                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CARL D. HAYDEN,                                 DOCKET NUMBER
                  Appellant,                         CH-4324-13-0534-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: December 4, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Matthew D. Estes, Esquire, and Neil A.G. McPhie, Esquire, Arlington,
            Virginia, for the appellant.

           Daniel J. Dougherty, Michael Ahl, and Michael J. Raming, Wright-
             Patterson Air Force Base, Ohio, 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     Employment and Reemployment Rights Act of 1994 (USSERA). For the reasons
     discussed below, we VACATE the initial decision, still DENYING the appellant’s
     request for corrective action.
¶2         The appellant, a member of the Air Force Reserve, began his work as a
     Protocol Specialist, GS-9, in 2002, at the Wright-Patterson Air Force Base
     Protocol Office for B Flight. 2      Initial Appeal File (IAF), Tab 7 at 1.        He
     transferred to A Flight on June 20, 2010, taking on added responsibilities,
     including support of the Air Force Security Assistance Center (AFSAC). 3 IAF,
     Tab 15, Exhibit (Ex.) 9. The agency upgraded the appellant’s position to GS-11
     because he acquired new duties during the transfer. IAF, Tab 6, Subtab 2h.
¶3         The B Flight Protocol Office lost two GS-12 positions in November 2011.
     IAF, Tab 7 at 1. The employees in those positions were declared as “surplus,” or
     employees who were not working in permanently authorized positions.               Id.;
     Hearing Compact Disc (HCD) (testimony of Jones); IAF, Tab 6, Subtab 2g at 1-2.
     One of these employees was subsequently placed in another position. IAF, Tab
     6, Subtab 2g at 3. The other surplus employee became a mandatory placement
     priority and was still in that status when the appellant filed the petition for
     review. IAF, Tab 7 at 1; Petition for Review (PFR) File, Tab 7 at 6.
¶4         On March 26, 2012, the appellant’s immediate supervisor submitted a
     request to upgrade his position to GS-12, based on accretion of duties at the
     higher grade level. IAF, Tab 7 at 1; see IAF, Tab 6, Subtab 2f at 1-4. To justify
     the upgrade, his supervisor wrote:
           Over abundance [sic] of events to work and not enough GS-12’s to
           perform the duties. Often assign Carl events that are above GS-11

     2
       The base is located on two geographically noncontiguous tracts of land, Area A and
     Area B. The Protocol Office is divided into two branches, each of which serves an area
     of the base. See IAF, Tab 15, Ex. 8. The B Flight Protocol Office supports Area B.
     See PFR File, Tab 7 at 5.
     3
       AFSAC hosts high-level foreign delegations and requires protocol support for
     complex events. See HCD (testimony of Chambers); IAF, Tab 14 at 37.
                                                                                       3

           duties due to both requirements and to develop his growth. He is
           working above his pay grade and has shown he is capable of
           performing at a GS-12 grade level.
     IAF, Tab 14 at 21.
¶5        On March 30, 2012, the appellant received military orders for Reserve duty
     commencing April 10, 2012. IAF, Tab 7 at 1; see IAF, Tab 6, Subtabs 2d-2e,
     Tab 14 at 16-20. The appellant’s duty was extended in July 2012. IAF, Tab 6,
     Subtab 2c, Tab 14 at 18-20, Tab 15, Ex. 7. On May 1, 2012, a human resources
     position classifier notified the appellant’s supervisor that she needed to conduct a
     desk audit before upgrading the appellant’s position.      IAF, Tab 7 at 1.     She
     explained that she needed to interview the appellant in person during the audit,
     and she was unable to do so while he was on extended active duty. Id. at 1-
     2; HCD (testimony of Chambers, Hess). The appellant’s supervisor notified him
     that the upgrade had been cancelled because he was in nonpay status, but “[o]nce
     [you] return in January we will re-engage!” IAF, Tab 14 at 28; see id. at 30. In
     July 2012, protocol support duties for AFSAC were transferred from the A Flight
     Protocol Office to another unit. HCD (testimony of Chambers).
¶6        The appellant returned to his GS-11 position on December 20, 2012. IAF,
     Tab 6, Subtab 2b, Tab 7 at 2, Tab 14 at 20. He received a within-grade increase;
     however, his supervisor did not resubmit the request to upgrade his position.
     HCD (testimony of appellant, Chambers); PFR File, Tab 7 at 6. He testified that
     she was unable to explain why the upgrade was not being processed.            HCD
     (testimony of appellant). He performed additional Reserve duty from March 4, to
     March 8, 2013. IAF, Tab 14 at 12. He subsequently met with his supervisor on
     March 13, 2013, and inquired about whether she would resubmit the
     request. Id.; HCD (testimony of appellant). During that conversation, he alleged,
     she informed him that she did not recommend his promotion because he had been
     absent too often for his Reserve duties. IAF, Tab 14 at 12; HCD (testimony of
     appellant). The appellant immediately sought assistance from the base Employer
                                                                                     4

