William Jolley v. Department of Housing and Urban Development ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM B. JOLLEY, DOCKET NUMBERS
Appellant, SF-0752-13-0583-M-1
SF-0752-14-0286-M-1
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, DATE: May 20, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
William B. Jolley, Brunswick, Georgia, pro se.
Jo Ann Riggs, Seattle, Washington, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The U.S. Court of Appeals for the Federal Circuit has remanded this case to
the Board for further adjudication. Jolley v. Merit Systems Protection Board and
Department of Housing & Urban Development, 636 F. App’x 567, 570 (Fed. Cir.
2016). The court affirmed the Board’s decision in part, but vacated it in part,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
finding that the Board failed to properly address the appellant’s claim that the
agency’s action in directing his reassignment in 2008 was a violation of his rights
under the Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA). Id. at 6. Upon further review, we find that the appellant has
not established his claim that the agency violated his USERRA rights in this
regard and we therefore deny his request for corrective action.
BACKGROUND
¶2 In 2008, the agency directed the appellant’s reassignment from his
nonsupervisory GS-15 Operations Specialist position in Jacksonville, Florida to a
supervisory GS-15 Field Office Director position in Boise, Idaho. Jolley v.
Department of Housing & Urban Development, MSPB Docket No. SF-0752-13-
0583-I-1, Initial Appeal File (IAF), Tab 10 at 12, Tab 11 at 165. The agency
similarly directed the reassignments of several other nonsupervisory GS-15s to
supervisory positions in other geographical locations as part of its effort to
promote greater efficiency and better utilize human capital resources. The
appellant, who is a preference eligible, IAF, Tab 11 at 134, accepted the
reassignment but elected not to relocate his family. IAF, Tab 10 at 4. According
to the appellant, he sought different assignments so that he would be closer to
home, id. at 5, and, for the same reason, also asked to be allowed to “swap”
positions with a coworker, id. at 5-6, but was unsuccessful. Id. at 6. In 2010, he
retired. IAF, Tab 11 at 134. He claimed that he felt compelled to do so in order
“to be closer to family and personal interests.” IAF, Tabs 5, 9-10.
¶3 On appeal, the appellant challenged his retirement as involuntary and
argued, inter alia, that the action was in violation of 38 U.S.C. §§ 4311(a) and
(b). Specifically, he alleged that the agency was aware that he was a veteran and
that he had filed prior USERRRA appeals 2 and had assisted other employees in
2
Of the several USERRA appeals the appellant has filed, none were resolved in his
favor. See, e.g., Jolley v. Department of Justice, MSPB Docket No. SF-4324-14-0405-
3
their appeals and otherwise advocated for the rights of veterans. IAF, Tab 13.
The administrative judge issued a Notice of USERRA Proof Requirements, 3
setting forth the elements of proving a claim of retaliation for the performance of
uniformed service or the enforcing of a protection afforded under 38 U.S.C.
chapter 43, testifying in such a proceeding, assisting or participating in such an
investigation, or exercising such a right. 4 IAF, Tab 16.
¶4 After reviewing the parties’ written submissions, the administrative judge
issued an initial decision that dismissed the appeals for lack of jurisdiction. IAF,
Tab 36, Initial Decision (ID) at 3, 12. He found no evidence that the appellant’s
directed reassignment and the agency’s decisions not to transfer him or agree to
his suggested position “swap” were in any way motivated by a desire to coerce
his retirement, that the appellant had a choice to continue working in Boise or to
retire, and that the fact that he did not desire to do either d id not render his
decision to retire involuntary. ID at 8-9. Finally, the administrative judge found
that the appellant’s discrimination and retaliation claims did not support a finding
that his retirement was involuntary. ID at 9-12. The Board denied the appellant’s
petition for review of that decision. Jolley v. Department of Housing & Urban
I-1, Final Order (Aug. 28, 2014), aff’d, 602 F. App’x 805 (Fed. Cir. 2015); Jolley v.
Department of Housing & Urban Development, MSPB Docket No. AT-3443-08-0162-
I-1, Initial Decision (Mar. 25, 2008), aff’d, 299 F. App’x 966 (Fed. Cir. 2008); Jolley v.
Department of Housing & Urban Development, MSPB Docket No. AT-4324-08-0316-
I-1, Initial Decision (May 23, 2008), aff’d, 299 F. App’x 969 (Fed. Cir. 2008).
3
The appellant declined a hearing. IAF, Tab 1 at 2.
