UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DANIEL F. HERRERA,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

DE-0752-15-0053-I-1

DATE: September 16, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Daniel F. Herrera, Santa Fe, New Mexico, pro se.

Dynelle M. Tadlock, Esquire, Denver, Colorado, 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 that 

sustained his removal. Generally, we grant petitions such as this one only when: 

the initial decision contains erroneous 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 administrative 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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, 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. Except as expressly MODIFIED by this Final Order to address the 

appellant’s claim under the Uniformed Services Employment and Reemployment 

Rights Act of 1994 (USERRA), we AFFIRM the initial decision. 

BACKGROUND

¶2 On October 27, 2014, the appellant filed an appeal of the agency’s decision 

to remove him from Federal service, effective October 11, 2014, based on the 

charge, “Continued failure to report for duty as scheduled: failure to follow 

absence notification procedures: failure to follow instructions.” Initial Appeal 

File (IAF), Tab 1. He raised affirmative defenses of harmful procedural error, 

relating to his completion of a detoxification program, and discrimination based 

on disabilities (alcoholism, post-traumatic stress disorder (PTSD), and head 

injury). Id. In addition, he asserted a claim of “VEOA – Veterans Preference,” 

which the administrative judge construed as an affirmative defense under 

5 U.S.C. § 7701(c)(1)(C). Id.; IAF, Tab 13. The administrative judge split the 

agency’s charge into separate charges of (1) absence without leave (AWOL), and 

(2) failure to follow instructions, and notified the appellant of the standards and 

burdens of proof applicable to his affirmative defenses. IAF, Tab 13. 

¶3 Because the appellant did not request a hearing, the administrative judge

issued a decision based on the written record. IAF, Tab 21, Initial Decision. The 

administrative judge sustained the AWOL charge, but did not sustain the failure 
3

to follow instructions charge. Id. He further found that the appellant failed to 

establish his affirmative defenses and that the agency met its burden of proof as 

to nexus and the reasonableness of the penalty. Id. Accordingly, the 

administrative judge sustained the removal action. Id. 

¶4 This petition for review followed. Petition for Review (PFR) File, Tab 1. 

In his petition, the appellant did not contest the administrative judge’s findings 

concerning the AWOL charge or the affirmative defenses that were raised below. 

Id. He instead argued, for the first time on review, that the agency gave disparate 

treatment to veterans and failed to follow correct procedures in the grievance 

process. Id. The agency filed a response, to which the appellant replied. 

PFR File, Tabs 3-4. 

¶5 Because the appellant’s petition appeared to raise a new claim under 

USERRA, the Board issued an order, dated March 2, 2016, advising the appellant 

of the applicable standards and burdens of proof, and directing him to provide 

evidence and argument in support of his claim. PFR File, Tab 5.

2

 The deadline 

for the appellant’s response was March 17, 2016. Id. The Board attempted to 

serve the order by certified mail, but the U.S. Postal Service returned the mail as 

unclaimed. PFR File, Tab 6. On May 23, 2016, the Board issued a second show 

cause order, served by first-class mail. PFR File, Tabs 8-9. The appellant timely 

responded to the reissued order. PFR File, Tab 10. 3

 2 Generally, the Board will not consider an argument raised for the first time in a 

petition for review absent a showing that it is based on new and material evidence not 

previously available despite the party’s due diligence. Banks v. Department of the Air 

Force, 4 M.S.P.R. 268, 271 (1980). However, the Board will adjudicate a USERRA 

claim even if the appellant raises it for the first time on review. Henson v. U.S. Postal 

Service, 110 M.S.P.R. 624, ¶ 10 n.6 (2009). 

3 We assume without deciding that the appellant has shown good cause for his failure to 

respond to the March 2, 2016 order. 
4

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 We first address the appellant’s claim that the agency discriminated against 

him based on his military service. Under USERRA, “[a] person who is a member 

of, applies to be a member of, performs, has performed, applies to perform, or has 

an obligation to perform service in a uniformed service shall not be denied initial 

employment, reemployment, retention in employment, or any benefit of 

employment by an employer on the basis of that membership, application for 

membership, performance of service, application for service, or obligation.” 

38 U.S.C. § 4311(a). When adjudicating a removal appeal on the merits, the 

Board will consider a USERRA claim as an affirmative defense on the merits 

under 5 U.S.C. § 7701(c)(2)(C). Brown v. U.S. Postal Service, 106 M.S.P.R. 12, 

¶ 19 (2007). An appellant who claims that an agency violated 38 U.S.C. 

§ 4311(a) in taking an adverse employment action bears the initial burden of 

showing by a preponderance of the evidence that his military service was a 

“substantial or motivating factor” in the action. Sheehan v. Department of the 

Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). If the appellant meets his initial 

burden, the agency then has the opportunity to show, by a preponderance of the 

evidence, that it would have taken the action for a valid reason without regard to 

the employee’s military service. Id.

¶7 An employee’s military service is a motivating factor for 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). The factual question of discriminatory 

motivation or intent may be proven by either direct or circumstantial evidence. 

Sheehan, 240 F.3d at 1014. Discriminatory motivation under USERRA “may be 

reasonably inferred from a variety of factors, including proximity in time between 

the employee’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 
5

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.” Id. “In determining whether the employee has proven that 

his 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. 

¶8 In response to the May 23, 2016 order, which directed the appellant to 

provide evidence and argument that his past military service was a substantial 

factor in the agency’s decision to remove him, the appellant states the following:

Employer on various occasions when I tried to explain that I had hit 

my head—and suffered from PTSD, had personal illness and unable 

to fully recover—that as a veteran this should be taken under 

consideration. Employer responded that my condition had nothing to 

do with my military-VA background and that I was an alcoholic.

PFR File, Tab 10. Thus, it appears the appellant is arguing that the agency 

discriminated against him based on medical conditions resulting from his military 

service. However, an appellant’s claim that he was discriminated against based 

on an injury or disability sustained while performing military service is not a 

cognizable USERRA claim. Mims v. Social Security Administration,

120 M.S.P.R. 213, ¶ 22 (2013). Therefore, we find the appellant has not shown 

that his removal was in violation of USERRA. 

¶9 The appellant also argues for the first time on review that the agency failed 

to follow correct procedures in the grievance process. PFR File, Tab 1. 

Generally, the Board will not consider an argument raised for the first time in a 

petition for review absent a showing that it is based on new and material evidence 

not previously available despite the party’s due diligence. Banks v. Department 

of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has submitted 

various documents relating to his grievance, but these documents predate the 

close of the record below, and he has not alleged that they previously were 
6

unavailable. Consequently, his new argument does not provide a basis for further 

review. 

¶10 The appellant does not contest the administrative judge’s findings 

concerning the AWOL charge or the affirmative defenses that were raised below, 

and we discern no basis to disturb these findings. PFR File, Tab 1. We therefore

deny the appellant’s petition for review. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request further review of this final decision. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a 

signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after your 

receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 
7

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. If the action involves a claim of discrimination based on race, color, 

religion, sex, national origin, or a disabling condition, you may be entitled to 

representation by a court‐appointed lawyer and to waiver of any requirement of 

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board