     Support of the Guard Reserve (ESGR) office. See IAF, Tab 14 at 29; see also
     IAF, Tab 15, Ex. 6.
¶7        The appellant met with his supervisor and the base Chief of Protocol the
     following day. IAF, Tab 14 at 12. At the meeting, he recounted, his supervisor
     advised him to keep her better apprised of his upcoming Reserve obligations by
     providing her with a 90-day calendar that showed potential Reserve assignment
     dates. Id.; see HCD (testimony of appellant); see also IAF, Tab 6, Subtab 2a at 2.
     He recounted that his supervisor and the Chief of Protocol also told him at the
     meeting that they would reevaluate his suitability for promotion within 90 days.
     See IAF, Tab 14 at 12; see also IAF, Tab 6, Subtab 2a at 1, Tab 15, Exs. 4-5.
     During the meeting, the Chief of Protocol raised concerns about his performance
     that, he alleged, had never been raised before, though he admitted at the hearing
     that the concerns did not lack foundation. HCD (testimony of appellant). We
     note here that the appellant’s most recent performance appraisal dated January 7,
     2013, showed his overall rating as “outstanding.” IAF, Tab 14 at 22-24.
¶8        On May 20, 2013, the appellant received a performance feedback
     memorandum, which stated that he was no longer working at the GS-12 level.
     IAF, Tab 6, Subtab 2a, Tab 7 at 2, Tab 14 at 12, Tab 15, Ex. 5. The agency did
     not subsequently request an upgrade to the appellant’s position. HCD (testimony
     of Chambers, Curell). In August 2013, however, the agency promoted another
     Protocol employee to GS-12.      IAF, Tab 14 at 36.      That employee is not a
     Reservist. Id. at 12. The appellant filed this appeal. IAF, Tab 1.
¶9        The appellant alleged USERRA violations under three different legal
     theories. See IAF, Tab 19 at 5-6. He primarily argued that the agency denied
     him a benefit of employment by not promoting him because of his service in the
     Air Force Reserve. Id. at 5; IAF, Tab 5 at 4; see 38 U.S.C. § 4311(a). He also
     argued that the agency denied him a benefit of reemployment in the position he
     would have attained had the agency processed the position upgrade. IAF, Tab 5
     at 4, Tab 19 at 5-6; see 38 U.S.C. §§ 4312, 4313(a), 4316. Finally, he alleged
                                                                                       5

      that the agency retaliated against him after he sought to enforce the protections
      that USERRA afforded. IAF, Tab 5 at 4, Tab 19 at 6; see 38 U.S.C. § 4311(b),
      (c). The agency argued that organizational restructuring in July 2012, while the
      appellant was on Reserve duty stripped the A Flight Protocol Office of its duties
      related to AFSAC, reducing the number of GS-12 Protocol Officers needed for
      handling complex events. IAF, Tab 7 at 2. Additionally, the agency explained, it
      could not have placed the appellant in a GS-12 position without allowing other
      Protocol Officers at the GS-11 level to compete for the position. It was also
      obligated to place the remaining “surplus” GS-12 employee. Id. at 1-3.
¶10         After a videoconference hearing, the administrative judge denied the
      appellant’s request for corrective action, finding that he had not shown by
      preponderant evidence that his military service was a substantial or motivating
      factor in the agency’s failure to promote him. IAF, Tab 20, Initial Decision (ID)
      at 3-4.   The administrative judge further found that the appellant’s promotion
      would not have been guaranteed even if he had been available for a desk audit, so
      he thus was not disadvantaged by his absence. ID at 4. The administrative judge
      likewise found that the appellant did not show that the agency’s decision not to
      process the position upgrade during his absence was motivated or otherwise
      connected to his military service.   ID at 4.   Finally, the administrative judge
      found that the appellant failed to meet his initial burden of proof on the issue of
      retaliation. ID at 4.
      Discrimination Claim

