Stanley C. Brasch v. Department of Transportation ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STANLEY C. BRASCH, DOCKET NUMBER
Appellant, CH-4324-15-0390-I-1
v.
DEPARTMENT OF DATE: February 26, 2016
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Stanley C. Brasch, St. Louis, Missouri, pro se.
Humberto Ruiz, Esquire, and Parisa Naraghi-Arani, Esquire,
Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed this Uniformed Services Employment and Reemployment Rights Act of
1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA) appeal for lack of
jurisdiction. Generally, we grant petitions such as this one only when: the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See 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).
¶2 Two types of cases arise under USERRA: (1) reemployment cases, in
which the appellant claims that an agency has not met its obligations under
38 U.S.C. §§ 4312-4318 following the appellant’s absence from civilian
employment to perform uniformed service; and (2) “discrimination” cases, in
which the appellant claims that an agency has taken an action prohibited by
38 U.S.C. § 4311(a) or (b). Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 5
(2005). The appellant’s claims in this appeal are of the second type; namely, that
the agency denied him certain benefits of employment due to his military service
and retaliated against him for exercising his rights under USERRA. Initial
Appeal File (IAF), Tab 4 at 5.
¶3 Under the relevant portions of the law:
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, performance of service,
application for service, or obligation.
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38 U.S.C. § 4311(a).
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.
38 U.S.C. § 4311(b).
¶4 To establish jurisdiction under 38 U.S.C. § 4311(a), an appellant must
allege 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 initial
employment, reemployment, retention, promotion, 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. Hillman v. Tennessee Valley Authority,
95 M.S.P.R. 162, ¶ 5 (2003), overruled on other grounds by Goldberg v.
Department of Homeland Security, 99 M.S.P.R. 660, ¶ 8 n.1 (2005). The
USERRA standard for the appellant’s retaliation claims is set forth at 38 U.S.C.
§ 4311(b), which provides in relevant part that an employer “may not
discriminate in employment against or take any adverse employment action
against any person” because he “(1) has taken an action to enforce a protection
afforded any person under this chapter . . . or (4) has exercised a right provided
for in this chapter.” Brasch v. Department of Transportation, 101 M.S.P.R. 145,
¶ 10 (2006). In either instance, it is key for the appellant to nonfrivolously allege
some connection between the agency’s actions and his protected military status.
Once an appellant has established Board jurisdiction over his USERRA claim, via
the requisite nonfrivolous allegations, 2 he has an unconditional right to a hearing
2
A nonfrivolous allegation of Board jurisdiction is an allegation of fact which, if
proven, could establish a prima facie case that the Board has jurisdiction over the
matter at issue. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). To meet
the nonfrivolous standard, an appellant need only plead allegations of fact which, if
proven, could show jurisdiction, though mere pro forma allegations are insufficient to
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on the merits of his claim. Downs v. Department of Veterans Affairs,
110 M.S.P.R. 139, ¶¶ 17-18 (2008), cited with approval in Baney v. Merit Systems
Protection Board, 415 F. App’x 244, 246 (Fed. Cir. 2011).
¶5 The administrative judge issued acknowledgment and jurisdictional orders
giving the appellant comprehensive notice of the elements and burdens of
establishing jurisdiction over his USERRA appeal. IAF, Tabs 2-3. After
considering the parties’ responses, IAF, Tabs 4, 7, she dismissed the appeal for
lack of jurisdiction because the appellant failed to make a nonfrivolous allegation
that his military status was at least a motivating factor in the agency’s actions,
instead offering “his own unsupported claims that the agency actions of which he
complains must have been due to his military service or in retaliation for his
many USERRA complaints,” IAF, Tab 9, Initial Decision (ID) at 3.
¶6 In his timely filed petition for review, the appellant makes the same
arguments that he made below, citing all his previous USERRA appeals and
reviewing all the actions which he claims the agency took against him. Petition
for Review (PFR) File, Tab 1; IAF, Tab 4. He argues that the agency has taken
adverse actions in reprisal for his past USERRA complaints and he characterizes
the agency’s actions as benefits of employment, which it provides to nonmilitary
employees but denies to employees like him who have served in the military.
PFR File, Tab 1 at 8-9. The agency responds in opposition. PFR File, Tab 4.
¶7 We agree with the administrative judge that the appellant has simply failed
to provide any link whatsoever between the agency actions he cites and his
military service or his filing of USERRA appeals. ID at 3-4. Thus, he has failed
to allege facts, which, if proven, could establish that his military status or his
USERRA activity was at least a motivating factor in the cited agency actions.
See Tindall v. Department of the Army, 84 M.S.P.R. 230, ¶ 8 (1999). Under such
circumstances the appellant’s mere citation of USERRA, without more, is
satisfy the nonfrivolous standard. Walker v. Department of the Army, 119 M.S.P.R.
391, ¶ 6 n.2 (2013).
5
insufficient to garner him a hearing on his USERRA claims, and we therefore find
that the administrative judge properly dismissed the appeal for lack of jurisdiction
without holding a hearing. ID at 5; see Baney, 415 F. App’x at 246 (citing
Downs, 110 M.S.P.R. 139, ¶ 18).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
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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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.