                               UNITED STATES OF AMERICA
                            MERIT SYSTEMS PROTECTION BOARD


     SHAWN GONZALEZ,                                 DOCKET NUMBER
                 Appellant,                          DC-4324-15-0636-I-1

                     v.

     DEPARTMENT OF AGRICULTURE,                      DATE: November 23, 2015
                 Agency.



                     THIS ORDER IS NONPRECEDENTIAL 1

           Shawn Gonzalez, Ruther Glen, Virginia, pro se.

           Patricia Del Vecchio, Saint Louis, Missouri, 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
     dismissed her Uniformed Services Employment and Reemployment Rights Act of
     1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA) appeal for lack of
     jurisdiction.        For the reasons discussed below, we GRANT the appellant’s



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

                                      BACKGROUND
¶2         Effective October 1, 2014, the agency terminated the appellant from a GS-5
     Area Technician position in the competitive service during her probationary
     period.         Gonzalez   v.   Department     of   Agriculture,    MSPB      Docket
     No. DC-315H-15-0114-I-1, Initial Appeal File, Tab 1 at 14-22, Tab 5 at 10-11.
     The appellant filed a Board appeal challenging her termination, which the
     administrative judge dismissed for lack of jurisdiction, finding that the appellant
     had no right to appeal under 5 C.F.R. § 315.806 or 5 U.S.C. chapter 75.           See
     Gonzalez v. Department of Agriculture, MSPB Docket No. DC-315H-15-0114-I-
     1, Initial Decision (Dec. 12, 2014). In an April 17, 2015 final order, the Board
     denied the appellant’s petition for review of that initial decision, but forwarded
     for docketing as a new appeal her USERRA claim, raised in the first instance on
     review, that the agency had terminated her based on her military service. 2
     Gonzalez v. Department of Agriculture, MSPB Docket No. DC-315H-15-0114-I-
     1, Final Order at 6-7 (Apr. 17, 2015); Gonzalez v. Department of Agriculture,
     MSPB Docket No. DC-315H-15-0114-I-1, Petition for Review File, Tab 1 at 4-6,
     Tab 7. This appeal followed.
¶3         After the appellant withdrew her request for a hearing below, the
     administrative judge issued an initial decision dismissing the appeal for lack of
     jurisdiction.     Gonzalez v. Department of Agriculture, MSPB Docket No.
     DC-4324-15-0636-I-1, Initial Appeal File (IAF), Tab 19 at 4, Tab 26, Initial
     Decision (ID). She found that the appellant failed to establish jurisdiction over a


     2
       While a probationary termination is not an adverse action over which the Board has
     jurisdiction under 5 U.S.C. chapter 75, the Board may have jurisdiction over an appeal
     alleging, inter alia, that an agency’s action in terminating an employee during his
     probationary period was discriminatory on the basis of his prior military service.
     Wright v. Department of Veterans Affairs, 73 M.S.P.R. 453, 454 (1997).
                                                                                      3

     USERRA discrimination claim under 38 U.S.C. § 4311(a) because, although the
     appellant had alleged that her second-line supervisor terminated her employment
     based on her military service, she did not “explain the basis for her belief,” or
     otherwise raise a nonfrivolous allegation that her termination was due to her
     military service. ID at 3-4. She further found that the appellant failed to raise a
     nonfrivolous allegation that the agency retaliated against her in violation
     of 38 U.S.C. § 4311(b). ID at 4.
¶4         The appellant has filed a timely petition for review, in which she argues,
     among many other things, that the administrative judge erred in dismissing her
     appeal for lack of jurisdiction. MSPB Docket No. DC-4324-15-0636-I-1, Petition
     for Review (PFR) File, Tab 1. The agency has filed a response, and the appellant
     has replied. PFR File, Tabs 3-4.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant failed to raise a nonfrivolous allegation of jurisdiction over her
     USERRA retaliation claim under 38 U.S.C. § 4311(b).
¶5         On review, the appellant argues that she established jurisdiction over her
     claim under 38 U.S.C. § 4311(b) because she alleged below that the agency
     terminated her employment in retaliation for filing an equal employment
     opportunity (EEO) complaint and for protected whistleblowing. PFR File, Tab 1
     at 7-9; see IAF, Tab 23 at 11-14. We agree with the administrative judge that the
     appellant failed to establish jurisdiction over her claim under 38 U.S.C.
     § 4311(b). ID at 4.
¶6         Pursuant to section 4311(b), an employer may not retaliate against an
     employee for pursuing or assisting another individual in pursuing his USERRA
     rights.   Thus, to establish jurisdiction over a claim under section 4311(b), the
     appellant must raise a nonfrivolous allegation that she engaged in activity
                                                                                              4

