
placed the administrative judge on notice that he was attempting to raise a
USERRA claim. 4 See Yates v. Merit Systems Protection Board, 145 F.3d 1480,
1485 (Fed. Cir. 1998) (an appellant established jurisdiction over her USERRA
discrimination claim, although she did not reference USERRA in her Board
appeal); see also Hammond v. Department of Veterans Affairs, 98 M.S.P.R. 359,
¶¶ 9-10 (2005) (although an appellant did not specifically identify USERRA as
the basis for his claim, the administrative judge erred in failing to consider his
allegations as a USERRA discrimination claim).
4
Moreover, although the appellant did not identify USERRA as a basis for jurisdiction
in his filings before the Board, the agency submitted an email that the appellant sent to
the Human Resources Specialist inquiring whether she felt his rights under USERRA
had been violated. IAF, Tab 4 at 21.
5
¶8 Neither the administrative judge nor the agency’s filings placed the
appellant on notice of the burdens and the elements of proof for establishing a
USERRA reemployment or discrimination claim. See IAF, Tabs 2, 4-7. Thus,
because the appellant was not placed on specific notice of what he needed to
show or allege to establish Board jurisdiction over his USERRA claim, the
administrative judge erred in dismissing this appeal for lack of jurisdiction. See
Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660, ¶ 5 (2005) (an
administrative judge erred by dismissing a USERRA appeal without providing an
appellant with Burgess notice).
The appellant raised nonfrivolous allegations sufficient to establish Board
jurisdiction over a USERRA discrimination claim.
¶9 Although the administrative judge failed to provide the appellant with
notice of what was necessary to establish an appealable jurisdictional issue, we
find that the appellant nevertheless raised nonfrivolous allegations sufficient to
establish Board jurisdiction over a USERRA discrimination claim. To establish
Board jurisdiction over a USERRA discrimination claim, an appellant must 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. 38 U.S.C. § 4311(a); Gossage v. Department of
Labor, 118 M.S.P.R. 455, ¶ 10 (2012).
¶10 It is undisputed that the appellant performed active duty military service in
the Air Force Reserves, which qualifies as service in the uniformed services for
purposes of USERRA. See IAF, Tab 1 at 28 (the Form DD-214 reflecting the
appellant’s active duty service), Tab 4 at 3 (the agency’s admission that the
appellant was on military leave); see also 38 U.S.C. § 4303(13), (16); Johnson v.
U.S. Postal Service, 85 M.S.P.R. 1, ¶ 8 (1999) (for purposes of USERRA, service
as a Reservist in the armed forces qualifies as service in the uniformed services).
6
The appellant alleged that the agency denied him a performance appraisal and
award for FY 2011, and the agency does not dispute this assertion. See IAF,
Tab 1 at 5 (the appellant’s allegations), Tab 4 at 4 (the agency’s statement that
Human Resources never received sufficient information to process an FY 2011
performance appraisal or award for the appellant). The term “benefit of
employment,” is broadly defined, and includes “any advantage, profit, privilege,
gain, status, account, or interest (including wages or salary for work performed)
that accrues by reason of an employment contract or agreement or an employer
policy, plan, or practice,” as well as “bonuses.” 38 U.S.C. § 4303(2); see Yates,
145 F.3d at 1483. We find that the FY 2011 performance appraisal and award
constitute benefits of employment under USERRRA. See Bambl v. Department of
the Treasury, 113 M.S.P.R. 55, ¶ 9 (2010) (the Board’s jurisdiction under
USERRA extends to appeals of performance appraisal ratings).
¶11 Regarding the final jurisdictional criterion, an appellant is not required to
explicitly allege that an agency discriminated against him based upon military
service if he alleges facts sufficient to invoke such a claim. Yates, 145 F.3d
at 1485; Johnson, 85 M.S.P.R. 1, ¶ 11. A claim of discrimination under USERRA
should be broadly and liberally construed in determining whether it is
nonfrivolous, particularly where, as here, an appellant is pro se. See
Gossage, 118 M.S.P.R. 455, ¶ 10. We find that the appellant’s allegations that he
was on military leave and the agency failed to provide him with a performance
award and appraisal, together with his submission of the agency’s draft
memorandum stating that he did not receive an appraisal because he was on
military leave, are sufficient to establish Board jurisdiction over his USERRA
discrimination claim. 5 See IAF, Tab 1 at 5, 12.
5
Furthermore, the agency’s argument that the appeal was untimely is inapplicable to a
USERRA appeal. See IAF, Tab 5 at 7 (the agency’s argument that the appellant’s
appeal was untimely). There is no time limit to file a USERRA appeal directly with the
Board. See Holmes v. Department of Justice, 92 M.S.P.R. 377, ¶ 10 (2002).
7
¶12 The agency’s argument that 5 C.F.R. § 430.208(a) prohibited it from issuing
a performance rating based upon an “assumed level of performance” does not
alter this analysis. IAF, Tab 5 at 7. The regulation prohibits agencies from
issuing “a rating of record that assumes a level of performance by an employee
without an actual evaluation of that employee’s performance.” 5 C.F.R.
