UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHAWN GONZALEZ,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

DC-4324-15-0636-B-1

DATE: October 31, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Shawn Gonzalez, Beaverdam, Virginia, pro se.

Sandra Santos, Fairfield, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the remand initial decision, 

which denied her request for corrective action in connection with her Uniformed 

Services Employment and Reemployment Rights (USERRA) appeal. Generally, 

we grant petitions such as this one only in the following circumstances: 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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 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. 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 and AFFIRM the remand initial decision, which is now the 

Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant, a disabled veteran, was terminated during probation from her 

position as a GS-5 Area Technician based on charges of inappropriate conduct 

and unacceptable performance. The administrative judge issued an initial 

decision that dismissed her appeal of that action for lack of jurisdiction. 

Gonzalez v. Department of Agriculture, MSPB Docket No. DC-315H-15-0114-

I-1, Initial Decision at 1, 9 (Dec. 12, 2014). In a Final Order, the Board denied 

the appellant’s petition for review, but forwarded for docketing as a USERRA 

appeal claim, raised for the first time on review, that the agency terminated her 

based on her military service. Gonzalez v. Department of Agriculture, MSPB 

Docket No. DC-315H-15-0114-I-1, Final Order at 6-7 (Apr. 17, 2015). Upon 

consideration of that claim, the administrative judge found that the appellant 

failed to make nonfrivolous allegations of jurisdiction under the USERRA statute 

and again dismissed the appeal for lack of jurisdiction. Gonzalez v. Department 

of Agriculture, MSPB Docket No. DC-4324-15-0636-I-1, Initial Decision at 1,
3

3-5 (June 18, 2015). On the appellant’s petition for review, the Board agreed that 

she failed to nonfrivolously allege that the agency retaliated against her for 

pursuing or assisting another individual in pursuing his USERRA rights, and that 

therefore the portion of her claim alleging a violation of 38 U.S.C. § 4311(b) was 

properly dismissed for lack of jurisdiction. Gonzalez v. Department of 

Agriculture, MSPB Docket No. DC-4324-15-0636-I-1, Remand Order at 3-4 

(Nov. 23, 2015) (Remand Order). The Board found, however, that the appellant 

did establish jurisdiction over her USERRA discrimination claim under 38 U.S.C. 

§ 4311(a) because she nonfrivolously alleged that she performed duty in a 

uniformed service of the United States, that the agency denied her a benefit of 

employment by terminating her during probation, and that the action was due to 

her performance of duty in the uniformed service, the latter finding based on her 

claim that her second-level supervisor was motivated by the appellant’s military 

service in terminating her employment. Id. at 5-7. The Board noted that the 

appellant requested a decision on the written record below, waiving her right to a 

hearing, id. at 7, but remanded the appeal for the administrative judge to rule on 

the appellant’s motion to compel discovery and, following any discovery deemed 

appropriate, for adjudication of the appellant’s USERRA appeal on the merits, id.

at 8. 

¶3 After addressing and resolving the parties’ outstanding discovery matters,

Gonzalez v. Department of Agriculture, MSPB Docket No. DC-4324-15-0636-

B-1, Remand File (RF), Tabs 3, 9, 20, the administrative judge issued a decision 

on the written record in which she found that the appellant failed to demonstrate 

by preponderant evidence that her military service was a motivating or substantial 

factor in the agency’s decision to terminate her during her probationary period. 

RF, Tab 52, Remand Initial Decision (RID) at 4-11. The administrative judge 

further found that, even if the appellant had met her burden, the agency 

demonstrated that it would have terminated her notwithstanding her military 
4

service. RID at 11-12. Accordingly, the administrative judge denied the 

appellant’s request for corrective action. 2 RID at 2.

