                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PETER A. MCMILLAN,                              DOCKET NUMBER
                   Appellant,                        DC-4324-11-0726-B-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: October 16, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Adam A. Carter, Esquire, and R. Scott Oswald, Esquire, Washington, D.C.,
             for the appellant.

           William G. Hughes, III, Esquire, Springfield, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision on
     remand that denied his request for corrective action under the Uniformed Services
     Employment and Reemployment Rights Act (USERRA).                 Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 and AFFIRM the initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        An employee who claims that an agency violated 38 U.S.C. § 4311(a) 2 in
     taking an adverse employment action bears the initial burden of showing by a
     preponderance of the evidence that the employee’s military service was “a
     substantial or motivating factor” in the action.    Sheehan v. Department of the
     Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). If the appellant meets his initial
     burden, the employer can avoid liability by demonstrating, as an affirmative
     defense, that it would have taken the action for a valid reason without regard to
     the employee’s military service. Erickson v. U.S. Postal Service, 571 F.3d 1364,
     1368 (Fed. Cir. 2009); Sheehan, 240 F.3d at 1013; see 38 U.S.C. § 4311(c).


     2
       38 U.S.C. § 4311(a) provides that “[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 to perform service.”
                                                                                         3

¶3         On review, the appellant contests the administrative judge’s finding that his
     first-level supervisor, Group Supervisor J.A., did not demonstrate animus toward
     the appellant or his military service in his response to the appellant’s request for a
     total of 4 weeks leave. Petition for Review (PFR) File, Tab 1 at 12. In particular,
     he contends that the administrative judge failed to consider the documentary
     evidence that he “needed 4 weeks and had to settle for 3 weeks.” Id. However,
     the appellant conceded at the remand hearing that the 3 weeks leave he was
     granted (2 weeks military leave plus 1 week annual) were enough to meet his
     military obligations for a “good year.” Remand Hearing Transcript (RHT) at 46.
     The appellant also asserts that the administrative judge glossed over testimonial
     evidence that, when he first requested 4 weeks leave, J.A. responded that he had
     just been out on “vacation” (technically home leave) and that he was not inclined
     to approve “more.”      PFR File, Tab 1 at 12.         However, the fact that the
     administrative judge did not expressly refer to that testimony does not mean that
     she did not consider it in reaching her decision. See Marques v. Department of
     Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062
     (Fed. Cir. 1985) (Table). Moreover, the testimony in question concerns J.A.’s
     initial request that the appellant take the 2 weeks annual leave he requested at a
     later date, see RHT at 113-14, and does not suggest that J.A. considered the
     appellant’s military leave or the performance of military obligations to be
     vacation.
¶4         The appellant further contends that the administrative judge erred in finding
     that he was required to follow the agency chain of command in soliciting
     assistance with his military assignment. PFR File, Tab 1 at 12-15. He does not
     contest the administrative judge’s finding that he would be required to go through
     the chain of command if he were (1) acting in his capacity as a Drug Enforcement
     Administration (DEA) agent, and (2) seeking to disseminate DEA information
     outside the agency.     See Initial Decision (ID) at 11.      The appellant argues,
     however, that, when he approached Field Intelligence Manager M.W. for
                                                                                          4

