United States Court of Appeals
      for the Federal Circuit
                 ______________________

         CLARENCE ANDREW MCGUFFIN,
                  Petitioner

                            v.

      SOCIAL SECURITY ADMINISTRATION,
                    Respondent
              ______________________

                       2017-2433
                 ______________________

   Petition for review of the Merit Systems Protection
Board in No. DC-4324-14-0938-B-1.
                ______________________

               Decided: November 7, 2019
                ______________________


    CLARENCE ANDREW MCGUFFIN, Raleigh, NC, argued
pro se.

    SONIA MARIE ORFIELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN, JR., JOSEPH
H. HUNT.
                   ______________________
2                                           MCGUFFIN v. SSA




    Before MOORE, REYNA, and CHEN, Circuit Judges.
REYNA, Circuit Judge.
     Clarence McGuffin appeals from a determination of the
Merit Systems Protection Board that the Social Security
Administration did not violate the Uniformed Services Em-
ployment and Reemployment Rights Act when it termi-
nated Mr. McGuffin’s employment. Because we conclude
that substantial evidence does not support the Board’s
findings, we reverse the decision of the Board and remand
for further proceedings.
                        I. BACKGROUND
                  A. Statutory Background
   Mr. McGuffin brings a discrimination claim pursuant to
the Uniformed Services Employment and Reemployment
Rights Act (“USERRA”), Pub. L. No. 103–353 (codified as
amended at 38 U.S.C. §§ 4301–35), which prohibits dis-
crimination based on prior or current military service.
Central to Mr. McGuffin’s discrimination claim is the Civil
Service Reform Act of 1978 (“CSRA”), Pub. L. No. 95–454,
92. Stat. 1111 (codified as amended in scattered sections of
Title 5 of the United States Code), which provides certain
procedural safeguards (“CSRA benefits”) to an “employee”
serving in the excepted civil service. See 5 U.S.C. §§ 7511,
7513. The CSRA provides that
    An employee against whom an action is proposed is
    entitled to—
       (1) at least 30 days’ advance written no-
           tice, unless there is reasonable cause to
           believe the employee has committed a
           crime for which a sentence of imprison-
           ment may be imposed, stating the spe-
           cific reasons for the proposed action;
       (2) a reasonable time, but not less than 7
           days, to answer orally and in writing
MCGUFFIN v. SSA                                           3



           and to furnish affidavits and other doc-
           umentary evidence in support of the
           answer;
       (3) be represented by an attorney or other
           representative; and
       (4) a written decision and the specific rea-
           sons therefor at the earliest practicable
           date.
5 U.S.C. § 7513(b)(1)–(4). An excepted civil service em-
ployee is also entitled to appeal an adverse action to the
Merit Systems Protection Board (the “Board” or the
“MSPB”). 

     Qualifying veterans in the excepted civil service, also
referred to as “preference-eligible” veterans, receive em-
ployee status and CSRA benefits after completing a one-
year probationary period of “current continuous” employ-
ment. 

Non-veterans in the excepted
civil service receive employee status and CSRA benefits af-
ter completing two years of current continuous employ-
ment. 

An employer may terminate an
individual during his probationary period if the individual
“fails to demonstrate his fitness or his qualifications for
continued employment . . . .” 5 C.F.R. § 315.804(a). The
employer, however, “must honestly be dissatisfied with the
probationer’s conduct or performance after giving him a
fair trial on the job.” Shaw v. United States, 

,
544 (Ct. Cl. 1980) (quotation omitted) (discussing 5 C.F.R.
§ 315.804(a) (1975)).
             B. SSA Policies and Procedures
    Mr. McGuffin, a preference-eligible veteran, was hired
as an attorney advisor by the Social Security Administra-
tion (“SSA” or the “agency”), Office of Disability Adjudica-
tion and Review (“ODAR”), for its office in Raleigh, North
Carolina. As SSA’s appellate branch, ODAR reviews and
issues decisions on disability claims. Attorney advisors,
4                                           MCGUFFIN v. SSA




