                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ALPHONSO R. TOBY,                               DOCKET NUMBER
                   Appellant,                        PH-4324-14-0392-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: April 2, 2015
       AFFAIRS,
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Ralph B. Pinskey, Esquire, Harrisburg, Pennsylvania, for the appellant.

           Stacey Conroy, Esquire, Philadelphia, Pennsylvania, 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 his 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        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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

     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 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, and based on the following points and authorities, 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.        Except as
     expressly MODIFIED by this Final Order to remove references to the appellant’s
     receiving a term appointment in the excepted service, we AFFIRM the initial
     decision, which is now the Board’s final decision.         5 C.F.R. § 1201.113(b).
     Additionally, we FORWARD the appellant’s chapter 75 adverse action claim to
     the Northeastern Regional Office for docketing as a separate appeal.

                                      BACKGROUND
¶2        The appellant filed what he identified as a “USERRA appeal of his removal
     from employment,” and the administrative judge issued an acknowledgment order
     identifying the jurisdictional requirements for a USERRA claim and ordering the
     appellant to submit the information necessary for determining whether the Board
     had jurisdiction over the appeal. Initial Appeal File (IAF), Tab 1, Tab 2 at 2.
     After the appellant provided the requested information, the parties engaged in
     discovery and the appellant filed a motion to compel.       IAF, Tab 5.    Prior to
     responding to the appellant’s motion to compel, the administrative judge issued
     an order identifying a potential jurisdictional issue. IAF, Tab 8. In particular,
     the administrative judge ordered the appellant to file evidence and argument on
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     whether the Board had jurisdiction over an adverse action appeal filed by an
     individual serving in a temporary appointment. Id. In response to this order, the
     appellant asserted that the cases cited by the administrative judge, for the
     proposition that an employee serving under a temporary appointment for a period
     of 1 year or less has no right of appeal from an adverse action, were not
     applicable to his case because his claim was of discrimination based on his status
     as a disabled veteran under USERRA. IAF, Tab 9. The administrative judge then
     issued an order on USERRA jurisdiction. IAF, Tab 11. The administrative judge
     also convened a discovery conference and denied the appellant’s motion to
     compel on the ground that the information requested was not relevant to the
     appellant’s USERRA claim. IAF, Tab 19.
¶3        The administrative judge convened a prehearing conference on July 10,
     2014. IAF, Tab 30. On July 17, 2014, the appellant filed a motion to expand the
     scope of the hearing, requesting to add two new issues to the appeal: (1) whether
     the appellant’s appointment was a reinstatement, which he argued would provide
     an additional basis for the Board’s jurisdiction; and (2) whether the agency
     violated USERRA by not reinstating him. IAF, Tab 28. The administrative judge
     declined to expand the scope of the hearing because the record had established
     that the appellant was not reinstated, and the appellant had declined an earlier
     opportunity to raise these issues. IAF, Tab 30 at 2.
¶4        In an initial decision, the administrative judge denied the appellant’s
     request for corrective act ion under USERRA. IAF, Tab 33, Initial Decision (ID)
     at 1, 9. The administrative judge found that the appellant failed to establish that
     his military service was at least “a substantial or motivating factor” in the
     termination of his appointment. ID at 5. Although he declined to expand the
     scope of the hearing, the administrative judge considered the appellant’s
     argument that he should have been reinstated to a term position in support of his
     USERRA claim, and he found that the evidence supported the agency’s position
     that the appellant had not been reinstated. ID at 7-8.
                                                                                     4

¶5        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.
                     DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant has not shown that his prior military service was a substantial or
     motivating factor in the agency’s decision to terminate his appointment.
¶6        On review, the appellant reasserts his argument that circumstantial evidence
     establishes that he was discriminated against based on his military service and
     service-connected disability when his appointment was terminated.       PFR File,
     Tab 1 at 16-19. These same arguments were presented before the administrative
     judge and thoroughly analyzed in the initial decision. ID at 4-9. In a USERRA
     action there must be an initial showing by the employee that his military status
     was at least a motivating or substantial factor in the agency action. Sheehan v.
     Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). Discriminatory
     motive or intent may be proven by circumstantial evidence. See id. at 1014.
¶7        The administrative judge properly considered the appellant’s argument that
     circumstantial evidence shows that his military service and service-connected
     disability were factors in the agency’s decision to terminate his appointment, yet
     he found that the appellant failed to meet his burden of proof.     ID at 9.   As
     properly set forth by the administrative judge, the factors that may prove an
     inference of USERRA discrimination include:       proximity in time between the
     employee’s military activity and the adverse employment action; inconsistencies
     between the proffered reasons and other actions by the employer; an employer’s
     expressed hostility toward members protected by USERRA together with
     knowledge of the employee’s military activity; and disparate treatment of certain
     employees compared to employees with similar work records or offenses. See
     Sheehan, 240 F.3d at 1014. The appellant argues on review that the agency’s
     choice to appoint him to a term appointment instead of to reinstate him is part of
     the circumstantial evidence in support of his USERRA discrimination claim. PFR
     File, Tab 1 at 16-19. We find that the method of the appellant’s appointment and
                                                                                      5

