                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KYLE MAKI,                                      DOCKET NUMBER
                         Appellant,                  SF-4324-15-0591-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: September 21, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kevin Byrnes, Esquire, Washington, D.C., for the appellant.

           Marcia N. Tiersky, Esquire, Springfield, Virginia, 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 Uniformed Services Employment
     and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
     §§ 4301-4335) (USERRA). Generally, we grant petitions such as this one only
     when: the initial decision contains erroneous findings of material fact; the initial

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.    Except as expressly MODIFIED by this Final Order to
     VACATE the finding that the Board’s remedial authority in hostile work
     environment claims under USERRA is limited, we AFFIRM the initial decision.
¶2         The agency appointed the appellant to the position of Criminal Investigator
     (Special Agent) for the agency’s Drug Enforcement Administration in 1998.
     Initial Appeal File (IAF), Tab 9 at 15. He was initially appointed at a grade of
     GS-07, id., but later received a number of promotions to ultimately reach his
     current grade of GS-13, e.g., IAF, Tab 8 at 19. Throughout this time, until July
     2015, the appellant also served in the U.S. Coast Guard Reserve, requiring that he
     attend numerous short drills and long deployments. E.g., IAF, Tab 7 at 50.
¶3         In the instant appeal, the appellant alleged that the agency discriminated
     against him based on his military service when it: (1) initially hired him in 1998
     as a GS-07 rather than as a GS-09; (2) transferred him from San Diego to
     Carlsbad in 2001 or 2002; 2 (3) transferred him to a nonenforcement position in



     2
      Below, the appellant specifically identified this transfer as occurring in April 2001,
     while the prehearing summary simply listed it as occurring in 2001. IAF, Tab 6 at 7,
     Tab 28 at 2. However, the transfer appears to have occurred in September 2002.
     Compare IAF, Tab 26 at 170, 196 (Standard Form 50 (SF-50) dated May 2001 and
     SF-50 dated February 2002, both listing his duty station as San Diego), with id. at 181
                                                                                         3

     the Asset Removal Group (ARG) in September 2005; 3 (4) subjected him to a
     hostile work environment from 2006 to 2009, including assigning him menial
     tasks and duties; (5) scored him unduly low on the Special Agent Promotion
     Program (SAPP) in 2012, resulting in his inability to be promoted; (6) did not
     select him for the position of GS-13 Special Agent Pilot three times in 2007;
     (7) did not select him for the position of GS-13 Special Agent Polygrapher in
     2007 or 2008; (8) did not select him for the position of GS-13 Special Agent,
     International Training Division, in 2014; and (9) did not select him for GS-14
     Group Supervisor twice in 2015. IAF, Tab 1, Tab 9 at 65, Tab 28 at 2; Petition
     for Review (PFR) File, Tab 3 at 14.
¶4        After holding the requested hearing, the administrative judge denied the
     request for corrective action, finding that the appellant failed to meet his burden
     under USERRA for any of the aforementioned claims.               IAF, Tab 32, Initial
     Decision (ID). The appellant has filed a petition for review. PFR File, Tab 3.
     The agency has filed a response. PFR File, Tab 5.
¶5        There are two types of cases that arise under USERRA:             reemployment
     cases under 38 U.S.C. §§ 4312-4318 and discrimination cases under 38 U.S.C.
     § 4311(a) and (b). Bostwick v. Department of Agriculture, 122 M.S.P.R. 269, ¶ 5
     (2015). A reemployment claim arises under USERRA when an employee alleges
     that an agency has not met its obligations under 38 U.S.C. §§ 4312-4318
     following his absence from civilian employment to perform uniformed service.
     Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 10 (2014).
     Unlike   discrimination    cases,   an   individual’s   rights    under   USERRA’s
     reemployment provisions do not depend on the motivation for an agency’s action

     (SF-50 documenting a reassignment in September 2002, where his duty station was
     listed as Carlsbad).
     3
      Although the prehearing summary of issues identifies one of the appellant’s claims as
     a “transfer[] to a non-enforcement position in the Asset Removal Group in 2004
     or 2005,” the SF-50 documenting this move lists it as a reassignment in
     September 2005. Compare IAF, Tab 28 at 2, with IAF, Tab 26 at 183.
                                                                                      4

     (or inaction), and the agency bears the burden of proving that it met its statutory
     obligations. Id.
¶6         In contrast, an employee making a USERRA discrimination claim bears the
     initial burden of showing by a preponderance of the evidence that his military
     service was “a substantial or motivating factor” in the contested agency decision.
     Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). An
     appellant may meet this burden by using direct or circumstantial evidence. Id.
     at 1014.    “Discriminatory motivation under USERRA may be reasonably
     inferred” from such circumstantial evidence as temporal proximity between the
     appellant’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 [individual’s] military activity, and disparate treatment of
     certain [individuals] compared to other [individuals] with similar work records or
     offenses.” Id. If an appellant meets his burden, then the burden shifts to the
     agency to prove that it took its action solely for “legitimate reasons.” Id.

