                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CHASE M. LENTZ,                                 DOCKET NUMBER
                   Appellant,                        SF-4324-15-0225-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: September 21, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Chase M. Lentz, Fresno, California, pro se.

           Kevin D. Mack, Esquire, Sacramento, California, 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, 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
     when: the initial decision contains erroneous findings of material fact; the initial

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2        The appellant filed an appeal alleging that the agency violated USERRA
     when it denied his reasonable accommodation request. Initial Appeal File (IAF),
     Tab 1. It is undisputed that, during the relevant time to this appeal, the appellant
     was employed as a GS-11 Botanist with the agency’s Bureau of Land
     Management.      IAF, Tab 5, Subtab 4a.    On November 19, 2014, the appellant
     submitted a reasonable accommodation request asking that the agency place him
     on administrative leave until all of his discrimination complaints were resolved,
     remove him from the chain of command of Field Manager J.M., reassign him to
     another supervisor, allow him to work Saturdays and Sundays, and have all
     communications from J.M. and supervisor S.A. put in writing and routed through
     his new supervisor.     See id., Subtab 4u.    Associate District Manager D.W.
     provided the appellant a written statement notifying him that the agency had
     reasonably accommodated him with leave approval under the Family and Medical
     Leave Act of 1993 (FMLA) and advising him to submit a new request if he
     believed he needed additional accommodation. See id., Subtab 4p. D.W. denied
     the appellant’s subsequent reconsideration request but offered to establish a
                                                                                     3

     telework schedule for him, contingent upon his completing the required training
     and documentation.     D.W. also advised the appellant that an administrative
     inquiry would be initiated into his hostile work environment claim.       See id.,
     Subtab 4n. The appellant appealed the denial of his reconsideration request to
     District Manager N.H. who denied the appeal, finding that the appellant’s
     reasonable accommodation request would cause the agency undue hardship. Id.
¶3        Because the appellant did not request a hearing, the administrative judge
     decided the case on the written record. IAF, Tab 13, Initial Decision (ID) at 1.
     The administrative judge determined that the appellant had exhausted his
     administrative remedies with the Department of Labor as it had informed him that
     it would not be looking into his complaint regarding his alleged denial of his
     reasonable accommodation request.       ID at 5; see IAF, Tab 9 at 11.        The
     administrative judge, however, found no evidence that the appellant’s prior
     military service played any role in the agency’s decision to deny his reasonable
     accommodation request, and thus, he failed to prove by preponderant evidence
     that his prior military service was a substantial or motivating factor in the
     agency’s decision to deny his reasonable accommodation request. ID at 7-8. In
     addition, the administrative judge found that, even assuming that the appellant
     had met his burden of proof, the agency proved that it nevertheless would have
     taken the same actions for the reasons set forth in its various responses to his
     reasonable accommodation request. ID at 8.
¶4        Regarding the appellant’s allegation that the agency’s denial of his
     reasonable accommodation request constitutes an act of retaliation for his pursuit
     of a USERRA claim, the administrative judge found that, while the appellant
     made nonfrivolous allegations sufficient to establish Board jurisdiction over his
     retaliation claim, the appellant failed to prove that his engaging in protected
     activity under USERRA was a substantial or motivating factor in the agency’s
     decision to deny his reasonable accommodation request.            ID at 9.    The
     administrative judge found further that, even if the appellant proved that his
                                                                                       4

     protected USERRA activity was a substantial motivating factor in the agency’s
     decision, he nevertheless would have found that the agency proved that it
     nevertheless would have taken the same action for the reasons set forth in its
     responses to his reasonable accommodation request. Finally, the administrative
     judge found that, absent an otherwise appealable action, the Board does not have
     jurisdiction over the appellant’s claims that the agency denied reasonable
     accommodation requests due to his race, color, handicap, and retaliation for prior
     EEO activity. Thus, the administrative judge denied the appellant’s request for
     corrective action under USERRA. The appellant has filed a petition for review
     challenging the administrative judge’s findings and determinations. Petition for
     Review (PFR) File, Tab 1.
¶5        In USERRA actions, an individual initially must show by preponderant
     evidence that the individual’s military status was at least a motivating or
     substantial factor in the agency action, upon which the agency must prove, also
     by preponderant evidence, that the action would have been taken for a valid
     reason despite the protected status. Sheehan v. Department of the Navy, 240 F.3d
     1009, 1013-15 (Fed. Cir. 2001). Under 38 U.S.C. § 4311, military service is a
     motivating factor for an employment action if the employer “relied on, took into
     account, considered, or conditioned its decision” on the employee’s military-
     related absence or obligation. Erickson v. U.S. Postal Service, 571 F.3d 1364,
     1368 (Fed. Cir. 2009).
¶6        Here, the administrative judge correctly determined that the appellant
     presented no evidence to show that his military service was a motivating factor in
     the denial of his request reasonable accommodation request.        ID at 7-8.   The
     agency’s decision to deny the appellant’s request was based, inter alia, on work
     assignments, the fact that he encumbered the only Botanist position that
     performed essential and specific skills for the interdisciplinary team, the agency’s
     need for regular communication and coordination essential to field office work
     assignments, the chilling effect the accommodations would have on the function
                                                                                       5

