Hayden v. Department of the Air Force , 812 F.3d 1351 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
CARL D. HAYDEN,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2015-3073
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-4324-13-0534-I-1.
______________________
Decided: February 12, 2016
______________________
STEPHEN J. SMITH, Cadwalader, Wickersham & Taft
LLP, Washington, DC, argued for petitioner. Also repre-
sented by KRISTIN LEIGH YOHANNAN MOORE.
RENÉE GERBER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.
______________________
Before LOURIE, O’MALLEY, and STOLL, Circuit Judges.
2 HAYDEN v. AIR FORCE
O’MALLEY, Circuit Judge.
Carl D. Hayden (“Hayden”) seeks review of the Merit
Systems Protection Board (“the Board”) decision denying
his request for corrective action under the Uniformed
Services Employment and Reemployment Rights Act of
1994 (“USERRA”), 38 U.S.C. § 4301, et. seq. Specifically,
Hayden alleged that the Department of the Air Force
(“Air Force”) violated USERRA when it: (1) denied him a
promotion due to his military service; (2) denied him the
benefit of reemployment in the position he would have
obtained had the agency processed his position upgrade;
and (3) retaliated against him after he sought USERRA
protections. The Board rejected all three of Hayden’s
claims. Hayden v. Dep’t of the Air Force, No. CH-4324-13-
0534-I-1, 2014 WL 6879135 (M.S.P.B. Dec. 4, 2014) (“Fi-
nal Decision”). We agree with the Board that Hayden
failed to meet his burden of proof with respect to his
reemployment and retaliation claims. With respect to his
claim of discrimination based on military service, howev-
er, we vacate the Board’s decision and remand for further
factfinding.
BACKGROUND
A. Factual Background
Hayden is a member of the Air Force Reserve and has
worked as a protocol specialist at the Wright-Patterson
Air Force Base since March 2002. The Wright-Patterson
Air Force Base is geographically divided into Area A and
Area B—each of which has its own protocol office. When
Hayden began working at the Base, he worked in B
Flight, which is responsible for all protocol support aris-
ing on Area B of the Base. At that time, his position was
classified as GS-9. Final Decision, 2014 WL 6879135, at
¶ 2.
In 2010, Hayden transferred to the protocol office in A
Flight, which is responsible for protocol support for Area
HAYDEN v. AIR FORCE 3
A as well as the Air Force Security Assistance Center
(“AFSAC”). Id. Because he acquired new duties during
the transfer, the agency upgraded Hayden’s position from
GS-9 to GS-11. Id.
The B Flight Protocol Office lost two GS-12 positions
in November 2011. Id. at ¶ 3. The employees in those
positions were declared as “surplus,” meaning that they
“were not working in permanently authorized positions.”
Id. While one of those employees was subsequently
placed in another position, the other became a “mandato-
ry placement priority and was still in that status when
the appellant filed the petition for review.” Id.
On March 26, 2012, Hayden’s supervisor submitted a
request to upgrade his position to GS-12, “based on accre-
tion of duties at the higher grade level.” Id. at ¶ 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 as-
sign Carl events that are above GS-11 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.
Id.
At the end of March 2012, Hayden received military
orders to begin active service on April 10, 2012. His duty
was subsequently extended in July 2012. In May 2012, a
human resources position classifier notified Hayden’s
supervisor that she needed to conduct a desk audit before
upgrading his position. The position classifier explained
that she needed to interview Hayden in person for the
audit, and was unable to do so while he was on extended
active duty. Id. at ¶ 5. Hayden’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!” Id. In July 2012, however, protocol support
4 HAYDEN v. AIR FORCE
duties for the AFSAC were transferred from the A Flight
protocol unit to another unit, thus reducing the need for
GS-12 level employees in the unit. Id.
