Deselle Volson v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DESELLE VOLSON, DOCKET NUMBER
Appellant, DA-4324-17-0401-I-1
v.
DEPARTMENT OF VETERANS DATE: March 4, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Beverly A. Banks , Lawton, Oklahoma, for the appellant.
Johnston B. Walker , Jackson, Mississippi, for the agency.
Ouida F. Adams , Shreveport, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) (codified 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
amended at 38 U.S.C. §§ 4301-4335). 2 For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the Dallas Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
The appellant was honorably discharged from the Navy in 2010, after
10 years of service, and has a 90% service-connected disability. Initial Appeal
File (IAF), Tab 17 at 4, Tab 32, Initial Decision (ID) at 19 -20, 22. Effective
May 31, 2016, the agency appointed her to a Medical Support Assistant (MSA)
position, a “hybrid” position under 38 U.S.C. § 7401(3) in the excepted service,
subject to a 1-year probationary period. IAF, Tab 17 at 4. On March 17, 2017,
the agency terminated the appellant for failing to follow leave procedures. IAF,
Tab 11 at 29-31. In a pair of letters dated March 29, 2017, the agency rescinded
the first termination action and terminated the appellant, effective March 20,
2017, for failing to follow supervisory instructions. IAF, Tab 11 at 33-36.
The appellant filed a USERRA complaint with the Department of Labor
(DOL), alleging that the agency discriminated against her based on her uniformed
service and service-connected disability. Id. at 69-73. DOL sent the appellant a
closure letter, advising her that her claim of discrimination based on her
service-connected disability was not cognizable under USERRA. Id. at 45-46.
The appellant filed a USERRA appeal with the Board. IAF, Tab 1 at 5.
After holding her requested hearing, the administrative judge issued a bench
decision, denying the appellant’s request for corrective action. ID at 11-13. He
incorporated the bench decision into a written initial decision. ID at 1-2. He
found that, while the appellant had performed uniformed service and the agency
2
The appellant also has petitioned for review of the initial decisions in her probationary
termination, individual right of action, and Veterans’ Employment Opportunity Act
appeals, which were docketed under Volson v. Department of Veterans Affairs, MSPB
Docket Nos. DA-0752-17-0446-I-1, DA-1221-17-0494-W-1, DA-3330-17-0402-I-1.
We have joined and adjudicated those appeals in a separate decision.
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denied her a benefit of employment by terminating her, she did not prove that her
uniformed service was a substantial or motivating factor in the agency’s decision
to terminate her. ID at 19-20. He further found that the evidence showed the
alleged harassment the appellant experienced was due to her service-connected
disability, which was not a cognizable USERRA claim. ID at 20-21, 24-28; see
McBride v. U.S. Postal Service, 78 M.S.P.R. 411, 415 (1998) (explaining that
USERRA does not authorize the Board to adjudicate a claim of discrimination
based on disability alone, even if the underlying disability arose from military
service).
The appellant has filed a petition for review, arguing that she proved her
uniformed service was a substantial or motiving factor in her termination and that
the administrative judge committed other adjudicatory errors. Petition for
Review (PFR) File, Tab 1 at 4, 18-21. The agency has filed a response. PFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Because the appellant raises a USERRA discrimination claim under
38 U.S.C. § 4311(a), she has the initial burden of proving by preponderant
evidence that her military service was a substantial or motivating factor in the
agency’s decision to terminate her. 3 38 U.S.C. § 4311(c)(1); Sheehan v.
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USERRA similarly prohibits discriminating in employment against or taking any
adverse employment action against any person because she has engaged in one or more
forms of the protected activity described in 38 U.S.C. § 4311(b). Burroughs v.
Department of the Army, 120 M.S.P.R. 392, 395 (2013). An agency violates section
4311(b) if the appellant’s protected activity “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 [protected activity].” 38 U.S.C. § 4311(c)(2). Should the
argument and evidence presented on remand indicate the appellant also has raised a
claim under section 4311(b), the administrative judge should consider that issue.
Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (explaining
that 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).