also known as “decision writers,” assist the agency’s Ad-
ministrative Law Judges (“ALJ”) by researching and draft-
ing decisions.
     SSA evaluates its attorney advisors based on a variety
of factors, which vary depending on the seniority of the at-
torney advisor. First, as noted in the SSA Personnel Policy
Manual, SSA evaluates new hires, like Mr. McGuffin, dur-
ing the first year of employment under a limited perfor-
mance evaluation program based on the following two
elements: “interpersonal skills” and “engages in new learn-
ing.” J.A. 464, 640–41. The SSA Personnel Policy Manual
notes that new hires are placed on this limited evaluation
program because “the first year of employment in their new
SSA position may be spent in formal classroom and on-the-
job training,” and, thus, the limited evaluation program
“allows those employees additional time to demonstrate
performance in all elements of their positions.” J.A. 480.
To meet the “interpersonal skills” element, the SSA Per-
sonnel Policy Manual notes that a new hire should treat
the public and fellow employees with courtesy and respect,
listen to feedback from co-workers and managers, com-
municate effectively and maintain positive and productive
working relationships. To satisfy the “engages in new
learning” element, the SSA Personnel Policy Manual notes
that a new hire should participate in training, accurately
process work, and demonstrate progress toward independ-
ent completion of work.
    Second, SSA evaluates employees past their first year
of employment under four elements: “interpersonal skills,”
“participation,” “demonstrates job knowledge,” and
“achieves business results.” J.A. 465. Relevant to this ap-
peal is the “achieves business results” element, which re-
quires an employee to produce his “fair share of work.”
J.A. 468.
    The “fair share” standard is determined by dividing the
total number of cases Congress funds SSA to adjudicate by
MCGUFFIN v. SSA                                           5



the number of SSA decision writers available to write deci-
sions. An attorney advisor’s fair share varies month-to-
month, depending on the amount of cases assigned to a
given ODAR office. The fair share standard does not apply
to attorney advisors during their first year of employment.
     Third, SSA tracks the productivity of all attorney ad-
visors, both new and permanent, by utilizing the Decision
Writer Statistical Index (“DWSI”). Based on this index, the
agency circulates a monthly report that indicates whether
an employee has completed his assigned cases for that
month. If an attorney advisor completes all the work as-
signed to him each month, his DWSI score would be 100%.
The DWSI allots four hours for a decision where the ALJ
grants a claim, and eight hours where the ALJ denies a
claim. As the SSA Personnel Policy Manual notes, numeric
data—such as the DWSI rating, the timeliness and accu-
racy of work, and the need to produce a fair share of the
workload—“may be gathered and maintained in order to
provide context to performance standards and expecta-
tions,” but it cannot be the sole basis for terminating an
employee. J.A. 823, 842.
    Fourth, SSA tracks the productivity of both new and
permanent attorney advisors by using a seven-day bench-
mark. Under that benchmark, attorney advisors should
write a decision in seven days. This benchmark is a goal,
not an absolute requirement. SSA does not remove em-
ployees based solely on their failure to meet the seven-day
benchmark.
         C. Mr. McGuffin’s Employment at SSA
    On February 8, 2010, Mr. McGuffin began his employ-
ment with SSA as a preference-eligible veteran who was
entitled to receive CSRA benefits after one year of service.
Mr. McGuffin’s direct supervisor was Mark Thompson, who
in turn reported to William Strong, the Hearing Office Di-
rector for the Raleigh ODAR office.
6                                            MCGUFFIN v. SSA




    During Mr. McGuffin’s initial months at the agency,
Mr. McGuffin had a low monthly case completion rate, as
measured by the DWSI, and Mr. McGuffin had some cases
that were past the seven-day benchmark. Aware of this,
Mr. McGuffin reached out to Mr. Thompson for training op-
portunities, noting that he wanted to take “immediate and
comprehensive steps to increase [his] productivity to an ap-
propriate level,” and requested “some needed orientation
and training.” J.A. 580. Mr. McGuffin noted that he was
specifically “looking forward” to attending “decision writer
training” “as soon as possible” and that “it would help [him]
to do [his] job more competently and more quickly.” 

sent Mr. McGuffin to a two-week decision-
writer training course in July 2010.
     Also, during these initial months, SSA was satisfied
with Mr. McGuffin’s performance. In March 2010, ALJ
John Thawley, located in the Raleigh ODAR office, noted
that Mr. McGuffin “did a very nice job,” on a decision he
drafted for him, noting it was “[d]etailed, thorough, [and]
well put together.” J.A. 1157. In April 2010, Mr. Thomp-
son completed an evaluation report for Mr. McGuffin, not-
ing that Mr. McGuffin “continues to work on processing his
work timely and accurately,” and that he “demonstrates
willingness to progress towards independent completion of
his work.” J.A. 500. Mr. Thompson also noted that “[o]nce
[Mr. McGuffin] completes training,” he “will be a great em-
ployee.” 