¶4 The appellant has filed a petition for review, Petition for Review (PFR) 

File, Tab 1; the agency has responded in opposition, PFR File, Tab 2; and the 

appellant has filed a reply, PFR File, Tab 4. 3

ANALYSIS

¶5 On review, the appellant challenges the administrative judge’s credibility 

determinations and findings. For example, the appellant argues that the 

administrative judge failed to consider evidence that the appell ant’s second-level

supervisor’s testimony was, in her view, self-serving, that she called into question 

his “character and bias,” PFR File, Tab 1 at 5-6, as well as that of the appellant’s 

immediate supervisor, the Employee Assistance Program Coordinator, a Human 

Resources Specialist, and the appellant’s second-level supervisor’s Assistant, id.

at 10, and that her immediate supervisor delegated her supervisory duties to the 

appellant’s coworker, id. at 7.

 

2

The administrative judge’s statement at the end of the remand initial decision, that 

“[t]he agency’s action is AFFIRMED,” RID at 12, is an inadvertent error. The correct 

disposition of this case is, as the administrative judge indicated at the beginning of the 

remand initial decision, a denial of the appellant’s request for corrective action. RID 

at 2.

3 Well after the close of the record on review, the appellant filed a request for leave to 

file an additional pleading. She asserted that the pleading is based on new and material 

evidence affecting the credibility of a witness who testified during the hearing before 

the administrative judge. According to the appellant, the evidence, which was 

unavailable to her prior to the close of the record on review, shows that the witness has 

secured new employment, and that he had the opportunity and capacity to observe 

USERRA violations and the experience and expertise necessary to recognize such 

violations in the absence of any conversations. PFR File, Tab 6. The Board may accept 

additional pleadings, other than those provided for in 5 C.F.R. § 1201.114(a), only if 

the evidence is new and material and the party submitting it shows that it was not 

available prior to the close of the record on review. 5 C.F.R. § 1201.114(k). Although

the appellant asserts that the evidence she seeks to present was previously unavailable, 

she has not shown, nor are we persuaded, that it is material. 5 C.F.R. § 1201.115(d). 

Therefore, we DENY the appellant’s request to file an additional pleading.
5

¶6 In determining whether the appellant proved by preponderant evidence that 

her military status was a motivating or substantial factor in the agency’s decision 

to terminate her during probation, the administrative judge considered the 

appellant’s statement, filed under penalty of perjury, that: (1) she had s everal 

conversations with a coworker who was also her team leader in which she 

expressed an anti-military sentiment4; (2) the coworker told the appellant that she 

had spoken with the appellant’s second-level supervisor, also the author of the 

appellant’s termination letter, about her conversations with the appellant and 

concerns about her status as a disabled veteran; and (3) the appellant then spoke 

with that official about the coworker’s remarks, and he acknowledged the 

conversation and stated that he believed that the coworker’s concerns were valid. 

RID at 5-6; RF, Tab 29 at 4-5. The administrative judge also considered the 

agency’s contrary claim that no such conversations ever occurred, as supported by 

the second-level supervisor’s sworn affidavit, RF, Tab 45 at 4-5, as well as his 

and the coworker’s sworn answers to interrogatories, id. at 6-8, 16-18; RID

at 6-7. The administrative judge then made credibility findings as to each alleged 

conversation, using the pertinent factors set forth by the Board in Hillen v. 

Department of the Army, 35 M.S.P.R. 453, 458-62 (1987).5

¶7 When there has been a hearing at which the administrative judge is able to 

observe the witnesses, including their demeanor, her credibility determinations 

 

4 According to the appellant, the coworker expressed concern that the fact that the

appellant was hired as a disabled veteran limited her own promotion potential. RF,

Tab 29 at 4.

