                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     THOMAS FREDERICK MARBLE,                        DOCKET NUMBER
                 Appellant,                          DC-4324-15-0790-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: December 4, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Kevin Byrnes, Esquire, Washington, D.C., for the appellant.

           Jason Laeser, Esquire, Springfield, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his Uniformed Services Employment and Reemployment Rights Act of
     1994 (USERRA) appeal for lack of jurisdiction. For the reasons discussed below,
     we GRANT the appellant’s petition for review and REMAND the case to the
     regional office for further adjudication in accordance with this Order.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                      BACKGROUND
¶2        The appellant serves as a Criminal Investigator (Special Agent) with the
     Drug Enforcement Administration (agency) in Quantico, Virginia. Initial Appeal
     File (IAF), Tab 1 at 5. The appellant, along with several other agency employees,
     petitioned for class action certification concerning alleged discriminatory
     treatment in violation of USERRA, which was denied.              IAF, Tab 7 at 5.
     Thereafter, the appellant filed the instant individual USERRA appeal alleging that
     the agency engaged in a pattern of discrimination based on his military service by
     failing to select him for several higher level positions with the agency, by issuing
     him lower performance reviews, and by transferring him to a less desirable
     position shortly after being deployed on active duty in February 2014.         IAF,
     Tab 1 at 5-7, Tab 7 at 7-10.
¶3        The administrative judge issued a jurisdictional order outlining the
     appellant’s burden to establish Board jurisdiction over his USERRA appeal. IAF,
     Tab 3. In response, the appellant alleged that he was personally discriminated
     against on the basis of his prior military service and that other employees
     experienced similar discriminatory treatment. Id. at 5. The administrative judge
     issued a second jurisdictional order explaining that the appellant could not rely on
     allegations of discrimination concerning other employees, and she instructed him
     to focus his allegations of agency wrongdoing on acts of discrimination personal
     to him. IAF, Tab 10. In response to the second jurisdictional order, the appellant
     argued that he was “denied GS-14 positions due to anti-military animus,” was not
     selected for several assignments between 2009 and 2011 because of his service in
     the military reserves, was subjected to anti-military comments upon his return
     from military service in 2004, and was reassigned to a less prestigious position
     while on active duty in 2014, thus reducing his chances for future promotional
     opportunities and advancement within the agency. IAF, Tab 13 at 5-6.
¶4        The administrative judge issued an initial decision dismissing the appeal for
     lack of jurisdiction. IAF, Tab 15, Initial Decision (ID). In her initial decision,
                                                                                        3

     the administrative judge found that the appellant offered no documentary support
     for his claim that he performed prior uniformed military service and that he also
     failed to allege that any of the nonselections he identified were the result of
     military bias.     ID at 3-4.   The administrative judge further found that the
     allegedly discriminatory comments made by agency employees in 2004 had no
     causal connection to any of the challenged actions at issue, and she concluded
     that there was no showing that any of the individuals involved in the challenged
     actions were aware of the appellant’s prior military service. ID at 4-5. Finally,
     the administrative judge rejected the remainder of the appellant’s allegations of
     military bias as being too speculative and without support in the record, and she
     dismissed the appeal without a hearing for lack of jurisdiction. ID at 5-6.
¶5         The appellant has filed a petition for review of the initial decision. Petition
     for Review (PFR) File, Tab 1.         On review, the appellant argues that the
     administrative judge applied the incorrect standard for assessing jurisdiction over
     his USERRA discrimination claims and that he was not required to submit
     evidence supporting his discrimination claims at this stage of the proceedings.
     Id. at 6-9.    The agency has filed a response in opposition to the petition for
     review. PFR File, Tab 4.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶6         There are two types of cases that arise under USERRA:           reemployment
     cases under 38 U.S.C. §§ 4312-4318, and discrimination cases under 38 U.S.C.
     § 4311(a) and (b). See Bostwick v. Department of Agriculture, 122 M.S.P.R. 269,
     ¶ 15 (2015). Congress enacted USERRA as remedial legislation to be construed
     liberally.    See, e.g., Harellson v. U.S. Postal Service, 115 M.S.P.R. 378, ¶ 17
     (2011).      The Board has found that the relative weakness of an appellant’s
     assertions in support of his claims should not be a basis for a jurisdictional
     dismissal.     See Swidecki v. Department of Commerce, 113 M.S.P.R. 168, ¶ 6
                                                                                           4

     (2010).   Rather, if an appellant fails to develop his assertions of a USERRA
     violation, his claim should be denied on the merits. Id.
¶7         An appellant establishes the Board’s jurisdiction over a USERRA
     discrimination claim by nonfrivolously alleging 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 initial employment, reemployment, retention,
     promotion, or any benefit of employment; and (3) the denial was due to his
     performance of duty or obligation to perform duty in the uniformed service.
     Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 10 (2012); see 38 U.S.C.
     § 4311(a).   Once the appellant establishes the Board’s jurisdiction over his
     USERRA appeal, he has a right to a hearing on the merits of his
     claim. 2 Gossage, 118 M.S.P.R. 455,¶ 10.
¶8         The Board, moreover, recently amended its regulations to emphasize that an
     appellant only needs to make nonfrivolous allegations concerning the substantive
     jurisdictional elements applicable to a USERRA discrimination claim to establish
     the   Board’s    jurisdiction   over    a     USERRA     appeal. 3      See     5 C.F.R.
     § 1201.57(a)(3), (b).   A nonfrivolous allegation is an assertion that, if proven,
     could establish the matter at issue.        See 5 C.F.R. § 1201.4(s).    An allegation
     generally will be considered nonfrivolous when it is more than conclusory,
     plausible on its face, and is material to the legal issues in the appeal. Id.
¶9         We agree with the appellant that he nonfrivolously alleged facts
     establishing the Board’s jurisdiction over his USERRA discrimination appeal. In
     both his initial appeal and his first response to the administrative judge’s
     2
         If the appellant’s standing to file an appeal under USERRA is in doubt, the
     administrative judge may hold a jurisdictional hearing. See Downs v. Department of
     Veterans Affairs, 110 M.S.P.R. 139 (2008). Here, the agency has not challenged the
     appellant’s standing to file a USERRA appeal, and his assertion that he has a history of
     uniformed military service is sufficient to nonfrivolously allege that he falls within
     USERRA’s anti-discrimination protections.
     3
       The Board’s amended regulations went into effect on March 30, 2015, and apply to
     this case, which was filed after that date.
                                                                                            5

