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


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  •   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 B
    oard 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