     assistance, he made it clear that his request for information was for his military
     assignment, not DEA business. PFR File, Tab 1 at 12-13. He further notes that
     he did not have the intent of disseminating DEA information when he first
     approached M.W. and that it was M.W. himself who suggested using the Foreign
     Situation Report (FSR). Id. Hence, the appellant argues, it was M.W., and M.W.
     alone, who was obliged to obtain approval for the release of the FSR. Id. at 13.
     The appellant further notes that M.W. considered it appropriate to approach
     Regional Director P.S. directly without first approaching his own direct
     supervisor. Id. at 13-14.
¶5         We find the appellant’s arguments on this point unconvincing. First, as we
     noted in the remand order, the appellant was on duty in his civilian position when
     he   approached   M.W.,     and   the   appellant   himself   stated   in   his   email
     correspondence with M.W. that he viewed himself acting in a dual capacity as a
     military officer and DEA agent.         See McMillan v. Department of Justice,
     120 M.S.P.R. 1, ¶ 21 (2013). Moreover, even if it were M.W. who first suggested
     using the FSR in the military report, it was the appellant, not M.W., who intended
     to disseminate that information outside the agency. Thus, even if the appellant
     had acted within the bounds of the agency’s open door policy when he first
     approached M.W., he was nonetheless obliged to proceed through his own chain
     of command prior to approaching P.S. for approval to use the FSR.
¶6         The appellant also contests the administrative judge’s finding that the
     agency’s action was not based on the content and performance of his military
     assignment.   PFR File, Tab 1 at 15-23.         He argues that, while the agency
     contended that the denial of the tour extension was based in part on alleged
     performance issues, his performance ratings had been outstanding, and the goals
     he allegedly failed to meet were arbitrary, unstated, and undocumented. Rather,
     he contends, his tour extension was denied exclusively because of management’s
     disapproval of behavior relating to his military assignments—specifically, his
     approaching M.W. for sources of information on Bolivia and his subsequent email
                                                                                    5

     exchanges with P.S.    The appellant reasons that management would not have
     denied his tour request but for his military assignment because “had there never
     been these military assignments there never would have been any issue with a
     chain-of-command, nor any issue with being disrespectful of [P.S.], nor any
     reason to write the Memo, and [the appellant’s] tour request would likely have
     been approved.” Id. at 21.
¶7          It is true that an employer violates section 4311(a) if it would not have
     taken the adverse employment action but for the employee’s military service or
     obligation. Erickson, 571 F.3d at 1368; see H.R. Rep. No. 103-65, at 23 (1993),
     as reprinted in 1994 U.S.C.C.A.N. 2449, 2457. However, as we explained in our
     remand order in this case, USERRA does not prohibit an employer from taking
     action against an employee for gratuitous misconduct in the course of performing
     military duties. See McMillan, 120 M.S.P.R. 1, ¶ 17; cf. Escher v. BWXT Y-12,
     LLC, 627 F.3d 1020, 1024-25, 1032 (6th Cir. 2010) (employer did not violate
     section 4311(b) when it terminated the employee for doing Naval Reserve
     business at work in violation of agency policy). Protection under USERRA is
     contingent on the employee’s compliance with the reasonable and ordinarily
     accepted standards of personal conduct and performance of all employees.
     McMillan, 120 M.S.P.R. 1, ¶ 17 (citing Figueroa Reyes v. Hosp. San Pablo del
     Este, 389 F. Supp. 2d 205, 212 (D.P.R. 2005)). Hence, assuming arguendo that
     management denied the tour extension based solely on the appellant’s conduct in
     connection with his military assignments, and not on performance issues, there
     was no USERRA violation if the appellant failed to comply with ordinary
     accepted standards of personal conduct and performance in the course of
     fulfilling his military assignments. See McMillan, 120 M.S.P.R. 1, ¶ 18.
¶8        We discern no error in the administrative judge’s finding that the appellant
     did not comply with those standards.     First, as discussed above, even if the
     appellant acted within the bounds of the agency’s open door policy when he
     initially approached M.W., he nonetheless violated the chain of command by
                                                                                 6

seeking P.S.’s approval to use the FSR without first going through his first- and
second-level supervisors. Second, we agree with the administrative judge that the
appellant’s July 20, 2012 email to P.S. was disrespectful in tone and content. See
ID at 15; see also MSPB Docket No. DC-4324-11-0726-I-2, Initial Appeal File,
Tab 7, Ex. W. On review, the appellant contends that the email was not improper
because it was sent while he was on military duty and concerned his military
assignment. PFR File, Tab 1 at 25. However, as we noted in our remand order,
the appellant identified himself in the July 20, 2010 email as a Special Agent (his
civilian job title), and he had also indicated in previous correspondence with
M.W. that he was acting in his dual capacity as a military officer and DEA agent.
See McMillan, 120 M.S.P.R. 1, ¶¶ 5-6, 21.        Given the appellant’s failure to
comply with the ordinarily accepted standards of conduct in the course of
performing his military duties, we find that he has not shown that the
administrative judge erred in finding that he is not entitled to 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:
                          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
                                                                                  7

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
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.
