Kevin Sharpe v. Department of Justice

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN SHARPE, DOCKET NUMBER
Appellant, SF-4324-15-0593-I-1
v.
DEPARTMENT OF JUSTICE, DATE: November 22, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kevin Byrnes, Esquire, Washington, D.C., for the appellant.
Marcia N. Tiersky and William G. Hughes, III, Esquire, Springfield,
Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA). For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Order.
BACKGROUND
¶2 The appellant, an employee of the agency’s Drug Enforcement
Administration (DEA) and a former member of the U.S. Navy Reserve, filed an
appeal in which he alleged that the agency took various adverse employm ent
actions in violation of the anti-discrimination provisions of USERRA. Initial
Appeal File (IAF), Tab 1. During the proceedings below, he clarified that he was
seeking relief as to the following claims: (1) that the agency failed to properly
calculate his pay and benefits while he was deployed to Kuwait for 6 months in
2003; (2) that the agency failed to select him for a total of 14 GS-14 positions
since July 2012; and (3) that the agency paid him at the GS-14 rate for only 4 of
the 16 months he served as Acting Group Supervisor for the Narcotics Task
Force. IAF, Tab 49. Following a hearing, the administrative judge issued a
decision denying the appellant’s request for corrective action. IAF, Tab 63,
Initial Decision (ID).
¶3 On review, the appellant contests the administrative judge’s findin gs
concerning the nonselections. Petition for Review (PFR) File, Tab 1. In
particular, he argues that the Special Agent in Charge who made
recommendations for selection, which were relied upon by the DEA Career
Board, improperly discounted skills he acquired in the military. Id. at 13-17. He
further contends that the administrative judge incorrectly applied the analytical
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
failed to apply the “cat’s paw” theory described in Staub v. Proctor Hospital,
562 U.S. 411 (2011) to his case. Id. at 17-22. The agency has filed a response, to
which the appellant has replied. PFR File, Tabs 7, 10.
3
ANALYSIS
¶4 In Sheehan v. Department of the Navy, 240 F.3d 1009 (Fed. Cir. 2001), our
reviewing court articulated the procedures and allocations of proof applicable to
USERRA discrimination claims arising under 38 U.S.C. § 4311. First, “an
employee making a USERRA claim of discrimination . . . bear[s] the initial
burden of showing by a preponderance of the evidence that the employee’s
military service was ‘a substantial or motivating factor’ in the adverse
employment action.” Id. at 1013. 2 If the employee has made the requisite
showing, “the employer then has the opportunity to come forward with evidence
to show, by a preponderance of the evidence, that the employer would have taken
the adverse action anyway, for a valid reason.” Id.¶5 The appellant may satisfy his initial burden using direct or circumstantial
evidence. Id. at 1014; but see Gardner v. Department of Veterans Affairs,
123 M.S.P.R. 647, ¶¶ 29-30 (2016) (clarifying in the title VII context that direct
and circumstantial evidence of discriminatory motive are not distinct methods of
proof subject to different legal standards). The court identified four nonexclusive
factors to be considered in determining whether discriminatory motive may
reasonably be inferred:
(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.
2
An employee’s military service is a motivating factor in an adverse employment
action if the employer “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).
4
Sheehan, 240 F.3d at 1014 (numbering added). “In determining whether the
employee has proven that the protected status or activity was part o f the
motivation for the agency’s conduct, all record evidence may be considered,
including the agency’s explanation for the actions taken.” Id.
¶6 Our reviewing court has stated in no uncertain terms that the Board “must
employ” the Sheehan analysis. McMillan v. Department of Justice, 812 F.3d
1364, 1372 (Fed. Cir. 2016). However, the administrative judge did not at any
point cite Sheehan or describe the procedures and evidentiar y standards set forth
therein. Rather, in finding that the agency “identified legitimate
non‑discriminatory reasons” for the nonselections, the administrative judge
appears to have implicitly applied the title VII summary judgment framework of
McDonnell Douglas, in which only the burden of production shifts to the
employer, and not the burden of persuasion as in USERRA discrimination claims.
ID at 22; see Sheehan, 240 F.3d at 1014. 3
¶7 Furthermore, the Board has held that an administrative judge must provide
notice of the Sheehan framework and allow the parties to develop the record
accordingly. Haynes v. U.S. Postal Service, 89 M.S.P.R. 9, ¶ 7 (2001). The
administrative judge did not provide the required notice at any point during the
proceedings below, and the pleadings do not indicate that the appellant was
otherwise made aware of the applicable procedures and evidentiary standards.
Cf. Brasch v. Department of Transportation, 101 M.S.P.R. 145, ¶¶ 15-16 (2006)
(declining to remand where the pleadings demonstrated that the appellant was
aware of the Sheehan standard, notwithstanding the administrative judge’s failure
to provide the required notice). We therefore remand the case for further
adjudication. See Haynes, 89 M.S.P.R. 9, ¶ 7.
3
We recently have clarified that the McDonnell Douglas framework does not apply to
Board proceedings even in the title VII context. Savage v. Department of the Army,
122 M.S.P.R. 612, ¶ 46 (2015).
5
ORDER
¶8 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Order. On remand, the
administrative judge should inform the parties of their respective burdens of proof
under USERRA and afford them the opportunity to conduct addiitional discovery
concerning the contested nonselections. The administrative judge should then
adjudicate the merits of the appellant’s USERRA discrimination claim under the
correct standard and issue a new initial decision.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.