¶11         In an appeal filed under 5 U.S.C. § 4311(a), the appellant bears the initial
      burden of showing by preponderant evidence that his military service was a
      substantial or motivating factor in the agency’s adverse employment decision.
      See Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001).
      After the appellant meets that burden, the burden shifts to the agency to show by
      preponderant evidence that it would have taken the same action anyway, for a
                                                                                       6

      valid reason. Id. at 1013. To establish that his military service was a substantial
      or motivating factor in an adverse employment decision, an appellant must show
      that the agency “relied on, took into account, considered, or conditioned its
      decision” upon his military-related absence or obligation. Erickson v. U.S. Postal
      Service, 571 F.3d 1364, 1368 (Fed. Cir. 2009).       However, USERRA does not
      require that discrimination on the basis of military service be the sole motivating
      factor for an adverse employment action.           Id. at 1369 (citing H.R. Rep.
      No. 103-65, at 24, reprinted in 1994 U.S.C.C.A.N. 2449, 2457).
¶12        An appellant may meet his burden of proof with direct or circumstantial
      evidence. Where there is no significant contrary proof, circumstantial evidence
      can constitute proof of discrimination by preponderant evidence. See Smith v.
      U.S. Postal Service, 69 M.S.P.R. 420, 425 (1996).       Discriminatory motivation
      under USERRA may be reasonably inferred from such circumstantial evidence as
      temporal proximity between the appellant’s military activity and the adverse
      employment action, “inconsistencies between the proffered reason and other
      actions of the employer, an employer’s expressed hostility towards members
      protected by the statute together with knowledge of the [individual’s] military
      activity, and disparate treatment of certain [individuals] compared to other
      [individuals] with similar work records or offenses.” Gossage v. Department of
      Labor, 118 M.S.P.R. 455, ¶ 12 (2012) (quoting Sheehan, 240 F.3d at 1013). The
      Board may consider all record evidence, including the agency’s explanation for
      the actions taken.   Sheehan, 240 F.3d at 1014.        The appellant must show,
      however, “evidence of discrimination other than the fact of non-selection and
      membership in the protected class.” Id. at 1015.
¶13        The appellant argues that the administrative judge made erroneous findings
      of fact regarding whether he met his burden of proof. PFR File, Tab 5 at 9-18.
      The administrative judge concluded that:
            [t]he appellant produced no evidence whatsoever that his military
            service was considered adversely when the agency failed to promote
                                                                                        7

            him.    There is no evidence of disparate treatment, professed
            antipathy toward military service, or inconsistent actions by the
            agency.
      ID at 3. The appellant argues that this conclusion ignores the evidence that he
      presented during the hearing.     PFR File, Tab 5 at 9-10.       He cites specific
      examples of direct and circumstantial evidence of animus based on his military
      service, as well as evidence that might undermine the agency’s stated reasons for
      not upgrading his position. Id. at 10-18. He further argues that, in reaching this
      conclusion, the administrative judge failed to make any findings regarding the
      credibility of witnesses.   Id. at 20-24.   Instead, he argues, the administrative
      judge simply accepted as undisputed fact the testimony of agency witnesses
      regarding both his burden of proof and that of the agency. Id.
¶14         The appellant’s assertion that the administrative judge erred in concluding
      that he “produced no evidence whatsoever” in support of his burden of proof is
      correct.   See ID at 3 (emphasis added).       He has identified several specific
      examples of record evidence from which the administrative judge might have
      concluded that his Reserve service was a substantial or motivating factor in the
      agency’s decision not to upgrade his position. See Weaver v. Department of the
      Navy, 2 M.S.P.R. 129, 133 (1980) (the petitioning party must explain why the
      challenged factual determination is incorrect, and identify the specific evidence in
      the record which demonstrates the error). He accurately points out that, although
      the administrative judge held a hearing and largely relied upon witness testimony,
      see ID at 2-4, the decision does not include any assessment of witness credibility,
      PFR File, Tab 4 at 20-24.
¶15         An initial decision must identify all material issues of fact and law,
      summarize the evidence, resolve issues of credibility, and include the
      administrative judge’s conclusions of law and his legal reasoning, as well as the
      authorities on which that reasoning rests.      Spithaler v. Office of Personnel
      Management, 1 M.S.P.R. 587, 589 (1980); 5 C.F.R. § 1201.111(b).             In such
                                                                                           8