Hayden returned from active duty in December 2012,
and returned to his GS-11 position. Although he received
his within-grade increase, his supervisor did not resubmit
the request to upgrade his position. Id. at ¶ 6. According
to Hayden, his supervisor “was unable to explain why the
upgrade was not being processed.” Id. Hayden performed
additional reserve duty from March 4-8, 2013. He subse-
quently met with his supervisor on March 13, 2013, and
asked her to resubmit the upgrade request. According to
Hayden, “she informed him that she did not recommend
his promotion because he had been absent too often for
his Reserve duties.” Id. Hayden “immediately sought
assistance from the base Employer Support of the Guard
Reserve (ESGR) office.” Id.
The next day, Hayden met with his supervisors to dis-
cuss his performance. “During the meeting, the Chief of
Protocol raised concerns about [Hayden’s] performance
that, he alleged, had never been raised before, though he
admitted at the hearing that the concerns did not lack
foundation.” Id. at ¶ 7. On May 20, 2013, Hayden re-
ceived a performance feedback memorandum which
stated that he was no longer working at the GS-12 level.
Id. at ¶ 8. The agency did not request an upgrade to
Hayden’s position.
B. Procedural History
On May 28, 2013, Hayden filed a request for correc-
tive action with the Board, alleging USERRA violations.
Hayden argued that: (1) he was denied a promotion due to
his military service; (2) he was denied a benefit of
reemployment in the position he would have obtained had
the agency processed his upgrade; and (3) the agency
retaliated against him after he sought USERRA protec-
tions.
HAYDEN v. AIR FORCE 5
In response, the agency argued that, due to organiza-
tional restructuring in July 2012, while Hayden was on
reserve duty, there was a reduced need for GS-12 protocol
officers in the A Flight Protocol Office. The agency also
explained that: (1) it could not have placed Hayden in a
GS-12 position without allowing other officers at his same
level to compete; and (2) it was obligated to place the
remaining surplus GS-12 employee. Final Decision, 2014
WL 6879135, at ¶ 9.
After a videoconference hearing, the administrative
judge (“AJ”) denied Hayden’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.” Id. at ¶ 10.
Indeed, the AJ found that Hayden “produced no evidence
whatsoever that his military service was considered
adversely when the agency failed to promote him.” Hay-
den v. Dep’t of the Air Force, No. CH-4324-13-0534-I-1,
2013 MSPB LEXIS 5635, at *4 (M.S.P.B. Nov. 5, 2013)
(“Initial Decision”). During the hearing, there was testi-
mony that the Chief of Protocol requested a desk audit
and that the audit could not be completed because Hay-
den was not at work for the interview. Id. at *5. The AJ
found that, even if a desk audit had been performed,
Hayden would still have been required to compete for the
GS-12 position. Id. Finally, the AJ found that Hayden
failed to meet his burden of proof with respect to retalia-
tion. Id. at *6.
Hayden filed a petition for review to the full Board.
The Board vacated the Initial Decision, but denied Hay-
den’s request for corrective action. Final Decision, 2014
WL 6879135, at ¶ 1. As to Hayden’s first claim—that he
was denied a benefit due to his military service—the
Board found that, contrary to the AJ’s decision, there was
evidence from which one could conclude that Hayden’s
military service was a motivating factor in the agency’s
decision not to upgrade his position. Id. at ¶ 14. The
6 HAYDEN v. AIR FORCE
Board found “a temporal link between the appellant’s
extended period of Reserve duty and the agency’s decision
not to upgrade his position.” Id. at ¶ 16. In particular,
the Board pointed to testimony from Hayden’s supervisor
that none of her prior position upgrade requests had
required in-person desk audits, and that she had partici-
pated in a telephone audit for Hayden’s earlier position
upgrade to GS-11. Id. The position classifier who exam-
ined the upgrade request testified that she was aware of
only about ten requests that had not been granted out of
the hundreds she had processed. Id. And Hayden testi-
fied that, during his 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.” Id. at ¶ 17. The Board con-
cluded that the evidence showed that the agency consid-
ered Hayden’s absence in making its decision not to
upgrade his position.