     Initial Appointment
¶7         In his petition for review, the appellant first reasserts his claim that the
     agency improperly appointed him at the GS-07 level, rather than at the GS-09
     level, i.e., “claim (1).” PFR File, Tab 3 at 4-7. He argues that the agency erred
     by discounting the experience he gained through military service, experience that
     reportedly qualified him for the GS-09 level. E.g., id. However, we agree with
     the administrative judge’s conclusion that the appellant failed to prove a
     USERRA violation. ID at 5-7.
¶8         The appellant exclusively applied for his position at the GS-07 level. IAF,
     Tab 9 at 17.       He was given the opportunity to apply for the GS-09 level,
     separately, but declined to do so. ID at 5; IAF, Tab 30, Hearing Compact Disc 1
     (HCD1) (testimony of the appellant).      Although the appellant alleges that the
     agency should have nevertheless appointed him at the GS-09 level, he has failed
                                                                                          5

      to identify any evidence, other than his own testimony, to show that doing so was
      even permissible. PFR File, Tab 3 at 5; HCD1 (testimony of appellant).
¶9         As the administrative judge noted, a human resources professional testified
      that the agency considers and hires an applicant for only the position and grade
      for which he or she applies. ID at 6; HCD1 (testimony of M.W.). While the
      appellant reasserts that classmates with nonmilitary experience were appointed at
      the GS-09 level, he has failed to present any evidence that they, too, exclusively
      applied for the GS-07 level.      PFR File, Tab 3 at 5; cf. IAF, Tab 9 at 58-64
      (documentation      of   individuals   receiving   appointments   to    the   Criminal
      Investigator position at the GS-09 level, some with and some without prior
      military service, near the time of the appellant’s appointment to the same position
      at the GS-07 level).       Accordingly, we discern no basis for disturbing the
      administrative judge’s conclusion that the appellant failed to meet his burden of
      proving that his military service was a motivating factor in the agency appointing
      him to the GS-07 level.

      Reassignments
¶10        The appellant next reasserts claims (2) and (3), in which he alleged that the
      agency violated USERRA by transferring or reassigning him on various
      occasions. PFR File, Tab 3 at 8-12. We agree with the administrative judge’s
      conclusion that the appellant failed to prove any violation of USERRA’s
      antidiscrimination provisions. ID at 7-8.
¶11        The appellant’s military obligations have required extensive absences from
      his position with the agency. E.g., IAF, Tab 26 at 194-95. For example, he was
      on leave for periods of active duty military service from approximately
      October 2001 to September 2002; January to November 2003; February to
      October 2004; and July to September 2005.          Id. at 194-210.     Throughout his
      tenure with the agency, the appellant also has been reassigned a number of times.
      E.g., id. at 177.    Some of those reassignments include ones in August 2001,
                                                                                             6

      December 2001, September 2002, November 2004, and September 2005.                     Id.
      at 179-83.
¶12         The appellant suggests that the timing of his reassignments reflects an
      antimilitary animus and proves a violation of USERRA’s antidiscrimination
      provisions. PFR File, Tab 3 at 10. As noted above, a discriminatory motive may
      be   inferred    by   circumstantial     evidence    such    as   suspicious     timing.
      Sheehan, 240 F.3d at 1014. However, “frequent changes in posts of duty” were a
      condition of the appellant’s position, as reflected in the mobility agreement he
      signed upon his initial appointment. IAF, Tab 9 at 9. In addition, while some of
      the appellant’s reassignments (and at least one promotion) have occurred during
      or just after periods of extensive military service, e.g., IAF, Tab 26 at 172,
      180-81, others have not, e.g., id. at 179.          Accordingly, we agree with the
      administrative judge’s conclusion that the appellant failed to meet his burden of
      proving that his military service was a substantial or motivating factor in any of
      the agency’s reassignment decisions. Without more, the appellant’s assertions of
      suspicious timing are not persuasive under these circumstances. 4
¶13         The appellant also asserts that the administrative judge should have
      addressed claims (2) and (3), concerning his reassignment to Carlsbad and his
      reassignment to the ARG under both the antidiscrimination and reemployment
      provisions of USERRA. PFR File, Tab 3 at 10-12. However, despite being given
      the opportunity, the appellant failed to raise any reemployment arguments below.
      Compare IAF, Tab 3 (providing the appellant with the jurisdictional burdens for
      both types of USERRA claims), with IAF, Tab 28 at 4-6 (prehearing summary,


