                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LOWELL D. SHACKELFORD,                          DOCKET NUMBER
                  Appellant,                         AT-4324-14-0777-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: February 24, 2015
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Jason C. Odom, Anniston, Alabama, for the appellant.

           Chester Harkins Long Hutchinson, Fort Knox, Kentucky, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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 the Uniformed Services
     Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
     §§ 4301-4333) (USERRA). Generally, we grant petitions such as this one only


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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, and based on the following points and authorities, 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 and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).

                                      BACKGROUND
¶2         The agency appointed the appellant to the position of Recruiting
     Operations Officer at Jacksonville State University under a Veterans Recruitment
     Appointment on December 16, 2013, subject to satisfactory completion of a
     2-year trial period. Initial Appeal File (IAF), Tab 13 at 37. The appellant had
     worked previously at the university as a government contractor for more than 10
     years. See IAF, Tab 1 at 10, Tab 13 at 2. The agency provided the appellant with
     written performance expectations. IAF, Tab 13 at 33-34. On February 28, 2014,
     the appellant’s supervisor conducted a performance counseling meeting to address
     issues with the appellant’s performance, including failure to complete assigned
     tasks, lack of knowledge of requirements for cadets, and delegation of duties to
     other staff members. Id. at 28-29. The agency terminated the appellant during
     his trial period on May 6, 2014, stating that his performance did not reflect basic
     proficiency in the essential functions of his position as he had failed to plan
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     events and complete tasks by the assigned dates. Id. at 13, 16-18. Specifically,
     the agency stated that the appellant had “cost the program recruiting opportunities
     with prospective” cadets due to a failure to follow instructions and pay attention
     to detail and that other employees were required to assist the appellant and
     monitor his work product, negatively affecting their ability to perform their own
     assignments. Id. at 16.
¶3        The appellant filed an appeal with the Board, alleging that the agency had
     terminated him in retaliation for filing an equal employment opportunity
     complaint and penalized him for U.S. Army Reserve commitments in violation of
     USERRA.     IAF, Tab 1 at 1-2, 10-12.      The administrative judge docketed the
     contested termination as one appeal, MSPB Docket No. AT-315H-14-0714-I-1,
     and the alleged USERRA violation as the present appeal, informing the appellant
     of the requirements of establishing Board jurisdiction over an alleged violation
     of 38 U.S.C. § 4311(a). IAF, Tab 3. The appellant responded with a narrative of
     his contractor recruiting position and active duty service prior to his appointment
     to the civil service and provided statements from several individuals, including
     colleagues from his civilian and U.S. Army Reserve positions.        IAF, Tab 7 at
     2-15. He outlined his difficulties with his supervisor, Major T., regarding his
     mandatory U.S. Army Reserve commitments, who allegedly informed him that,
     despite his rank of Lieutenant Colonel in the U.S. Army Reserve, he had no such
     rank in his civil service position. Id. at 5-6. After holding the requested hearing
     in which both the appellant and Major T. testified, the administrative judge issued
     an initial decision denying corrective action, finding that the appellant had failed
     to demonstrate by preponderant evidence that his military service was a
     substantial or motivating factor in the agency’s decision to terminate him during
     the trial period. IAF, Tab 17, Initial Decision (ID) at 5.
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                     DISCUSSION OF ARGUMENTS ON REVIEW
¶4         On review, the appellant argues that the administrative judge denied him
     proper procedure and erred by weighing the agency’s evidence before considering
     the appellant’s case in violation of the burden-shifting analytical framework set
     out in 38 U.S.C. § 4311(c)(1). Petition for Review (PFR) File, Tab 1 at 2-3. The
     appellant asserts that he “unquestionably established” that his service in the U.S.
     Army Reserve was a substantial or motivating factor in the agency’s decision to
     terminate him during his trial period and that the administrative judge
     misinterpreted the evidence by treating his evidence as “nothing more than a case
     in rebuttal” to the agency’s evidence and argument.      Id. at 3-4.   The agency
     responds that the administrative judge properly considered all record evidence in
     reaching his conclusion and that there is no requirement that an initial decision
     refer to an appellant’s testimony first or give it more weight than other evidence.
     PFR File, Tab 3 at 6.      Thus, the agency argues that the administrative judge
     afforded the appellant proper procedures and committed no error that affected the
     appellant’s substantive rights. Id. at 7.
¶5         Under 38 U.S.C. § 4311(a), an individual who has an obligation to perform
     military service shall not be denied retention in employment or any benefit of
     employment by an employer on the basis of that service. An appellant raising a
     discrimination claim under 38 U.S.C. § 4311(a) bears an initial burden to prove
     by preponderant evidence that his military status was a substantial or motivating
     factor in the agency action. Sheehan v. Department of the Navy, 240 F.3d 1009,
     1013 (Fed. Cir. 2001). If an appellant meets this burden of proof, the employing
     agency has an opportunity to show, by preponderant evidence, that it would have
     taken the action despite the appellant’s protected service status.     Id. at 1014;
     see 38 U.S.C. § 4311(c)(1). The factfinder may reasonably infer discriminatory
     motivation under USERRA from a variety of factors, including an employer’s
     expressed hostility towards members protected by the statute together with
     knowledge of the employee’s military activity, and proximity in time between the
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     employee’s military activity and the adverse employment action. Sheehan, 240
     F.3d at 1014.
¶6        The appellant argues that the administrative judge weighed the agency’s
     case before his case “in contravention of the proper ‘burden shifting’ procedure.”
     PFR File, Tab 1 at 3. The appellant presents no authority for his proposition
     that 38 U.S.C. § 4311(c)(1) requires the administrative judge to consider the
     entirety of the appellant’s case before considering the agency’s evidence, or to
     draft the initial decision in a similar manner. Indeed, our reviewing court has
     held that, “[i]n determining whether the employee has proven that his protected
     status 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.”
     Sheehan, 240 F.3d at 1014. Thus, we find that the administrative judge properly
     considered all testimony and written evidence in determining that the appellant
     had not proved by preponderant evidence that his U.S. Army Reserve service was
     a substantial or motivating factor in the agency’s decision to terminate him. See
     ID at 5-18. The order in which the administrative judge analyzed the testimony
     of the witnesses does not affect the analysis of whether the appellant provided
     sufficient evidence to demonstrate discrimination under USERRA, and the
     appellant has offered no basis for disturbing the initial decision or for the Board
     to analyze the record under a different analytical framework.        See 5 C.F.R.
     § 1201.115(c).
¶7        We have reviewed the appellant’s remaining arguments and find they
     constitute mere disagreement with the administrative judge’s explained findings,
     which are supported by the record evidence. See PFR File, Tab 1 at 4; see also
     Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
     to disturb the administrative judge’s findings when the administrative judge
     considered the evidence as a whole, drew appropriate inferences, and made
     reasoned   conclusions);   Broughton   v.   Department    of   Health   &   Human
     Services, 33 M.S.P.R. 357, 359 (1987) (same). The initial decision thoroughly
                                                                                       6

