Roger Thomas v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROGER J. THOMAS, DOCKET NUMBER
Appellant, SF-0752-16-0332-B-1
v.
DEPARTMENT OF VETERANS DATE: July 20, 2023
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Norman Jackman, Esquire, Lincoln, New Hampshire, for the appellant.
Maureen Ney, Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which dismissed for lack of jurisdiction his claims under the Veterans
Employment Opportunities Act of 1998 (VEOA) and Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA), and dismissed as
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
untimely filed his claim under the Whistleblower Pro tection Enhancement Act of
2012 (WPEA). For the reasons discussed below, we GRANT the appellant’s
petition for review as it concerns his USERRA claim, VACATE the remand
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The agency removed the appellant, effective January 31, 2016, for failure to
maintain a regular work schedule. Thomas v. Department of Veterans Affairs,
MSPB Docket No. SF-0752-16-0332-I-1, Initial Appeal File (IAF), Tab 7 at 20.
The appellant filed a removal appeal with the Board on March 7, 2016. IAF,
Tab 1. He also alleged whistleblower reprisal and violations of his VEOA and
USERRA rights. Id. at 4. As to his whistleblower reprisal claim, he indicated
that he had filed a complaint with Office of Special Counsel (OSC) on May 1,
2015, but left blank the inquiry on his initial appeal form regarding the date that
OSC issued its close-out letter. Id. As to his USERRA or VEOA claims, the
appellant indicated that he filed a Department of Labor (DOL) complaint on
July 27, 2015, and that DOL made a decision on his complaint. Id.¶3 The administrative judge notified the appellant that his appeal appeared to
be untimely filed. IAF, Tab 9 at 1-2. She provided the parties with a notice of
the appellant’s burden to prove the timeliness of his appeal, or if untimely, that
there was good cause for the delay. Id. at 3-6. The appellant responded that he
was untimely due to a medical condition. IAF, Tab 12. The agency also
responded. IAF, Tab 14. After considering the parties’ responses, the
administrative judge dismissed the appeal as untimely filed without good cause.
IAF, Tab 15, Initial Decision at 11.
¶4 The appellant, through his designated representative, filed a petition for
review challenging the initial decision. Thomas v. Department of Veterans
Affairs, MSPB Docket No. SF-0752-16-0332-I-1, Petition for Review (PFR) File,
3
Tab 3 at 2-3, Tab 4. The Board issued a Remand Order granting the petition for
review. Thomas v. Department of Veterans Affairs, MSPB Docket No. SF-0752-
16-0332-I-1, Remand Order (RO), ¶ 1 (Dec. 16, 2016). The Board found that the
administrative judge properly dismissed the removal appeal as untimely filed.
RO, ¶¶ 9-17. However, it remanded the appeal to the administrative judge to
provide the appellant with the jurisdictional burdens for, and an opportunity to
present evidence and argument to establish jurisdiction over, his p otential
USERRA, VEOA, and individual right of action (IRA) appeals. RO, ¶¶ 20-21.
¶5 On remand, the administrative judge issued an acknowledgment order
informing the appellant of his jurisdictional burdens for the claims he raised on
appeal. Thomas v. Department of Veterans Affairs, MSPB Docket No. SF-0752-
16-0332-B-1, Remand File (RF), Tab 2 at 2-14. Fourteen days after the
acknowledgment order was issued, the appellant filed a pleading asking the
administrative judge to provide him with notice of his jur isdictional burden as
required by the Remand Order. RF, Tab 3 at 4-7. In response, a staff member in
the Board’s regional office contacted the appellant and informed him that the
acknowledgment order contained the required jurisdictional information. RF ,
Tab 4 at 1-2. The appellant indicated that he had received the acknowledgment
order but had not read it. Id. at 2. The administrative judge subsequently ordered
the appellant to file evidence and argument to show cause why his appeal should
not be dismissed for lack of jurisdiction. Id. The appellant did not respond to the
order, and the agency filed a motion to dismiss his appeal. RF, Tab 5 at 4 -5.
¶6 Without holding a hearing, the administrative judge issued a remand initial
decision dismissing the appeal. RF, Tab 6, Remand Initial Decision (RID) at 14.
Concerning the appellant’s USERRA claim, the administrative judge found that
he failed to make a nonfrivolous allegation that his removal was due to his prior
military service. RID at 11-12. Concerning his VEOA claim, the administrative
judge found that the appellant provided no evidence that he exhausted his
veterans’ preference claim with DOL. RID at 14. Therefore, the administrative
4
judge found that the appellant failed to establish jurisdict ion over these claims.
Concerning the whistleblower reprisal claim, the administrative judge found that
the appellant received a close-out letter from OSC in August 2015. RID at 9-10.
Based on this finding, she concluded that his March 2016 initial appe al was
untimely filed. 2 Id.; IAF, Tab 1 at 35.