2010, ALJ Lisa Hall, also located in
the Raleigh ODAR office, provided feedback to Mr. McGuf-
fin, noting that, aside from going into too much detail and
some spelling errors, Mr. McGuffin did a “good job on the
substantive summary” in a decision he drafted. S. J.A. 28.
    Despite Mr. McGuffin’s favorable performance, by mid-
October 2010, SSA began to consider terminating Mr.
McGuffin. On October 16, 2010, Mr. Strong emailed Paula
Bosworth, a senior attorney advisor at ODAR, that he was
“considering removing” Mr. McGuffin. J.A. 234. Mr.
MCGUFFIN v. SSA                                           7



Strong also indicated that he was considering removing an-
other attorney advisor also hired in February 2010, Angela
Banks. 

noted that “[n]either of them is per-
forming up to the standards we expect.” 

unlike Mr. McGuffin, was not a preference-eligible veteran
and would therefore receive procedural safeguards after a
two-year probationary period.
    On October 25, 2010, Ms. Bosworth emailed ALJ Kath-
leen McGraw, the Deputy Regional Chief ALJ in the Re-
gional Office, regarding the termination of Mr. McGuffin
and Ms. Banks. ALJ McGraw, whose duties included ad-
vising local ODAR offices on labor-and-management is-
sues, replied that “[t]he vet[eran] has to be terminated
in his first year—for [Ms. Banks] it is 2 years.” J.A. 223
(emphasis added). Ms. Bosworth asked: “why must the
veteran be terminated within his first year?” 

added). ALJ McGraw responded that, as a preference-
eligible veteran in the excepted service, Mr. McGuffin
would acquire procedural and appellate rights after com-
pleting one year of service. 

clarifica-
tion, Ms. Bosworth notified Mr. Strong on October 27, 2010,
that “Mr. McGuffin must be terminated prior to the end
of his first year. Angela Banks may be terminated any time
within her 2-year trial work period, but if you want to let
her go within the first year also, that is fine.” J.A. 234.
(emphasis added). Ms. Banks was not fired and ultimately
received a promotion.
     That same day, Mr. Thompson evaluated Mr. McGuf-
fin’s performance for a second time. Mr. Thompson noted
twice in Mr. McGuffin’s evaluation report that he was not
producing his “fair share,” a factor which is part of the
“achieves business results” element, which is not applica-
ble to new hires. First, under the “engages in learning ele-
ment,” Mr. Thompson noted that Mr. McGuffin
“demonstrates the willingness to progress towards inde-
pendent work, but he has not been able to complete his fair
8                                            MCGUFFIN v. SSA




share since he began,” and that his “level of work is unac-
ceptable.” J.A. 501. Second, under the “interpersonal
skills” element, Mr. Thompson noted that Mr. McGuffin
“has not produced his fair share of the workload since he
began to count as a full time writer.” 

in-
dicated concerns regarding Mr. McGuffin’s ability to com-
plete his fair share, Mr. Thompson gave Mr. McGuffin an
overall rating of “Successful Contribution.” 

2010, SSA proceeded with its plan to ter-
minate Mr. McGuffin. On November 3, 2010, Mr. Thomp-
son emailed Mr. Strong that it was better to terminate Mr.
McGuffin rather than to provide him with additional train-
ing because he was going to “be a problem for us in the long
run.” J.A. 825. Additionally, Mr. Strong requested sample
termination letters from Ms. Bosworth and informed her
that Mr. McGuffin was performing “well below his fair
share” and that “[b]y and large the ALJs are not satisfied
with his quality.” J.A. 824. Ms. Bosworth responded that
the fair share standard was not usually applied to first year
hires and asked whether “Mr. McGuffin’s low productivity
shows he is not engaging learning.” 

for-
warded Ms. Bosworth’s email to Mr. Thompson, noting that
“we will have to approach this [termination] using the ter-
minology that [Mr. McGuffin’s] low production . . . shows
that he is not engaging in learning adequately/suffi-
ciently.” 