5

To resolve credibility issues, an administrative judge must identify the factual 

questions in dispute, summarize the evidence on each disputed question, state which 

version she believes, and explain in detail why she found the chosen version more 

credible, considering such factors as: (1) the witness’s opportunity and capacity to 

observe the event or act in question; (2) the witness’s character; (3) any prior 

inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the 

contradiction of the witness’s version of events by other evidence or its consistency 

with other evidence; (6) the inherent improbability of the witness’s version of events; 

and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458-462; RID at 7-9.
6

are entitled to deference. Haebe v. Department of Justice, 288 F.3d 1288, 1301 

(Fed. Cir. 2002). That is not the case here, however, because, as noted, the 

appellant waived her right to a hearing. Remand Order at 7. Nonetheless, the 

administrative judge did not abuse her discretion in applying the factors set forth 

by the Board in Hillen, as appropriate, in resolving the credibility issues that 

figure prominently in this case. Fitzgerald v. Department of Defense, 

85 M.S.P.R. 463, ¶ 5 (2000); Goode v. Defense Logistics Agency, 45 M.S.P.R. 

671, 674 n.2 (1990) (explaining that the principles for resolving credibility issues 

are properly applied to cases where there is no hearing). Although the 

administrative judge’s credibility determinations are not entitled to deference, the 

Board must nonetheless review the administrative judge’s findings to determine if 

she properly applied the law to the facts of the case, 5 C.F.R. § 1201.115, and 

properly weighed the evidence to determine if the parties satisfied their burdens 

of proof. Here, the appellant’s burden was to show that her military service was a 

substantial or motivating factor in the agency’s decision to terminate her during 

probation. Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed.

Cir. 2001).

¶8 Regarding the appellant’s claimed conversations with her coworker, the 

administrative judge found that the appellant’s rendition of the events was 

inherently more likely because of the substantive detail with which she 

remembered the conversations, and that she was therefore more credible. RID

at 7-8. The administrative judge further found, however, that the appellant’s 

second-level supervisor’s sworn statement regarding the alleged conversation he 

had with the coworker was inherently more probable than the appellant’s version 

of a conversation to which she was not a party, and that therefore the supervisor’s 

statement was more credible. RID at 8. Finally, as to the alleged conversation 

between the appellant and the supervisor, the administrative judge found that the 

appellant’s statements were inherently unlikely, that there was a strong potential 

for bias in those statements because they were wholly uncorroborated, and that 
7

there was evidence that the appellant’s character had been questioned, such that 

her second-level supervisor was more credible. RID at 8-9. The administrative 

judge concluded that only the appellant’s sworn statements supported her claim, 

and that some portions of those statements were improbable and self-serving, RID

at 10, that there was no evidence showing that the coworker improperly 

influenced the supervisor in his decision to terminate the appellant during 

probation, that, in his sworn statement and interrogatory responses, he strongly 

denied having any anti-military sentiment and the appellant produced no contrary 

evidence, and that 12 years had elapsed between the appellant’s military service 

and her termination. RID at 10-11. The administrative judge further found no 

evidence of inconsistencies between the agency’s proffered reasons for 

terminating the appellant and any other agency action or of disparate treatment. 

RID at 11. The administrative judge concluded, therefore, that the appellant did 

not establish that her military service was a substantial or motivating factor in the 

agency’s decision to terminate her during probation. Sheehan, 240 F.3d at 1014; 

RID at 11.

¶9 Although the appellant disagrees with the administrative judge’s credibility 

determinations which formed the basis for her findings, we discern no reason to 

reweigh the evidence or substitute our assessment of the record evidence for that 

of the administrative judge who considered the evidence as a whole, drew 

appropriate references, and made reasoned conclusions. Crosby v. U.S. Postal 

Service, 74 M.S.P.R. 98, 105-06 (1997). We find, therefore, that the appellant 

has not shown error in the administrative judge’s finding that the appellant failed 

to prove by preponderant evidence that her military service was a substantial or 

motivating factor in the agency’s decision to terminate her during her 

probationary period.6 To the extent the appellant argues that the administrative 

 

6

The appellant contends on review that her supervisor treated others disparately. PFR

File, Tab 1 at 22-23. Although not considered by the administrative judge, RID at 11, 

the Board, in its Remand Order, addressed this claim and concluded that it did not 
8

judge did not, in reaching her decision, mention all of the evidence of record, 

PFR File, Tab 1 at 11, 23, her failure to do so does not mean that she did not 

consider it, Marques v. Department of Health & Human Services, 22 M.S.P.R. 