      4
        On review, the appellant argues that the administrative judge erred in finding that his
      failure to request a transfer out of the ARG weighed against his discrimination claim.
      PFR File, Tab 3 at 9, 14-15. We disagree. The administrative judge’s analysis simply
      recognized that, although the appellant claimed that his assignment to the ARG was
      detrimental and reflected antimilitary animus, the allegation appeared inconsistent with
      evidence indicating that the ARG was a desirable assignment and the appellant’s own
      failure to avail himself of options to transfer elsewhere. ID at 7.
                                                                                                 7

      providing the legal standards for both types of USERRA appeals, indicating that
      the appellant had not yet raised a reemployment allegation, and providing him
      with an opportunity to object).           Therefore, we decline to consider this new
      argument raised for the first time on review.            See Crowe v. Small Business
      Administration, 53 M.S.P.R. 631, 634-35 (1992) (recognizing that an issue is not
      properly before the Board where it is not included in the administrative judge’s
      memorandum summarizing the prehearing conference, unless either party objects
      to the exclusion of that issue).

      Nonselections
¶14         In claims (6) and (7), the appellant asserted that the agency violated
      USERRA when it failed to select him for Special Agent Pilot and Special Agent
      Polygrapher vacancies between 2007 and 2008.                 IAF, Tab 28 at 2.           The
      administrative judge found no persuasive support for the allegations. ID at 8.
      She noted that, inter alia, the appellant did not present any evidence that he was
      more qualified than the selectees, that the selecting officials knew of his military
      service, or that the selectees lacked military service. ID at 8.
¶15         Claim (8) concerned the appellant’s nonselection for an International
      Training vacancy in 2014.          IAF, Tab 28 at 2.         In denying this claim, the
      administrative   judge noted       that    the   selecting   official   testified,    without
      contradiction, that he did not know the appellant was a military reservist. ID at 9;
      IAF, Tab 31, Hearing Compact Disc 2 (HCD2) (testimony of J.S.).                      She also
      noted that the selecting official presented legitimate bases for choosing the
      selectee for the vacancy. ID at 8; HCD2 (testimony of J.S.).
¶16         In claims (5) and (9), the appellant alleged that the agency erred in scoring
      him unduly low in its promotion program, the SAPP, and in not selecting him for
      a Group Supervisor vacancy. IAF, Tab 28 at 2. In part, SAPP scoring is derived
      from local management with personal knowledge of an individual. IAF, Tab 7
      at 73. The remainder is derived from a 1-day assessment, as measured by persons
      at a central office without personal knowledge of the individual being assessed.
                                                                                           8

      IAF, Tab 7 at 73, 75. The administrative judge denied claim (5), finding that the
      appellant received a perfect score from the local managers with personal
      knowledge of him and his military service.        ID at 9.   Although the appellant
      received a less than perfect score for his centralized assessment, the
      administrative judge found no reason to believe that the assessors were aware of
      his military service. ID at 9-10. She further found that claim (9) failed because,
      inter alia, the selecting official was not even aware that the appellant had applied
      for the vacancy; his application was excluded from consideration because of his
      SAPP score. ID at 11.
¶17         On review, the appellant has presented some arguments related to
      claims (5) to (9), but they are unavailing. For example, he argues that the agency
      failed to prove that he lacked the necessary qualifications for the Pilot and
      Polygrapher vacancies and failed to prove that those nonselections were based
      upon something other than antimilitary animus. 5        PFR File, Tab 3 at 13-14.
      However, it was the appellant’s burden to prove discrimination, not the agency’s
      burden to disprove it. Sheehan, 240 F.3d at 1013. He also argues that a former
      supervisor disliked him and could have influenced the nonselections. PFR File,
      Tab 3 at 14. Aside from this speculation though, the appellant presented no basis
      for concluding that his nonselection was motivated by his uniformed service.
      Concerning his SAPP rating, the appellant reasserts that a supervisor fought with
      his immediate manager in an attempt to lower the portion of the score derived
      from local management. Id. However, even if true, the record shows that the
      dispute was inconsequential; the appellant received a perfect score on that portion
      of his SAPP rating. Id.; see IAF, Tab 7 at 59-60, 79.