Although the Board found that the AJ had erred, it
nonetheless concluded that Hayden’s USERRA claims
failed. Though there was sufficient evidence to shift the
burden of proof for Hayden’s first claim to the agency, the
Board found that the agency met its burden to establish
that it did not deny the upgrade request because Hayden
was on military duty. Id. at ¶ 25. The Board found that
the agency delayed processing the upgrade request be-
cause Hayden was unavailable for an in-person desk
audit, which the position classifier testified was typically
conducted when the upgraded position was at or above
the GS-12 level. Id. at ¶¶ 21, 25. And, when Hayden
returned, the workload in the office had changed such
that additional GS-12 protocol officers were not needed.
Id. at ¶ 25. The Board concluded that the agency showed
that it “decided not to pursue the upgrade both during
and after the appellant’s absence based on valid reasons
other than the appellant’s service in the Air Force Re-
serve.” Id.
HAYDEN v. AIR FORCE 7
As for Hayden’s second claim—that he was denied
reemployment rights when he returned from military
duty—the Board found that Hayden was not entitled to
return to a GS-12 position. The Board explained that 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.” Id. at ¶ 29. The record showed,
therefore, that the protocol office no longer needed anoth-
er GS-12 protocol officer. Id. In any event, the Board
found that Hayden would have had to compete for the
upgraded position because there was another GS-11
protocol officer in A Flight. Id. Accordingly, the Board
found no guarantee that Hayden would have received the
upgraded position but for his military service. Id. at ¶ 31.
Finally, the Board rejected Hayden’s third claim—
that the agency retaliated against him for seeking assis-
tance from the ESGR to enforce his USERRA rights. The
Board found that Hayden “adduced no evidence . . . that
the agency bore any discriminatory animus towards him
and he thus failed to meet his initial burden of proof.” Id.
at ¶ 33. To the contrary, the Board found that the agency
established that Hayden’s supervisors “were concerned
about helping him overcome a decline in his performance
and prepare for eventual promotion to GS-12.” Id.
Hayden timely appealed the Board’s decision to this
court, and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1). By letter dated
October 14, 2015, counsel for Hayden informed the court
that Hayden was promoted to a GS-12 Protocol Specialist
position effective September 20, 2015. That promotion
moots some of the relief requested in this appeal. Hayden
continues to seek an award of “back pay, interest, and
other benefits to which he is entitled, including attorneys’
fees and litigation expenses,” however. Pet’r Br. 17 (citing
38 U.S.C. § 4324; 20 C.F.R. § 1002.312).
8 HAYDEN v. AIR FORCE
DISCUSSION
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board’s
decision unless it is “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c).
Hayden maintains that the agency committed three
separate USERRA violations and that the Board erred in
its analysis of each. First, he argues that the Board failed
to apply the requisite burden shifting framework to his
discrimination claim. According to Hayden, the Board’s
rejection of his discrimination claim “is premised on
hindsight that allows the Air Force to justify its discrimi-
nation based on the later results of that discrimination.”
Pet’r Br. 16. Next, Hayden argues that the Board erred in
finding that he failed to meet his burden to demonstrate
that he was entitled to reemployment at the GS-12 level
when he returned from military service. Finally, Hayden
argues that the Board’s analysis of his retaliation claim is
unsupported by substantial evidence and ignores its own
recognition of discriminatory animus in its analysis of the
discrimination claim. We address each of these issues in
turn.
A. Discrimination Claim
USERRA prohibits employers from discriminating
against their employees because of their military service,
and affords certain protections to military service mem-
bers with respect to their civilian employment. 38 U.S.C.
§ 4311(a). It provides, in relevant part, that:
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
HAYDEN v. AIR FORCE 9
employment, reemployment, retention in em-
ployment, promotion, or any benefit of employ-
ment by an employer on the basis of that
membership, application for membership, perfor-
mance of service, application for service, or obliga-
tion.
