                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MELISSA ANDERSON,                               DOCKET NUMBER
                  Appellant,                         AT-3330-14-0254-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: December 23, 2014
       AFFAIRS,
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           Steven L. Herrick, Esquire, San Diego, California, for the appellant.

           Bradley Flippin, Nashville, Tennessee, for the agency.


                                           BEFORE

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


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied her request for corrective action under the Veterans Employment
     Opportunities Act of 1998 (VEOA) and the Uniformed Services Employment and
     Reemployment Rights Act of 1994 (USERRA). For the reasons discussed below,

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     we GRANT the appellant’s petition for review, VACATE the initial decision, and
     REMAND the case to the regional office for further adjudication in accordance
     with this Order.
¶2         The appellant is a 10-point preference eligible veteran with a compensable
     service-connected disability of 30% or more who served as a GS-12 Research
     Audiologist on a term appointment. Initial Appeal File (IAF), Tab 1 at 1. She
     applied for a permanent GS-13 Audiologist position, but the agency canceled the
     vacancy announcement on the closing date. Id., Tab 6, Subtabs 4f-4g. Several
     months later, the agency reannounced the vacancy and the appellant again applied
     for it.   Id., Subtab 4i.   The agency determined that, while she met the basic
     qualifications, she did not meet the requirements for the reannounced position.
     Id., Subtab 4l. She filed a complaint with the Department of Labor (DOL), id.,
     Tab 3 at 2-4, and, when DOL’s Veterans’ Employment and Training Services
     subsequently advised her that it had completed its investigation into her
     complaint and closed its file, id., Tab 4, Subtab 4h, she filed a Board appeal, id.,
     Tab 1. Therein she alleged that the agency purposely wrote the job description
     for the position under the second announcement in order to preselect a fellow
     audiologist who was a nonveteran; that, with regard to the appellant’s
     qualifications, certain agency officials only provided the National Audiology
     Professional Standards Board (Standards Board) “part of her information;” and
     that, in any event, the agency intended to, and did, hire the nonveteran
     audiologist. And, the appellant argued that, after she applied for the position, the
     agency extended her term appointment for only 6 months, whereas it extended her
     fellow audiologists’ appointments for 12 months, id. at 4, and gave her a lower
     performance rating, id. at 5. She requested a hearing. Id. at 2.
¶3         The administrative judge acknowledged the appeal as a VEOA appeal,
     scheduled the hearing, and directed the parties to file prehearing submissions and
                                                                                           3

     to participate in a prehearing conference. 2 Id. Tab 7. When the appellant neither
     filed any prehearing submissions nor was available to participate in the
     prehearing conference, the administrative judge canceled the hearing, and set a
     date for the close of the record. Id., Tab 9. At that time, he also stated that the
     appellant appeared to have identified a VEOA and/or a USERRA claim, and he
     set out as to both statutes the appellant’s burdens of proof to establish
     jurisdiction. Id.
¶4         After the parties made final submissions, id., Tabs 10, 12, the
     administrative judge issued an initial decision in which, after finding that the
     appellant had established the Board’s jurisdiction under both VEOA and
     USERRA, id., Tab 13, Initial Decision (ID) at 2-4, he denied her request for
     corrective action under both statutes, ID at 11.
¶5         The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, to which the agency has responded in opposition, id., Tab 3.
     The administrative judge erred in deciding this case without providing the
     appellant her burden of proof to establish her claims on the merits.
¶6         When the administrative judge canceled the hearing and stated his intention
     to decide the case on the written record unless the appellant requested that the
     hearing be reinstated and provided good cause, he, for the first time, set out the
     appellant’s jurisdictional burdens to establish a VEOA and a USERRA claim.
     IAF, Tab 9 at 2-3. He also instructed the parties to submit “all documentation
     they [wished] the Board to consider” by the close of the record but did not
     explain to the appellant what she must show in order to establish her claims on
     the merits. Id. at 1. He then proceeded to adjudicate both claims on the merits,

     2
       The administrative judge also noted that the appellant appeared to have raised an
     allegation of retaliation for whistleblowing and indicated that he would open a separate
     appeal file to adjudicate that claim. IAF, Tab 7. He subsequently dismissed the
     appellant’s individual right of action appeal for lack of jurisdiction. Anderson v.
     Department of Veterans Affairs, MSPB Docket No. AT-1221-14-0461-W-1, Initial
     Decision at 2-3 (Apr. 8, 2014). That decision became the Board’s final decision on
     May 13, 2014, when neither party filed a petition for review.
                                                                                            4

     finding that the appellant failed to prove them and denying her request for
     corrective action. ID at 5-11.
¶7         To be entitled to relief under VEOA, an appellant must show by
     preponderant evidence that the agency violated one or more of her statutory or
     regulatory veterans’ preference rights. Dale v. Department of Veterans Affairs,
     102 M.S.P.R. 646, ¶ 10 (2006). To prevail on the merits of a USERRA claim
     under 38 U.S.C. § 4311(a), 3 an appellant must prove by preponderant evidence
     that her uniformed service was a substantial or motivating factor in the agency
     action. McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶ 19 (2013). If the
     appellant makes that showing, the agency can avoid liability by showing, as an
     affirmative defense, that it would have taken the same action for a valid reason
     without regard to her uniformed service. Id.
¶8         On review, the appellant renews her claims that an agency employee told
     her that she was going to submit only a portion of the appellant’s supporting
     documentation to the Standards Board, omitting her service with the Armed
     Forces. And she argues that that employee’s statement, submitted by the agency,
     is untruthful; that the selecting official stated that he did not wish to hire the
     appellant; and that another agency official claimed not to know any prior military
     audiologist who did not have significant mental health issues. PFR File, Tab 1
     at 3, 5.
¶9         The Board has recognized its obligation to treat pro se appellants fairly.
     See, e.g., Melnick v. Department of Housing & Urban Development, 42 M.S.P.R.
     93, 97 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table) (the Board has a
     long-standing rule of construing pro se pleadings liberally). While it is within the