129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

¶10 The appellant also challenges on review the administrative judge’s 

alternative finding that, even if the appellant met her burden to show that her 

military service was a significant or motivating factor in the agency’s decision to 

terminate her, the agency showed that it would have done so even in the absence 

of such service. PFR File, Tab 1 at 14. The appellant argues that the 

administrative judge failed to consider, evaluate, and explain any of the evidence 

or argument she presented on this issue. Id.; RF, Tab 50 at 4-15, Tab 49 at 4-11, 

Tab 48 at 8-15. Because we agree with the administrative judge that the appellant 

failed to meet her burden, we need not consider her challenge to the 

administrative judge’s findings regarding the agency’s burden because such 

findings are extraneous to the disposition of this appeal. Sheehan, 240 F.3d 

at 1014.

¶11 On review, the appellant argues generally that the agency lacked a valid 

basis for terminating her during probation. PFR File, Tab 1 at 15-21. However,

the USERRA statute does not confer jurisdiction on the Board to address an 

agency’s underlying personnel action when, as here, the merits of that action are 

not otherwise appealable to the Board. Wooten v. Department of Veterans 

Affairs, 102 M.S.P.R. 131, ¶ 13 (2006).

 

constitute even a nonfrivolous allegation that the appellant was terminated due to her 

military service. Remand Order, ¶ 12 n.7. Based on that finding, the appellant is 

collaterally estopped from again raising this claim. Jenkins v. Environmental 

Protection Agency, 118 M.S.P.R. 161, ¶ 2, n.2 (2012). The same may be said for the 

appellant’s contention that the administrative judge failed to consider her claims that 

the agency discriminated against her based on her disability by failing to reasonably 

accommodate her, PFR File, Tab 1 at 4, 16, and retaliated against her for engaging in 

equal employment opportunity activity, id. at 11, and that the agency committed 

harmful procedural error, id. at 24. The Board addressed these claims but found that it 

lacks jurisdiction to consider them in a USERRA appeal. Remand Order at 8-9.
9

¶12 The appellant refers in her petition for review to “new email.” PFR File, 

Tab 1 at 18-19. She has not, however, submitted copies of any such emails, but 

rather has described them by the dates they were presumably sent, specifically, 

September 19 and 29, 2014. Id. Both dates are well in advance of March 14,

2016, when the record closed below. RF, Tab 20. In the absence of any showing 

that the evidence was unavailable before the record was closed despite the 

appellant’s due diligence, we need not consider these emails. Avansino v. U.S. 

Postal Service, 3 M.S.P.R. 211, 214 (1980).

¶13 Finally, the appellant appears to again raise an allegation of whistleblower 

retaliation. PFR File, Tab 4 at 13-14. However, the Board noted in its Remand

Order that she had twice earlier attempted to raise the claim that she was 

terminated in reprisal for protected whistleblowing, and that both times it had 

been dismissed for lack of jurisdiction on the ground that the appellant failed to 

demonstrate that she exhausted her administrative remedies with the Office of 

Special Counsel (OSC). Remand Order at 9 n.10; see, e.g., Gonzalez v. 

Department of Agriculture, MSPB Docket No. DC-1221-15-0879-W-1, Initial

Decision at 1, 3 (July 9, 2015). The Board noted at that time that the appellant 

had not, on review, provided evidence that she exhausted her administrative 

remedies with OSC, and again reminded her that, if she wished to pursue an 

individual right of action appeal before the Board, she must first exhaust her 

administrative remedies with OSC. Remand Order at 9 n.10. Regarding the 

appellant’s instant claim, we again reiterate that instruction.

NOTICE OF APPEAL RIGHTS7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

 

7

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
10

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 
11

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

the U.S. 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

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

after your representative receives this decision. 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. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 
12

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction. 8 The court of appeals must receive your 

 

8

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 
13

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federa l 

Circuit 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, 10, and 11. 

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

the U.S. 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case.

 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
14

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board