Id.
We analyze USERRA discrimination claims under a
burden-shifting framework. Sheehan v. Dep’t of the Navy,
240 F.3d 1009, 1013 (Fed. Cir. 2001). Applying this
framework, an employee who makes a discrimination
claim under USERRA bears the initial burden of showing,
by a preponderance of the evidence, that his military
service was a substantial or motivating factor in the
adverse employment action. Id. As we have explained,
“military 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.” Erick-
son v. U.S. Postal Serv., 571 F.3d 1364, 1368 (Fed. Cir.
2009) (quoting Petty v. Metro. Gov’t of Nashville–Davidson
Cty., 538 F.3d 431, 446 (6th Cir. 2008)).
Discriminatory motivation or intent “may be proven
by either direct or circumstantial evidence.” Sheehan, 240
F.3d at 1014. In Sheehan, we explained that:
Discriminatory motivation under the USERRA
may be reasonably inferred from a variety of fac-
tors, including proximity in time between the em-
ployee’s military activity and the adverse
employment action, inconsistencies between the
proffered reason and other actions of the employ-
er, an employer’s expressed hostility towards
members protected by the statute together with
knowledge of the employee’s military activity, and
disparate treatment of certain employees com-
10 HAYDEN v. AIR FORCE
pared to other employees with similar work rec-
ords or offenses.
Id. “In determining whether the employee has proven
that his protected status was part of the motivation for
the agency’s conduct, all record evidence may be consid-
ered, including the agency’s explanation for the actions
taken.” Id.
Where an employee makes the prima facie showing of
discriminatory motivation or intent, “the employer can
avoid liability by demonstrating, as an affirmative de-
fense, that it would have taken the same action without
regard to the employee’s military service.” Erickson, 571
F.3d at 1368; see 38 U.S.C. § 4311(c)(1). “An employer
therefore violates section 4311 if it would not have taken
the adverse employment action but for the employee’s
military service or obligation.” Erickson, 571 F.3d at
1368.
Here, the Board found that “the agency considered
[Hayden’s] 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.” Final Decision,
2014 WL 6879135, at ¶ 19. Weighing all of the evidence,
the Board concluded “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.” Id. Accordingly, the
Board found that Hayden satisfied his initial burden.
The Board then purported to shift the burden to the
agency to demonstrate, by preponderant evidence, “that it
would have taken the same action without considering his
military service.” Id. at ¶ 20 (citing Erickson, 571 F.3d at
1368). The agency explained that it did not upgrade
Hayden’s position because: (1) the position classifier had
the practice of conducting in-person desk audits for any
position at the GS-12 level or above; and (2) by the time
Hayden returned, the A Flight Protocol Office had a
HAYDEN v. AIR FORCE 11
reduced workload. Id. at ¶¶ 20-21. The agency further
argued that Hayden would have had to compete for the
upgraded position, and that “the GS-12 employees from B
Flight who had been declared as surplus would have had
internal priority over the applicant.” Id. at ¶ 20.
The Board found that, taken as a whole, “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.” Id.
at ¶ 25. The Board concluded that 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 other than the appellant’s service in the Air Force
Reserve. Accordingly, the agency met its burden of proof
under section 4311(a).” Id.
On appeal, Hayden contends that the Board failed to
properly shift the burden to the agency to justify its
actions in not promoting him and that, if it had, the
agency could not have met its burden. In particular,
Hayden argues that: (1) the Board erred in finding that a
desk audit was required to process his position upgrade;
(2) the Board erred in determining that he would have
had to compete for the promotion; and (3) the Board’s
finding that the Protocol Office no longer needed GS-12
employees “is irrelevant because at the time Mr. Hayden’s
upgrade request was placed . . . there were not enough
GS-12s to perform the duties of the office and thus [his]
position needed to be upgraded.” Pet’r Br. 21. As ex-
plained below, we agree with Hayden that the Board did
not hold the agency to its burden.