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Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). If she makes that
requisite showing, the agency has the opportunity to show that it would have
terminated her even in the absence of the improper motivation. 38 U.S.C.
§ 4311(c)(1); Sheehan, 240 F.3d at 1013-14.
The appellant’s military service is a substantial or motivating factor in the
termination action if the agency “relied on, took into account, considered, or
conditioned its decision” on that service. Erickson v. U.S. Postal Service,
571 F.3d 1364, 1368 (Fed. Cir. 2009). She may prove the factual question of
discriminatory motivation or intent with direct or circumstantial evidence.
Sheehan, 240 F.3d at 1014. Our reviewing court identified four nonexclusive
factors to be considered in determining whether to infer discriminatory motive:
“(1) proximity in time between the employee’s military activity and the adverse
employment action, (2) inconsistencies between the proffered reason and other
actions of the employer, (3) an employer’s expressed hostility towards members
protected by the statute together with knowledge of the employee’s military
activity, and (4) disparate treatment of certain employees compared to other
employees with similar work records or offenses.” Id. (numbering added).
The administrative judge should reconcile the conflicting evidence to determine
whether the agency’s actions were consistent with its decision to terminate the
appellant.
As to the second factor for inferring motive, inconsistencies in the agency’s
proffered reason, the appellant points to such inconsistencies on review. PFR
File, Tab 1 at 21. The agency gave three different reasons for terminating the
appellant: failing to follow leave procedures, failing to follow supervisory
instructions, and being disruptive. IAF, Tabs 29-31, 33-36, Tab 30, Hearing
Compact Disc (HCD), part 2 at 6:00-8:00 (testimony of the appellant’s first-level
supervisor). The administrative judge determined that the inconsistency between
the first two reasons was not indicative of discriminatory animus, finding that the
agency identified the first reason in error and that the actions of the first-level
5
supervisor, the putative deciding official, were consistent with the second
proffered reason. ID at 29-32. He did not make any explicit findings as to the
third reason.
Below, the appellant argued that she was not disruptive and addressed that
issue in her closing argument. IAF, Tab 18 at 15-16; HCD, part 2
at 1:39:30-1:40:00 (the appellant’s closing argument). On review, she identifies
specific evidence in the record that she claims contradicts the agency’s basis for
concluding that she was disruptive, including testimony from the first-level
supervisor, the acting supervisor, and the lead MSA. PFR File, Tab 1 at 6, 8-12.
According to the first-level supervisor’s testimony, she believed that the appellant
was disruptive because two acting supervisors and the lead MSA had reported to
her that the appellant was disruptive. HCD, part 2 at 6:00-8:00 (testimony of the
first-level supervisor). However, both the lead MSA and one of the identified
acting supervisors denied telling the first-level supervisor that the appellant was
disruptive. HCD, part 1 at 1:57:00-2:02:30 (testimony of lead MSA), part 2
at 54:00-56:00 (testimony of acting supervisor). There is no statement or
testimony in the record from the second acting supervisor. The administrative
judge did not acknowledge or attempt to resolve the conflict raised by the
testimony of those witnesses. See Spithaler v. Office of Personnel Management ,
1 M.S.P.R. 587, 589 (1980) (explaining that 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).
The Board may only review the appellant’s termination to the extent
necessary to address her USERRA discrimination claims. See Metzenbaum v.
Department of Justice, 89 M.S.P.R. 285, ¶ 15 (2001) (explaining that in a
USERRA appeal the Board does not have jurisdiction to review the merits of an
action that is not otherwise appealable except to the extent necessary to address
the appellant’s military status discrimination claims). If the first-level
6
supervisor’s basis for concluding that the appellant was disruptive is contrived,
that justification cannot explain the agency’s motivation for terminating her and
bolsters her claim that her termination was pretextual. See McMillan v.