      circumstances, the Board normally remands the appeal with instructions to the
      administrative judge to supply the missing credibility findings and analysis of the
      appellant’s evidence. See, e.g., McMillan v. Department of Justice, 120 M.S.P.R.
      1, ¶¶ 22-23 (2013) (remanding where the administrative judge failed to resolve
      conflicting testimony and made the required credibility determinations). Here,
      the administrative judge has retired from federal service. Although the regional
      office could reassign the case to a new administrative judge, that judge would
      likely have to hold a hearing to make demeanor-based credibility findings.
      Nevertheless, credibility findings need not be based on the demeanor of
      witnesses, and the parties have had a full and fair opportunity to develop the
      record and argue the issues. The Board can thus adjudicate the appeal, and we
      believe that doing so best serves the interests of efficiency and justice. 4 Cf., e.g.,
      Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 26 (2009);
      Negron v. Department of Justice, 95 M.S.P.R. 561, ¶ 9 (2004); Gregory v.
      Federal Communications Commission, 84 M.S.P.R. 22, ¶ 6 (1999), aff’d,
      232 F.3d 912 (Fed. Cir. 2000) (Table).
¶16         The appellant asserts that he has met his burden “by showing that the
      Agency acted inconsistently with regard to the promotion, expressed hostility
      toward his military service, and through a showing that the denial of his
      promotion occurred almost simultaneously with his military leave.” PFR File,
      Tab 5 at 12. We agree that the appellant established that his absences for Reserve
      duty were a motivating factor. The record shows a temporal link between the
      appellant’s extended period of Reserve duty and the agency’s decision not to
      upgrade his position.      The appellant identified testimony that weakens the

      4
        The agency asserts that cases like Spithaler and Hillen v. Department of the Army,
      35 M.S.P.R. 453 (1987), are inapposite because they “were decided on entirely different
      grounds and at a different stage in litigation.” PFR File, Tab 6 at 9. The agency’s
      argument is unavailing. See McMillan, 120 M.S.P.R. 1, ¶ 22 (citing Spithaler as
      authority for remanding appeal so that the administrative judge could make additional
      credibility determinations).
                                                                                        9

      agency’s assertion that it did not consider his military absences in deciding not to
      process his position upgrade. For example, the appellant’s supervisor testified
      that her other upgrade requests had been accepted, and she had been preparing
      him for promotion to GS-12 by giving him responsibilities at that grade level
      when she made the request. HCD (testimony of Chambers). She further testified
      that none of her prior position upgrade requests had required in-person desk
      audits. Id. She also testified that she had participated in a telephonic audit for
      the appellant’s position upgrade to GS-11.       Id.   The position classifier who
      examined the upgrade request testified that she was aware of only about ten
      upgrade requests that had not been granted out of the hundreds she had processed.
      HCD (testimony of Hess). The appellant testified that his supervisor had been
      unable to explain to his satisfaction why the upgrade had not been processed after
      he returned from Reserve duty. HCD (testimony of appellant).
¶17         The appellant also identified possible hostility towards his absences for
      military service. He testified that, during the March 13, 2013 conversation with
      his supervisor, she informed him that his position had not been upgraded because
      he spent too much time out of the office for Reserve duties. HCD (testimony of
      appellant); IAF, Tab 14 at 12. He additionally explained that, for the first time,
      his supervisor required him to prepare a 90-day calendar showing potential
      Reserve obligations.    See IAF, Tab 14 at 31; see also HCD (testimony of
      appellant).   Although she denied his characterization of her remarks, the
      supervisor testified that “last minute” Reserve absences made the assignment of
      work more difficult and affected other employees’ morale. HCD (testimony of
      Chambers).
¶18         The appellant further testified that he received negative feedback during the
      May 20, 2013 meeting unlike any feedback he had ever received.            See HCD
      (testimony of appellant); see also HCD (testimony of Chambers). Such feedback,
      we note, was inconsistent with his prior performance evaluations.         See IAF,
      Tab 14 at 22-24, Tab 15, Ex. 1. The agency’s meeting notes from May 20, 2013,
                                                                                           10