First, as the Board noted, the Office of Personnel
Management (“OPM”) Classifier’s Handbook explains that
a desk audit “is no more than a conversation []or inter-
view with the person in the job, or with the supervisor of
12 HAYDEN v. AIR FORCE
the position, or with both . . . to gain as much information
as possible about the position.” Final Decision, 2014 WL
6879135, at ¶ 21. The position classifier testified that
“she normally conducted an in-person desk audit when
the upgraded position would have been at or above the
GS-12 level.” Id. It is undisputed, however, that the
decision to conduct a desk audit is discretionary. Id.
Indeed, Hayden’s supervisor testified that “none of her
prior position upgrade requests had required in-person
desk audits” and that “she had participated in a telephon-
ic audit for [Hayden’s] position upgrade to GS-11.” Id. at
¶ 16.
Although the Board recognized that a desk audit was
not necessary for Hayden’s position upgrade, it nonethe-
less credited the agency’s argument “that it was unable to
complete the desk audit and process the upgrade because
[Hayden] was unavailable.” Id. at ¶ 20. The Board then
concluded that the agency had shown that it denied the
upgrade request in part because Hayden was “temporarily
unavailable for part of the consideration process.” Id. at
¶ 25. We agree with Hayden that his “inability to com-
plete an optional procedure cannot form a legally cogniza-
ble basis to discriminate against him because of his
military service.” Pet’r Br. 23.
This court has made clear that 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. And we have recognized that
“the overarching goal of [USERRA] is to prevent those
who serve in the uniformed services from being disadvan-
taged by virtue of performing their military obligations.”
Id. As we explained in Erickson, the “most significant—
and predictable—consequence of reserve service with
respect to the employer is that the employee is absent to
perform that service.” Id. Although an agency is “entitled
to remove an employee for prolonged non-military leaves
HAYDEN v. AIR FORCE 13
of absence . . . ‘an employer can not treat employees on
military duty like those on non-military leave of absence.’”
Id. at 1369 (quoting Allen v. U.S. Postal Serv., 142 F.3d
1444, 1447 (Fed. Cir. 1998)). Erickson thus stands for
the proposition that an employee’s military absence
cannot be held against him, and that employers cannot
treat employees on military leave like those on non-
military leave of absences.
Hayden was not available for an in-person desk audit
precisely because he was performing his military obliga-
tions. That the agency may otherwise be entitled to
cancel a position upgrade request when an employee on
non-military leave fails to attend a requested interview is
of no moment. See Erickson, 571 F.3d at 1369. The fact
remains that Hayden was absent from work because of
his military service, and USERRA protects against ad-
verse employment actions resulting from such absences.
The mere fact that the position classifier preferred to
conduct an in-person desk audit for an upgrade at or
above the GS-12 level is irrelevant. Under Erickson, she
was not entitled to impose that mere preference on a
person who is on military leave. The bottom line is that
an in-person desk audit was not required. To say that
Hayden was not eligible for an upgrade because he was
unavailable for a discretionary audit that could have been
performed via telephone or by interviewing his immediate
supervisor violates USERRA. See id. at 1368 (permitting
an employer to take an adverse action against an employ-
ee because of his military absence “would eviscerate the
protections afforded by USERRA”). Accordingly, the
Board erred in finding that the agency could avoid liabil-
ity for failing to process the position upgrade request
because Hayden was unavailable for an in-person desk
audit.
Next, Hayden argues that the Board erred in deter-
mining that he was not entitled to a noncompetitive
14 HAYDEN v. AIR FORCE
position upgrade at the time his supervisor requested the
upgrade. In support, Hayden points out that OPM regu-
lations give agencies discretion to except certain actions
from competitive procedures. 5 C.F.R. § 335.103(c)(3).
