Nealy v. USPS , 593 F. App'x 1000 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DARWIN M. NEALY,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
______________________
2014-3157
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0353-12-0663-I-1.
______________________
Decided: December 9, 2014
______________________
DARWIN M. NEALY, of Selma, Texas, pro se.
PETER A. GWYNNE, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were JOYCE R. BRANDA, Acting Assistant Attor-
ney General, ROBERT E. KIRSCHMAN, JR., Director, and
STEVEN J. GILLINGHAM, Assistant Director.
______________________
2 NEALY v. USPS
Before PROST, Chief Judge, PLAGER and WALLACH, Circuit
Judges.
PER CURIAM.
Petitioner Darwin Nealy appeals a decision of the
Merit Systems Protection Board (“MSPB”) denying his
request for corrective action under the Uniformed Ser-
vices Employment and Reemployment Rights Act of 1994
(“USERRA”). The MSPB found that Mr. Nealy failed to
establish a prima facie case that his military status was a
motivating or substantial factor in the United States
Postal Service’s (“USPS”) decision to suspend Mr. Nealy
following an altercation with his superior and his union
representative during a meeting. J.A. 11–12. The thrust
of Mr. Nealy’s appeal is that the record does not support
the MSPB’s factual conclusions. We find that the record
supports the MSPB’s factual conclusions, and we thus
affirm. 1
Title 38, Section 4311 of the United States Code pro-
hibits discrimination on the basis of military service. It
provides that “a member of . . . a uniformed service shall
not be denied . . . any benefit of employment by an em-
ployer on the basis of that membership . . . .” 38 U.S.C.
§ 4311(a). USERRA discrimination claims are analyzed
under a burden-shifting mechanism. See Sheehan v. Dep’t
of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). An
employee who makes a discrimination claim under
1 On November 20, 2014, Mr. Nealy filed a motion
to supplement the preliminary record on appeal. See ECF
No. 17. Mr. Nealy requested that the audio recording of
proceedings before the MSPB be made part of the official
record on appeal. Those recordings were provided to the
court by the government and the court has considered
them in reaching its decision. As such, Mr. Nealy’s mo-
tion to supplement is moot.
NEALY v. USPS 3
USERRA bears the initial burden of showing by a pre-
ponderance of the evidence that his military service was a
substantial or motivating factor in the adverse employ-
ment action. If the employee makes that prima facie
showing, the employer can avoid liability by demonstrat-
ing, as an affirmative defense, that it would have taken
the same action without regard to the employee’s military
service. Id. at 1013; see 38 U.S.C. § 4311(c)(1). An em-
ployer therefore violates § 4311 if it would not have taken
the adverse employment action but for the employee’s
military service or obligation. See H.R. Rep. No. 103–65,
at 24 (1993), reprinted in 1994 U.S.C.C.A.N. 2449, 2457;
see also Pittman v. Dep’t of Justice, 486 F.3d 1276, 1281
(Fed. Cir. 2007).
We now turn to the facts of this case. After discover-
ing that Mr. Nealy was using unauthorized overtime on
his postal route, Mr. Nealy’s supervisor held an investiga-
tive interview with Mr. Nealy. Mr. Nealy admits to
having used profanity in response to his supervisor, and
to having addressed his supervisor in a “loud” voice. J.A.
33. Mr. Nealy also admits that when his union repre-
sentative entered the room to get between Mr. Nealy and
his supervisor, Mr. Nealy pushed his union representative
away. Id. at 33–34. Mr. Nealy was then sent home for
the rest of the day, for which he was paid. Id. at 34. Mr.
Nealy subsequently received a fourteen day suspension
for his actions in the meeting, although the USPS reduced
Mr. Nealy’s reprimand to an official discussion. Id.
Although Mr. Nealy contends that he was suspended
because he was in the U.S. Army Reserves, Mr. Nealy
stated at the hearing before the administrative judge that
he “[has] no idea why [his supervisor] was against [him].”
Id. Moreover, Mr. Nealy can point to no facts in the
record indicating that his military status was in any way
a motivating or substantial factor in the decision to sus-
pend him. We therefore find that the MSPB’s decision
was supported by substantial evidence.
4 NEALY v. USPS
We find Mr. Nealy’s remaining arguments to be either
waived or unpersuasive. See United States v. L. A. Tucker
Truck Lines, Inc., 344 U.S. 33, 37 (1952). For example,
Mr. Nealy contends that the administrative judge should
have allowed Mr. Nealy to call Larry Huron, a district
manager, as a witness, even though Mr. Nealy never
requested Mr. Huron’s testimony prior to the hearing.
Accordingly, we find that the MSPB’s conclusions
were supported by substantial evidence, and that the
MSPB committed no legal errors.
AFFIRMED
COSTS
Each party shall bear its own costs.