      are consistent with his assertions and show that the agency supervisors criticized
      his performance and expressed concern about the frequency and predictability of
      his Reserve activity. IAF, Tab 14 at 30-32; see Hillen, 35 M.S.P.R. at 458.
¶19         We infer from the evidence upon which the appellant relied that the agency
      considered his absences for Reserve duty when it decided not to process the
      upgrade request during his absence and not to pursue the upgrade upon his return.
      A finding of discrimination may be based upon such considerations.                  See
      McMillan, 120 M.S.P.R. 1, ¶ 14 (because the most significant and predictable
      consequence of reserve status with respect to the employer is the employee’s
      absence from work, USERRA prohibits an employer from taking an adverse
      employment action based on the employee’s use of or obligation to use military
      leave). “An employer cannot escape liability under USERRA by claiming that it
      was merely discriminating against an employee on the basis of his absence when
      that absence was for military service.” Erickson, 571 F.3d at 1368. “[M]ilitary
      service is a motivating factor for an adverse employment action if the employer
      ‘relied on, took into account, considered, or conditioned its decision’ on the
      employee’s military-related absence or obligation.”           Id. (citations omitted).
      When we weigh all of the evidence, we find that the agency considered the
      appellant’s military absences to be problematic, and the absences were a
      motivating factor in the agency’s failure to provide the position upgrade. The
      appellant thus met his burden of proof.
¶20         If an appellant meets his burden of proof, the agency may avoid liability by
      demonstrating by preponderant evidence that it would have taken the same action
      without considering his military service. 5       Erickson, 571 F.3d at 1368; see

      5
        Shifting of the burden from the employee to the employer occurs in both “dual
      motive” cases, wherein the agency defends its actions on grounds that, even if an
      invalid reason played a part in the adverse action, the same action would have been
      taken in the absence of the invalid reason, and in the cases based on pretext, wherein
      the agency defends its actions on grounds that it acted only for valid reasons. Sheehan,
      240 F.2d at 1014.
                                                                                             11

      Sheehan, 240 F.3d at 1013; see also Burroughs v. Department of the
      Army, 120 M.S.P.R. 392, ¶ 5 (2013) (an agency violates section 4311(a) if it
      would not have taken the action but for the appellant’s service).            The agency
      argued that it was unable to complete the desk audit and process the upgrade
      because the appellant was unavailable and in nonpay status. IAF, Tab 7 at 1.
      When he returned, the agency explained, the nature of the Protocol Office’s
      workload had changed, in large part because it was no longer supporting AFSAC
      events.    Id. at 2.    The agency further explained that it could not upgrade the
      appellant’s position noncompetitively because:            (1) there were two Protocol
      Specialists in the office (the appellant and another employee) who were in
      positions in which GS-11 was the full performance level, triggering a competition
      under the agency’s regulations; and (2) even if the upgraded position were filled
      competitively, the GS-12 employees from B Flight who had been declared as
      surplus would have had internal priority over the appellant.          Id. at 1-2.     The
      appellant thus could not show he would have been placed automatically in the
      upgraded     position    or   whether    the   position   upgrade   would    have    been
      approved. Id. at 2; see HCD (testimony of Chambers).
¶21        Quoting      the    Office   of    Personnel   Management      (OPM)     Classifier’s
      Handbook, the appellant asserts that a desk audit “is no more than a conversation
      for interview with the person in the job, or with the supervisor of the position, or
      with both . . . . to gain as much information as possible about the position.” PFR
      File, Tab 5 at 17; IAF, Tab 15, Ex. 1 at 2 (emphasis added).                However, the
      Classifier’s Handbook also states that the desk audit is normally conducted at the
      worksite. IAF, Tab 15, Ex. 1 at 2. The appellant was away from the worksite at
      the time. Citing the position classifier’s testimony, the appellant points out that
      the decision to conduct a desk audit was within the classifier’s discretion. PFR
      File, Tab 5 at 17; see HCD (testimony of Hess).            The position classifier also
      testified, however, that she normally conducted an in-person desk audit when the
                                                                                      12