      jurisdictional order, for example, the appellant alleged that he was denied
      promotional opportunities with the agency despite his qualifications for such
      positions and that he received less favorable performance reviews during his time
      away from the agency while on active military duty. IAF, Tab 1 at 5-9, Tab 7
      at 7-8. In both of his responses to the administrative judge’s jurisdictional orders,
      moreover, the appellant alleged he was not selected for several higher level
      positions because of his history of military service and that he was reassigned to a
      less prestigious position with the agency during his most recent active duty
      military deployment. IAF, Tab 7 at 9, Tab 13 at 6.
¶10         We find that the appellant’s allegations nonfrivolously allege facts
      establishing jurisdiction over his USERRA discrimination appeal.           USERRA’s
      anti-discrimination provision bars an agency from, among other things, denying
      an appellant a promotion or “any benefit of employment” on the basis of his prior
      military service. See 38 U.S.C. § 4311(a); see also 38 U.S.C. § 4303(2) (defining
      “benefit of employment” to include “the opportunity to select work hours or
      location of employment”). The appellant’s allegations concerning the denials of
      promotions, his nonselections, and his reassignment each fall within the scope of
      activities prohibited under USERRA. 4         See Patterson v. Department of the
      Interior, 424 F.3d 1151, 1161 (Fed. Cir. 2005) (finding an allegation that the
      appellant was not selected for a position based on his military status was
      sufficient to establish jurisdiction over his USERRA discrimination appeal). We
      further find that the appellant’s allegation of a hostile work environment based on
      anti-military comments directed toward him nonfrivolously establishes the

      4
        The appellant only has alleged that the agency discriminated against him in violation
      of USERRA by reassigning him to a lesser position while on active duty; he has not
      asserted that the agency violated his reemployment rights following his return to duty
      from military service. See Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶¶ 5-6
      (2005); see also 38 U.S.C. § 4313(a)(2). The administrative judge apprised the
      appellant of the different burdens governing USERRA discrimination and
      reemployment claims in her first jurisdictional order. IAF, Tab 3. We leave it to the
      administrative judge to determine the scope of issues raised by the appellant on remand.
                                                                                          6

      Board’s jurisdiction over his hostile work environment claim under 38 U.S.C.
      § 4311(a). See Petersen v. Department of the Interior, 71 M.S.P.R. 227, 235-36
      (1996). Finally, for purposes of establishing the Board’s jurisdiction over his
      USERRA appeal, the appellant’s allegation that he has a history of uniformed
      military service is sufficient to nonfrivolously allege that he falls within the scope
      of the statute’s anti-discrimination protections. See 5 C.F.R. § 1201.4(s).
¶11         We agree with the administrative judge that some of the appellant’s
      allegations of discrimination concerning his nonselection for higher level
      positions and the creation of a hostile work environment are generic in nature and
      lack certain details, such as: the position titles at issue, when he applied for such
      positions, whether the selecting officials involved were aware of his military
      history, and whether the alleged anti-military comments directed at him have any
      causal relationship to a specific employment action or otherwise were severe and
      pervasive. 5 See, e.g., IAF, Tab 13 at 5-6. These issues, however, go to the merits
      of the appellant’s claims of discrimination on the basis of his military service and
      cannot    serve     as   grounds    for     a    jurisdictional   dismissal.      See
      Swidecki, 113 M.S.P.R. 168, ¶ 6.          In a USERRA discrimination appeal, the
      appellant bears the burden to establish by preponderant evidence that his military
      service was a motivating factor in the challenged actions.            See DeJohn v.
      Department of the Army, 106 M.S.P.R. 574, ¶ 6 (2007), aff’d, 298 F. App’x 991
      (Fed. Cir. 2008).    To meet this burden, the appellant ultimately will need to
      establish the foundational information identified by the administrative judge as
      missing in her initial decision.    ID at 4-5.     The absence of this information,
      however, does not provide a basis for dismissing the appeal for lack of
      jurisdiction without a hearing. See Patterson, 424 F.3d at 1160-61.



      5
        We also agree with the administrative judge that the appellant cannot rely on other
      alleged instances of discrimination directed toward other employees in support of his
      discrimination claims under USERRA. ID at 2 n.1; see IAF, Tab 10.
                                                                                   7

                                          ORDER
¶12        Because the appellant has nonfrivolously alleged facts establishing the
      Board’s jurisdiction over his USERRA discrimination appeal, the appellant has a
      right to a hearing on the merits of claims.      See Downs, 110 M.S.P.R. 139,
      ¶¶ 17-18. For the reasons discussed above, we remand this case to the regional
      office for further adjudication in accordance with this Remand Order.




      FOR THE BOARD:                           ______________________________
                                               William D. Spencer
                                               Clerk of the Board
      Washington, D.C.