¶7 The appellant, through a new attorney representative, has filed a remand
petition for review challenging the dismissal of his appeal. Thomas v.
Department of Veterans Affairs, MSPB Docket No. SF-0752-16-0332-B-1,
Remand Petition for Review (RPFR) File, Tabs 1, 7. On review, the appellant’s
new attorney argues that the appellant’s prior representative mishandled his
appeal and the appellant did not understand that he was required to respond to the
administrative judge’s orders. RPFR File, Tab 1 at 4-5. He further argues that
the appellant was “preoccupied” by military and job-related injuries. Id. As to
the appellant’s claim of whistleblower reprisal, the appellant alleges that he
received a close-out letter but cannot locate it. He asserts that “more than
120 days have long since passed after the OSC closed the case,” but he does not
indicate when he received the close-out letter. Id. at 5. He attaches a copy of an
OSC complaint that pre-dated his removal, but does not attach the close-out
letter. RPFR File, Tab 4. As to his USERRA claim, he asserts that management
2
The administrative judge stated that she was dismissing the appellant’s potential IRA
appeal for lack of jurisdiction. RID at 8-10. However, because she found that he did
not file his appeal within 60 days of receipt of the OSC close-out letter, this finding was
on timeliness, not jurisdiction. See Inman v. Department of Veterans Affairs,
115 M.S.P.R. 41, ¶ 16 (2010) (finding that an administrative judge properly dismissed
an IRA appeal as untimely filed because the appellant did not file his appeal within
60 days of OSC notifying him that it was concluding its investigation into his
allegations of whistleblower reprisal and he had the right to file an appeal with the
Board). Because the administrative judge properly stated the timeframe for filing an
IRA appeal and otherwise made appropriate findings, we find that the error o f
characterizing her finding as jurisdictional is harmless. See Burke v. Department of
Veterans Affairs, 121 M.S.P.R. 299, ¶ 18 (2014) (observing that an administrative
judge’s alleged procedural error is of no legal consequence unless it is shown to have
adversely affected a party’s substantive rights).
5
was antagonistic towards him as a disabled veteran, which resulted in their denial
of his request for his leave to be protected under the Family and Medical Leave
Act of 1993 (FMLA), and thus his termination for that leave. RPFR File, Tab 1
at 6-7. He also attaches an August 24, 2013 news article in support of his claim
that employees generally are antagonistic towards disabled veterans. 3 RPFR File,
Tab 1 at 5-18, Tab 2 at 5-15. The agency has responded. RPFR File, Tab 8.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has established Board jurisdiction over his USERRA discrimination
claim.
¶8 Under 38 U.S.C. § 4311(a), “[a] person who . . . has performed . . . service
in a uniformed service shall not be denied initial employment, reemployment,
retention in employment, promotion, or any benefit of employment by an
employer on the basis of that . . . performance of service.” To establish
jurisdiction over a USERRA discrimination claim under section 4311(a), the
appellant must nonfrivolously 4 allege 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 the 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 5 C.F.R. § 1201.57(a)(3), (b)
(providing that to establish jurisdiction, an appellant must nonfrivolously allege
the substantive jurisdictional elements of a USERRA appeal) . USERRA,
however, does not authorize the Board to adjudicate a claim of discrimination
based on disability alone, even if the underlying disability arose from military
service. McBride v. U.S. Postal Service, 78 M.S.P.R. 411, 415 (1998). A claim
3
The appellant does not challenge the administrative judge’s finding that he did not
exhaust his VEOA claim. RID at 14. We decline to disturb this finding on review.
4
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
6
of discrimination under USERRA should be broadly and liberally construed in
determining whether it is nonfrivolous. Gossage, 118 M.S.P.R. 455, ¶ 10.
¶9 The administrative judge below found that the appellant made nonfrivolous
allegations that he performed uniformed service and that the agency denied him
retention in employment by removing him. RID at 11. However, she also found
that he failed to nonfrivolously allege that the agency’s actions were motivated by
his military service. RID at 11-12. In light of the appellant’s clarification of his
claim in his remand petition for review, we find that he has established
jurisdiction over his USERRA claim.
¶10 On review of the initial decision, the appellant alleged that his supervisor
denied him rubber boots, resulting in an on-the-job injury, and denied him other
benefits of employment, such as his requests for FMLA-protected leave, on the
basis of, as relevant here, his military and veteran status. PFR File, Tab 8 at 16 ,
20; RO, ¶ 7 n.3. In his remand petition for review, the appellant further claims,
“antagonism against him, as a disabled veteran, was obvious on the part of
management . . . . Eventually, he needed more time off than he could get
management to authorize and he lost his job because of it.” RPFR File, Tab 1
at 6. He states, “When he asked for FMLA the Agency never signed, nor
authorized it. Essentially, he really lost his job because of the antagonism of
employees at the VA against disabled veterans and because of the injury caused
by the gross negligence of the Agency.” Id. at 6-7. The Board can consider any
new or clarified allegations made in his remand petition for review because
jurisdiction may be raised at any time during a proceeding . See Morgan v.