2010, Mr. Thompson reached out to Mr.
McGuffin concerning various outstanding cases. Mr.
McGuffin responded, acknowledging that his cases were
overdue and that he “derive[d] no pleasure from being the
slowest writer in Raleigh ODAR.” S. J.A. 46. Mr. McGuffin
also noted that he was “willing to try almost anything” to
achieve the “numbers expectation.” 

month, Mr. McGuffin received positive
feedback from ALJ Robert Phares, who was located in the
Raleigh ODAR office. ALJ Phares emailed Mr. McGuffin
MCGUFFIN v. SSA                                            9



that he “especially appreciate[d] the time [Mr. McGuffin]
spent going into detail as to why the medical findings do
not support disability,” which was “[s]o much better than
just canned language.” J.A. 504. ALJ Phares noted that
the “details” in the opinion prepared by Mr. McGuffin “are
just crushing to any lawyer deciding as to whether an ap-
peal would be successful.” 

Phares’ praise, Mr. Thompson emailed a
draft termination letter for review to Ms. Bosworth just two
days later, stressing that he “hope[d] to relieve [Mr. McGuf-
fin] of his duties prior” to the end of Mr. McGuffin’s one-
year probationary period. J.A. 822. Upon review of the
draft, Ms. Bosworth responded, warning Mr. Thompson
that he could not base Mr. McGuffin’s termination on a “nu-
merics [sic] standard,” which the agency did not employ,
and that they “may need to think about another way to ap-
proach this.” J.A. 823.
     In late December 2010, Ms. Bosworth emailed ALJ
McGraw that Mr. McGuffin’s “performance situation is a
bit problematic because of his disability,” a cognitive disa-
bility which is characteristic of a preference-eligible vet-
eran, and asked whether they should put Mr. McGuffin on
a two-week training assistance plan. ALJ McGraw agreed
that a “quick assistance plan may be in order” and re-
minded Ms. Bosworth that a preference-eligible veteran’s
procedural rights vest after one year. Ms. Bosworth then
emailed Mr. Thompson that Mr. McGuffin should be placed
on a two-week training assistance plan “ASAP,” reminding
Mr. Thompson that Mr. McGuffin was a preference-eligible
veteran and that “any action separating him from employ-
ment must be issued and effective on 2/8/11 to be on the
safe side.” J.A. 1110.
    At the behest of Ms. Bosworth, Mr. McGuffin’s super-
visors placed Mr. McGuffin in a training assistance pro-
gram from January 5, 2011 to January 26, 2011. As part
of the plan, the agency assigned Mr. McGuffin cases daily,
10                                          MCGUFFIN v. SSA




as opposed to weekly, to help him prioritize and efficiently
manage his time. During this time, ALJ Hall requested
that Mr. McGuffin take another “stab” at a decision he
wrote for her. S. J.A. 50. In addition, ALJ Edward Bowl-
ing, located in the Raleigh ODAR office, noted that Mr.
McGuffin did an “excellent job” on a case and that Mr.
McGuffin “even convinced” him that he “made the right de-
cision.” J.A. 503. Most notably, Mr. McGuffin significantly
improved in productivity under the training assistance
plan, increasing his monthly DWSI rating from 46% in De-
cember 2010 to 80% in January 2011.
     On January 26, 2010, despite Mr. McGuffin’s improve-
ment throughout the previous three weeks, Mr. Strong
emailed Ms. Bosworth, stating that Mr. McGuffin “had not
fared well” under the training assistance plan and that
they needed to “pursue removal before [Mr. McGuffin’s]
year expires on 02/08/2011.” J.A. 1112. Mr. Strong also
stated that “[w]e have bent over backwards to try to be
fair.” J.A. 247. Ms. Bosworth responded to Mr. Strong’s
email, requesting a draft termination letter for Mr. McGuf-
fin “immediately.” J.A. 1113. Mr. Thompson subsequently
sent Ms. Bosworth a draft termination letter.
    On January 27, 2011, Ms. Bosworth reviewed Mr.
McGuffin’s draft termination letter and notified Mr.
Thompson that the draft termination letter should not
“talk[] about the statistical index,” which was a measure
for assigning cases, not measuring performance. J.A. 508.
Ms. Bosworth then revised the draft termination letter by
recrafting Mr. Thompson’s concern that Mr. McGuffin con-
sistently failed to meet his fair share into one regarding
Mr. McGuffin’s inability to independently complete his
work, a factor within the “engages in new learning” ele-
ment applicable only to new hires. J.A. 510, 514. Ms. Bos-
worth also included in the draft termination letter that Mr.
McGuffin had attended training in January 2011 and that
ALJ Hall requested that Mr. McGuffin re-draft a decision
MCGUFFIN v. SSA                                          11



but failed to mention that Mr. McGuffin’s DWSI rating dra-
matically improved and that he received positive feedback
from ALJ Bowling. 

