                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     STANLEY C. BRASCH,                              DOCKET NUMBER
                   Appellant,                        CH-4324-13-4577-I-1

                  v.

     DEPARTMENT OF                                   DATE: September 28, 2015
       TRANSPORTATION,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Stanley C. Brasch, St. Louis, Missouri, pro se.

           Parisa Naraghi-Arani, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied the appellant’s request for corrective action under the Uniformed Services
     Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
     §§ 4301-4333) (USERRA). Generally, we grant petitions such as this one only


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     when: the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).           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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        The appellant, a program manager for the agency’s Federal Aviation
     Administration (FAA), argued in this action that the agency discriminated and
     retaliated against him, and created a hostile working environment, on the basis of
     his service in the military reserves.    Initial Appeal File (IAF), Tab 1.      The
     administrative judge gave the appellant notice of the elements and burdens he
     must meet to establish jurisdiction, receive a hearing, and prove his USERRA
     discrimination claim. IAF, Tab 3. The appellant first alleged that the agency
     denied his September 5, 2010 request to convert annual leave that he had used for
     military duty on certain dates in 2008 and 2009 to military leave. IAF, Tab 1
     at 2, Tab 26 at 4, Tab 33 at 1.     Next, the appellant alleged that the agency
     discriminated against him on the basis of his military service when it denied his
     January 25, 2012 request to restore 282 hours of “forfeited annual leave for
     various times from October 17 to December 29, 2011.” IAF, Tab 1 at 2, Tab 26
     at 4-5, Tab 33 at 1. Finally, the appellant argued that the agency discriminated
     against him on the basis of his military service when it took him 5 requests over
                                                                                       3

     10 days to get the agency to approve his August 9, 2013 request to use annual
     leave on November 15-22, 2013. IAF, Tab 1 at 2, Tab 26 at 5, Tab 33 at 1-2.
¶3        After holding a hearing, the administrative judge found that the appellant
     established jurisdiction over his claim, but she denied his request for corrective
     action because she found that the appellant failed to show that the agency denied
     him initial employment, reemployment, retention, promotion, or any benefit of
     employment on the basis of his military status or service. IAF, Tab 42, Initial
     Decision (ID) at 4-5.    The appellant has filed a timely petition for review.
     Petition for Review (PFR) File, Tab 1. The agency has responded in opposition.
     PFR File, Tab 4.
¶4         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 initial
           employment, reemployment, retention in employment, promotion, or
           any benefit of employment by an employer on the basis of that
           membership, application for membership, performance of service,
           application for service, or obligation.
     38 U.S.C. § 4311(a). An employer is considered to have engaged in an action
     prohibited by 38 U.S.C. § 4311(a) if the person’s membership, application for
     membership, service, application 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 service, or
     obligation for service. 38 U.S.C. § 4311(c)(1). Under 38 U.S.C. § 4311, military
     service is a motivating factor for an employment action if the employer “relied
     on, took into account, considered, or conditioned its decision” on the employee’s
     military-related absence or obligation. Erickson v. U.S. Postal Service, 571 F.3d
     1364, 1368 (Fed. Cir. 2009).
¶5        Regarding the appellant’s claim that the agency refused to convert his
     annual leave to military leave, the administrative judge found that, pursuant to the
     terms of a March 11, 2009 settlement agreement, the appellant clearly and
                                                                                       4

     unambiguously agreed to waive all claims against the agency, both known and
     unknown, through the date the parties executed the agreement. ID at 6-7; see
     IAF, Tab 35 at 9. Nevertheless, the administrative judge also found that, even if
     the appellant had not waived this claim, agency regulations require employees to
     request military leave in advance and to provide military orders to establish the
     length and character of the military service, both of which the appellant failed to
     do. ID at 8-9; see IAF, Tab 20 at 94, 107. The administrative judge also noted
     that the appellant failed to show that military necessity precluded him from
     making his request for military leave in advance, before he performed his military
     duty. ID at 8; see IAF, Tab 20 at 107-08.
¶6        In his petition for review, the appellant incorrectly argues that USERRA
     rights cannot be waived in a settlement agreement. PFR File, Tab 1 at 5, 8; see
     Landers v. Department of the Air Force, 117 M.S.P.R. 109, ¶¶ 7-15 (2011)
     (holding that USERRA rights may be waived in a settlement agreement).
     Although the appellant argues that the agency may not require him to use annual
     leave for the purpose of military service, PFR File, Tab 1 at 6, the record does not
     reflect that the agency did so. Instead, the record reflects that the appellant used
     annual leave to perform military service, apparently on his own accord, and then
     asked the agency to substitute military leave for that annual leave almost
     10 months later.   IAF, Tab 20 at 94.    Under its regulations, the agency is not
     required to do so. 2 Id. at 107. Moreover, as described above, the record does not
     reflect that the agency relied on, took into account, considered, or conditioned its
     response on the appellant’s military-related absence or obligation in declining to
     convert his annual leave to military leave, but instead reflects that the agency


