UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RAWN R. MITCHELL,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DE-4324-14-0583-I-1

DATE: August 11, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Rawn R. Mitchell, Peoria, Arizona, pro se.

Shelley D. Cutts, Phoenix, Arizona, 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 

denied his request for corrective action under the Uniformed Services 

Employment and Reemployment Rights Act of 1994 (USERRA). Generally, we 

grant petitions such as this one only when: the initial decision contains erroneous 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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, and based on the following 

points and authorities, 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). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a GS-6 Claims Assistant and military reservist, applied, but 

was not selected for, a promotion to a GS-7 Veterans Service Representative 

(VSR) position. See Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 1. He

challenged his nonselection under USERRA with the Office of Special Counsel 

(OSC) and, after OSC closed out his complaint, appealed the matter to the Board. 

IAF, Tab 1 at 1, 8. After holding a status conference to clarify the appellant’s 

claims, the administrative judge issued an order and summary of the telephonic 

status conference setting forth the following USERRA issues that would be 

resolved at the hearing; specifically, whether the agency violated: (1) 38 U.S.C. 

§ 4311(a) by not selecting the appellant because of his current obligations as a 

military reservist; (2) 38 U.S.C. § 4311(a) by denying the appellant a benefit of 

employment—namely, priority consideration—that would have resulted in his 

selection; and (3) 38 U.S.C. § 4311(b) by not selecting the appellant in retaliation 
3

for his prior USERRA-based appeal in June 2010. 2

 IAF, Tab 8. At the beginning 

of the hearing, the administrative judge explained that neither party had 

objections or corrections to the order summarizing the prehearing conference. 

IAF, Tab 13, Hearing Compact Disc (HCD) 1 at 0:34-0:50.

3

 After holding the

hearing, the administrative judge denied the appellant’s request for corrective 

action, finding that he failed to meet his burden of proof concerning any of his 

three USERRA claims. IAF, Tab 14, Initial Decision (ID). The appellant has 

filed a petition for review, challenging only the administrative judge’s finding 

regarding priority consideration. Petition for Review (PFR) File, Tab 1. The 

agency has not responded to the appellant’s petition for review.

¶3 The only issue now on review is whether the agency violated 38 U.S.C. 

§ 4311(a) by failing to afford the appellant priority consideration in connection 

with his January 2014 VSR application. USERRA provides, in relevant part, that 

a person who has performed service in a uniformed service shall not be denied 

any benefit of employment on the basis of that performance of service. 38 U.S.C. 

§ 4311(a). The administrative judge found, and we agree, that priority 

consideration, i.e., a noncompetitive selection opportunity, is a benefit of 

employment that the Board has the authority to consider in this USERRA case. 

ID at 9; see 38 U.S.C. § 4303(2) (defining “benefit of employment” under 

USERRA to include “any advantage . . . that accrues by reason of an employment 

contract or agreement or an employer policy, plan, or practice”); see also 

Petersen v. Department of the Interior, 71 M.S.P.R. 227, 235-36 (1996) (finding 

 2 Priority consideration is defined in the Master Agreement between the agency and the 

American Federation of Government Employees as a “bona fide consideration for 

noncompetitive selection given to an employee as the result of a previous failure to 

properly consider the employee for selection because of procedural, regulatory, or 

program violation.” IAF, Tab 12 at 161. 

3 The file names of the six audio files on the hearing compact disc are identical except 

for the last six characters, which appear to indicate the time at which the recording 

began. In this final order, we have cited to the first audio file, ending in 0917 AM, as 

HCD-1, and the last audio file, ending in 1137 AM, as HCD-2. 
4

legislative history supports an expansive interpretation of “benefit of 

employment”).

¶4 An appellant raising a discrimination claim under 38 U.S.C. § 4311(a) bears 

an initial burden of proving, by preponderant evidence, that his military status 

was a substantial or motivating factor in the agency action. Sheehan v. 

Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). To establish that 

his military service was a substantial or motivating factor in an adverse 

employment decision, an appellant must show that the agency “relied on, took 

into account, considered, or conditioned its decision” upon his military-related 

absence or obligation. Erickson v. U.S. Postal Service, 571 F.3d 1364, 1368 

(Fed. Cir. 2009). Discriminatory motivation under USERRA may be reasonably 

inferred from such circumstantial evidence as temporal proximity between the 

appellant’s military activity and the adverse employment action, inconsistencies 

between the proffered reason and other actions of the employer, an employer’s 

expressed hostility towards members protected by the statute together with 

knowledge of the employee’s military activity, and disparate treatment of certain 

employees compared to other employees with similar work records or offenses. 

Sheehan, 240 F.3d at 1014. If the appellant meets his burden, the burden shifts to 

the agency to prove that legitimate reasons, standing alone, would have induced it 

to take the same action. Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 12 

(2012).

¶5 In the instant case, the administrative judge found that the appellant

“offered no evidence showing that his status as a veteran or his then current 

reservist obligations were a substantial or motivating factor in the agency’s 

decision not to afford him priority consideration for [VSR] positions filled in 

2014.” ID at 8-9. As discussed below, we discern no basis for disturbing this 

finding. 