Department of Justice, 120 M.S.P.R. 1, ¶¶ 21-23 (2013) (finding that, if credible,
the testimony showing that the agency’s proffered reason was questionable or
unsupported may serve as circumstantial evidence that the agency’s reason was
pretext to discriminate against the appellant based on his military service). As a
result, the administrative judge should resolve the credibility issues created by
this conflicting testimony and conclude whether the agency’s actions are
inconsistent with its proffered reason for terminating the appellant. Id., ¶¶ 21-24(remanding the USERRA appeal for the administrative judge to resolve
conflicting testimony and to make credibility determinations) ; Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987) (providing a list of factors
for an administrative judge to consider in resolving credibility issues, including
the inconsistency of a witness’s version of events with other evidence).
The administrative judge did not consider all of the evidence relevant to whether
the agency expressed hostility toward the appellant’s military service.
As to the third factor for inferring discriminatory motive, an employer’s
expressed hostility toward members protected by the statute together with
knowledge of the employee’s military activity, the administrative judge found no
evidence that any employee used disparaging language toward veterans. ID
at 20-21. On remand, the appellant apparently disputes this finding. She alleges
that her first-level supervisor and a nonveteran coworker falsely accused her of
threatening to “shoot up the place,” and states that the testimony from the lead
MSA and two of her coworkers supports her claim. PFR File, Tab 1 at 6-8,
14-15. She argues that those unfounded accusations reflect a general negative
belief that veterans have post-traumatic stress disorder and are mentally unstable,
evidencing anti-veteran animus. Id. at 14-15. The administrative judge did not
consider this argument or evidence in the initial decision and did not make any
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credibility findings as to whether the allegedly false accusations were made. See
Spithaler, 1 M.S.P.R. at 589.
We found no evidence in the record showing that the appellant threatened
her first-level supervisor or any of her coworkers. There is conflicting testimony
on whether the first-level supervisor told others that the appellant had threatened
her and on the nature of that purported threat. The appellant testified that her two
coworkers told her that the first-level supervisor had started a rumor that the
appellant threatened to kill her and everyone in the call center. HCD, part 1
at 37:00-44:00 (testimony of the appellant). One of her coworkers testified that
the first-level supervisor told the appellant’s coworkers that the appellant was
“psychotic” and “crazy” and had threatened to “blow somebody up,” prompting
them to change the codes on the doors. Id. at 58:00-60:00 (testimony of one of
the appellant’s coworkers). In contrast, the appellant’s other coworker denied
talking with the appellant about any threat allegations. HCD, part 1
at 1:30:00-1:32:00 (testimony of the appellant’s other coworker). The lead MSA
testified that the first-level supervisor told him that the appellant “just blew up”
in her office. HCD, part 2 at 2:02:30-2:04:00 (testimony of the lead MSA).
Similarly, the first-level supervisor testified that the appellant had not threatened
her and denied making such a claim to others. HCD, part 2 at 8:15-8:45
(testimony of the first-level supervisor).
Falsely stating that the appellant was going to “blow the place up” because
she was “psychotic” and “crazy” may be probative evidence of anti-veteran
animus, given her first-level supervisor’s knowledge of the appellant’s veteran
status and the derogatory nature of that comment. See Bagunas v. U.S. Postal
Service, 92 M.S.P.R. 5, ¶¶ 15, 18 (2002) (finding that an interview panelist’s
remark that the appellant, a disabled veteran, did “not look disable[d]” and
probably had “bullets in his body,” if made, could evidence anti-veteran animus
among the panelists), overruled on other grounds by Garcia v. Department of
Agriculture, 110 M.S.P.R. 371, ¶¶ 8, 13 (2009); Petersen v. Department of the
8
Interior, 71 M.S.P.R. 227, 235 (1996) (finding that the Board had jurisdiction
over a USERRA case in which the appellant alleged that coworkers harassed him
by referring to him as a “psycho,” “baby killer,” and “plate head” because of his
military service). Thus, if true, this may be circumstantial evidence that the
appellant’s veteran status was a factor in the agency’s termination action.
Therefore, the administrative judge should make the necessary credibility
determinations to resolve this factual dispute. 4 See McMillan, 120 M.S.P.R. 1,
¶¶ 21-24; Hillen, 35 M.S.P.R. at 458.
The appellant has not shown that the testimony of the Human Resources (HR)
employee was unreliable or not credible.