One such exception is for a “promotion resulting from an
employee’s position being classified at a higher grade
because of additional duties and responsibilities.” Id. at
§ 335.103(c)(3)(ii). Hayden also argues that he qualified
for a noncompetitive upgrade under the Air Force’s civil-
ian staffing rules. 1 As the Board recognized, Hayden’s
supervisor submitted the upgrade request because he was
performing additional duties and responsibilities at the
GS-12 level and because there were “not enough GS-12’s
[sic] to perform the duties.” Final Decision, 2014 WL
6879135, at ¶ 4. Hayden submits that, in these circum-
stances, he was entitled to a noncompetitive position
upgrade.
The agency responds that, even if the agency proceed-
ed with the upgrade request, Hayden would have had to
compete for the GS-12 position. In particular, the agency
1 Specifically, the Air Force Manual provides that:
If a position is upgraded due to accre-
tion/assignment of additional higher grade duties
and responsibilities, the incumbent may be non-
competitively promoted provided there is clear ev-
idence that the employee continues to perform the
same basic functions as in the former position,
that there are no other employees serving in simi-
lar or identical positions to whom the duties could
be assigned, and he/she meets all qualification
and legal requirements for promotion.
Air Force Manual 36-203: Staffing Civilian Positions,
¶ 2.9.6 (Dec. 12, 2002) (Incorporating Change 1, June
2006).
HAYDEN v. AIR FORCE 15
submits that: (1) there was another GS-11 protocol spe-
cialist in the office who would have been eligible to com-
pete; and (2) the surplus employee whose GS-12 position
had been eliminated would have had priority over Hayden
for any such position. According to the agency, the Board
“properly determined that those employees’ status consti-
tuted evidence supporting the agency’s claim that it would
not have promoted Mr. Hayden even if it had not consid-
ered his military absence when it decided not to upgrade
the position.” Resp’t Br. 19.
As counsel for the agency conceded at oral argument,
the agency had the burden to show, by a preponderance of
the evidence, that Hayden would have had to compete for
the position upgrade and that he would not have received
it, regardless of his military service. Oral Argument at
16:48-17:15, available at http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2015-3073.mp3. Careful
review of the Board’s decision reveals that it did not hold
the agency to that burden, however.
In the context of Hayden’s discrimination claim, the
Board merely noted the agency’s argument that it could
not upgrade the position noncompetitively because:
(1) there were two protocol specialists at the GS-11 level,
which would have triggered competition under the agen-
cy’s regulations; and (2) even if the position were filled
competitively, surplus employees “would have had inter-
nal priority over the appellant.” Final Decision, 2014 WL
6879135, at ¶ 20. In the next sentence, however, the
Board stated that, “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. (emphasis added). But the burden was
not on Hayden to show he would have won any competi-
tion for the upgrade position. Having demonstrated that
his military service was a motivating factor in the agen-
cy’s decision to cancel his upgrade, Hayden satisfied his
burden with respect to the discrimination claim, and the
16 HAYDEN v. AIR FORCE
burden shifted to the agency to show it would not have
processed the upgrade without regard to his military
service. Erickson, 571 F.3d at 1368; Sheehan, 240 F.3d at
1013.
On this record, we conclude that the Board failed to
make sufficient factfindings with respect to: (1) whether
Hayden would have had to compete for the position;
and (2) whether he would have been successful in doing
so. There are no findings as to whether the position could
have been noncompetitively upgraded at the time the
upgrade was requested. Nor is there any evidence or
factfinding as to whether the surplused employee neces-
sarily would have been chosen over Hayden. Although
the Board states that Hayden would have had to compete
for the upgraded position such that it “is not certain he
would have been selected,” those findings were in the
context of Hayden’s reemployment claim which, as dis-
cussed below, requires application of a different standard
and different burden of proof. Final Decision, 2014 WL
6879135, at ¶ 29. The fact remains that, in the context of
Hayden’s discrimination claim, the agency had the bur-
den to show that its decision to cancel the upgrade re-
quest would have remained the same even if his military
leave was not a factor. Because there is insufficient
evidence that, had the agency processed the upgrade at
the time it was requested, Hayden would have had to
compete for the position and would not have won, we
vacate the Board’s decision and remand for further find-
ings.
