                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JEFFREY P. TURNER,                              DOCKET NUMBER
                   Appellant,                        AT-4324-15-0675-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: June 2, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jerry Girley, Esquire, Orlando, Florida, for the appellant.

           Luis E. Ortiz, Esquire, Orlando, Florida, 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 Uniform Services Employment
     and Reemployment Rights Act of 1994 (USERRA). Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.         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).

                                      BACKGROUND
¶2         On July 8, 2015, the appellant filed an appeal alleging that, because of his
     military service, the agency: (1) distributed more overtime hours to nonveterans;
     (2) failed to select him for two vacancies for which he was qualified; and
     (3) required him to work an undesirable shift for more time than a nonveteran. 2
     Initial Appeal File (IAF), Tab 1. After allowing the parties to submit evidence
     and argument, and following a hearing, the administrative judge denied the
     appellant’s request for corrective action. IAF, Tab 26, Initial Decision (ID). The
     administrative judge found that the appellant failed to show that his military
     service was a substantial or motivating factor in the agency’s actions. ID at 1, 7.
¶3         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has responded in opposition to the petition for review.
     PFR File, Tab 3.


     2
       As found by the administrative judge, the appellant served in the U.S. Marine Corps
     from 1981 through 1984. Initial Appeal File, Tab 26, Initial Decision at 3; Hearing
     Compact Disc (testimony of the appellant).
                                                                                    3

                    DISCUSSION OF ARGUMENTS ON REVIEW
¶4        Under USERRA, a person who has performed service in a uniformed
     service shall not be denied any benefit of employment by an employer on the
     basis of that performance of military service. 38 U.S.C. § 4311(a). The appellant
     bears the initial burden of showing by a preponderance of the evidence that his
     military service was a substantial or motivating factor in the agency’s action.
     McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶ 19 (2013). The appellant’s
     military service is a motivating factor in the agency’s action if the employer
     “relied on, took into account, considered, or conditioned its decision” on that
     service. Id., ¶ 20 (citing Erickson v. U.S. Postal Service, 571 F.3d 1364, 1368
     (Fed. Cir. 2009)). Discriminatory motivation under USERRA may be established
     by direct evidence or reasonably inferred through a variety of factors, including
     proximity in time between the employee’s military activity and the adverse
     employment action, inconsistencies between the proffered reason and other
     actions of the employer, an employer’s expressed hostility towards members
     protected by the statute together with knowledge of the employee’s military
     activity, and disparate treatment of certain employees compared to other
     employees with similar work records or offenses. Id.; see Sheehan v. Department
     of Navy, 240 F.3d 1009, 1014 (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. McMillan, 120 M.S.P.R. 1, ¶ 19.
¶5        On review, the appellant argues that he met his prima facie case because he
     presented evidence that another employee, L.C., who was not a veteran, was
     assigned more overtime than was the appellant. PFR File, Tab 1 at 1, 3. The
     appellant also asserts that he presented evidence before the administrative judge
     that the way the agency distributed overtime was in violation of the master labor
     agreement. Id. at 3‑4.
                                                                                         4

¶6         The    administrative   judge   found,   based   on   the   appellant’s   former
     supervisor’s sworn statement in an equal employment opportunity investigation,
     that the appellant did not want to work overtime and that overtime was given to
     employees, including L.C., who expressed a desire to work overtime. ID at 5; see
     IAF, Tab 14 at 140‑42. The administrative judge also found that the appellant
     testified that every employee identified by his former supervisor as wanting to
     work overtime, with the exception of L.C., were veterans.             ID at 5; HCD
     (testimony of the appellant). The appellant does not contest these findings on
     review, and we discern no reason to disturb them.
¶7         The administrative judge also found that the appellant failed to present any
     direct evidence of discrimination based on his military service, such as statements
     by agency managers suggesting an animus against individuals with prior military
     service.    ID at 5.   The administrative judge further found that the fact that
     four other veterans were afforded overtime by the appellant’s former supervisor
     “seriously erodes any inference that the real reason [the appellant’s former
     supervisor] provided overtime to L.C. was because of the appellant’s military
     service.” ID at 6. The administrative judge concluded that the record failed to
     raise even an inference of anti-military animus regarding the allocation of
     overtime. Id.
¶8         As explained above, under USERRA, when an appellant meets his initial
     burden of proof, the agency may avoid liability by showing, as an affirmative
     defense, that it would have taken the same action for a valid reason without
     regard to the appellant’s military service. McMillan, 120 M.S.P.R. 1, ¶ 19. Here,
     as the administrative judge correctly found, the appellant did not meet his initial
     burden of proof by a preponderance of the evidence. ID at 7. Thus, the burden of
     production did not shift to the agency.
¶9         Regarding the appellant’s claim that the agency’s method of assigning
     overtime violated the master labor agreement, the administrative judge found that,
     while those claims might constitute an unfair labor practice, absent more, they
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      are not evidence that the agency acted because of the appellant’s military service.
      ID at 6 n.1. On review, the appellant does not allege error in the administrative
      judge’s finding.
¶10        Concerning      the   appellant’s   nonselection   claim   raised   below,   the
      administrative judge found that the individuals selected for the positions were
      veterans and therefore the appellant did not present even the inference that
      anti-military animus was a motivating factor. ID at 6. The appellant does not
      challenge this finding on review. Similarly, the appellant does not challenge the
      administrative judge’s finding that, while there may have been favoritism in the
      assignment of the less desirable second shift, there was no evidence that the
      favoritism was based on the appellant’s military service. ID at 6.
¶11        In sum, after carefully considering the appellant’s arguments on review, we
      discern no reason to disturb the administrative judge’s well-reasoned initial
      decision denying the appellant’s request for corrective action. See Crosby v. U.S.
      Postal Service, 74 M.S.P.R. 98, 105‑06 (1997) (finding no reason to disturb the
      administrative judge’s findings when she considered the evidence as a whole,
      drew appropriate inferences, and made reasoned conclusions); Broughton v.
      Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      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,
                                                                                    6

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 and 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 U.S. 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 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.