then sent the revised draft termination
letter to the SSA Office of General Counsel and the SSA
Labor-Management Employee Relations Team for their ap-
proval. Ms. Bosworth noted that Mr. McGuffin was a “vet-
eran’s preference” and that “we want to terminate him
within his first year of service so that he does not acquire
MSPB rights.” J.A. 1117, 1124. Because Mr. McGuffin
would complete one year of employment on February 7,
2011, Ms. Bosworth highlighted that they needed to termi-
nate him no later than February 4, 2011.
    On February 4, 2011, four days before attaining full
employee status, SSA terminated Mr. McGuffin. Mr.
McGuffin’s termination letter states that he was being ter-
minated for “failure to demonstrate” the ability to “satis-
factorily perform the duties” of the attorney advisor
position. J.A. 190. The letter further explains that Mr.
McGuffin did not perform his duties “accurately and inde-
pendently,” and that Mr. Strong did “not believe that fur-
ther training efforts would be productive.” 

Proceedings
    Following his termination, Mr. McGuffin unsuccess-
fully challenged his termination before the Equal Employ-
ment Opportunity Commission (“EEOC”), alleging that
SSA had unlawfully discriminated against him based on
his disability. During the EEOC proceeding, Mr. McGuffin
deposed ALJ McGraw, asking her whether the “fact that
[he] would obtain MSPB appeal rights after one year” as a
preference-eligible veteran was “relevant in the decision to
terminate [his] employment.” J.A. 555. ALJ McGraw re-
sponded “yes.” J.A. 556. ALJ McGraw further testified
that it was “true” that there was a “rush” to terminate Mr.
McGuffin prior to the end of his first year. J.A. 558. ALJ
McGraw also testified that “we would prefer not to have to
12                                           MCGUFFIN v. SSA




go through the formal process of an MSPB hearing,” and
that “[w]e advise managers if they know someone is not go-
ing to work out as a – as a writer . . . to terminate that
individual before their MSPB appeal rights vest . . ..”
J.A. 556, 559.
    Following his EEOC case, Mr. McGuffin sought correc-
tive action before the MSPB, claiming that the SSA denied
him a benefit of his employment because of his military sta-
tus when he was terminated within the one-year probation-
ary period applicable to preference-eligible veterans, in
violation of USERRA. On June 16, 2017, the Board denied
Mr. McGuffin’s request for corrective action, finding that
SSA’s termination of Mr. McGuffin did not violate
USERRA. The Board concluded that SSA properly found
Mr. McGuffin’s “performance during that initial year unac-
ceptable, and acting [sic] promptly to terminate his em-
ployment before he acquired employee status with Board
appeal rights.” J.A. 9. The Board also found credible the
testimony of Mr. Strong, Mr. Thompson, and ALJ McGraw
that “they would have terminated any employee who was
performing as poorly as the appellant was after almost a
year of training, even if their trial periods extended for an
additional year.” J.A. 22. The Board concluded that, based
on the testimonies of Mr. Strong, Mr. Thompson, and ALJ
McGraw, SSA “demonstrated by preponderant evidence
that it would have taken the same action against [Mr.
McGuffin] without regard to his military status.” J.A. 22.
The Board’s decision became final on July 21, 2017. Mr.
McGuffin appealed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
                 II. STANDARD OF REVIEW
    Our review of MSPB decisions is statutorily limited.
See 5 U.S.C. § 7703(c). We must set aside a Board decision
when it is “[1] arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; [2] obtained with-
out procedures required by law, rule or regulation having
MCGUFFIN v. SSA                                           13



been followed; or [3] unsupported by substantial evidence.”
Hayes v. Dep’t of the Navy, 

, 1537 (Fed. Cir.
1984). “Underlying factual determinations are reviewed
for substantial evidence.” McMillan v. Dep’t of Justice,

, 1371 (Fed. Cir. 2016).
    Substantial evidence “means such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison Co. v. NLRB, 

, 229 (1938); see also In re Jolley, 

, 1320
(Fed. Cir. 2002). “The substantiality of evidence must take
into account whatever in the record fairly detracts from its
weight.” Miller v. Dep’t of Justice, 

, 1258
(Fed. Cir. 2016) (quotation omitted). Accordingly, “[a]ny
determination by an AJ that is based on findings made in
the abstract and independent of the evidence which fairly
detracts from his or her conclusions is unreasonable and,
as such, is not supported by substantial evidence.” 