Finally, Hayden argues that the Board erroneously
credited the agency’s argument that the A Flight Protocol
Office no longer needed additional GS-12 officers after
Hayden’s return. Specifically, he argues that reliance on
this evidence was erroneous “because the changes to the
Protocol Office’s organizational structure occurred after
the Air Force cancelled Mr. Hayden’s position upgrade
request.” Pet’r Br. 25.
HAYDEN v. AIR FORCE 17
It is undisputed that the workload in the A Flight
Protocol Office decreased in July 2012. Final Decision,
2014 WL 6879135, at ¶ 5. Given this change, the Board
found that, by the time Hayden returned to the office in
December 2012, the office no longer needed additional GS-
12 protocol officers. Id. at ¶ 25. Substantial evidence
supports the Board’s conclusion that, at the time Hayden
returned to work, the agency had a legitimate reason for
not upgrading Hayden’s position to the GS-12 level. The
record is devoid of evidence as to how long an upgrade
request typically takes to process, however. The agency
has not proven, accordingly, that, had the request gone
forward in March 2012, Hayden would not have received
the upgrade before the workload in the A Flight Protocol
Office decreased. There is also no evidence as to how long
any decrease in workload lasted, leaving largely unex-
plained why Hayden’s upgrade was not renewed until so
long after his return.
Because the agency could not use the discretionary in-
person desk audit to justify its decision to cancel Hayden’s
upgrade request, and because the Board did not hold the
agency to its burden with respect to competition at the
time the request was made, we remand for further fact-
finding. Accordingly, we vacate the Board’s decision with
respect to Hayden’s discrimination claim.
B. Reemployment Claim
USERRA also provides service members protection in
the form of a right to reemployment in their civilian jobs
after completing their military obligations. 38 U.S.C.
§ 4312(a). The regulations further provide that an agency
“must consider employees absent on military duty for any
incident or advantage of employment that they may have
been entitled to had they not been absent.” 5 C.F.R.
§ 353.106(c). The agency must therefore evaluate wheth-
er:
18 HAYDEN v. AIR FORCE
(1) “the ‘incident or advantage’ is one generally
granted to all employees in that workplace and
whether it was denied solely because of absence
for military service;”
(2) “the person absent on military duty was treat-
ed 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.
The Board concluded that Hayden was not entitled to
reemployment at the GS-12 level when he returned from
military leave. First, the Board found that Hayden could
not establish that a position upgrade is a benefit generally
granted to all agency employees. Final Decision, 2014 WL
6879135, at ¶ 28. In reaching this conclusion, the Board
explained, “[a]n example of a ‘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.”
Id.
According to Hayden, even if the position upgrade was
not “an incident or advantage generally granted to all
employees, as found by the MSPB, consideration for a
position upgrade is available to all employees.” Pet’r Br.
29-30. In support, Hayden argues that the agency “pro-
moted another GS-11 Protocol Office employee, one who
was not serving in the military, to a GS-12 position.” Id.
at 30. The evidence Hayden cites does not establish that
the agency failed to consider him for an upgrade, however.
The agency explains, moreover, that the employee who
was promoted had a position with a full performance level
of GS-12, which meant that it was a personal, noncompet-
itive promotion, not a position upgrade. Importantly,
HAYDEN v. AIR FORCE 19
there is no evidence that all employees are considered for
position upgrades beyond their current performance
levels.