     analyzes the record evidence regarding the appellant’s performance issues during
     his trial period, and it highlights his own acknowledgment of certain deficiencies.
     ID at 12.     Further, we find no reason to disturb the administrative judge’s
     findings that the comments and behavior of Major T. and Captain S. failed to
     establish that the appellant’s military service or obligations were a substantial or
     motivating factor in the agency’s action. ID at 12-15.
¶8        Although the appellant alleges that the administrative judge erred in giving
     “more weight” to the evidence and testimony of the agency, the initial decision
     provided detailed analysis of the record and explained the administrative judge’s
     credibility determinations regarding the testimony of the appellant and his
     supervisor.   PFR File, Tab 1 at 4; ID at 5-18; see Haebe v. Department of
     Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the Board must give deference to
     an administrative judge’s credibility determinations when they are based,
     explicitly or implicitly, on observation of the demeanor of witnesses testifying at
     a hearing; the Board may overturn such determinations only when it has
     “sufficiently sound” reasons for doing so). The administrative judge considered
     the appellant’s testimony alleging that Major T. had discriminated against him
     and degraded him because of his military status, but found more persuasive Major
     T.’s testimony that his Reserve status was not a factor.     See ID at 8-10. For
     instance, as highlighted in the initial decision, Major T. testified that the
     appellant provided less than 1 week notice that he would be at Fort Knox for a
     training course for several weeks and taking one of the program’s vans, leaving
     the program without sufficient transportation to transport the cadets for a field
     exercise, which had been scheduled 10 weeks in advance.          ID at 7-8, 13-14.
     Regarding the appellant’s failure to follow procedures, Major T. testified that all
     other staff members who required absences for Reserve or Guard duty provided
     advance notice on the shared office calendar to allow the program staff to plan
     accordingly while the appellant failed to notify his supervisor.      IAF, Tab 15
     (Hearing CD).      The administrative judge found that this testimony was
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     corroborated by that of the appellant’s coworker in the Alabama National Guard
     who experienced no difficulties with Major T. regarding his uniformed service.
     ID at 17-18.
¶9        Thus, we find that the appellant has presented no basis for overturning the
     initial decision. He has not shown error in the administrative judge’s analysis or
     finding that he failed to prove by preponderant evidence that his U.S. Army
     Reserve service was a substantial or motivating factor in the agency’s decision to
     terminate him during his trial period.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
          You have the right to request review of this final decision by the United
     States 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 United States 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 United
     States   Code,    at   our     website,    http://www.mspb.gov/appeals/uscode.htm.
     Additional       information          is     available     at      the       court’s
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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.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