     protected under 38 U.S.C. chapter 43. 3        See Shipley-Johnson v. Merit Systems
     Protection Board, 405 F. App’x 479, 480 (Fed. Cir. 2010) (finding that an
     appellant failed to establish jurisdiction over a section 4311(b) claim where she
     alleged that an agency retaliated against her for helping to enforce rights under
     the Servicemembers Civil Relief Act of 2003, 50 U.S.C. app. §§ 538 and 592,
     because those rights were not afforded under 38 U.S.C. chapter 43); 4 Weed v.
     Social Security Administration, 112 M.S.P.R. 323, ¶ 10 n.3 (2009) (concluding
     that, for purposes of establishing jurisdiction under section 4311(b), a prior Board
     appeal against an agency involving a claim under the Veterans Employment
     Opportunities Act of 1998 was not an action to enforce a protection under
     38 U.S.C. chapter 43).
¶7          The appellant failed to raise a nonfrivolous allegation that she engaged in
     activities protected under 38 U.S.C. chapter 43. 5 PFR File, Tab 1 at 7-9; IAF,
     Tab 23 at 11-14.     Therefore, the administrative judge properly dismissed the
     appellant’s claim that the agency violated section 4311(b) for lack of jurisdiction.
     ID at 4; see Shipley-Johnson, 405 F. App’x at 480; Weed, 112 M.S.P.R. 323, ¶ 10
     n.3.



     3
       The appellant alleged that she had not filed a USERRA complaint with the Secretary
     of Labor. IAF, Tab 3 at 5; see 5 C.F.R. § 1208.11(b) (if an appellant first files a
     USERRA complaint with the Secretary of Labor pursuant to 38 U.S.C. § 4322, she
     may not file a USERRA appeal with the Board until the Secretary notifies the appellant
     that the Secretary was unable to resolve the complaint). The agency does not dispute
     this claim. See IAF, Tab 12 at 4-7; PFR File, Tab 3.
     4
      Although Shipley-Johnson is nonprecedential, the Board may follow a nonprecedential
     decision of the U.S. Court of Appeals for the Federal Circuit where, as here, it finds it
     persuasive. Dean v. Office of Personnel Management, 115 M.S.P.R. 157, ¶ 14 (2010).
     5
       On review, the appellant contends that the administrative judge did not consider EEO
     affidavits that she submitted below in determining whether the Board had jurisdiction
     over her claim under section 4311(b). PFR File, Tab 1 at 7-8. However, she has failed
     to demonstrate that the affidavits, or any of her arguments regarding the affidavits, raise
     a nonfrivolous allegation that she engaged in protected activity. Id.; see IAF, Tab 3
     at 10-86.
                                                                                         5

      The appellant established jurisdiction over her USERRA discrimination claim
      under 38 U.S.C. § 4311(a).
¶8            On review, the appellant contends that the administrative judge erred in
      finding that she failed to establish jurisdiction over her USERRA discrimination
      claim under 38 U.S.C. § 4311(a).        PFR File, Tab 1 at 4-6, 11, Tab 4 at 5-7.
      We agree.
¶9            To establish jurisdiction under 38 U.S.C. § 4311(a), an appellant must
      allege that: (1) she performed duty or has an obligation to perform duty in a
      uniformed service of the United States; (2) the agency denied her initial
      employment, reemployment, retention, promotion, or any benefit of employment;
      and (3) the denial was due to the performance of duty or obligation to perform
      duty     in    the   uniformed   service.     Williams    v.   Department    of   the
      Treasury, 110 M.S.P.R. 191, ¶ 8 (2008).         A claim of discrimination under
      USERRA should be broadly construed in determining whether it is nonfrivolous,
      particularly where, as here, the appellant is pro se. Id. Our reviewing court, the
      U.S. Court of Appeals for the Federal Circuit, has agreed with the Board’s
      “liberal approach in determining whether jurisdiction exists under USERRA.”
      Yates     v.   Merit   Systems   Protection   Board,     145 F.3d   1480,   1484-85
      (Fed. Cir. 1998).
¶10           The administrative judge correctly found, and the agency does not dispute,
      that the appellant nonfrivolously alleged the first two requirements for
      establishing jurisdiction over a USERRA claim, i.e., that she had prior uniformed
      service and that the agency denied her a benefit of employment by terminating
      her employment during her probationary period. 6 ID at 3, see IAF, Tab 23 at 4.
      We find that the appellant also raised a nonfrivolous allegation that her uniformed