Department of the Navy, 28 M.S.P.R. 477, 478 (1985).
¶11 Here, the appellant directly connects the alleged denial of his FMLA leave
and his ultimate removal to the fact of his military service and veteran status, and
not just to his service-related disability. If an appellant alleges that his status as a
disabled veteran is the reason an agency has taken an action or denied a benefit,
he is alleging that the action or denial was “on the basis of” his “obligation to
7
perform service in a uniformed service.” 38 U.S.C. § 4311(a); see Davison v.
Department of Veterans Affairs, 115 M.S.P.R. 640, ¶¶ 12-15 (2011) (finding
Board jurisdiction over an appellant’s allegation of retaliation based on use of
leave to which he was entitled only due to his status as a disabled veteran) ;
Lazard v. U.S. Postal Service, 93 M.S.P.R. 337, ¶¶ 2, 8 (2003) (finding
jurisdiction under USERRA over an appellant’s claims that his suspension was
the result of his refusal to perform duties that would have aggravated his
service-connected injuries and that nonveterans were treated differently) ; Durr v.
Merit Systems Protection Board, 844 F. App’x 329, 332 (Fed. Cir. 2021) (finding
Board jurisdiction when the appellant alleged he was denied medical leave “ for
reason of [his] status of being a 10-point, military service-connected disabled
veteran,” and that “if another employee had made a request for leave for medical
reasons, that such would have been granted”). 5
¶12 Although lacking in detail, the weakness of the appellant’s assertions in
support of his USERRA claim is not a basis to dismiss that claim for lack of
jurisdiction; rather, if the appellant fails to develop his contentions, his USERRA
claim should be denied on the merits. Randall v. Department of Justice,
105 M.S.P.R. 524, ¶ 5 (2007). Accordingly, we find that the appellant’s proffered
allegation is sufficient to establish Board jurisdiction over his USERRA
discrimination claim.
The administrative judge properly found that the appell ant’s whistleblower
reprisal appeal was untimely.
¶13 An appellant must file an IRA appeal within 60 days of receipt of OSC’s
written notification that it is terminating its investigation into the alleged
whistleblowing retaliation. Inman v. Department of Veterans Affairs,
115 M.S.P.R. 41, ¶ 16 (2010). Here, the appellant did not provide a copy of
5
The Board may rely on unpublished decisions of the Federal Circuit if it finds the
court’s reasoning persuasive, as we do here. Mauldin v. U.S. Postal Service,
115 M.S.P.R. 513, ¶ 12 (2011).
8
OSC’s close-out letter, which normally includes such notice, or state when he
received the letter. However, he provided a July 30, 2015 letter from OSC,
informing him that it had made a preliminary determination to close its inquiry
into his complaint. IAF, Tab 1 at 17-19. OSC provided the appellant with
13 days to respond, and indicated that in the absence of a response, it would send
him a letter terminating its investigation and advising him of his additional rights.
Id. at 19. Based on this letter, and absent any evidence to the contra ry, the
administrative judge found that the appellant likely received his OSC close -out
letter in August 2015. RID at 9. Thus, she concluded that his March 2016 appeal
was untimely. Neither party disputes this finding on review, and we decline to
disturb it. RPFR File, Tab 1 at 5.
¶14 On review, the appellant offers excuses for his failure to respond to the
administrative judge’s orders and submits a copy of his OSC complaint.
RPFR File, Tab 1 at 4-5, Tab 4. Because his arguments and evidence do not
concern the dispositive timeliness issue, we decline to consider them for the first
time on review. Roush v. Department of the Interior, 59 M.S.P.R. 113, 118
(1993) (declining to consider evidence presented for the first time on review
because, in pertinent part, the evidence was not material to the dispositive
jurisdictional issue); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980)
(finding that the Board generally will not consider an argument raised for the first
time on review absent a showing that it is based on new and mate rial evidence not
previously available despite the party’s due diligence). To the extent that he is
arguing that he has established good cause for his delay, the Board has no
authority to excuse an untimely filed IRA appeal. Agoranos v. Department of
Justice, 119 M.S.P.R. 498, ¶ 8 n.3 (2013). Accordingly, we agree with the
administrative judge that the appellant’s WPEA claim is untimely filed.
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ORDER
¶15 For the reasons discussed above, we REMAND this case to the Board’s
Western Regional Office for further adjudication of the appellant’s USERRA
claim in accordance with this Remand Order. On remand, the administrative
judge may readopt her prior findings dismissing the appellant’s VEOA claim for
lack of jurisdiction and dismissing his WPEA claim as untimely filed so that the
appellant will have a single decision with appropriate notice of appeals rights
addressing all of his claims. See Goldberg v. Department of Homeland Security,
99 M.S.P.R. 660, ¶ 12 (2005).
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.