                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DANIEL F. HERRERA,                              DOCKET NUMBER
                   Appellant,                        DE-0752-15-0053-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 16, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Daniel F. Herrera, Santa Fe, New Mexico, pro se.

           Dynelle M. Tadlock, Esquire, Denver, Colorado, 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 that
     sustained his removal. Generally, we grant petitions such as this one only 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 administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 address the
     appellant’s claim under the Uniformed Services Employment and Reemployment
     Rights Act of 1994 (USERRA), we AFFIRM the initial decision.

                                      BACKGROUND
¶2        On October 27, 2014, the appellant filed an appeal of the agency’s decision
     to remove him from Federal service, effective October 11, 2014, based on the
     charge, “Continued failure to report for duty as scheduled: failure to follow
     absence notification procedures: failure to follow instructions.” Initial Appeal
     File (IAF), Tab 1. He raised affirmative defenses of harmful procedural error,
     relating to his completion of a detoxification program, and discrimination based
     on disabilities (alcoholism, post-traumatic stress disorder (PTSD), and head
     injury). Id. In addition, he asserted a claim of “VEOA – Veterans Preference,”
     which the administrative judge construed as an affirmative defense under
     5 U.S.C. § 7701(c)(1)(C). Id.; IAF, Tab 13. The administrative judge split the
     agency’s charge into separate charges of (1) absence without leave (AWOL), and
     (2) failure to follow instructions, and notified the appellant of the standards and
     burdens of proof applicable to his affirmative defenses. IAF, Tab 13.
¶3        Because the appellant did not request a hearing, the administrative judge
     issued a decision based on the written record. IAF, Tab 21, Initial Decision. The
     administrative judge sustained the AWOL charge, but did not sustain the failure
                                                                                            3

     to follow instructions charge. Id. He further found that the appellant failed to
     establish his affirmative defenses and that the agency met its burden of proof as
     to nexus and the reasonableness of the penalty.               Id.    Accordingly, the
     administrative judge sustained the removal action. Id.
¶4         This petition for review followed. Petition for Review (PFR) File, Tab 1.
     In his petition, the appellant did not contest the administrative judge’s findings
     concerning the AWOL charge or the affirmative defenses that were raised below.
     Id. He instead argued, for the first time on review, that the agency gave disparate
     treatment to veterans and failed to follow correct procedures in the grievance
     process.   Id.   The agency filed a response, to which the appellant replied.
     PFR File, Tabs 3-4.
¶5         Because the appellant’s petition appeared to raise a new claim under
     USERRA, the Board issued an order, dated March 2, 2016, advising the appellant
     of the applicable standards and burdens of proof, and directing him to provide
     evidence and argument in support of his claim. PFR File, Tab 5. 2 The deadline
     for the appellant’s response was March 17, 2016. Id. The Board attempted to
     serve the order by certified mail, but the U.S. Postal Service returned the mail as
     unclaimed. PFR File, Tab 6. On May 23, 2016, the Board issued a second show
     cause order, served by first-class mail. PFR File, Tabs 8-9. The appellant timely
     responded to the reissued order. PFR File, Tab 10. 3




     2
       Generally, the Board will not consider an argument raised for the first time in a
     petition for review absent a showing that it is based on new and material evidence not
     previously available despite the party’s due diligence. Banks v. Department of the Air
     Force, 4 M.S.P.R. 268, 271 (1980). However, the Board will adjudicate a USERRA
     claim even if the appellant raises it for the first time on review. Henson v. U.S. Postal
     Service, 110 M.S.P.R. 624, ¶ 10 n.6 (2009).
     3
       We assume without deciding that the appellant has shown good cause for his failure to
     respond to the March 2, 2016 order.
                                                                                      4

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6         We first address the appellant’s claim that the agency discriminated against
     him based on his military service. Under USERRA, “[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, 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.”
     38 U.S.C. § 4311(a).   When adjudicating a removal appeal on the merits, the
     Board will consider a USERRA claim as an affirmative defense on the merits
     under 5 U.S.C. § 7701(c)(2)(C). Brown v. U.S. Postal Service, 106 M.S.P.R. 12,
     ¶ 19 (2007).    An appellant who claims that an agency violated 38 U.S.C.
     § 4311(a) in taking an adverse employment action bears the initial burden of
     showing by a preponderance of the evidence that his 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 agency then has the opportunity to show, by a preponderance of the
     evidence, that it would have taken the action for a valid reason without regard to
     the employee’s military service. Id.
¶7         An employee’s military service is a motivating factor for 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). The factual question of discriminatory
     motivation or intent may be proven by either direct or circumstantial evidence.
     Sheehan, 240 F.3d at 1014. Discriminatory motivation under USERRA “may be
     reasonably inferred from 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
                                                                                          5

     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. “In determining whether the employee has proven that
     his protected status or activity was part of the motivation for the agency’s
     conduct, all record evidence may be considered, including the agency’s
     explanation for the actions taken.” Id.
¶8        In response to the May 23, 2016 order, which directed the appellant to
     provide evidence and argument that his past military service was a substantial
     factor in the agency’s decision to remove him, the appellant states the following:
           Employer on various occasions when I tried to explain that I had hit
           my head—and suffered from PTSD, had personal illness and unable
           to fully recover—that as a veteran this should be taken under
           consideration. Employer responded that my condition had nothing to
           do with my military-VA background and that I was an alcoholic.
     PFR File, Tab 10.     Thus, it appears the appellant is arguing that the agency
     discriminated against him based on medical conditions resulting from his military
     service. However, an appellant’s claim that he was discriminated against based
     on an injury or disability sustained while performing military service is not a
     cognizable   USERRA      claim.     Mims    v.   Social   Security   Administration,
     120 M.S.P.R. 213, ¶ 22 (2013). Therefore, we find the appellant has not shown
     that his removal was in violation of USERRA.
¶9        The appellant also argues for the first time on review that the agency failed
     to follow correct procedures in the grievance process.          PFR File, Tab 1.
     Generally, the Board will not consider an argument raised for the first time in a
     petition for review absent a showing that it is based on new and material evidence
     not previously available despite the party’s due diligence. Banks v. Department
     of the Air Force, 4 M.S.P.R. 268, 271 (1980).        The appellant has submitted
     various documents relating to his grievance, but these documents predate the
     close of the record below, and he has not alleged that they previously were
                                                                                     6

      unavailable. Consequently, his new argument does not provide a basis for further
      review.
¶10        The appellant does not contest the administrative judge’s findings
      concerning the AWOL charge or the affirmative defenses that were raised below,
      and we discern no basis to disturb these findings. PFR File, Tab 1. We therefore
      deny the appellant’s petition for review.

                      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 further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method requiring a
      signature, it must be addressed to:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                     131 M Street, NE
                                       Suite 5SW12G
                                 Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after your
      receipt of this order.    If you have a representative in this case, and your
      representative receives this order before you do, then you must file with EEOC no
                                                                                    7

later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court‑appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.      See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




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