     2
       The FAA is exempt from the military leave provisions set forth at 5 U.S.C. § 6323,
     and instead is bound by its own regulations on the issue, which the Board has the
     authority to consider under USERRA. E.g., Pratt v. Department of Transportation,
     103 M.S.P.R. 111, ¶¶ 8-10 (2006); see IAF, Tab 20 at 106-13 (FAA Human Resources
     Policy Manual, LWS 8.4).
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     based its decision on the appellant’s failure to request military leave in advance
     and his inability to show that military necessity precluded him from doing so.
¶7         Regarding the appellant’s claim that the agency discriminated against him
     due to his military service when it denied his 2012 request for restoration of
     annual leave he forfeited in 2011 due to illness, the administrative judge
     determined that the agency had converted sick leave that the appellant used in
     2011 to annual leave, restoring the previously used sick leave to his sick leave
     balance, and that it also had restored 208 hours of use-or-lose annual leave to the
     appellant. ID at 8-9. The administrative judge noted that the appellant sought
     additional restoration of leave, but she found that it was unclear from the record
     exactly how much more leave the appellant sought. 3 ID at 9. Nevertheless, the
     administrative judge ultimately found that prohibited discrimination did not
     motivate the agency’s decision not to restore the appellant’s lost annual leave. ID
     at 9-10.
¶8         In his petition for review, the appellant asserts that agency policy allows
     annual leave to be restored if an employee is ill and unable to reschedule and use
     previously scheduled annual leave before the end of the leave year, and argues
     that he is “not required to take annual leave for being injured on military duty.”
     PFR File, Tab 1 at 11.      He requests that the Board correct the situation by
     restoring 282 hours of lost annual leave and having “the FAA collect back … the
     158 hours the FAA added back to my sick leave account.” Id. at 12. However,
     the record reflects that this is another instance where the appellant failed to
     request military leave in advance. ID at 9. Even so, by converting the sick leave

     3
       It appears that the remaining 74 hours of annual leave for which the appellant sought
     restoration were awarded to him in the parties’ March 2009 settlement agreement. See
     ID at 10 & n.3; see also IAF, Tab 36 at 8. To the extent that it does not involve the
     appellant’s military service, the annual leave issue is outside of the Board’s purview in
     a USERRA appeal. Moreover, we note that the administrative judge cited agency
     testimony that an employee originally must have requested annual leave to request
     restoration of forfeited annual leave and the appellant’s admission in his testimony that
     he had not done so. ID at 9.
                                                                                         6

      the appellant used on account of his injury on military duty to annual leave, the
      record reflects that the agency allowed him the benefit of using annual leave he
      would have lost anyway and keeping his sick leave. Under these circumstances,
      we agree with the administrative judge’s finding that the facts do not show that
      the agency was motivated by prohibited discrimination in failing to restore lost
      annual leave. ID at 10. The record instead reflects that the agency did what it
      could for the appellant despite his admitted failure to properly request military
      leave in advance.
¶9          Finally, regarding the agency’s delay in approving the appellant’s
      August 2013 request to use annual leave in November 2013, the administrative
      judge found that an 8-day delay was not unreasonable considering that the agency
      was undergoing reorganization during this time, and the appellant had once again
      failed to show that his military status was a substantial or motivating factor in the
      agency’s actions. ID at 10. In his petition for review, the appellant claims that
      the agency usually processes leave requests more quickly. PFR File, Tab 1 at 13.
      However, as noted by the administrative judge, the record reflects that the
      appellant received approval for the leave he requested well in advance of the
      dates involved and that the agency’s delay in approving his request had nothing to
      do with his military status. ID at 10. We agree with the administrative judge that
      the appellant failed to show that he was treated more harshly than any nonveteran
      concerning the leave at issue in this matter. ID at 10-11.
¶10         Accordingly, we affirm the administrative judge’s decision to deny the
      appellant’s request for corrective action under USERRA.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      United States Court of Appeals for the Federal Circuit. You must submit your
      request to the court at the following address:
                                                                                        7

                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order.    See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).    You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional     information      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, and 11.
     If you are interested in securing pro bono representation for an appeal to the
United States 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
                                                                                8

Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
