UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

NATHANIEL K. WATTY, Appellant,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY

- 4324

- 14

- 0152

- I

- 1

DATE: April 12, 2016



### THIS ORDER IS NONPRECEDENTIAL 1

Nathaniel K. Watty , Saint Albans, N ew York, pro se.
Kathleen J. Tulloch , Esquire, Brooklyn, New York, 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 found he was not ent itled to corrective action concerning his nonselection for promotion under either the Veterans Employment Opportunities Act of 1998 (VEOA) or the Uniformed Services Employment and Reemployment Rights Act

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law.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 nonprecedent ial 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

of 1994 (codified at 38 U.S.C. §§ 4301

- 4333) (USERRA) and found that the Board lacks jurisdiction over his remaining claims . For the reasons discussed below, we GRANT the appellant’s petition for review , VACATE the initial decision , FIND that the appellant has not waived his right to a hearing, and REMAND the case to the field office for further adjudi cation in accordance with this O rder.

BACKGROUND ¶2 The appellant filed an appeal alleging that the agency committed various prohibited personnel practices when he was not selected for a Supervisory Police Officer position. Initial Appeal File (IAF), Tab 1. He claimed , among other things, that the agency retaliated against him for filing previous Board appeals and an e qual e mployment o pportunity c omplaint , denying him a promotion based on his membership and performance of service or obligation to perform service in a uniformed service , violating his veterans’ p reference rights, and discriminating against him based on his race, color, sex, national origin, and disability

. Id . at 4

- 9. The administrative judge issued order s on USERRA and VEOA jurisdiction , including notice of proof requirements, and ordered the appellant to file
statement s addressing the j urisdictional requirements of US E RRA and VEOA claim s . IAF, Tab s 3 , 5. The administrative judge also ordered the appellant to file evidence and argument to establish a nonfrivolous allegation of jurisdiction over his nonsel ection claim independent of US ERRA and VEOA . IAF, Tab 4. ¶3 The appellant fil ed numerous pleading s addressing the jurisdictional orders. IAF, Tabs 7

- 22. The agency filed a motion requesting that discovery r esponses be stayed pending a ruling on jurisdiction . IAF, Tab 28. The administrative judge granted the agency’s motion over the appellant’s objections. IAF, Tabs 37, 41. T he administrative judge issued an initial decision finding that the Board ha s jurisdiction over the VEOA claim and USERRA retaliation claim , but that t he appellant waived his right to a hearing and was not entitled to corrective action3

under USERRA or VEOA based on the written record . IAF, Tab 50 , Initial Decision (ID) at 4

- 13

. The administrative judge further found that the Board otherwise lack ed jurisdiction over his nonselection , USERRA discrimination

c laim, and allegations of other prohibited personnel practices. ID at 3 , 12

. ¶4 The appellant has filed a petition for review arguing that the administrative jud ge erred by denying his hearing request , staying the agency ’s discovery
responses , and closing t he record without allowing him an opportunity to address the meri ts of his claims. Petition for Review (PFR) File, Tab 1. The agency has filed a response in opposition to the appellant’s petition for review . PFR File, Tab 3.

DISCUSSION OF ARGUME NTS O N REVIEW The administrative judge erred by finding that the appellant waived his right to a hearing. ¶5 On his appeal form, t he appellant indicat ed that he did not want a hearing. IAF, Tab 1 at 2. However, on February 25, 2014, the appellant filed a motio n requesting a hearing. IAF, Tab 24. The administrative judge found that the appellant’s request for a hearing was untimely and issued a decision without holding a hearing . ID at 2 n.1. ¶6 An appellant must submit any reques t for a hearing with the appea l or within any other time period the administrative judge sets for that purpose. 5 C.F.R. § § 1201.24 (e) , 1208.13 (b), 1208.23 (b) . Failure to timely re quest a hearing will result in a waiver of that right when the appellant has not shown good cause for the failure. Robinson v. Department of the Army , 50 M.S.P.R. 412 , 417 (1991). The factors to be considered when deciding to waive the deadline for requesting a hearing include those typically considered in connection with the waiver of the deadline for filing a petition for review : the length of the delay; whether the appe llant was notified of the time limit or was otherwise

aware; the existence of circumstances beyond the control of the appellant that affected his abilit y to comply with the time limit ; the degree to which negligence4
by the appellant is shown to be present or absent; circumstances show ing that any neglect involved is excusable neglect; a showing of unavoidable casualty or misfortune; and the extent and nature of the prejudice to the agency t h at would result from waiver of the time limit. Beaudette v. Depart ment of the Navy , 5 M.S.P.R. 394 , 398 (1981). In addition to these factors, the administrative judge should consider whether the time remaining, as of the date the request f or a hearing was filed, reasonably permits the convening of a hearing and the rendering of a decision on the appeal within 120 days from the date on which the appeal was filed. Id. ¶7 The appeal was filed on January 28, 2014. IAF, Tab 1. The acknowledgment order was issued on January 30, 2014 , and stated that , if the appellant had not yet requested a hearing, a written request for a hearing was due 10 calendar days from the date of the order or the appellant’s right to a hearing would be waived. IAF, Tab 2 at 1. The appellant alleges that he did not receive the acknowledg ment order because it was not mailed to his address of record

