                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KEVIN SHARPE,                                   DOCKET NUMBER
                         Appellant,                  SF-4324-15-0593-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: November 22, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

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

           Marcia N. Tiersky and William G. Hughes, III, Esquire, Springfield,
            Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                      REMAND 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 (USERRA). For the reasons
     discussed below, we GRANT the appellant’s petition for review, VACATE the


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                               2

     initial decision, and REMAND the case to the regional office for further
     adjudication in accordance with this Order.

                                         BACKGROUND
¶2         The     appellant,    an   employee   of      the   agency’s    Drug     Enforcement
     Administration (DEA) and a former member of the U.S. Navy Reserve, filed an
     appeal in which he alleged that the agency took various adverse employm ent
     actions in violation of the anti-discrimination provisions of USERRA.                Initial
     Appeal File (IAF), Tab 1. During the proceedings below, he clarified that he was
     seeking relief as to the following claims: (1) that the agency failed to properly
     calculate his pay and benefits while he was deployed to Kuwait for 6 months in
     2003; (2) that the agency failed to select him for a total of 14 GS-14 positions
     since July 2012; and (3) that the agency paid him at the GS-14 rate for only 4 of
     the 16 months he served as Acting Group Supervisor for the Narcotics Task
     Force.   IAF, Tab 49.       Following a hearing, the administrative judge issued a
     decision denying the appellant’s request for corrective action.               IAF, Tab 63,
     Initial Decision (ID).
¶3         On review, the appellant contests the administrative judge’s findin gs
     concerning the nonselections.        Petition for Review (PFR) File, Tab 1.              In
     particular,   he   argues    that   the   Special     Agent    in    Charge    who   made
     recommendations for selection, which were relied upon by the DEA Career
     Board, improperly discounted skills he acquired in the military. Id. at 13-17. He
     further contends that the administrative judge incorrectly applied the analytical
     framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
     failed to apply the “cat’s paw” theory described in Staub v. Proctor Hospital,
     562 U.S. 411 (2011) to his case. Id. at 17-22. The agency has filed a response, to
     which the appellant has replied. PFR File, Tabs 7, 10.
                                                                                        3

                                          ANALYSIS
¶4        In Sheehan v. Department of the Navy, 240 F.3d 1009 (Fed. Cir. 2001), our
     reviewing court articulated the procedures and allocations of proof applicable to
     USERRA discrimination claims arising under 38 U.S.C. § 4311.              First, “an
     employee making a USERRA claim of discrimination . . . bear[s] 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 adverse
     employment action.”       Id. at 1013. 2   If the employee has made the requisite
     showing, “the employer then has the opportunity to come forward with evidence
     to show, by a preponderance of the evidence, that the employer would have taken
     the adverse action anyway, for a valid reason.” Id.
¶5        The appellant may satisfy his initial burden using direct or circumstantial
     evidence.   Id. at 1014; but see Gardner v. Department of Veterans Affairs,
     123 M.S.P.R. 647, ¶¶ 29-30 (2016) (clarifying in the title VII context that direct
     and circumstantial evidence of discriminatory motive are not distinct methods of
     proof subject to different legal standards). The court identified four nonexclusive
     factors to be considered in determining whether discriminatory motive may
     reasonably be inferred:
           (1) proximity in time between the employee’s military activity and
               the adverse employment action,
           (2) inconsistencies between the proffered reason and other actions of
               the employer,
           (3) an employer’s expressed hostility towards members protected by
               the statute together with knowledge of the employee’s military
               activity, and
           (4) disparate treatment of certain employees compared to other
               employees with similar work records or offenses.


     2
       An employee’s military service is a motivating factor in an adverse employment
     action if the employer “relied on, took into account, considered, or conditioned its
     decision” on that service. Erickson v. U.S. Postal Service, 571 F.3d 1364, 1368 (Fed.
     Cir. 2009).
                                                                                           4

     Sheehan, 240 F.3d at 1014 (numbering added). “In determining whether the
     employee has proven that the protected status or activity was part o f the
     motivation for the agency’s conduct, all record evidence may be considered,
     including the agency’s explanation for the actions taken.” Id.
¶6         Our reviewing court has stated in no uncertain terms that the Board “must
     employ” the Sheehan analysis.           McMillan v. Department of Justice, 812 F.3d
     1364, 1372 (Fed. Cir. 2016). However, the administrative judge did not at any
     point cite Sheehan or describe the procedures and evidentiar y standards set forth
     therein.       Rather,   in   finding     that   the   agency   “identified   legitimate
     non‑discriminatory reasons” for the nonselections, the administrative judge
     appears to have implicitly applied the title VII summary judgment framework of
     McDonnell Douglas, in which only the burden of production shifts to the
     employer, and not the burden of persuasion as in USERRA discrimination claims.
     ID at 22; see Sheehan, 240 F.3d at 1014. 3
¶7         Furthermore, the Board has held that an administrative judge must provide
     notice of the Sheehan framework and allow the parties to develop the record
     accordingly.    Haynes v. U.S. Postal Service, 89 M.S.P.R. 9, ¶ 7 (2001).           The
     administrative judge did not provide the required notice at any point during the
     proceedings below, and the pleadings do not indicate that the appellant was
     otherwise made aware of the applicable procedures and evidentiary standards.
     Cf. Brasch v. Department of Transportation, 101 M.S.P.R. 145, ¶¶ 15-16 (2006)
     (declining to remand where the pleadings demonstrated that the appellant was
     aware of the Sheehan standard, notwithstanding the administrative judge’s failure
     to provide the required notice).          We therefore remand the case for further
     adjudication. See Haynes, 89 M.S.P.R. 9, ¶ 7.



     3
      We recently have clarified that the McDonnell Douglas framework does not apply to
     Board proceedings even in the title VII context. Savage v. Department of the Army,
     122 M.S.P.R. 612, ¶ 46 (2015).
                                                                                      5

                                           ORDER
¶8        For the reasons discussed above, we remand this case to the regional office
     for further adjudication in accordance with this Order.          On remand, the
     administrative judge should inform the parties of their respective burdens of proof
     under USERRA and afford them the opportunity to conduct addiitional discovery
     concerning the contested nonselections.     The administrative judge should then
     adjudicate the merits of the appellant’s USERRA discrimination claim under the
     correct standard and issue a new initial decision.




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