NOTE: This disposition is nonprecedential.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 Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent. With him on 

the brief were JOYCE R. BRANDA, Acting Assistant Attorney 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 Services 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 prohibits 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 employer 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 motion to supplement is moot.

 
NEALY v. USPS 3

USERRA bears the initial burden of showing by a preponderance of the evidence that his military service was a 

substantial or motivating factor in the adverse employment action. If the employee makes that prima facie 

showing, the employer can avoid liability by demonstrating, 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 employer 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 discovering that Mr. Nealy was using unauthorized overtime on 

his postal route, Mr. Nealy’s supervisor held an investigative 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 representative 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 suspend 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.