N OTE : This disposition is nonprecedential.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

______________________

D ARWIN M. N EALY , of Selma, Texas, pro se.

P ETER A. G WYN NE , Trial Attorney, Commercial Litig ation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were J OYCE R. B RANDA

, Acting Assistant Atto rney Gener al, R OBERT E. K IRSCHMAN

, J R

. , Director, and
S TEVEN J. G ILLINGHAM

, Assistant Director.

______________________NEALY v. USPS 2

Before P ROST

, Chief Judge, P LAGER and W ALLACH

, Circuit Judges.

P ER C URIAM

.
Petitioner Darwin Nealy appeals a decision of the Merit Systems Protection Board (“MSPB”) denying his request for corrective action under the Uniformed Se rvices 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 pr ohibits discrimin ation on the basis o f military service. It provides that “a member of .

. . a uniformed service shall

not be denied .

. . any benefit of employment by an e mployer 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. Nea ly requested that the audio recording of proceedings before the MSPB be made part of the official record on appeal. Those recording s 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 pr eponderance of the evidence that his military service was a substantial or motivating factor in the adverse emplo yment action. If the employee makes that prima facie showing, the employer can avoid liability by demonstra ting, 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 e mployer 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 discove ring that Mr. Nealy was using unauthorized overt ime on his postal route, Mr. Nealy’s supervisor held an investig ative 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 ad mits that when his union repr esentative 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 Res erves, 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 motiva ting or substantial factor in the decision to su spend him. We therefore find that the MSPB’s decision was supported by substantial evidence.NEALY v. USPS 4

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

C OSTS

Each party shall bear its own costs.