. PFR File, Tab 1 at 4. On his appeal form , the appellant identified an address in St. Albans, New York. IAF, Tab 1 at 2. T he acknowledgment order was mailed to an address in Hempstead, New York. IAF , Tab 2 . The appellant has identified this as his former address used in a previously filed appeal. PFR Fi le, Tab 1 at 4. The appellant states that he called the Board and aske d why he had not received an acknowledg ment order in this appeal. Id. Nothing in the r ecord shows that the acknowledg ment order was ever sent to the appellant’s correct address or that he otherwise received the acknowledg ment order

. The appellant’s Febr uary 25, 2014 hearing request was 15 days late , according to the time limit set in the acknowledgment order

. 2 IAF, Tab 2 at 1, Tab 25.

2 Because 10 calendar days after the date of the acknowledgment order fell on a Sunday, the appellant’s request was due no later than the next workday, which was Monday, February 10, 2014. 5 C.F.R. § 1201.23

.5
¶8 The misdirected mailing of the acknowledgment order weighs in favor of waiving a filing deadline

. See Birdsong v. Dep artment of the Navy , 75 M.S.P.R. 524 , 527 (1997). Further, a lthough the appellant’s request for a hearing was late, the delay was not lengthy under the c ircumstan ces. Ther e was s ufficient time, more than 90 days, for the administrative judge to convene a hearing after the hearing request and render a decision within 120 days

. The agency has not established that any prejudice would result from waiving the time limit. Based on these facts, we reverse the administrative judge’s finding that the appellant waived his right to request a hearing

. See Shadrick v. Office of Personnel Management , 89 M .S.P.R. 357 , ¶ 8 (2001) (finding that service at an incorrect address constitutes good cause for failure to respond to an administrative judge in a timely manner). The appellant is entitled to a hearing on the merits of his USERRA discrimination and retal iation claim s

. ¶9 USERRA provides, in relevant part, that a person who has performed 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 emp loyment on the basis of performance of that service or obligation

. 38 U.S.C. § 4311 (a). To establish the Board’s jurisdiction over a USERRA discrimination claim arising under 38 U.S.C. § 4311 (a), the appellant must allege the following: (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 employ ment, 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. Wilson v. Department of the Army , 111 M.S.P.R. 54 , ¶ 8 (2009). It is well established that a claim of discrimination under USERRA should be broadly and liberally construed in determining whether it is nonfrivolous. Id

. , ¶ 9.6
¶10 The administrativ e judge found that the Board lacks jurisdiction over the appellant’ s claim under 38 U.S.C. § 4311 (a ) because the appellant failed to nonfrivolously allege that the performance of duty in a uni formed service was a substantial or motivating factor in his nonselection. ID at 12. The administrative judge acknowledged that the appellant alleged his past military service and obligation to perform military service was a substantial and motivating fa ctor in the agency’s decision not to interview him , but found that , because the appellant offered no facts to support his assertions and merely quoted the applicable statutory language , he had not made a nonfrivolo us allegation

. Id

. ¶11 Although the appella nt’s allegations are conclu sory, we find that his contentions are sufficient to constitute an allegation of a USERRA violation

. See Searcy v. Department of Agriculture , 115 M.S.P.R. 260 , ¶ 8 (2010 )

. Specifically, the appellant has alleged that: he performed duty in a uniformed service of the United States; the agency was aware of his prior uniformed service; and the
agency denied him a benefit of employment when it did no t select him for the S upervisory Police Officer position. See id ; IAF, Tab 1 at 6, Tab 7 at 8

- 9. Thus, the appellant’s allegation that his military service was a motivating factor in the agency’s decision to not interview him for the position at issue is sufficient to establish the Board’s jurisdiction over his USERRA discrimination claim. See Yates v. Merit Systems Protection Board , 145 F.3d 148 0 , 1484

- 85 (Fed. Cir. 1998) (finding that a claim that a probationary termination was the result of military service was within the Board’s jurisdiction under USERRA even without an express reference to USERRA or discrimination). ¶12 The appellant also alle ges that his nonselection was in reprisal for having filed two prior Board appeals. IAF, Tab 1 at 5