     the other circumstantial evidence he relies on to support his USERRA claim do
     not meet his burden of proof because he has not shown disparate treatment,
     animus toward members protected by USERRA, proximity in time between his
     military activity and the termination, or any other facts that would establish a
     nexus between the agency’s action and his military service or service-connected
     disability. Because the administrative judge’s finding that the appellant failed to
     meet his burden of proof is supported a preponderance of the evidence and the
     applicable law, we discern no reason to disturb this finding on review.        See
     Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997).
¶8        The appellant asserts on review that the administrative judge erred in
     finding that the appellant committed the misconduct underlying the decision to
     terminate his appointment. PFR File, Tab 1 at 12-15. Contrary to the appellant’s
     argument, the initial decision does not make a finding regarding the allegations of
     misconduct.    The administrative judge provided notice to both parties that the
     merits of the decision to terminate the appellant’s appointment was not the issue
     before him stating, “I note that the Board’s jurisdiction under USERRA does not
     extend beyond the complained of discrimination based on military or related
     status; it does not allow for a decision on the merits of the underlying matter
     except to the extent necessary to address the appellant’s USERRA claim.” IAF,
     Tab 19 at 2.    The initial decision properly analyzes the appellant’s USERRA
     claim without deciding the merits of the underlying decision to terminate his
     appointment.    See Bodus v. Department of the Air Force, 82 M.S.P.R. 508,
     ¶¶ 12-17 (1999) (even if the underlying personnel action was improper on some
     other grounds, the Board cannot order remedial action in a USERRA appeal if the
     appellant fails to prove discrimination based on military service). The burden in
     the appeal never shifted to the agency to prove a legitimate nondiscriminatory
     reason for terminating the appellant’s appointment because he failed to meet his
     initial burden of showing that military status was at least a motivating or
     substantial factor in the agency’s action.   See Sheehan, 240 F.3d at 1014 (an
                                                                                       6

      employee must make an initial showing that his military status was a motivating
      or substantial factor in the agency action before the burden shifts to the agency
      prove that it would have taken the action despite the employee’s protected status).
      The administrative judge did not err in denying the appellant’s motion to compel
      discovery and motion to expand the scope of the hearing.
¶9          On review, the appellant argues that the administrative judge erred in
      denying his motion to compel discovery.       PFR File, Tab 1 at 16 n.8.       The
      appellant’s motion to compel discovery concerned two categories of information.
      Id. at 4.   First, the appellant requested information concerning the application
      process, including the evaluation of his successful application, information
      concerning his previously unsuccessful applications, and the applications of other
      successful applicants.   IAF, Tab 5 at 3-4.      Second, the appellant requested
      information about the investigation that ultimately led to the termination of his
      appointment, including the social security numbers and addresses of the alleged
      victim and another witness, and medical information about the alleged victim. Id.
      at 4-10. The agency objected to these requests on the basis of relevance. IAF,
      Tab 19.
¶10         An administrative judge has broad discretion in ruling on discovery matters
      and absent an abuse of discretion the Board will not find reversible error in such
      rulings. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 15 (2013).
      The administrative judge denied the appellant’s motion to compel discovery
      because he found that the information sought was not relevant to the appellant’s
      USERRA claim. IAF, Tab 19.
¶11         The administrative judge did not abuse his discretion in determining that the
      information the appellant requested about his previous applications for
      employment is not relevant to this appeal. The stated purpose for requesting the
      application materials was that it might provide circumstantial evidence that the
                                                                                            7

      agency did not want to hire the appellant because of his status as a veteran. 2 IAF,
      Tab 5 at 3-5. Although this information may have been relevant if the appellant’s
      USERRA claim concerned these nonselections, it is not relevant in this appeal
      over the termination of his appointment.        See Sheehan, 240 F.3d at 1014 (in
      determining whether the employee has proven that his protected status was part of
      the motivation for the agency’s conduct the agency’s explanation for the actions
      taken may be considered).
¶12         The administrative judge did not abuse his discretion in determining that the
      appellant’s requests for an unredacted copy of the police investigation, medical
      information concerning the alleged victim, and the social security numbers and
      addresses of the alleged victim and one other witness were not relevant to his
      USERRA claim. 3 See Metzenbaum v. Department of Justice, 89 M.S.P.R. 285,
      ¶ 15 (2001) (the Board’s authority in USERRA appeals does not extend beyond
      the complained of discrimination because of military status, and does not allow
      for a decision on the merits of the underlying personnel action, except to the
      extent necessary to address the appellant’s military status claims).         The only
      information redacted from the police report is the names of the witnesses. IAF,
      Tab 4 at 2(d)(12-22). This information, which the appellant requested to impeach
      the credibility of the witnesses, is not relevant because, even if the appellant
      proved that the witnesses were not credible, the misconduct underlying the
      agency’s decision includes the appellant’s lack of candor in responding to
      investigators. The investigator noted at the end of the police report that there was
      insufficient evidence to criminally prosecute the appellant but that, “[s]ince there
      is evidence that [the appellant] was not truthful with regard to the events on the