The appellant also argues that the administrative judge erred in crediting
the testimony of the HR employee in finding that the inconsistencies between the
termination letters were not indicative of any nefarious motivation, but rather,
were the result of an inadvertent administrative error. PFR File, Tab 1 at 19-20;
ID at 29-30. She claims that his testimony was “biased” and “inconsistent” with
the other record evidence, PFR File, Tab 1 at 19; however, she has not explained
the reason for or identified evidence supporting either contention. Therefore, she
has provided no basis for overturning the administrative judge’s findings on this
issue. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980)
(explaining that before the Board will undertake a complete review of the record,
the petitioning party must explain why the challenged factual determination is
4
Some of the testimony on this issue is hearsay. It is well settled that hearsay evidence
is admissible in Board proceedings. Shannon v. Department of Veterans Affairs,
121 M.S.P.R. 221, ¶ 15 (2014). The Board weighs certain factors, as set forth in
Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981), to assess the probative
value of hearsay evidence. On remand, the administrative judge should consider the
Borninkohf factors in determining the probative value of this evidence. Moreover, the
administrative judge credited the fact that the alleged harassers also were veterans or
spouses of veterans in refuting the appellant’s allegations of discrimination. ID at 21.
The administrative judge also may want to revisit that determination on remand. See,
e.g., Beck v. Department of the Navy, 997 F.3d 1171, 1182 (Fed. Cir. 2021) (finding
that an agency official, a service member, engaged in prohibited USERRA
discrimination against the appellant, a veteran).
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incorrect and identify the specific evidence in the record which demonstrates the
error); Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)
(finding that the Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing and that the Board may overturn
such determinations only when it has “sufficiently sound” reasons for doing so).
The appellant has not shown that her coworkers’ harassment based on her
service - connected disability was actionable or that they harbored animus toward
her because of her entitlement to veterans’ preference in hiring.
On review, the appellant reargues that she proved her USERRA
discrimination claim because she established that her coworkers harassed her
based on her service-connected disability and for receiving certain veterans’
preferences in hiring. PFR File, Tab 1 at 5, 13, 20-21. However, the
administrative judge correctly found that harassment based on the appellant’s
disability, even if that disability arose from the performance of military duty, is
not a claim of discrimination based on military service proscribed under
USERRA. ID at 24-28; see McBride, 78 M.S.P.R. at 415; cf. Petersen,
71 M.S.P.R. at 239 (finding that harassment on account of prior service in the
uniformed services, which is sufficiently pervasive to alter the conditions of
employment and create an abusive working environment, is a violation of
38 U.S.C. § 4311(a)). Moreover, the administrative judge already weighed the
appellant’s testimony in support of her claim of discrimination based on her
receiving veterans’ preference against the other evidence and found that the
appellant did not prove she was discriminated against based thereon. ID at 28-29.
The appellant’s arguments on review constitute mere disagreement with the
administrative judge’s finding and do not provide a basis for granting the
appellant’s petition for review. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
105-06 (1997) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
10
made reasoned conclusions on issues of credibility); Broughton v. Department of
Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
The appellant has not shown that the administrative judge was biased.
The appellant also suggests that the administrative judge based his decision
on his “personal opinion,” PFR File, Tab 1 at 4; however, she has not identified
any aspect of the initial decision or elsewhere in the record where this allegedly
occurred. Therefore, her conclusory assertion is insufficient to overcome the
presumption of honesty and integrity that accompanies administrative judges. See
Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980) (finding that
in making a claim of bias or prejudice against an administrative judge, a party
must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators).
ORDER
For the reasons discussed above, we remand this case to the Dallas
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the administrative judge should make factual findings and credibility
determinations on whether the appellant provided any direct or circumstantial
evidence of anti-veteran animus, consistent with this Order. If, upon remand, the
administrative judge finds no additional direct or circumstantial evidence of
discriminatory animus, he may adopt his prior findings as appropriate. However,
if he concludes that the appellant has met her burden to prove her that her
military service was a substantial or motivating factor in her termination, the
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administrative judge should make findings as to whether the agency has shown
that it would have terminated her, even in the absence of the improper motivation.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.