                     III. DISCUSSION
    USERRA prohibits discrimination in employment on
the basis of military service. 38 U.S.C. § 4311; Erickson v.
U.S. Postal Serv., 

, 1368 (Fed. Cir. 2009);
Sheehan v. Dep’t of Navy, 

, 1012 (Fed. Cir.
2001). The statute provides:
   (a) A person who is a member of, applies to be a
       member of, performs, has performed, applies to
       perform, or has an obligation to perform service
       in a uniformed service shall not be denied ini-
       tial employment, reemployment, retention in
       employment, promotion, or any benefit of em-
       ployment by an employer on the basis of that
       membership, application for membership, per-
       formance of service, application for service, or
       obligation.
         ....
14                                            MCGUFFIN v. SSA




     (c) An employer shall be considered to have en-
         gaged in actions prohibited . . . under subsec-
         tion (a), if the person’s membership,
         application for membership, service, applica-
         tion for service, or obligation for service in the
         uniformed services 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 such membership, application
         for membership, service, application for ser-
         vice, or obligation for service . . . .
38 U.S.C. § 4311. A “benefit of employment” includes “any
advantage, profit, privilege, gain, status, account, or inter-
est (including wages or salary for work performed) that ac-
crues by reason of an employment contract or agreement.”

     The employee asserting a USERRA claim has the ini-
tial burden of showing by a preponderance of the evidence
that his “membership . . . in the uniformed services” was a
substantial or motivating factor in the adverse employ-
ment action. 

.
Once an employee has met this burden, the burden shifts
to the employer to prove by preponderant evidence that it
“would have taken the adverse action anyway, for a valid
reason.” 

. An employer violates
USERRA “if it would not have taken the adverse employ-
ment action but for the employee’s military service or obli-
gation.” 

.
                             A.
    We first turn to whether Mr. McGuffin sufficiently
proved by preponderant evidence that his preference-eligi-
ble veteran status was a substantial or motivating factor in
his termination. “[M]ilitary service is a motivating factor
for an adverse employment action if the employer ‘relied
on, took into account, considered, or conditioned its deci-
sion’ on the employee’s military-related . . . obligation.”
MCGUFFIN v. SSA                                            15

(quoting 

). Because employers “rarely concede an improper mo-
tivation for their employment actions,” employees may
meet their burden by submitting evidence from which such
a motive may be fairly inferred. 

if discriminatory motive can be reasona-
bly inferred, this court considers the so-called four, non-ex-
clusive “Sheehan factors,” which are:
    [1] proximity in time between the employee’s mili-
    tary activity and the adverse employment action,
    [2] inconsistencies between the proffered reason
    and other actions of the employer, [3] an employer’s
    expressed hostility towards members protected by
    the statute together with knowledge of the em-
    ployee’s military activity, and [4] disparate treat-
    ment of certain employees compared to other
    employees with similar work records or offenses.

.
    The Board determined that SSA’s rush to terminate
Mr. McGuffin before he obtained his CSRA benefits was a
proper exercise of its “management prerogative.” J.A. 8.
SSA, however, cannot escape liability under USERRA
when Mr. McGuffin’s CSRA benefits are intrinsically tied
to his preference-eligible veteran status. Guiding our rea-
soning is Erickson, in which this court explained that an
employer cannot discriminate against an employee for ac-
tion that is intrinsically tied to his military service. See

.
     In Erickson, the Postal Service stated that the sole rea-
son for removing the employee was his excessive use of mil-
itary leave. 

found that “Erickson had failed
to show that his military service was a motivating factor
for the agency’s action because the ‘real reason’ for his re-
moval was his absence from work—regardless of whether
that absence was caused by his military obligation.” 

v. SSA




This court rejected that argument, holding that “[a]n em-
ployer cannot escape liability under USERRA by claiming
that it was merely discriminating against an employee on
the basis of his absence when that absence was for military
service.” 

