Rigoberto Vindiola v. Department of State ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RIGOBERTO M. VINDIOLA, DOCKET NUMBER
Appellant, SF-4324-19-0537-I-1
v.
DEPARTMENT OF STATE, DATE: October 24, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tyler Buck and D.N. Brady , Esquire, San Diego, California,
for the appellant.
Anna Katherine Drake , Camille V’Estres , and Marianne Perciaccante ,
Washington, D.C., for the agency.
Gerard E. Riddick , Clarksburg, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
Chairman Harris issues a separate dissenting opinion.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his Uniformed Services Employment and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335) (USERRA) appeal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial 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).
On review, the appellant asserts that his coworker’s “false and defamatory”
statements against him—namely, that he committed war crimes in Vietnam—were
made only because his coworker knew of his military service. Petition for
Review (PFR) File, Tab 1 at 7-8. He asserts that, because he was falsely accused
of being a “war criminal,” the agency initiated an “inquiry,” and he was
constructively terminated. Id. at 8. In addition, the appellant provides a number
of documents on review, including copies of the various initial decisions, his
declaration, a May 24, 2019 letter from the Department of Labor, and
correspondence from various agencies. Id. at 10-86. These documents are not
new evidence because they are included in the record below. Initial Appeal File
(IAF), Tab 5; see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256
(1980).
Moreover, a different outcome is not warranted. We agree with the
administrative judge’s finding that the appellant failed to make a nonfrivolous
3
allegation that any agency denial was due to his uniformed service. The
evaluation worksheet reflects that the agency terminated his candidacy for the
Visa Specialist position in 2003 because of several acts of misconduct, including
selling green cards and visas, making slanderous statements about other
employees, making statements about his battlefield service that were disruptive to
the work place, and asking another employee to obtain cocaine and marijuana for
him. IAF, Tab 1 at 10. Even if we focus on the portion of this worksheet that
referenced his service, i.e., that the appellant “made statements about his alleged
battlefield service in Vietnam that were disruptive to the workplace, because of
the alleged criminal nature of his actions,” id., such statements do not constitute a
nonfrivolous allegation of discrimination based on his uniformed service.
Significantly, the documentation reflects that it was the “disruptive” impact of the
appellant’s statements on the work place, and not his uniformed service, that was
the basis for the termination of his candidacy. 2 For the reasons stated herein and
in the initial decision, the appellant has not made a nonfrivolous allegation of
jurisdiction under 38 U.S.C. § 4311(a), and Lubert v. U.S. Postal Service,
2
Even if we considered the appellant’s assertion that the statements in question
involved war crimes, USERRA does not prohibit an employer from considering events
which occur during a period of service but do not constitute performance of military
duty, or from taking action against an employee for gratuitous misconduct in the course
of performing military duties. McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶ 17
(2013).
4
110 M.S.P.R. 430, ¶ 11 (2009). 3 He is therefore not entitled to a hearing. 4 Downs
v. Department of Veterans Affairs, 110 M.S.P.R. 139, ¶ 18 (2008).
NOTICE OF APPEAL RIGHTS 5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3
The Board Chairman has filed a dissent to this Final Order, finding that the appellant’s
conclusory assertion constitutes a nonfrivolous allegation under USERRA. While we
certainly support the fulsome use of USERRA rights, we believe the standard
articulated by the Chairman would result in a jurisdictional bar that does not distinguish
between allegations relating to an appellant’s service obligations and those relating to
his descriptions of his service conduct. USERRA protects the former, not the latter.
4
Because the appellant resigned on April 19, 2003, the agency subsequently terminated
his candidacy on suitability grounds on May 30, 2003, and the Board has already
determined that it did not have jurisdiction over the appellant’s 2003 involuntary
resignation appeal, there is a question as to whether the agency denied him initial
employment, reemployment, retention, promotion, or any benefit of employment under
38 U.S.C. § 4311(a) after he resigned. We need not resolve this issue in light of our
decision to affirm the administrative judge’s decision to dismiss the appeal for lack of
jurisdiction.
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
6
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
7
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
DISSENTING OPINION OF CATHY A. HARRIS
in
Rigoberto M. Vindiola v. Department of State
MSPB Docket No. SF-4324-19-0537-I-1
As applicable here, to establish jurisdiction over a Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301-4335) (USERRA) appeal, an appellant must make nonfrivolous
allegations 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. Lubert v. U.S. Postal
Service, 110 M.S.P.R. 430, ¶ 11 (2009).
In this case, the administrative judge dismissed the appeal for lack of
jurisdiction. Initial Appeal File (IAF), Tab 14, Initial Decision (ID). He found
that the appellant made a nonfrivolous allegation that he performed duty in the
uniformed service and was denied employment or a benefit of employment, but
failed to make a nonfrivolous allegation that any denial was due to his uniformed
service. ID at 11.
I would find that the appellant established jurisdiction over his appeal and
remand it for adjudication of the merits, including the appellant’s requested
hearing. IAF, Tab 1 at 3. The appellant alleged that his uniformed service was a
substantial or motivating factor in his loss of employment or a benefit of
employment because his coworker’s allegation that he had committed war crimes
2
in Vietnam formed the basis of the agency’s negative suitability determination and
eventually led to the appellant’s resignation. 1 IAF, Tab 5 at 6-7.
I agree with the administrative judge that the appellant’s allegation of
uniformed service discrimination is not particularly strong on its face, but this is
not a sufficient basis to dismiss a USERRA appeal for lack of jurisdiction. The
relative weakness of an appellant’s factual allegations is not a basis for dismissing
his USERRA appeal for lack of jurisdiction; rather, if he fails to develop those
allegations, his claim should be denied on the merits. Beck v. Department of the
Navy, 120 M.S.P.R. 504, ¶ 8 (2014). The Board has found that even a conclusory
allegation of uniformed service discrimination is sufficient for jurisdictional
purposes. Wilson v. Department of the Army, 111 M.S.P.R. 54, ¶ 10 (2009)
(holding that the appellant’s assertion that the agency terminated him because it
“didn’t like the fact” of his service in the Army National Guard was sufficient to
constitute a nonfrivolous allegation of a USERRA violation).
Moreover, in finding that the appellant failed to establish jurisdiction over
his appeal, the administrative judge applied the factors set forth in Sheehan v.
Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). ID at 8-9.
However, Sheehan provides a legal framework for weighing and balancing
evidence. It applies to the merits phase of a USERRA appeal and not the
jurisdictional phase. 240 F.3d at 1013-15; see McMillan v. Department of Justice,
120 M.S.P.R. 1, ¶¶ 19-20 (2013).
For these reasons, I respectfully dissent.
/s/
Cathy A. Harris
Chairman
1 It is unclear at this point whether the agency’s actions were based on the fact of the
appellant’s uniformed service, the character of that service, or the statements that the
appellant made in describing his service to his coworkers.