4
While that appeal was pending, the appellant filed another appeal, again arguing that
his retirement was involuntary, this time claiming that it was in retaliation for his
protected whistleblowing disclosures. Jolley v. Department of Housing & Urban
Development, MSPB Docket No. SF-0752-14-0286-W-1, Initial Appeal File (0286
IAF), Tab 1. The appellant alleged that he disclosed a violation of law, rule, or
regulation, and gross mismanagement by the agency in connection with his directed
reassignment, and various irregularities in the Department of Justice’s Assistant U.S.
Attorney’s representation of the agency in separate litigation. Id. at 5, 7-10. Again, the
appellant specifically declined a hearing. Id. at 2. The administrative judge joined the
two appeals for adjudication. 0286 IAF, Tab 16, Initial Decision at 1 n.1.
4
Development, MSPB Docket Nos. SF-0752-13-0583-I-1, SF-0752-14-0286-I-1,
Final Order at 2 (June 16, 2015).
¶5 On appeal of the Board’s decision, the court found no basis to disturb the
Board’s determination that the appellant did not show that his retirement was
involuntary. Jolley, 636 F. App’x at 569. The court also did not disturb the
Board’s finding that the appellant failed to support, as an alleged basis for
involuntariness, his claim that the agency coerced his retirement in retaliation for
protected whistleblower disclosures. 5 Id. The court found, however, that the
Board incorrectly concluded that the appellant presented his appeal solely as an
involuntary retirement claim, and that it failed to address his assertion that his
reassignment to Boise was a USERRA violation. Id. The court considered the
appellant’s allegations that he was denied a benefit of employment in being
reassigned to Boise because “he was not allowed to choose from other available
and more geographically advantageous positions” and that he was reassigned
based on his USERRA-related activities, specifically his having previously filed
several USERRA claims against the agency. Id. at 570. Finding the appellant’s
allegations sufficient to establish the Board’s jurisdiction over his USERRA
reassignment claim, id., the court remanded this case to the Board for
consideration of the merits of the appellant’s USERRA challenge to his directed
reassignment.
ANALYSIS
¶6 Title 38 U.S.C. § 4311(a) provides 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 employment, reemployment, retention in employment,
promotion, or any benefit of employment by an employer on the
basis of that membership, application for membership,
5
Neither of these matters is implicated in the court’s remand order.
5
performance of service, application for service, or obligation [to
perform service].
¶7 Title 38 U.S.C. § 4311(b) 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
investigation under this chapter, or (4) has exercised a right
provided for in this chapter. . . .
¶8 To prevail on the merits of a USERRA claim under 38 U.S.C. § 4311(a), an
appellant must prove by preponderant evidence that his uniformed service was a
substantial or motivating factor in the agency’s action, unless the agency can
show that it would have taken the same action for a valid reason without regard to
his uniformed service. 38 U.S.C. § 4311(c); McMillan v. Department of Justice,
120 M.S.P.R. 1, ¶ 19 (2013). To prevail on the merits of a USERRA claim under
38 U.S.C. § 4311(b), an appellant must prove by preponderant evidence that his
protected activity was a motivating factor in the employer’s action, unless the
employer can prove that the action would have been taken in the absence of the
appellant’s protected activity. 38 U.S.C. § 4311(c)(2); Burroughs v. Department
of the Army, 120 M.S.P.R. 392, ¶ 7 (2013).
¶9 An employee’s 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 that service. McMillan, 120 M.S.P.R. 1, ¶ 20. The
factual question of discriminatory motivation or intent may be proven by either
direct or circumstantial evidence. Sheehan v. Department of the Navy, 240 F.3d
1009, 1014 (Fed. Cir. 2001). Discriminatory motivation under USERRA “may be
reasonably inferred from a variety of factors, incl uding proximity in time between
the employee’s military activity and the adverse employment action ,
inconsistencies between the proffered reason and other actions of the employer,
an employer’s expressed hostility toward members protected by the statute
6
together with knowledge of the employee’s military activity, and disparate
treatment of certain employees compared to other employees. . . .” Id. In
determining whether the employee has proven that his protected status was part of
the agency’s motivation for the agency’s conduct, all record evidence may be
considered, including the agency’s explanation for the actions taken. Id. Because
the “motivating factor” language is identical in both statutory subsections,
Burroughs, 120 M.S.P.R. 392, ¶ 7, it is appropriate to apply the language in the
same fashion to the appellant’s claims regarding his protected activity under
38 U.S.C. § 4311(b).
¶10 We first examine the appellant’s claim that he was denied a benefit of
employment under 38 U.S.C. § 4311(a) when he was reassigned to Boise because
he was not allowed to choose from other available and more geographically
advantageous positions that were available. We construe this claim to also
include the appellant’s assertions that he was not selected for other positions after
his reassignment and that the agency denied his request for a “swap” of positions.