      6
        In addition, the agency submitted documentation below reflecting that the appellant
      performed military service in the U.S. Marine Corps, and received an honorable
      discharge in 2002. IAF, Tab 13 at 23.
                                                                                             6

      service was a motivating factor in the agency’s decision to terminate her
      employment. ID at 3-4.
¶11         The administrative judge found, and the agency does not dispute, that the
      appellant alleged that her second-line supervisor was motivated by her military
      service in terminating her employment. ID at 3; IAF, Tab 23 at 8-10. Although
      the administrative judge found that the appellant did not “explain the basis for her
      belief,” she was not required to do so at the jurisdictional stage of her appeal. ID
      at 3; see Patterson v. Department of the Interior, 424 F.3d 1151, 1155, 1161 (Fed.
      Cir. 2005) (reversing a finding that the appellant’s “vague and generalized
      statements” were insufficient to establish jurisdiction under USERRA); Searcy v.
      Department of Agriculture, 115 M.S.P.R. 260, ¶ 8 (2010) (finding jurisdiction
      under USERRA even though the appellant’s allegations were “vague and lacking
      in specificity”); Wilson v. Department of the Army, 111 M.S.P.R. 54, ¶ 10 (2009)
      (finding that a claim by an appellant that “agency officials didn’t like the fact” of
      his   military   service   was   sufficient   to   establish   jurisdiction   over   his
      USERRA appeal).
¶12         Furthermore, as the appellant argues on review, she raised specific
      allegations below that her second-line supervisor was motivated by her military
      service in terminating her employment. PFR File, Tab 1 at 5-6, Tab 4 at 6. We
      recognize that the appellant’s pleadings below were not a model of clarity and
      that she raised numerous arguments that were not pertinent to the issue of the
      Board’s jurisdiction over her USERRA appeal.            However, in her submissions
      below, the appellant alleged that, in terminating her employment, her second-line
      supervisor was improperly influenced by a coworker with anti-military animus. 7


      7
        The appellant also alleged, as she does on review, that the agency treated another
      similarly situated employee more favorably than her. PFR File, Tab 1 at 11, Tab 4 at
      6-7; IAF, Tab 23 at 10-11. As she concedes, however, that employee also had prior
      uniformed service in the U.S. Marine Corps and also was a disabled veteran. IAF,
      Tab 12 at 9, 11, Tab 13 at 22. Therefore, the appellant’s claim that the agency treated
      that other employee more favorably than her fails to raise a nonfrivolous allegation that
                                                                                            7

      IAF, Tab 5 at 15-16, Tab 23 at 8-9. She claimed that her second-line supervisor
      “showed a particular preference” for this coworker, and “took her feelings into
      consideration.” IAF, Tab 23 at 8. The appellant further alleged that her coworker
      had voiced anti-military animus to her second-line supervisor and that
      the second-line supervisor was “trying to please” her coworker. 8          IAF, Tab 5
      at 15-16, Tab 23 at 8.
¶13         On review, the agency contends that the appellant’s claims that her
      uniformed service was a motivating factor in the decision to terminate her
      employment lack merit. 9 PFR File, Tab 3 at 4-13. However, the weakness of the
      assertions in support of a claim is not a basis to dismiss a USERRA appeal for
      lack of jurisdiction; rather, if the appellant fails to develop her contentions, her
      USERRA claim should be denied on the merits. Searcy, 115 M.S.P.R. 260, ¶ 7.
¶14         Below, the appellant requested a decision on the written record, and
      therefore, waived her right to a hearing.         IAF, Tab 19 at 5; see Taynton v.


      she was terminated due to her military service. See Daniels v. U.S. Postal Service,
      88 M.S.P.R. 630, ¶¶ 5-6 (an appellant failed to establish jurisdiction over a USERRA
      claim where he alleged that another veteran was “a favorite” of the supervisor who
      terminated him, and his allegations suggested animus against the appellant specifically,
      as opposed to veterans generally), aff’d, 25 F. App’x 970 (Fed. Cir. 2001).
      8
        The appellant analogizes her case to Staub v. Proctor Hospital, 562 U.S. 411 (2011),
      in which the U.S. Supreme Court found that, where immediate supervisors took actions
      against an employee that were motivated by anti-military animus, they intended their
      acts to adversely affect the employee, and their acts were the proximate cause of the
      deciding official’s decision to terminate the employee, the employer violated USERRA
      even though the deciding official was unaware of, and did not share, the anti-military
      animus. IAF, Tab 23 at 8-10; PFR File, Tab 1 at 5-6, Tab 4 at 6; see Staub, 562 U.S.
      at 413-17, 422. However, in Staub, the Supreme Court explicitly declined to address
      whether its holding would apply in cases where the employee exhibiting discriminatory
      animus was not a supervisor, but was merely a coworker. Staub, 562 U.S. at 422 n.4.
      We need not decide this issue at this stage of the appeal, because in the present case,
      unlike in Staub, the appellant alleged that her second-line supervisor was aware of her
      coworker’s anti-military animus, and terminated the appellant with specific intent to
      please the coworker. IAF, Tab 5 at 15-16, Tab 23 at 8-9.
      9
        In response to the petition for review, the agency also has submitted documentation,
      some of which was not included in the record below. See, e.g., PFR File, Tab 3 at 20.
                                                                                       8