      upgraded position would have been at or above the GS-12 level. HCD (testimony
      of Hess).
¶22        The appellant argues that OPM regulations allow agencies to upgrade
      positions noncompetitively through the accretion of duties.      PFR File, Tab 5
      at 13-14; see 5 C.F.R. § 335.103(c)(3)(ii) (“Agencies may at their discretion
      except the following actions from competitive procedures of this section . . .
      (ii) A promotion resulting from an employee’s position being classified at a
      higher grade because of additional duties and responsibilities . . . .”).
      Additionally, he argues, Air Force regulations allow for noncompetitive upgrade
      by reclassification. PFR File, Tab 5 at 14; see Air Force Manual 36-203, Table
      2.4 (located at IAF, Tab 6, Subtab 2m at 7-8); see also HCD (testimony of
      Driscoll). The agency will do so when no other employee or position can absorb
      the duties detailed in the position upgrade request. HCD (testimony of Driscoll).
      Although the position upgrade request specifically stated that “[n]o other
      positions could absorb” the duties that the appellant was performing, IAF, Tab 14
      at 21, the agency presented credible evidence explaining why these GS-12 level
      duties no longer existed in A Flight after the appellant returned from Reserve
      duty, see HCD (testimony of Chambers); see also IAF, Tab 6, Subtab 1 at 1.
      Additionally, the agency presented credible testimony that two GS-12 positions in
      B Flight had been eliminated in November 2011. See HCD (testimony of Curell);
      see also IAF, Tab 6, Subtab 1 at 1, Subtab 2g.
¶23        The appellant argues that another Protocol Office employee, a nonveteran,
      was promoted from GS-11 to GS-12 effective August 5, 2013. PFR File, Tab 5
      at 16; see IAF, Tab 14 at 36.        The record shows, however, that the full
      performance level for that employee’s position is GS-12, see IAF, Tab 14
      at 35-36, whereas the full performance level for the appellant’s position is GS-11.
      The appellant was promoted to GS-11 after reclassification of his GS-9 position.
      See IAF, Tab 6, Subtab 2h.
                                                                                        13

¶24         Citing Becwar v. Department of Labor, the appellant additionally argues
      that the administrative judge improperly increased his burden of proof by
      requiring him to prove his entitlement to a position at the GS-12 level. PFR File,
      Tab 5 at 18-19; see Becwar v. Department of Labor, 115 M.S.P.R. 689, ¶¶ 6-7
      (2011), aff’d, 467 F. App’x 886 (Fed. Cir. 2012). In Becwar, the administrative
      judge specifically required the appellant to “first prove that she was entitled to be
      promoted from GS-11 to GS-12.” Becwar, 115 M.S.P.R. 689, ¶ 6. In the absence
      of such proof, her claim that denial of her promotion was based on her military
      service obligation would fail. 6 Id. The appellant has not identified any statement
      in the record or initial decision stating that such proof was required. Instead, the
      administrative judge’s analysis turned on the unavailability of duties and
      responsibilities at the GS-12 level after the appellant returned from military duty.
      ID at 3-4.   The agency’s concerns about the appellant’s performance did not
      pertain to his eligibility for promotion to any existing GS-12 position, but instead
      focused on his readiness for promotion should such a position become available
      in the future.   See PFR, Tab 6 at 7; see also HCD (testimony of Chambers,
      Curell). The appellant’s argument is unavailing.
¶25         In the aggregate, the evidence does not show that the agency denied the
      upgrade request because the appellant was on military duty. Instead, it shows that
      processing of the request was delayed because the appellant was temporarily
      unavailable for part of the consideration process and was on leave without pay.
      See IAF, Tab 14 at 27-28; see also HCD (testimony of Chambers, Hess). It also
      shows that the Protocol Office no longer needed additional GS-12 Protocol
      Officers after his return. See HCD (testimony of Chambers, Curell); see also
      IAF, Tab 6, Subtab 2g. The agency has thus shown that it decided not to pursue
      the upgrade both during and after the appellant’s absence based on valid reasons