     3
      The appellant did not allege, nor does it appear that by its actions the agency violated
     38 U.S.C. § 4311(b) which prohibits an agency from discriminating or retaliating
     against a person because she has: (1) taken an action to enforce a protection afforded
     under chapter 38; (2) testified or otherwise made a statement in or connection with any
     proceeding under chapter 38; (3) assisted or otherwise participated in an investigation
     under chapter 38; or (4) exercised a right provided for in chapter 38.
                                                                                            5

      administrative judge’s sound discretion when to close the record, such discretion
      must conform to the basic requirements of fairness and notice.            Blackmer v.
      Department of the Navy, 52 M.S.P.R. 571, 574 (1992). Here, the appellant, who
      appeared pro se below, 4 was never advised prior to the close of the record of her
      burden of proof as to the merits on either her VEOA or her USERRA claims or of
      the requirement that she present evidence in support. Therefore, this appeal must
      be remanded. See Ruffin v. Department of the Treasury, 89 M.S.P.R. 396, 399
      (2001); cf. Lis v. U.S. Postal Service, 113 M.S.P.R. 415, ¶ 10 (2010) (where the
      appellant did not request a hearing, but was advised below of the burden of proof
      on the merits of the VEOA claim and was ordered to submit evidence pertaining
      to both jurisdiction and the merits of his request for corrective action, he was
      provided a full and fair opportunity to develop the record on his VEOA claim, the
      Board could resolve that matter without remanding the case for further
      proceedings).
      The appellant waived her right to a hearing.
¶10         As noted, after the appellant failed to submit her prehearing submission and
      failed as well to appear at the hearing she had requested, the administrative judge
      indicated that “it appears likely that [the appellant] has opted to waive her
      hearing request and have this matter decided based upon the written record.”
      IAF, Tab 9 at 1. Although he canceled the scheduled hearing, he afforded the
      appellant an opportunity to submit a motion to reinstate the hearing, directing her
      to provide a reasonable explanation for why she was unable to provide timely
      prehearing submissions and appear for the scheduled conference, and to provide
      her belated prehearing submissions. The administrative judge stated that, if the
      appellant complied with his direction by the date given, and if he determined that
      she showed good cause for her lapses, he would immediately contact the parties
      to reschedule the hearing but that, if she did not, the record would close as he had
      4
       After the record closed on review, the appellant designated an attorney representative.
      PFR File, Tab 4.
                                                                                          6

      indicated.   Id. at 2.     The appellant did not submit a motion to reinstate the
      hearing, id., Tab 10, and the record closed in order with the administrative
      judge’s earlier order.
¶11         On review, the appellant argues that no witnesses were ever questioned who
      could or would have spoken on her behalf. PFR File, Tab 1 at 3. To the extent
      that her argument can be read as a challenge to the administrative judge’s
      decision not to convene a hearing, that argument is unavailing. An administrative
      judge has the authority to sanction a party when necessary to serve the interests
      of justice. 5 C.F.R. § 1201.43. That authority includes the right to sanction a
      party for failure to comply with an order. Id. While an appellant’s right to a
      hearing should not be denied as a sanction absent extraordinary circumstances,
      see Hart v. Department of Agriculture, 81 M.S.P.R. 329, ¶ 5 (1999); see also
      Stein-Verbit v. Department of Commerce, 72 M.S.P.R. 332, 337 (1996), here, as
      noted, the appellant failed to provide prehearing submissions, failed to make
      herself available for the scheduled prehearing conference, and could not be
      reached at the home and office telephone numbers she had previously provided
      the Board, IAF, Tab 9 at 1.          Under the circumstances, we find that the
      administrative judge did not abuse his discretion by canceling the appellant’s
      requested hearing.       See Heckman v. Department of the Interior, 106 M.S.P.R.
      210, ¶¶ 8-12 (2007). In addition, although afforded the opportunity, the appellant
      did not seek to have the hearing reinstated and did not otherwise provide any
      explanation for her failure to act. Neither has she provided any such explanation
      on review. We further find, therefore, that the administrative judge did not abuse
      his discretion in failing to reconvene the hearing. See Blount v. Department of
      the Treasury, 109 M.S.P.R. 174, ¶ 9 (2008) (the right to a hearing is waived upon
      failure to request on after being placed on notice that such a request is necessary).
                                                                         7

                                    ORDER
     For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.




FOR THE BOARD:                          ______________________________
                                        William D. Spencer
                                        Clerk of the Board
Washington, D.C.