§ 430.208(a)(2). However, the agency has not identified any law, regulation, or
policy that prohibits it from issuing a performance appraisal for an employee,
such as the appellant, who was only at work for a portion of the evaluation
period. See IAF, Tab 1 at 28 (reflecting the dates of the appellant’s military
service), Tab 5 at 7 (the agency’s argument below). Thus, to date, the agency has
failed to explain why it could not issue the appellant an appraisal that evaluated
his performance during the portion of FY 2011, that he was at work. 6 Indeed, the
record reflects that, just as in FY 2011, the appellant was on military leave for a
portion of FY 2012, and the agency provided him with a performance appraisal
and award for work performed during that fiscal year. IAF, Tab 1 at 28-29
(reflecting the dates of the appellant’s military service in FY 2012), Tab 5
at 35-41 (the appellant’s FY 2012 performance appraisal and award).
The appellant raised allegations sufficient to establish Board jurisdiction over a
USERRA reemployment claim.
¶13 Similarly, we find that the appellant raised nonfrivolous allegations
sufficient to establish Board jurisdiction over a USERRA reemployment claim. A
reemployment claim arises under USERRA when an employee claims that an
agency has not met its obligations under 38 U.S.C. §§ 4312-4318 following his
6
On remand, the administrative judge should afford the parties an opportunity to
present additional argument on this issue.
8
absence from civilian employment to perform uniformed service. 7
Clavin, 99 M.S.P.R. 619, ¶ 5.
¶14 USERRA authorizes the Director of the Office of Personnel Management
(OPM) to promulgate regulations governing its application to federal
agencies. 38 U.S.C. § 4331(b). OPM promulgated 5 C.F.R. § 353.106(c), which
addresses restoration to duty after uniformed service and provides that “agencies
have an obligation to consider employees absent on military duty for any incident
or advantage of employment that they may have been entitled to had they not
been absent.” 5 C.F.R. § 353.106(c). It further instructs that this can be achieved
by considering the following three factors: whether the benefit is generally
granted to all employees; whether the employee is being treated the same as if he
had remained at work; and whether it is reasonably certain that the benefit would
have accrued to the employee but for the absence. Id.; see 38 U.S.C. §§ 4303(2)
(defining “benefit” for purposes of USERRA to include bonuses), 4312(a)
(providing that reemployment rights include benefits); see also Rassenfoss v.
Department of the Treasury, 121 M.S.P.R. 512, ¶ 12 (2014).
¶15 On his appeal form, the appellant alleged that he received an outstanding
rating and a performance award the year prior to FY 2011, and 2 years afterwards.
IAF, Tab 1 at 5. He also submitted a copy of his FY 2010 performance appraisal,
reflecting an outstanding rating, and the draft memorandum stating that his
former supervisor had expected to give him an outstanding rating for FY 2011,
and requesting that Human Resources issue him a performance award. Id. at 12,
21-25. We construe these allegations as a claim that, when reinstating the
appellant to duty after his military service, the agency failed to consider him for
an incident or advantage of employment to which he would have been entitled
7
Un like discrim ination claims, an appellant’s rights under USERRA’s reemployment
provisions do not depend on the motivation for an agency’s action or inaction, and the
agency bears the burden of proving that it met its statutory obligations. Rassenfoss v.
Department of the Treasury, 121 M.S.P.R. 512, ¶ 10 (2014).
9
had he not been absent. 8 See 5 C.F.R. § 353.106(c). We further find that under
the Board’s liberal pleading standard for USERRA claims, the allegations are
sufficient to establish jurisdiction over a reemployment claim. See
Rassenfoss, 121 M.S.P.R. 512, ¶¶ 10-17 (evaluating the merits of an appellant’s
USERRA reemployment claim that an agency violated 5 C.F.R. § 353.106(c) in
denying him a discretionary quality step increase).
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order. On
remand, the administrative judge shall inform the appellant of the different
methods of proving his USERRA claims and explain the USERRA burdens of
proof. 9 The administrative judge shall afford the parties an opportunity to
8
Even assuming for the sake of argument that 5 C.F.R. § 430.208(a) prohibited the
agency from “assum[ing]” the appellant’s level of performance for purposes of issuing
a performance rating, he would nevertheless potentially be able to establish that he was
reasonably certain to have received a performance award if had he not been absent on
military leave. See Rassenfoss, 121 M.S.P.R. 512, ¶¶ 5-8, 10-17 (remanding as a
USERRA reemployment appeal an appellant’s claim that he would have been
reasonably certain to receive a quality step increase based upon his performance,
although the agency properly designated the appellant as “Not Ratable” due to his
military leave).
9
The appellant alleged below that he did not pursue a claim with the Department of
Labor (DOL). IAF, Tab 1 at 4. If true, his claims are now ripe, as exhaustion of a
USERRA claim only is required if a complaint is filed with DOL. 38 U.S.C.
§ 4324(b)(1); Graham v. Commodity Futures Trading Commission, 105 M.S.P.R. 392,
¶ 5 (2007), aff’d, 348 F. App’x 564 (Fed. Cir. 2009); 5 C.F.R. § 1208.11(a)-(b).
10
conduct discovery and to submit evidence and argument regarding the USERRA
claims. Finally, he shall adjudicate the claims and issue a new initial decision.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