     and accomplishments of the interdisciplinary team, and the costs associated with
     bringing in additional help to provide the specific expertise that the appellant was
     hired to provide but could not if he were on administrative leave. IAF, Tab 5,
     Subtab 4c.   In contrast, and as the administrative judge correctly found, the
     appellant has made no showing of any temporal proximity between his military
     activity and the agency’s decision to deny him his requested accommodation. ID
     at 7. Indeed, the appellant has not even identified his military activity, when he
     was in the armed services, or when he last served. Nor has he provided any
     evidence of hostility by agency officials towards individuals who have performed
     in the uniformed services. Thus, while the appellant continues to challenge the
     agency’s reasons behind the denial of his accommodation requests, he has
     provided no evidence or any specific argument showing that his prior military
     service played any role in the agency’s decision to deny those requests.
     Accordingly, we find that the appellant failed to meet his burden of proving, by
     preponderant evidence, that his military status was a motivating factor in the
     agency’s decision to deny his reasonable accommodations request. See Brasch v.
     Department of Transportation, 101 M.S.P.R. 145, ¶ 11 (2006). Moreover, even if
     the appellant had met his initial burden in this regard, the evidence shows that the
     agency has met its burden of showing that it would have taken the same action for
     the valid reasons explained in its various responses to his reasonable
     accommodation request, irrespective of the appellant’s military status.        IAF,
     Tab 5, Subtabs 4c, 4n, 4p.
¶7        The appellant also reasserts his claim that the agency’s denial of his
     reasonable accommodation request constitutes discrimination. PFR File, Tab 1.
     The Board has held that, to establish USERRA discrimination, an appellant must
     show that he was treated more harshly than nonveterans.         See Strausbaugh v.
     Government Printing Office, 117 M.S.P.R. 566, ¶ 13 (2012). Here, however, the
     appellant does not claim that he was treated more harshly than nonveterans, and
     there is no evidence in the record to support such a finding. Thus, based on the
                                                                                              6

     written record, we find no error in the administrative judge’s determination that
     the appellant failed to establish discrimination based on his military service
     because he made no showing that similarly situated nonveterans requested and
     were granted reasonable accommodations under comparable circumstances. To
     the extent the appellant may be arguing that he was discriminated against based
     on a disability arising from his military service, the administrative judge correctly
     found that such a claim is not cognizable under USERRA. See Mims v. Social
     Security Administration, 120 M.S.P.R. 213, ¶ 22 (2013).
¶8           Additionally, the appellant challenges the administrative judge’s credibility
     determinations for several of the agency witnesses and he asserts that the
     administrative judge failed to address the evidence that shows portions of their
     testimony were false. PFR File, Tab 1. Even though the appellant disagrees with
     the administrative judge’s credibility findings and weighing of the evidence, the
     initial decision reflects that the administrative judge considered the evidence as a
     whole,        drew   appropriate   inferences,    and     made    reasoned    conclusions.
     Consequently, we discern no reason to re-weigh the evidence or substitute the
     Board’s own judgment on credibility issues. See Haebe v. Department of Justice,
     288 F.3d 1288, 1301 (Fed. Cir. 2002); Broughton v. Department of Health &
     Human Services, 33 M.S.P.R. 357, 359 (1987).
¶9           Finally, the appellant asserts that he has submitted new evidence he
     obtained during discovery in a separate appeal he had pending before the Board,
     and that these documents provide additional justification for his petition for
     review. 2 PFR File, Tab 1 at 4, 11-27.           The documents he has attached to his
     petition include an interrogatory discovery request and the agency response, notes
     from a November 26 meeting with the appellant, an email dated November 21,
     2013,     a    workweek    request   form   dated       July   2013,   and   emails   dated

     2
       The initial decision in Lentz v. Department of the Interior, MSPB Docket No. SF-
     4324-15-0215-I-1 (Initial Decision, Apr. 27, 2015), became the final decision when
     neither party filed a petition for review.
                                                                                       7

      December 2014.      PFR File, Tab 1 at 11-27.   The appellant has not explained,
      however, how these documents would warrant a different outcome. PFR File,
      Tab 1 at 4.
¶10         Furthermore, even though the interrogatory discovery request and agency
      response to that request are dated after the close of the record on review, the
      information contained within those documents concern the appellant’s prior
      disciplinary record involving misconduct that occurred prior to the close of the
      record on review. PFR File, Tab 1. However, to constitute new and material
      evidence, the information contained in the documents, not just the documents
      themselves, must have been unavailable despite due diligence when the record
      closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989).
      In this case, the information in the documents is not new.        The appellant’s
      remaining documents are dated prior to the close of the record, and he has made
      no showing that these documents were unavailable before the record closed
      despite his due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
      (1980).     Moreover, even if the Board were to consider any of the documents
      submitted for a first time on review as “new,” the information contained in them
      is not material because it does not warrant a different outcome.       The Board
      will not grant a petition for review based on new evidence absent a showing that
      it is of sufficient weight to warrant an outcome different from that of the initial
      decision.     Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
      Accordingly, we find that the administrative judge correctly denied the
      appellant’s request for corrective action under USERRA.
                                                                                      8

                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         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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono for       information     regarding      pro      bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
                                                                                9

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.