      5
        Although the appellant also alleges that the agency’s record retention concerning the
      Pilot vacancy was improper, he does not explain how any agency error evidences
      discriminatory animus. PFR File, Tab 3 at 13. Therefore, we find that his argument
      provides no basis for review.
                                                                                            9

¶18         In sum, we discern no basis for disturbing the administrative judge’s
      finding that the appellant failed to prove that the nonselections at issue in claims
      (5) to (9) were motivated by his military service. ID at 8-11.

      Hostile Work Environment
¶19         The appellant lastly reasserts claim (4), which alleged that the agency
      subjected him to a hostile work environment in violation of USERRA. PFR File,
      Tab 3 at 16-24. He argues that antimilitary animus is rampant at the agency.
      PFR File, Tab 3 at 17-18.        Examples he provides in support of purported
      antimilitary animus include the previously discussed reassignments and the
      dispute concerning his SAPP score.        Id.   Others include allegations that the
      agency threatened him with an absence without leave charge if he did not return
      to work immediately after one of his deployments, 6 and assigned him menial tasks
      upon his return. Id. He also alleged that numerous other reservists have similarly
      accused management officials within the San Diego division of creating a hostile
      work environment. Id.
¶20         In the initial decision, the administrative judge first indicated that the Board
      is effectively limited to addressing a current hostile work environment claim
      under USERRA in the absence of lost wages or benefits.             ID at 11-12.     The
      appellant alleges that this was an unduly narrow view of the Board’s ability to
      address hostile work environment claims. PFR File, Tab 3 at 19-24. We agree
      and modify the initial decision accordingly, but find that the claim still fails.
¶21         The Board’s remedial authority under USERRA derives from 38 U.S.C.
      § 4324(c)(2), which authorizes the Board to enter an order requiring an agency to
      comply with the provisions of USERRA and to compensate an appellant for any
      loss of wages or benefits suffered by reason of such lack of compliance. Johnson

      6
        The appellant now asserts that the Board should consider this claim under USERRA’s
      reemployment provisions. PFR File, Tab 3 at 16-17. However, like his other new
      reemployment arguments, we will not consider this claim because he failed to raise it
      below. IAF, Tab 28 at 4, 6; see supra ¶ 13; see also Crowe, 53 M.S.P.R. at 634-35.
                                                                                      10

      v. U.S. Postal Service, 121 M.S.P.R. 101, ¶ 11 (2014). Therefore, in some cases,
      the Board is unable to provide any effective remedy for past violations. See, e.g.,
      id. (dismissing a USERRA allegation for failure to state a claim upon which relief
      can be granted because the Board could not remedy the since-retired appellant’s
      denial of a lateral reassignment); Hudson v. Department of Homeland
      Security, 104 M.S.P.R. 223, ¶ 8 (2006) (finding that the Board could provide no
      relief for an alleged USERRA violation concerning military leave because the
      appellant had not alleged that he lost any wages or other compensation and it
      would have no effect to order the agency to comply with USERRA since he had
      left the agency). However, we decline to adopt the administrative judge’s per se
      rule that there is no basis for relief in the absence of current harassment, lost
      wages, or lost benefits, and we vacate this finding.
¶22        In any event, the appellant’s hostile work environment claim still fails. See
      Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (recognizing
      that an adjudicatory error that is not prejudicial to a party’s substantive rights
      provides no basis for reversal of an initial decision). To prove a hostile work
      environment under USERRA, the appellant had to demonstrate that he was
      subjected to a pattern of ongoing and persistent harassing behavior based on his
      military service that was sufficiently severe or pervasive to alter the terms and
      conditions of employment. Kitlinski v. Department of Justice, 123 M.S.P.R. 41,
      ¶ 19 (2015).
¶23        The administrative judge considered the appellant’s allegations, but found
      that he failed to show that his military service was a motivating factor in any of
      the alleged actions underlying his hostile work environment claim. ID at 12-14.
      On review, the appellant argues that the administrative judge erroneously ignored
      his assertions that other reservists were subject to discrimination or overheard
      discriminatory comments from agency managers. PFR File, Tab 3 at 17-18. We
      disagree. The administrative judge properly considered the allegations, but found
      that the appellant had merely presented second-hand comments and the
                                                                                   11

unsubstantiated allegations of others, neither of which proved that the appellant
was subject to a hostile work environment based upon his military service. ID
at 12-13. Despite his reassertion of the claim, generally, the appellant has not
identified any persuasive evidence to prove that he was subjected to a hostile
work environment based on his military service.

                  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
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, 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 U.S. 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 U.S.
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.
                                                                                12

      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:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
