                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LANCE MCDERMOTT,                                DOCKET NUMBER
                 Appellant,                          SF-3330-15-0432-I-2

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 23, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Lance McDermott, Seattle, Washington, pro se.

           Steven B. Schwartzman, Seattle, Washington, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. 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         The appellant is a Maintenance Mechanic.         McDermott v. U.S. Postal
     Service (McDermott I), MSPB Docket No. SF-0752-13-0633-I-1, Initial Appeal
     File (0633 IAF), Tab 2 at 1, Tab 21 at 10-13. Among other things, the physical
     requirements of that position include the ability to distinguish colors. 0633 IAF,
     Tab 21 at 13. In February 2013, the agency requested that the appellant submit
     medical documentation relating to his vision after he claimed he was unable to
     differentiate colors.   Id. at 14.   Subsequently, the appellant provided medical
     documentation from an optometrist, indicating that he “exhibits red green
     colorblindness.” Id. at 15.
¶3         The agency attempted to engage the appellant in the reasonable
     accommodation process, expressing concern that his inability to distinguish
     colors could pose a safety hazard, but the appellant did not respond.            Id.
     at 17-18, 20. In May 2013, the agency proposed placing him on enforced leave,
     indicating that it was “unable to determine that [he] can work safely due to [his]
     color blindness and repeated attempts to engage [him] have been unsuccessful.”
     Id. at 20-21. The proposal again informed the appellant that he could request
     light duty or reasonable accommodation. Id. at 20. After the appellant failed to
                                                                                      3

     respond within the time provided for doing so, the agency issued a decision
     placing the appellant on enforced leave. Id. at 22-24. The decision letter noted
     that the action was a result of the appellant’s refusal to interact with management
     concerning his vision and that he still could request light duty or reasonable
     accommodation. Id. at 22.
¶4        In July 2013, the appellant filed a Board appeal, McDermott I, challenging
     his placement on enforced leave.      0633 IAF, Tab 2.     While that appeal was
     pending, the appellant filed a second appeal alleging violations of the Veterans
     Employment Opportunities Act of 1998 (VEOA) and USERRA. McDermott v.
     U.S. Postal Service (McDermott II), MSPB Docket No. SF-0330-15-0432-I-1,
     Initial Appeal File (0432 IAF), Tabs 1, 20. In McDermott II, he alleged, inter
     alia, that the agency violated USERRA when it:        (1) failed to recognize his
     veteran’s preference status; and (2) placed him in enforced leave status.
     McDermott v. U.S. Postal Service, MSPB Docket No. SF-0330-15-0432-I-2,
     Appeal File (0432 AF), Tab 22 at 2.
¶5        The administrative judge affirmed the agency’s action in McDermott I, as
     modified to adjust the start date of the appellant’s enforced leave, but we
     remanded the matter for further adjudication of the appellant’s affirmative
     defenses.   0633 IAF, Tab 52, Initial Decision (0633 ID); McDermott v. U.S.
     Postal Service, MSPB Docket No. SF-0752-13-0633-I-1, Remand Order
     (0633 RO) (Oct. 13, 2015).      Thereafter, the administrative judge dismissed
     McDermott II, without prejudice and without objection, in order to schedule a
     single hearing for it and McDermott I. 0432 IAF, Tab 23.
¶6        After holding the single hearing, the administrative judge issued a remand
     initial decision for McDermott I, again affirming the appellant’s placement on
     enforced leave, as modified. McDermott v. U.S. Postal Service, MSPB Docket
     No. SF‑0752‑13‑0633‑B‑1, Remand File (0633 RF), Tab 36, Remand Initial
                                                                                            4