The evidence of record clearly reflects that the appellant is a preference eligible,
IAF, Tab 11 at 134, and the agency has not challenged his claim that he served in
the U.S. Air Force from 1950 to 1954. IAF, Tab 1 at 8.
¶11 Regarding the appellant’s directed reassignment and the related actions, he
has not produced any direct evidence that the agency was motivated by or
intended to discriminate against him because of his military service. As to
circumstantial evidence, there are decades between the appellant’s military
service and the actions of which he complains and therefore no proximity. Nor
has the appellant submitted evidence reflecting any expressed hostility by agency
officials toward those with military service. He acknowledges that other
nonsupervisory employees also received directed reassignments when he did, and,
although he suggests that theirs were not so personall y onerous, IAF, Tab 20
at 8-9, he has not indicated whether any of those individuals had military service.
Id. The appellant alleges that, following his directed reassignment, he applied for
7
other positions but was not selected, IAF, Tab 5 at 5, Tab 10 at 5, Tab 20 at 8, but
he has submitted no evidence supporting his claim or otherwise demonstrating
that the reason he was not selected was his military service. As to the appellant’s
assertion that the agency denied his request to “swap” positions, he has shown
that he and another Field Office Director who was located in Springfield, Illinois,
first proposed the “swap” to management in August 2009, and the appellant
alleges that the Deputy Director and the two Regional Directors affected
approved the request. IAF, Tab 20 at 11. However, the agency submitted
evidence that the Assistant Deputy Secretary notified the appellant on August 28,
2009, that the matter was “on hold” and that the Deputy was putting all
field-related movements on hold until “the broader transformation initiative is
determined.” IAF, Tab 11 at 148. The agency also submitted evidence that the
Acting Assistant Deputy Secretary notified the appellant in February 2010, that
she had discussed the matter with the Deputy Secretary and the Secretary who
both indicated a desire to make no permanent moves until they decided how the
Office of Field and Policy Management “will fare in the Transformation
initiative.” Id. at 140-41, 145-57. Even if we were to find that the appellant has
shown that the agency in fact denied his request for a job “swap” (he retired on
March 31, 2010), he has not shown that the reason f or the denial was his military
service. In sum, as to the appellant’s directed reassignment and his claims that he
was not thereafter selected for other positions and that the agency denied his
request for a job “swap,” we find that he has not proven by preponderant evidence
that his military service was a motivating factor in those actions.
¶12 We now examine the appellant’s claim that, by these same actions, the
agency violated his rights under 38 U.S.C. § 4311(b). We already have found,
and the agency does not dispute, that the appellant has fi led several USERRA
appeals. IAF, Tab 9 at 7-8, Tab 11 at 10. The appellant also alleges that he
exhibited activism as to veterans’ issues and assisted other employees in their
appeals, IAF, Tab 1 at 2, Tab 5 at 5, Tab 9 at 15, Tab 10 at 6, Tab 11 at 16-17,
8
and that “it is likely” that his activities in that regard were known to agency
management. IAF, Tab 13 at 17. Notwithstanding, the appellant has not provided
any evidence in support of this part of his claimed protected activity. Burroughs,
120 M.S.P.R. 392, ¶ 6.
¶13 Neither has the appellant produced any direct evidence that , regarding his
directed reassignment and related actions, the agency was motivated to or
intended to discriminate against him because of his prior USERRA appeals and
related activity. As to circumstantial evidence, at least some of the appeals he
filed were in close proximity to the timing of the actions of which the appellant
complains. However, he has submitted no evidence reflecting hostility by agency
officials toward him because of his prior USERRA activity. We already have
addressed, and found unsupported by the record evidence, the appellant’s claims
that other employees received more favorable directed reassignments than did he,
that he was not selected for other positions, and that the agency denied his request
to “swap” positions. As we found that, as to these actions, the appellant failed to
demonstrate that the agency was motivated to or intended to discriminate against
him because of his military service, we similarly find that he has not
demonstrated that the agency was motivated to or intended to retaliate against
him for his protected activity. Burroughs, 120 M.S.P.R. 392, ¶ 6.
¶14 We conclude, therefore, that on the record presented, the appellant has not
proven by preponderant evidence that the agency, by its actions, violated his
rights under 38 U.S.C. § 4311(a) or (b). Sheehan, 240 F.3d at 1015. Therefore
his request for corrective action is denied.
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NOTICE OF APPEAL RIGHTS 6
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
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:
6
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.
10
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
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. ____ , 137 S. Ct. 1975 (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
11
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.
If you submit a request for review to the EEOC by regular U.S. mail, th e
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
12
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. 7 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).
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.
7
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.
13
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.