“would eviscerate the
protections afforded by USERRA” to those who serve or
have served in the military. 

here. The one-year
timeline for obtaining CSRA benefits is intertwined with a
veteran’s prior military service. If employers could dis-
criminate against veterans based on this one-year timeline,
then what Congress created as a benefit to veterans for
their service—a shortened timeframe for obtaining CSRA
protection—could be turned against the veteran by employ-
ers, who, like ALJ McGraw, “would prefer not to have to go
through the formal process of an MSPB hearing.” J.A. 556.
Thus, the proper inquiry on appeal is not simply whether
Mr. McGuffin’s preference-eligible veteran status played a
substantial or motivating factor in his termination, but
also whether it was a substantial or motivating factor in
SSA’s timing of his termination, which occurred four days
before he was set to receive CSRA benefits.
    In this case, no reasonable inference of discrimination
under the Sheehan factors is needed. The record compels
a finding that SSA’s decision to terminate Mr. McGuffin
when it did—four days before he completed one year of em-
ployment—was substantially motivated by Mr. McGuffin’s
preference-eligible veteran status.
    To summarize, by late October 2010, after becoming
aware of Mr. McGuffin’s preference-eligible veteran status,
SSA decided that Mr. McGuffin “must” be terminated be-
fore his one-year mark in order to prevent him from receiv-
ing CSRA benefits. J.A. 234. Then, from November 2010
to December 2010, Mr. McGuffin’s supervisors refused to
offer additional training to Mr. McGuffin and became solely
focused on finalizing his termination before his one-year
mark. J.A. 825, 1099, 1100, 1113. In January 2011, at the
MCGUFFIN v. SSA                                           17



behest of Ms. Bosworth, Mr. McGuffin’s supervisors finally
placed Mr. McGuffin in additional training. J.A. 1110. De-
spite Mr. McGuffin’s dramatic increase in his DWSI rating
and positive feedback from ALJ Bowling during the train-
ing, Mr. Strong characterized Mr. McGuffin as not having
“fared well” during January 2011 and pressed forward with
terminating Mr. McGuffin. J.A. 1112. The record is clear
that SSA closed the door on Mr. McGuffin well before the
end of his first year to avoid the inconvenience of defending
itself should Mr. McGuffin assert his procedural safe-
guards afforded under the CSRA. For these reasons, sub-
stantial evidence supports only one conclusion: Mr.
McGuffin’s preference-eligible veteran status was a sub-
stantial factor in SSA’s decision to terminate Mr. McGuffin
just four days shy of his one-year anniversary at SSA.
                             B.
    Having determined that Mr. McGuffin carried his bur-
den under the USERRA inquiry, we now turn to whether
SSA carried its burden to prove that it terminated Mr.
McGuffin for a valid reason. The Board determined that
SSA sufficiently proved that Mr. McGuffin was terminated
because he was a “poor” performer who had not demon-
strated the “required productivity, timeliness and quality
after a year of training.” J.A. 22.
    The documentary evidence, however, does not support
a finding that Mr. McGuffin was a poorly performing new
hire attorney advisor. As previously noted, SSA evaluates
newly hired attorney advisors like Mr. McGuffin under a
limited evaluation plan during the first year. J.A. 480. The
record indicates, however, that Mr. Thompson and Mr.
Strong instead held Mr. McGuffin to a higher standard of
meeting his “fair share,” an evaluation element that is ap-
plied to attorney advisors only after their first year of em-
ployment. The record further indicates that Mr. Thompson
and Mr. Strong became fixated on Mr. McGuffin’s inability
to meet his fair share, having noted this concern multiple
18                                          MCGUFFIN v. SSA