     Decision (0633 RID). 2 For McDermott II, the administrative judge terminated the
     VEOA claim, pursuant to 5 U.S.C. § 3330b(a), because the appellant elected to
     instead pursue the matter in district court.       0432 AF, Tabs 24, 25.        For the
     remaining USERRA claim, the administrative judge denied the request for
     corrective action. 0432 AF, Tab 27, Initial Decision (0432 ID).
¶7         The appellant has filed a petition for review of McDermott II. McDermott
     v. U.S. Postal Service, MSPB Docket No. SF-0330-15-0432-I-2, Petition for
     Review (0432 PFR) File, Tab 1.          The agency has filed a response, and the
     appellant has replied. 0432 PFR File, Tabs 3-4.
¶8         As an initial matter, we note that the appellant appears to argue that the
     administrative judge erred in terminating only his VEOA claim because he also
     intended to pursue his USERRA claim in district court. 0432 PFR File, Tab 1
     at 4-5.   However, the appellant’s termination request cited 5 U.S.C. § 3330b,
     which applies to VEOA claims only, not USERRA claims. 0432 AF, Tab 24.
     Moreover, as a Postal Service employee, the appellant is limited to pursuing a
     USERRA claim with the Board; a district court would not have jurisdiction over
     the claim. 38 U.S.C. § 4324; Eberhart v. U.S. Postal Service, 88 M.S.P.R. 398,
     ¶ 4 (2001).
¶9         Next, we note that the appellant’s petition for review contains a number of
     arguments that implicate McDermott I and are outside the scope of the instant
     action in McDermott II.         For example, the appellant presents arguments
     concerning the administrative judge’s April 2015 McDermott I decision, but we
     previously vacated that decision. 0432 PFR File, Tab 1 at 5-7; see 0633 RO. He
     also presents a number of arguments that appear to implicate the administrative
     judge’s remand initial decision in McDermott I, but that decision became final
     months before the instant petition for review. 0432 PFR File, Tab 1 at 7-25;

     2
       Because the appellant did not file a petition for review of the remand initial decision
     in McDermott I, that decision became final on March 18, 2016. See 0633 RID at 18.
                                                                                               5

      see 0633 RID at 18.       Accordingly, this decision is limited to the appellant’s
      USERRA claims in McDermott II.
¶10            In terms of the USERRA discrimination matter that remains, to prevail on
      the merits, an appellant must prove by preponderant evidence that: (1) he
      performed duty or has an obligation to perform duty in a uniformed service of the
      United States; (2) the agency denied him employment, 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, i.e., that the appellant’s uniformed
      service was a “substantial or motivating factor” in the agency’s action. 38 U.S.C.
      § 4311; Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed.
      Cir. 2001). An appellant may meet his burden by using direct or circumstantial
      evidence.     Sheehan, 240 F.3d at 1014.       If an appellant meets his burden, the
      burden shifts to the agency to prove that it took its action solely for “legitimate
      reasons.” Id.
¶11            The administrative judge applied the aforementioned standard, finding that
      the appellant’s USERRA claim failed because, inter alia, he did not prove that his
      military status was a substantial or motivating factor in any action.            0432 ID
      at 12-18. We agree.
¶12            To the extent that the appellant alleged a USERRA violation stemming from
      the modification of his preference-eligible status, the record did establish that a
      Human Resources Specialist erroneously modified the appellant’s status from
      preference eligible to nonpreference eligible in 2006. 3 See, e.g., 0432 IAF, Tab 6
      at 25-26. However, the administrative judge found that there was no evidence
      that the 2006 modification was anything other than a clerical error.             0432 ID
      at 13.    Among other things, she noted that there was no evidence the Human
      Resources Specialist responsible for the error was aware of the appellant’s
      qualifying military service, nor was there any evidence that anyone in the
      3
        The parties first discovered the error after the appellant filed his initial appeals, and
      the agency has since corrected the matter. E.g., 0432 IAF, Tab 12 at 5.
                                                                                     6

      appellant’s chain of command had anything to do with reviewing or denying his
      eligibility for preference-eligible status. 0432 ID at 13-14.
¶13         To the extent that the appellant alleged a USERRA violation stemming from
      his placement on enforced leave, the administrative judge similarly found no
      evidence to support the appellant’s claim.      0432 ID at 14-18.   Among other
      things, she determined that the agency referred the appellant to the District
      Reasonable Accommodation Committee (DRAC) and later took the enforced
      leave action, not because of his military service, but because of his failure to
      cooperate with the agency’s efforts to address his colorblindness and ability to
      perform his duties. 0432 ID at 14-18.
¶14         On review, the appellant reasserts that management officials were aware of
      his prior military service.    0432 PFR File, Tab 1 at 25-28.       However, this
      knowledge, alone, does not create an inference of discriminatory motivation.
      Cf. Sheehan, 240 F.3d at 1014 (recognizing that “[d]iscriminatory 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”).      Accordingly, we agree
      with the administrative judge; the appellant’s USERRA claim fails because he did
      not meet his initial burden of proof.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                                                                        7

                           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 U.S. 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
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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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