      6
        In Becwar, we note, the agency declined to promote the appellant to the full
      performance level in a career-ladder position. See Becwar, 115 M.S.P.R. 689, ¶¶ 2, 6.
      Here, the appellant had already reached the full performance level.
                                                                                     14

      other than the appellant’s service in the Air Force Reserve.    Accordingly, the
      agency met its burden of proof under section 4311(a).
      Reemployment Claim

¶26         The appellant also argued that the agency denied him a benefit of
      reemployment that he would have obtained but for his absence for military duty
      when it did not upgrade his position after he returned from duty. See IAF, Tab 5
      at 4, Tab 19 at 5-6; see also 38 U.S.C. §§ 4312, 4313(a), 4316.               The
      administrative judge did not address this claim, which is distinct from the
      discrimination   claim.       See    Rassenfoss     v.   Department     of    the
      Treasury, 121 M.S.P.R. 512, ¶ 10 (2014).     We will resolve this issue without
      remand because the record is sufficiently developed and we can make credibility
      determinations without considering witness demeanor. See id., ¶ 11.
¶27         In contrast to discrimination cases, an individual’s rights under USERRA’s
      reemployment provisions do not depend on an agency’s motivation for action or
      inaction. Id., ¶ 10. Instead, an agency must prove that it has met its statutory
      obligations to the employee. Id.; see Wyatt v. U.S. Postal Service, 101 M.S.P.R.
      28, ¶ 12 (2006). An agency must consider employees who are absent on military
      duty for any incident or advantage of employment to which they may have been
      entitled had they not been absent. 5 C.F.R. § 353.106(c). In doing so, an agency
      must weigh whether:
            (1) The “incident or advantage” is one generally granted to all
            employees in that workplace and was denied in this case solely
            because of absence for military service;
            (2) The person absent on military duty was treated the same as if the
            person had remained at work; and
            (3) It was reasonably certain that the benefit would have accrued to
            the employee but for the absence for military service.
      Id.
¶28         The record does not show that the position upgrade was a benefit of
      employment generally granted to all agency employees.          An example of a
                                                                                         15

      “generally granted” benefit of employment is a within-grade increase, which is
      granted when an employee performing at the fully satisfactory level or better
      accrues a certain amount of time-in-grade. The agency, we note, avers that the
      appellant received the within-grade increase he was due. PFR File, Tab 7 at 16.
      In contrast, the appellant’s proposed position upgrade was not a generally granted
      benefit. See IAF, Tab 6, Subtab 2h. As the incumbent in a position at the full
      performance level, he was not due a career-ladder promotion.            Any upgrade
      affecting his position would have been discretionary and based upon the agency’s
      needs. The agency may upgrade a position when no other employee or position
      can absorb the duties detailed in the position upgrade request.            See HCD
      (testimony of Driscoll); see also 5 C.F.R. § 335.103(c)(3)(ii) (“Agencies may at
      their discretion except the following actions from competitive procedures of this
      section . . . (ii) A promotion resulting from an employee’s position being
      classified   at   a   higher    grade     because    of    additional   duties    and
      responsibilities . . . .”). The position upgrade request here specifically stated that
      “[n]o other positions could absorb” the duties that the appellant was performing.
      IAF, Tab 14 at 21.
¶29         We cannot determine precisely what would have happened if the appellant
      had remained at work. The A Flight Protocol Office lost its additional high-level
      duties about 4 months after the upgrade request was submitted and after the
      B Flight Protocol Office had declared two GS-12 Protocol Officers in surplus
      status a few months earlier. IAF, Tab 7 at 1-2, Tab 6, Subtab 2g at 1-2. The
      Protocol Office no longer needed another GS-12 Protocol Officer.                 HCD
      (testimony of Curell). It is unclear whether the agency would have continued
      processing the upgrade request after the AFSAC support duties ended.             HCD
      (testimony of Chambers). In any event, the appellant would have had to compete
      for the upgraded position because there was another GS-11 Protocol Officer in
                                                                                      16

