                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     STANLEY C. BRASCH,                              DOCKET NUMBER
                   Appellant,                        CH-4324-14-0175-I-1

                  v.

     DEPARTMENT OF                                   DATE: September 28, 2015
       TRANSPORTATION,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Stanley C. Brasch, St. Louis, Missouri, pro se.

           Parisa Naraghi-Arani, Esquire, Washington, D.C., 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        In this USERRA appeal, the appellant, a computer specialist at the agency’s
     Federal Aviation Administration (FAA), argued that the agency denied him
     “Excused Absence for medical care as a result of service connected disabilities
     and/or injuries.” Initial Appeal File (IAF), Tab 1 at 1, 5. He also contended that
     the agency denied him “Excused Absence … to assist and attend a U.S.
     Department of Defense, Employer Support of the Guard and Reserve Leadership
     Training[.]” Id. at 5. He asserts that he was forced to use sick or annual leave to
     seek medical care and to attend the cited training program. Id. Concerning both
     claims, the appellant argued that the agency was providing “Excused Absences
     for non-military employees of the FAA” for medical examinations and for
     training, both defense and nonmilitary related.     Id.   The administrative judge
     provided the appellant with notice of the elements and burdens of establishing
     jurisdiction over and proving his USERRA claims, and both parties replied. IAF,
     Tabs 5, 10-11.
¶3        The administrative judge found that the appellant established jurisdiction
     and held a 2-day hearing. She denied his request for corrective action because
                                                                                      3

     she found that the agency did not discriminate against the appellant due to his
     military service when it denied his requests to change the sick and annual leave,
     which it approved for the appellant to seek medical care and attend training, to
     paid administrative leave. IAF, Tab 41, Initial Decision (ID). In his petition for
     review, the appellant reasserts the arguments he made below. Petition for Review
     (PFR) File, Tab 1; see IAF, Tab 27. The agency responds in opposition to the
     appellant’s petition for review. PFR File, Tab 4.
¶4         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, promotion, 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). 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).
¶5        The appellant asserts that he was denied certain benefits of employment on
     the basis of his military service. He asserted that the agency treated military and
     nonmilitary   employees     differently   as   to   allowing    excused   absences
     (administrative leave) for medical care and training.          We agree with the
     administrative judge that the appellant failed to meet his burden to show that the
     agency discriminated against him based on his military service or status.
     ID at 11.
¶6        On the appellant’s first claim, based on hearing testimony and the plain
     language of the pertinent agency regulation, the administrative judge found that
     an excused absence only is available for induction, enlistment, or other required
     periodic examinations related to military duty. ID at 5-8; see IAF, Tab 9 at 59.
     Excused absences are not authorized for individuals receiving treatment for
                                                                                      4

     military-related injuries, and agency policy required the appellant to use personal
     leave for his medical treatment.     ID at 8; IAF, Tab 10 at 16-20.    The record
     therefore shows that the agency did not deny the appellant any benefit of
     employment concerning leave for medical treatment.
¶7         As to the appellant’s second claim, the administrative judge found that,
     because the training the appellant sought to attend was not related to his agency
     position and he was no longer detailed to the Department of Defense, agency
     policy did not require it to grant him an excused absence to attend this training.
     ID at 8-10.     As the administrative judge recounted, the employee whom the
     appellant cited as having been allowed excused absence to attend the training at
     issue testified how the training related to his position involving monitoring
     agency contracts. ID at 9. By contrast, the administrative judge found that the
     appellant failed to explain how the training at issue related to his information
     technology position. Id. Again, the record shows that the agency did not deny
     the appellant any benefit of employment, this time regarding excused absence
     for training.
¶8         Accordingly, we affirm the administrative judge’s decision to deny the
     appellant’s request for corrective action under USERRA.

                      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.
                                                                                          5

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
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.