      Department of the Air Force, 101 M.S.P.R. 547, ¶ 6 (2006) (denying a petition
      for review requesting a hearing in a USERRA appeal where the appellant
      withdrew her hearing request below). Ordinarily, under these circumstances, we
      could adjudicate the merits of the appellant’s USERRA claims in the first
      instance on review based on the written record.      See Haebe v. Department of
      Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (holding that, when an
      administrative judge’s findings are not based on the observation of witnesses’
      demeanor, the Board is free to reweigh the evidence and substitute its own
      judgment on credibility issues). In the present case, however, we are unable to do
      so because, below, the appellant filed a motion to compel discovery responses,
      which the administrative judge declined to rule on, pending a decision on the
      issue of jurisdiction. IAF, Tab 21 at 4-26, Tab 25. Accordingly, we remand this
      appeal for the administrative judge to rule on the appellant’s motion to compel
      discovery and, following any discovery that the administrative judge deems
      necessary, for adjudication of the appellant’s USERRA appeal on the merits.

      The Board lacks jurisdiction over the appellant’s claims regarding criminal
      actions and harmful procedural errors.
¶15           On review, the appellant raises a number of claims that the Board lacks
      jurisdiction to consider. See, e.g., PFR File, Tab 1 at 4, 8-9, 10-11. For example,
      as she did below, the appellant contends that her first- and second-line
      supervisors committed a crime by lying under oath during her EEO investigation,
      in violation of 18 U.S.C. § 1001. PFR File, Tab 1 at 4; IAF, Tab 3 at 10, Tab 14
      at 9.    Further, on review, she claims that the agency committed harmful
      procedural errors in effectuating her termination. PFR File, Tab 1 at 10-11.
¶16           The Board’s jurisdiction is limited to those matters over which it has been
      given jurisdiction by law, rule, or regulation.        Maddox v. Merit Systems
      Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board’s jurisdiction over
      USERRA claims does not extend to non-USERRA issues, such as claims of
      discrimination under title VII and its progeny. Bodus v. Department of the Air
                                                                                           9

      Force, 82 M.S.P.R. 508, ¶¶ 15-17 (1999); see Metzenbaum v. Department of
      Justice, 89 M.S.P.R. 285, ¶¶ 2-3, 15 (2001) (finding that the Board lacked
      jurisdiction to consider an appellant’s claims of disability discrimination and
      EEO reprisal in the context of a USERRA appeal). As the administrative judge
      properly concluded, the appellant has not explained how these other claims relate
      to her claims that she was terminated due to her military status. PFR File, Tab 1
      at 10-11; ID at 3-4. 10

                                            ORDER
¶17         For the reasons discussed above, we REMAND this case to the regional
      office for further adjudication in accordance with this Remand Order.           In her
      remand initial decision, the administrative judge may adopt her prior findings
      concerning the appellant’s claim under section 4311(b) of USERRA and her
      claims of harmful procedural error and of violations of non-USERRA laws.




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




      10
         On review, the appellant attempts to raise again a claim of whistleblower reprisal.
      PFR File, Tab 1 at 8. The Board, on two occasions, previously has dismissed her
      claims that she was terminated in reprisal for protected whistleblowing for lack of
      jurisdiction on the ground that she failed to demonstrate that she exhausted her
      administrative remedies with the Office of Special Counsel (OSC). See Gonzalez v.
      Department of Agriculture, MSPB Docket NoDC-315H-15-0114-I-1, Final Order (Apr.
      17, 2015); Gonzalez v. Department of Agriculture, MSPB Docket No. DC-4324-15-
      0879-W-1, Initial Decision (July 9, 2015). The appellant has not provided evidence that
      she exhausted her administrative remedies with OSC on review. We again remind the
      appellant that, if she wishes to pursue an individual right of action appeal before the
      Board, she must first exhaust her administrative remedies with OSC.