times in Mr. McGuffin’s October 2010 evaluation report, as
well as raising it with Ms. Bosworth. J.A. 508, 823–24. Mr.
Thompson and Mr. Strong knew that this element was not
applicable to Mr. McGuffin until his second year, at which
point Mr. McGuffin would acquire his CSRA benefits.
J.A. 824. Not willing to wait until then, Mr. Thompson and
Mr. Strong, with the help of Ms. Bosworth, modified the
“engages in new learning” element to implicitly contain a
fair share standard. J.A. 510, 514, 823–24. For example,
after instructing Mr. Thompson that the fair share stand-
ard could not be a basis for Mr. McGuffin’s termination,
Ms. Bosworth recrafted Mr. McGuffin’s draft termination
letter by replacing the “fair share” reference with a refer-
ence to an inability to independently complete his work, a
sub-element to the “engages in new learning” element.
J.A. 510, 514.
     Disregarding the improper references to Mr. McGuf-
fin’s inability to meet his fair share and other numeric
data, the agency’s evaluation report for October 2010 indi-
cates that Mr. McGuffin successfully met the limited two
element evaluation standard for new hires. J.A. 500–01.
Furthermore, despite SSA’s argument that the “quality” of
Mr. McGuffin’s work was lacking, Mr. Thompson testified
at Mr. McGuffin’s EEOC hearing that Mr. McGuffin had to
re-write a decision on only two occasions throughout his
first year at SSA. J.A. 408. Additionally, these two occa-
sions occurred in late December 2010 and January 2011,
well after Mr. Thompson had already decided in early No-
vember 2010 that Mr. McGuffin should be fired instead of
being trained. Mr. Thompson further testified at that same
EEOC hearing that it was “not uncommon” for an ALJ to
be “unhappy with a decision” drafted by an attorney advi-
sor and to require edits to that decision. J.A. 407–08, 413.
In addition, the record indicates that Mr. McGuffin re-
ceived positive feedback from various ALJs about the qual-
ity of his work. This evidence demonstrates that Mr.
McGuffin was not performing poorly, let alone so poorly as
MCGUFFIN v. SSA                                          19



to justify the agency’s rush to remove him four days before
his one-year mark. For these reasons, SSA’s purported rea-
son for terminating Mr. McGuffin—his poor performance—
is inconsistent with the documentary evidence, which
points to only one reasonable motive: SSA rushed to termi-
nate Mr. McGuffin four days before he completed his first
year at the agency solely to prevent him from obtaining
CSRA benefits.
    The Board determined that, based on the testimony of
Mr. Strong, Mr. Thompson, and ALJ McGraw, SSA suffi-
ciently proved that Mr. McGuffin was validly terminated
due to his poor performance. The Board noted that Mr.
McGuffin’s supervisors “credibl[y]” testified that they
would have terminated any employee who was performing
as poorly as Mr. McGuffin “after almost a year of training.”
J.A. 22. The testimony relied on by the Board, however, is
undermined by the documentary evidence reviewed above
and, thus, the Board erred by not giving due weight to this
evidence. The Board may not insulate its findings from re-
view by denominating them credibility determinations
when “documents or objective evidence may contradict the
witness’ story.” Anderson v. City of Bessemer City, N.C.,

, 575 (1985); see also Jones v. Dep’t of Health
& Human Servs., 

, 1368 (Fed. Cir. 2016).
    In sum, as noted above, the preference-eligible veteran
must satisfy his statutory burden. If met, then the burden
shifts to the employer, who must show a “valid” reason for
terminating a preference-eligible veteran within his proba-
tionary period to not run afoul of USERRA. 

. SSA’s improper evaluation of Mr. McGuffin
based on the fair share standard, SSA’s delay in providing
Mr. McGuffin with adequate training, and its disregard of
the positive results of that training in January 2011 do not
support Mr. Strong’s self-serving and incorrect statement
that the agency “bent over backwards to try to be fair,” or
a conclusion that SSA was honestly dissatisfied with Mr.
20                                          MCGUFFIN v. SSA




McGuffin’s performance. J.A. 247. Instead, the record in-
dicates that SSA was honestly concerned with the admin-
istrative burden of defending itself should Mr. McGuffin
assert his CSRA procedural safeguards. For these reasons,
substantial evidence does not support a finding that SSA
terminated Mr. McGuffin when it did for poor performance.
To be clear, USERRA allows for termination of veterans
within their first year of employment so long as the em-
ployer’s reason for termination is valid. Based on the cir-
cumstances of this case, however, substantial evidence
does not support such a conclusion. SSA’s discriminatory
treatment of Mr. McGuffin violates USERRA’s objective of
protecting veterans from being disadvantaged in the work-
place by virtue of their military service, and, thus, cannot
stand. See 

.
                     IV. CONCLUSION
    We have considered all of SSA’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
reverse the Board’s decision that USERRA was not vio-
lated, and remand for determination of an appropriate
remedy.
            REVERSED AND REMANDED
                          COSTS
     Costs to Mr. McGuffin.