      A Flight. 7 HCD (testimony of Driscoll). It is not certain he would have been
      selected.
¶30         As for whether the position upgrade was reasonably certain but for the
      appellant’s absence, we looked to the OPM regulation governing our adjudication
      of this issue, 5 C.F.R. § 353.106(c), and the Department of Labor (DOL)
      regulation     covering    nonfederal   employees     in    Rassenfoss.        See
      Rassenfoss, 121 M.S.P.R. 512, ¶ 13; see also 20 C.F.R. § 1002.236(a).         DOL
      directs employers to adopt a case-by-case approach to determine whether a
      benefit was reasonably certain to have accrued absent the employee’s military
      service.     20 C.F.R. § 1002.236(a).   The relevant factors for assessing the
      reasonable certainty that an employee would have received a discretionary
      promotion include the returning employee’s work history, his or her history of
      merit increases, and the work and the pay history of employees in the same or
      similar position. Id.
¶31         The appellant was a valued employee who had done good work at the GS-11
      and 12 grade levels. IAF, Tab 14 at 21. He received outstanding ratings for
      2012, and prior years.    Id. at 22-24; IAF, Tab 15, Ex. 3.      As stated above,
      however, he and another employee were in GS-11 positions at the full
      performance level, unlike the employee who was promoted to GS-12. 8 Compare
      IAF, Tab 6, Subtab 2h, Tab 15, Ex. 9, with IAF, Tab 14 at 35-36. The office
      needed no additional GS-12 employees.         HCD (testimony of Curell).       The
      appellant’s performance suffered after his return, which the agency documented,
      see IAF, Tab 6, Subtab 2a, but the agency was still willing to promote him if a
      GS-12 position became available, see IAF, Tab 15, Ex. 4; see also HCD


      7
        Competition is required where “there are other employees serving in similar or
      identical positions to whom these duties could have been assigned.” See IAF, Tab 6,
      Subtab 2m at 5 (rules 20-21).
      8
       The remaining Protocol Officers were in GS-12 or GS-11/12 positions. IAF, Tab 15,
      Ex. 8.
                                                                                       17

      (testimony of Chambers, Curell). The agency thus met its burden to prove that
      the appellant had not been denied any incident or advantage of employment to
      which he would have been entitled had he not been absent.
      Retaliation Claim

¶32        Finally, the appellant argued that the agency retaliated against him because
      he sought assistance from the ESGR. See IAF, Tab 5 at 4; see also 38 U.S.C.
      § 4311(b), (c).     The appellant asserted that the criticism he received at the
      May 20, 2013 meeting, as well as the agency’s continued unwillingness to
      upgrade his position, constitute retaliation. IAF, Tab 5 at 4, Tab 14 at 4-5, 9-10.
      The administrative judge briefly addressed this issue, finding that the appellant
      did not meet his burden of proof. ID at 4.
¶33        The USERRA standard of proof for a retaliation claim is set forth
      at 38 U.S.C. § 4311(b) and (c)(2):
            (b) An employer may not discriminate in employment against or take
            any adverse employment action against any person because such
            person (1) has taken an action to enforce a protection afforded any
            person under this chapter, . . . or (4) has exercised a right provided
            for in this chapter.
            ...
            (c) An employer shall be considered to have engaged in actions
            prohibited . . . (2) under subsection (b), if the person’s (A) action to
            enforce a protection afforded any person under this chapter, . . . or
            (D) exercise of a right provided for in this chapter, is a motivating
            factor in the employer’s action, unless the employer can prove that
            the action would have been taken in the absence of such person’s
            enforcement action . . . or exercise of a right.
      38    U.S.C.      § 4311(b),     (c)(2);   see   Brasch     v.    Department     of
      Transportation, 101 M.S.P.R. 145, ¶¶ 6, 10 (2006).        Here, the appellant took
      action to enforce the protections afforded by USERRA by seeking mediation
      services from the ESGR.        IAF, Tab 14 at 6, Tab 15, Ex. 6.     He adduced no
      evidence, however, that the agency bore any discriminatory animus towards him
      and he thus failed to meet his initial burden of proof. To the contrary, the agency
                                                                                          18

established that it did not need additional GS-12 Protocol Officers at the time,
and also that the appellant’s supervisors were concerned about helping him
overcome a decline in his performance and prepare for eventual promotion to GS-
12. Accordingly, we DENY the appellant’s request for corrective action.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     This    Final        Order   constitutes    the   Board’s   final   decision   in   this
matter. 5 C.F.R. § 1201.113. You have the right to request the United States
Court of Appeals for the Federal Circuit to review this final decision. 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.
                                                                           19

     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.