. The USERRA sta ndard for retaliation claims set forth at 38 U.S.C. § 4311 (b ) provides in r elevant part that an employer may not discriminate in employment against or take any adverse employment action against any person because : (1) he has taken an action to enforce a protection afforded any person under this chapter, (2) he has testified or7

o therwise made a statement in or in connection with any proceeding under this chapter, (3) he has assisted or otherwise participated in an investigation under this chapter, or (4) he has exercised a right provided for in this chapter. 38 U.S.C. § 4311 (b). The administrative judge appropriately found that the Board has jurisdiction over the appellant’s USERRA claim pursuant to 38 U. S.C. § 4311 (b). ID at 10

- 11. ¶13 Because we have found that the appellant has established jurisdiction over his claim s under 38 U.S.C. § 4311 (a) and (b) , he has a right to a hearing on the

mer its of his USERRA claim s

. Kirkendall v. Department of the Army , 479 F.3d 830 , 844

- 46 (Fed. Cir. 2007); Gossage v. Department of Labor , 118 M.S.P.R. 455 , ¶ 10 (2012). A USERRA claim within the Board’s jurisdiction should not be dismissed without holding a hearing based on the lack of evidence to support the claim. See Wilson , 111 M.S.P.R. 54 , ¶¶ 9

- 10

. Rather, if an appellant fails to develop his contentions, his claim should be denied on the merits after providing him with the hearin g he has requested and to which he is entitled

. See Kirkendall , 479 F.3d at 846 ; Swidecki , 113 M.S.P.R. 168 , ¶ 6; Baker v. Department of Homeland Security , 111 M.S.P.R. 277 , ¶ 18 (2009). Thus, we remand this appeal to the field office for a hearing on the appellant’s USERRA discrimination and retaliation claim s

. The administrative judge err ed by dismissing the VEOA claim for failure to state a claim without issuing a close

- of

- record order

. ¶14 The administrative judge found that t he Board has jurisdiction over the appellant’s VEOA claim and further found that the appellant was not entitled to

co rrective action because he had not been denied the right to compete for the position at issue. ID at 6

- 8. Because the administrativ e judge found that the Board has jurisdiction under VEOA, ID at 4

- 6 , and declined to hold a hearing, he was responsible for advising the parties that there would be no hearing, for setting a date on which the record would close, and for affording the parties the opportunity to make submissions regarding the merits of the appeal before the8

date the record would close, see Jarra rd v. Department of Justice , 113 M.S.P.R. 502 , ¶ 11 (2010). ¶15 The administrative judge’s order regarding VEOA jurisdiction states that , if the Board has jurisdiction over t he appeal, he would adjudicate the merits after holding a hearing or providing the parties an opportunity to further develop the written record. IAF, Tab 3 at 7. The administrative judge did not give the parties notice that there would be no hearing and did not give the parties an opportunity to file evidence and argument before th e record closed. Failing to provide notice that the record would close is particularly problematic here because the administrative judge stayed discovery responses pending a de termination on jurisdiction. IAF, Tab 41 ; see Jarrard , 113 M.S.P.R. 502 , ¶ 11. ¶16 On remand, the administrative judge must provide the parties with an opportunity to comple te discovery and make submissions reg arding the merits of the VEOA claim

. I f the parties’ submissions show that there is a factual dispute material to the issue of whether the appellant is entitled to relief under VEOA , the administrative judge should inc lude the VEOA claim in the hearing on the merits

. See Sherwood v. Department of Veterans Affairs , 88 M.S.P.R. 208 , ¶ 11 (2001). In the absence of such a showing, the VEOA claim may be adjudicated on the written record

. See id

. The Board lacks jurisdiction to consider the other claims of pro hibited personnel practices and discrimination

. ¶17 The appellant raised prohibited personnel practices, discrimination, and retaliation cl aims in his appeal. IAF, Tab 1. T he Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule , or regulation . Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Nonselections are not directly appealable to the Board , and claims of prohibited personnel practices generally do not provide independent bases for the Board’s jurisdict ion. Davis v. Department of Defense , 105 M.S.P.R. 604 , ¶¶ 15

- 17 (2007). In VEOA and USERRA appeals the Board cannot consider9
claims of prohibited discrimination under 5 U.S.C. § 2302 (b)(1) because neither
statu t e grants the Board the authority to consider those claims. Davis , 105 M.S.P.R. 604 , ¶ 16. Accordingly, in the remand initial decision, the administrat ive judge may incorporate his prior jurisdictional findings on the appellant’s claims of prohibited personnel practices and discrimination except to the extent necessary to adjudicate his VEOA and USERRA claims. See Ruffin v. Department of the Treasury , 89 M.S.P.R. 396 , ¶ 12 (2001).

ORDER ¶18 For the reasons discussed above, we remand this case to the field office for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board