      2
        The Coatesville Medical Center Director testified that under agency policy the
      position the appellant held, Housekeeping Aid, must be filled by veterans and that every
      employee encumbering the position during the relevant time period was a veteran.
      Hearing Compact Disc (HCD) (testimony of Director G.D.).
      3
        The social security numbers and addresses were requested so that the appellant could
      run crim inal background checks on the witnesses. IAF, Tab 5 at 5, 9-10.
                                                                                        8

      evening of 02/15/2013, this matter will be handled administratively.”            Id.
      at 2(d)(20). The deciding official testified that the appellant’s statements during
      the investigation were not credible when compared to a video taken of him on the
      night in question. HCD (testimony of Director G.D.). The credibility of the other
      witnesses involved in the investigation has no bearing on the appellant’s own lack
      of candor, which ultimately led to the decision to terminate his appointment.
¶13        We also find no error in the administrative judge’s declining to expand the
      scope of the hearing to include the issue of whether the appellant’s appointment
      was or should have been a reinstatement. IAF, Tab 28; PFR File, Tab 1 at 11 n.6.
      The appellant argued that because he had been reinstated he met the statutory
      definition of employee in 5 U.S.C. § 7511(a)(1)(A)(i).     IAF, Tab 28 at 1. He
      argued in the alternative that the agency’s failure to reinstate him may have
      violated USERRA. Id. at 1-2. An appellant can raise a claim not included in the
      appeal at any time before the end of the conference held to define the issues in the
      case. 5 C.F.R. § 1201.24(b). The appellant’s motion to expand the scope of the
      hearing was filed after the prehearing conference.           IAF, Tab 28.       The
      administrative judge considered the appellant’s arguments regarding the nature of
      his appointment in the context of the circumstantial evidence the appellant relied
      on to support his USERRA claim and found it was insufficient to meet the
      appellant’s burden.    ID at 7-9.      We find no abuse of discretion in the
      administrative judge declining to expand the scope of the hearing after the
      prehearing conference had been held.
      The new jurisdictional issues the appellant presented on review are not relevant
      to his USERRA claim and are more appropriately addressed in a separate appeal.
¶14        The appellant has made new arguments on review that could form new
      bases for the Board’s jurisdiction. He alleges that his appointment was term and
      not temporary and that he was denied procedural due process when his
      appointment was terminated. PFR File, Tab 1 at 6-12. The appellant argues that
      he was either terminated during his trial period or, in the alternative, that he
                                                                                             9

      completed his trial period by completing his tour of duty on the day before the
      anniversary date of his appointment and met the statutory definition of
      “employee” found at 5 U.S.C. § 7511(a)(1)(A)(i). 4 Id.          He acknowledges that
      these are “additional grounds” for an appeal. PFR File, Tab 1 at 3 n.1.
¶15         After fully considering the filings in this appeal, we conclude that the
      administrative judge’s decision to deny the appellant corrective action under
      USERRA was appropriate. See 5 C.F.R. § 1201.115. Therefore, we DENY the
      petition for review. The initial decision refers to the appellant’s appointment as
      both “temporary” and “term.” Compare, e.g., ID at 1 (the appellant appealed the
      termination of his term appointment), with ID at 2 (the appellant received a
      temporary appointment to the Housekeeping Aid position).             We MODIFY the
      initial decision to delete any reference to the nature of the appellant’s
      appointment as either term or temporary, which is immaterial to the appellant’s
      USERRA claim. Except as MODIFIED by this Final Order, the initial decision of
      the administrative judge is final with respect to the USERRA claim.
¶16         We FORWARD the appellant’s petition to the regional office for docketing
      as an appeal to address his new claim that he was an “employee” who could
      appeal his removal under 5 U.S.C. chapter 75. See, e.g., PFR File, Tab 1 at 5.
      We make no finding as to whether the Board has jurisdiction over this new appeal
      or whether it has been timely raised, and both of these issues should be addressed
      by the administrative judge.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      4
        On review the appellant cites to 5 U.S.C. § 7511(a)(1)(A)(i), wh ich is a definition of
      “employee” for individuals in the competitive service, but it appears he argued before
      the administrative judge that his position was in the excepted service. ID at 8. The
      defin ition of “employee” differs between the excepted service and the competitive
      service. 5 U.S.C. § 7511.
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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:
                             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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           11

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.