Next, because the A Flight Protocol Office lost its ad-
ditional duties four months after the upgrade request,
and after the B Flight Protocol Office placed two GS-12
protocol officers on surplus status, the Board could not
determine what would have happened if Hayden had
remained at work. Id. ¶ 29. It concluded, however, that it
was not “reasonably certain” that Hayden would have
received the upgrade. Although Hayden was a valued
employee with outstanding performance ratings, the
Board found that “he and another employee were in GS-
11 positions at the full performance level, unlike the
employee who was promoted to GS-12.” Id. at ¶ 31. The
Board further noted that Hayden’s performance “suffered
after his return, which the agency documented,” but that
it was still willing to promote him if a GS-12 position
became available. Id.
On appeal, Hayden argues that the upgrade was
“reasonably certain” given: (1) testimony from the position
classifier that she was aware of only ten upgrade requests
out of the hundreds that she had processed that were not
granted; (2) his outstanding performance reviews; (3) his
prior upgrade from GS-9 to GS-11; and (4) the fact that he
was already performing GS-12 duties. Although Hayden
disagrees with the Board’s factfindings, we decline his
invitation to reweigh the facts on appeal. Substantial
evidence supports the Board’s determination that the
position upgrade is not a generally granted benefit and
that it was not reasonably certain that Hayden would
have received it, a showing that, in this context, was
Hayden’s burden to make. As such, we affirm the Board’s
decision with respect to Hayden’s reemployment claim.
20 HAYDEN v. AIR FORCE
C. Retaliation Claim
USERRA prohibits retaliation against employees for
exercising their rights under the statute. 38 U.S.C.
§ 4311(b). It provides that:
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, (2) has testified or
otherwise made a statement in or in connection
with any proceeding under this chapter, (3) has
assisted or otherwise participated in an investiga-
tion under this chapter, or (4) has exercised a
right provided for in this chapter. The prohibition
in this subsection shall apply with respect to a
person regardless of whether that person has per-
formed service in the uniformed services.
Id. The standard for a retaliation claim is the same as
that for a discrimination claim: the employee must first
establish that his protected actions were a motivating
factor in the employer’s adverse action, and then the
burden shifts to the employer to establish that it would
have taken the same action without regard to the employ-
ee’s military service. Sheehan, 240 F.3d at 1013.
Hayden argued that the agency retaliated against him
for seeking assistance with the ESGR to enforce his
USERRA rights. The Board found that Hayden failed to
present any evidence “that the agency bore any discrimi-
natory animus towards him and he thus failed to meet his
initial burden of proof.” Final Decision, 2014 WL
6879135, at ¶ 33. To the contrary, the agency presented
evidence that it did not need additional GS-12 Protocol
Officers at the time, and that Hayden’s supervisors “were
concerned about helping him overcome a decline in his
performance and prepare for eventual promotion to GS-
12.” Id.
HAYDEN v. AIR FORCE 21
On appeal, Hayden argues that the Board’s retalia-
tion analysis contradicts its finding that there was evi-
dence the agency improperly considered his military
service and that there was “animus based on his military
service.” Pet’r Br. 34. But Hayden attempts to equate
discrimination based on his military service—which is the
basis for his first claim—with retaliation based on his
attempt to enforce his USERRA rights. Although the two
claims utilize the same standard, they stem from different
events. Importantly, Hayden’s retaliation claim is that
his consultation with the ESGR about his USERRA rights
after his return from military service prompted an imme-
diate negative performance evaluation. The Board found,
however, that Hayden “admitted at the hearing that the
concerns [about his performance] did not lack foundation.”
Final Decision, 2014 WL 6879135, at ¶ 7. The Board
further found that Hayden’s “performance suffered after
his return, which the agency documented.” Id. at ¶ 31.
Given these factfindings, substantial evidence supports
the Board’s conclusion that Hayden failed to meet his
burden with respect to retaliation.
CONCLUSION
For the foregoing reasons, we agree with the Board
that Hayden failed to meet his burden of proof with
respect to his reemployment and retaliation claims under
USERRA. With respect to his claim of discrimination
based on military service, however, we vacate the Board’s
decision and remand for further factfinding.
AFFIRMED-IN-PART, VACATED-IN-PART,
REMANDED