UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KEVIN SHARPE,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

SF-4324-15-0593-I-1

DATE: November 22, 2016

THIS ORDER IS NONPRECEDENTIAL1

Kevin Byrnes, Esquire, Washington, D.C., for the appellant.

Marcia N. Tiersky and William G. Hughes, III, Esquire, Springfield, 

Virginia, 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 

denied his request for corrective action under the Uniformed Services 

Employment and Reemployment Rights Act of 1994 (USERRA). For the reasons 

discussed below, we GRANT the appellant’s petition for review, VACATE the 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

initial decision, and REMAND the case to the regional office for further 

adjudication in accordance with this Order. 

BACKGROUND

¶2 The appellant, an employee of the agency’s Drug Enforcement 

Administration (DEA) and a former member of the U.S. Navy Reserve, filed an 

appeal in which he alleged that the agency took various adverse employment 

actions in violation of the anti-discrimination provisions of USERRA. Initial 

Appeal File (IAF), Tab 1. During the proceedings below, he clarified that he was 

seeking relief as to the following claims: (1) that the agency failed to properly 

calculate his pay and benefits while he was deployed to Kuwait for 6 months in 

2003; (2) that the agency failed to select him for a total of 14 GS-14 positions 

since July 2012; and (3) that the agency paid him at the GS-14 rate for only 4 of 

the 16 months he served as Acting Group Supervisor for the Narcotics Task 

Force. IAF, Tab 49. Following a hearing, the administrative judge issued a 

decision denying the appellant’s request for corrective action. IAF, Tab 63, 

Initial Decision (ID). 

¶3 On review, the appellant contests the administrative judge’s findings 

concerning the nonselections. Petition for Review (PFR) File, Tab 1. In 

particular, he argues that the Special Agent in Charge who made 

recommendations for selection, which were relied upon by the DEA Career 

Board, improperly discounted skills he acquired in the military. Id. at 13-17. He 

further contends that the administrative judge incorrectly applied the analytical 

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and 

failed to apply the “cat’s paw” theory described in Staub v. Proctor Hospital, 

562 U.S. 411 (2011) to his case. Id. at 17-22. The agency has filed a response, to 

which the appellant has replied. PFR File, Tabs 7, 10.
3

ANALYSIS

¶4 In Sheehan v. Department of the Navy, 240 F.3d 1009 (Fed. Cir. 2001), our 

reviewing court articulated the procedures and allocations of proof applicable to 

USERRA discrimination claims arising under 38 U.S.C. § 4311. First, “an 

employee making a USERRA claim of discrimination . . . bear[s] the initial 

burden of showing by a preponderance of the evidence that the employee’s 

military service was ‘a substantial or motivating factor’ in the adverse 

employment action.” Id. at 1013.2If the employee has made the requisite 

showing, “the employer then has the opportunity to come forward with evidence 

to show, by a preponderance of the evidence, that the employer would have taken 

the adverse action anyway, for a valid reason.” Id. 

¶5 The appellant may satisfy his initial burden using direct or circumstantial 

evidence. Id. at 1014; but see Gardner v. Department of Veterans Affairs, 

123 M.S.P.R. 647, ¶¶ 29-30 (2016) (clarifying in the title VII context that direct 

and circumstantial evidence of discriminatory motive are not distinct methods of 

proof subject to different legal standards). The court identified four nonexclusive 

factors to be considered in determining whether discriminatory motive may 

reasonably be inferred: 

(1) proximity in time between the employee’s military activity and 

the adverse employment action,

(2) inconsistencies between the proffered reason and other actions of 

the employer,

(3) an employer’s expressed hostility towards members protected by 

the statute together with knowledge of the employee’s military 

activity, and 

(4) disparate treatment of certain employees compared to other 

employees with similar work records or offenses.

 

2 An employee’s military service is a motivating factor in an adverse employment

action if the employer “relied on, took into account, considered, or conditioned its 

decision” on that service. Erickson v. U.S. Postal Service, 571 F.3d 1364, 1368 (Fed. 

Cir. 2009).
4

Sheehan, 240 F.3d at 1014 (numbering added). “In determining whether the 

employee has proven that the protected status or activity was part of the 

motivation for the agency’s conduct, all record evidence may be considered, 

including the agency’s explanation for the actions taken.” Id. 

¶6 Our reviewing court has stated in no uncertain terms that the Board “must 

employ” the Sheehan analysis. McMillan v. Department of Justice, 812 F.3d 

1364, 1372 (Fed. Cir. 2016). However, the administrative judge did not at any 

point cite Sheehan or describe the procedures and evidentiary standards set forth 

therein. Rather, in finding that the agency “identified legitimate 

non‐discriminatory reasons” for the nonselections, the administrative judge

appears to have implicitly applied the title VII summary judgment framework of 

McDonnell Douglas, in which only the burden of production shifts to the 

employer, and not the burden of persuasion as in USERRA discrimination claims. 

ID at 22; see Sheehan, 240 F.3d at 1014.3

¶7 Furthermore, the Board has held that an administrative judge must provide 

notice of the Sheehan framework and allow the parties to develop the record 

accordingly. Haynes v. U.S. Postal Service, 89 M.S.P.R. 9, ¶ 7 (2001). The 

administrative judge did not provide the required notice at any point during the 

proceedings below, and the pleadings do not indicate that the appellant was 

otherwise made aware of the applicable procedures and evidentiary standards. 

Cf. Brasch v. Department of Transportation, 101 M.S.P.R. 145, ¶¶ 15-16 (2006) 

(declining to remand where the pleadings demonstrated that the appellant was

aware of the Sheehan standard, notwithstanding the administrative judge’s failure 

to provide the required notice). We therefore remand the case for further 

adjudication. See Haynes, 89 M.S.P.R. 9, ¶ 7. 

 

3 We recently have clarified that the McDonnell Douglas framework does not apply to 

Board proceedings even in the title VII context. Savage v. Department of the Army, 

122 M.S.P.R. 612, ¶ 46 (2015).
5

ORDER

¶8 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Order. On remand, the 

administrative judge should inform the parties of their respective burdens of proof 

under USERRA and afford them the opportunity to conduct addiitional discovery

concerning the contested nonselections. The administrative judge should then

adjudicate the merits of the appellant’s USERRA discrimination claim under the 

correct standard and issue a new initial decision. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board