¶6 First, the record supports the administrative judge’s finding that the agency 

gave the appellant clear instructions explaining how to claim priority 
5

consideration when filing an electronic application in a May 10, 2012 letter. ID 

at 9. In 2010, the agency gave the appellant ten priority consideration 

opportunities for use on future promotional opportunities after it discovered that 

it might not have notified him of ten promotional opportunities that had become 

available during his active military duty from 2005 to 2009 and for which he met 

the minimum qualifications. IAF, Tab 10 at 4-5, 7. Also, from 2010 to March 7, 

2012, the agency notified the appellant when a qualifying promotional 

opportunity became available and advised him that, if he wanted his application 

to be given priority consideration, he should submit a written request with his 

résumé and application to the human resources (HR) office. IAF, Tab 6 at 46-47, 

50-51, 61-62, 73-74, 97-98, 113-14, 124-25. According to the agency, however, 

after the Office of Personnel Management mandated implementation of the USA 

Staffing/USAJobs application process, it could no longer accept applications 

through the HR office. IAF, Tab 10 at 5. As such, the agency revised its process 

for issuing and tracking priority consideration entitlements. Id. In accordance 

with the new process, on May 11, 2012, the agency sent the appellant notice of a 

VSR vacancy announcement and a priority consideration letter informing him 

that, if he wished to receive priority consideration for the position, he must 

“apply through the regular USA Staffing internal merit promotion announcement 

process and attach this signed letter to [his] resume/application package.” IAF, 

Tab 6 at 28-29 (underlining in original). 4 In January 2014, the appellant applied 

 4 It appears that, after issuing the May 10, 2012 priority consideration letter, the agency 

discontinued notifying the appellant of each qualifying promotional opportunity that 

became available and that, if he applied, he was eligible to request priority 

consideration. IAF, Tab 6. After the appellant initiated the instant appeal, an HR 

specialist met with him in September 2014, to discuss upcoming vacancies and to 

clarify the process by which he could elect to use his priority consideration 

opportunities when applying through USAJobs. HCD-1 at 31:18-34:30 (testimony of 

HR specialist). According to the agency, to avoid confusion about the number of 

priority considerations remaining, the HR specialist reissued the May 10, 2012 priority 

consideration letter to the appellant along with six additional priority consideration 
6

for a GS-7 VSR position advertised by the agency but did not attach a copy of a 

priority consideration letter to his USAJobs application. IAF, Tab 10 at 7, 11-58. 

Although the appellant met the minimum qualifications for the VSR position, the 

merit promotion panel did not find him to be a best qualified candidate and did 

not refer him to the selecting official. HCD-1 at 41:25-42:00 (testimony of HR 

specialist). 

¶7 On review, the appellant appears to argue that the agency did not inform 

him until September 2014, that, to receive priority consideration for a 

promotional opportunity, he had to attach a copy of a priority consideration letter 

to his USAJobs application. See PFR File, Tab 1 at 3, 7. He further contends that 

the administrative judge failed to consider that the heading on the May 10, 2012 

priority consideration letter is different than the headings on all of the others and 

that the new process for submitting priority consideration letters through 

USAJobs is not provided for in any policy or under the Master Agreement. Id. 

at 7. 

¶8 The appellant’s contentions do not provide a basis for review. We agree 

with the administrative judge that the May 10, 2012 letter informed the appellant 

how to request priority consideration when filing an electronic application and

that he failed to follow these instructions when he submitted his 2014 VSR 

application. ID at 9. Insofar as the appellant contends that he did not receive the 

May 10, 2012 priority consideration letter, he admitted at the hearing that he 

received the May 11, 2012 email with the May 10, 2012 priority consideration 

letter attached to it. 5

 HCD-2 at 29:15-30:30; see IAF, Tab 6 at 28-29. Even if the 

 

letters—one for each remaining priority consideration—on September 15, 2014. IAF, 

Tab 10 at 7; see IAF, Tab 6 at 13-18.

5 The list of files attached to the May 11, 2012 email includes one titled 

“Mitchell - Priority Consideration - VSR - 051012.pdf.” IAF, Tab 6 at 28. The 

appellant has not claimed, and we find no reason to suspect, that this attached file was 

anything other than the May 10, 2012 priority consideration letter provided by the 

agency. See id. at 28-29. 
7

appellant did not see the attachment to the email, such oversight on his part does 

not suggest discriminatory motives by the agency. 

¶9 Next, we find that the appellant has failed to provide a basis for disturbing 

the administrative judge’s credibility findings. The administrative judge found 

that, based on the credible hearing testimony of one of the merit promotion 

panelists, the panel used a fair method to determine the best qualified candidates 

for the VSR positions. ID at 8-9. The appellant has not provided a reason for 

disturbing this well-reasoned credibility determination on review. See Crosby v. 

U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (declining to disturb the 

administrative judge’s credibility findings where she considered the evidence as a 

whole, drew appropriate inferences, and made reasoned conclusions). 

¶10 Moreover, there is no indication in the record that the appellant made any 

effort to obtain clarification from the HR office or to request priority 

consideration, as he had before, by submitting a written request to the HR office,

in connection with his 2014 VSR application. Lastly, although it is unclear why 

the agency discontinued its practice of notifying the appellant when qualifying 

vacancies became available and of his eligibility to request priority consideration, 

we discern no reason to suspect that this change in practice was based, in any 

way, on the appellant’s uniformed service. We find that, in the absence of any 

evidence below or on review that his uniformed service was a substantial or 

motivating factor in the agency’s failure to afford him priority consideration for 

the promotional opportunity at issue, the appellant has failed to prove a violation 

of 38 U.S.C. § 4311(a). See Burroughs v. Department of the Army, 120 M.S.P.R. 

392, ¶ 6 (2013) (finding that the appellant failed to meet his burden of proof 

under USERRA where he provided speculation, but no evidence, that his 
8

uniformed service was a substantial or motivating factor in his nonselection for a 

vacancy). 6

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States 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.

 6 The appellant references the Veterans Employment Opportunities Act of 1998 

(VEOA) in his appeal. IAF, Tab 12 at 3. To the extent he wishes to file a VEOA 

appeal, he may do so with the Board’s regional office.
9

If you are interested in securing pro bono representation for an appeal to the 

United States 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board