Hayden v. Air Force (2015-3073)

7/24/2019 Hayden v. Air Force (2015-3073)

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United States Court of Appeals

for the Federal Circuit______________________

CARL D. HAYDEN,Petitioner

v.

DEPARTMENT OF THE AIR FORCE,Respondent

______________________

2015-3073______________________

Petition for review of the Merit Systems ProtectionBoard in No. CH-4324-13-0534-I-1.

______________________

Decided: February 12, 2016

______________________

STEPHEN J. SMITH, Cadwalader, Wickersham & TaftLLP, Washington, DC, argued for petitioner. Also repre-sented by KRISTIN LEIGHYOHANNAN MOORE.

RENE GERBER, Commercial Litigation Branch, CivilDivision, United States Department of Justice, Washing-ton, DC, argued for respondent. Also represented byBENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,FRANKLIN E.WHITE,JR.

______________________

Before LOURIE,OMALLEY,and STOLL,Circuit Judges.


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A as well as the Air Force Security Assistance Center(AFSAC). Id. Because he acquired new duties during

the transfer, the agency upgraded Haydens position fromGS-9 to GS-11. Id.

The B Flight Protocol Office lost two GS-12 positionsin November 2011. Id. at 3. The employees in thosepositions were declared as surplus, meaning that theywere not working in permanently authorized positions.Id. While one of those employees was subsequentlyplaced in another position, the other became a mandato-ry placement priority and was still in that status whenthe appellant filed the petition for review. Id.

On March 26, 2012, Haydens supervisor submitted arequest to upgrade his position to GS-12, based on accre-tion of duties at the higher grade level. Id. at 4. To

justify the upgrade, his supervisor wrote:

Over abundance [sic] of events to work and notenough GS-12s to perform the duties. Often as-sign Carl events that are above GS-11 duties dueto both requirements and to develop his growth.He is working above his pay grade and has shownhe is capable of performing at a GS-12 grade level.

Id.At the end of March 2012, Hayden received military

orders to begin active service on April 10, 2012. His dutywas subsequently extended in July 2012. In May 2012, ahuman resources position classifier notified Haydenssupervisor that she needed to conduct a desk audit beforeupgrading his position. The position classifier explainedthat she needed to interview Hayden in person for theaudit, and was unable to do so while he was on extendedactive duty. Id. at 5. Haydens supervisor notified him

that the upgrade had been cancelled because he was innonpay status, but [o]nce [you] return in January we willre-engage! Id. In July 2012, however, protocol support


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duties for the AFSAC were transferred from the A Flightprotocol unit to another unit, thus reducing the need for

GS-12 level employees in the unit. Id.Hayden returned from active duty in December 2012,

and returned to his GS-11 position. Although he receivedhis within-grade increase, his supervisor did not resubmitthe request to upgrade his position. Id. at 6. Accordingto Hayden, his supervisor was unable to explain why theupgrade was not being processed. Id. Hayden performedadditional reserve duty from March 4-8, 2013. He subse-quently met with his supervisor on March 13, 2013, andasked her to resubmit the upgrade request. According to

Hayden, she informed him that she did not recommendhis promotion because he had been absent too often forhis Reserve duties. Id. Hayden immediately soughtassistance from the base Employer Support of the GuardReserve (ESGR) office. Id.

The next day, Hayden met with his supervisors to dis-cuss his performance. During the meeting, the Chief ofProtocol raised concerns about [Haydens] performancethat, he alleged, had never been raised before, though headmitted at the hearing that the concerns did not lackfoundation. Id. at 7. On May 20, 2013, Hayden re-

ceived a performance feedback memorandum whichstated that he was no longer working at the GS-12 level.Id. at 8. The agency did not request an upgrade toHaydens position.

B. Procedural History

On May 28, 2013, Hayden filed a request for correc-tive action with the Board, alleging USERRA violations.Hayden argued that: (1) he was denied a promotion due tohis military service; (2) he was denied a benefit ofreemployment in the position he would have obtained hadthe agency processed his upgrade; and (3) the agencyretaliated against him after he sought USERRA protec-tions.


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In response, the agency argued that, due to organiza-tional restructuring in July 2012, while Hayden was on

reserve duty, there was a reduced need for GS-12 protocolofficers in the A Flight Protocol Office. The agency alsoexplained that: (1) it could not have placed Hayden in aGS-12 position without allowing other officers at his samelevel to compete; and (2) it was obligated to place theremaining surplus GS-12 employee. Final Decision, 2014WL 6879135, at 9.

After a videoconference hearing, the administrativejudge (AJ) denied Haydens request for corrective action,finding that he had not shown by preponderant evidence

that his military service was a substantial or motivatingfactor in the agencys failure to promote him. Id. at 10.Indeed, the AJ found that Hayden produced no evidencewhatsoever that his military service was consideredadversely when the agency failed to promote him. Hay-den v. Dept of the Air Force, No. CH-4324-13-0534-I-1,2013 MSPB LEXIS 5635, at *4 (M.S.P.B. Nov. 5, 2013)(Initial Decision). During the hearing, there was testi-mony that the Chief of Protocol requested a desk auditand that the audit could not be completed because Hay-den was not at work for the interview. Id. at *5. The AJ

found that, even if a desk audit had been performed,Hayden would still have been required to compete for theGS-12 position. Id. Finally, the AJ found that Haydenfailed to meet his burden of proof with respect to retalia-tion. Id. at *6.

Hayden filed a petition for review to the full Board.The Board vacated the Initial Decision, but denied Hay-dens request for corrective action. Final Decision, 2014WL 6879135, at 1. As to Haydens first claimthat hewas denied a benefit due to his military servicetheBoard found that, contrary to the AJs decision, there wasevidence from which one could conclude that Haydensmilitary service was a motivating factor in the agencysdecision not to upgrade his position. Id. at 14. The


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Board found a temporal link between the appellantsextended period of Reserve duty and the agencys decision

not to upgrade his position. Id. at 16. In particular,the Board pointed to testimony from Haydens supervisorthat none of her prior position upgrade requests hadrequired in-person desk audits, and that she had partici-pated in a telephone audit for Haydens earlier positionupgrade to GS-11. Id. The position classifier who exam-ined the upgrade request testified that she was aware ofonly about ten requests that had not been granted out ofthe hundreds she had processed. Id. And Hayden testi-fied that, during his March 13, 2013 conversation with hissupervisor, she informed him that his position had not

been upgraded because he spent too much time out of theoffice for Reserve duties. Id. at 17. The Board con-cluded that the evidence showed that the agency consid-ered Haydens absence in making its decision not toupgrade his position.

Although the Board found that the AJ had erred, itnonetheless concluded that Haydens USERRA claimsfailed. Though there was sufficient evidence to shift theburden of proof for Haydens first claim to the agency, theBoard found that the agency met its burden to establish

that it did not deny the upgrade request because Haydenwas on military duty. Id. at 25. The Board found thatthe agency delayed processing the upgrade request be-cause Hayden was unavailable for an in-person deskaudit, which the position classifier testified was typicallyconducted when the upgraded position was at or abovethe GS-12 level. Id. at 21, 25. And, when Haydenreturned, the workload in the office had changed suchthat additional GS-12 protocol officers were not needed.Id. at 25. The Board concluded that the agency showedthat it decided not to pursue the upgrade both during

and after the appellants absence based on valid reasonsother than the appellants service in the Air Force Re-serve. Id.


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As for Haydens second claimthat he was deniedreemployment rights when he returned from military

dutythe Board found that Hayden was not entitled toreturn to a GS-12 position. The Board explained that theA Flight Protocol Office lost its additional high-levelduties about 4 months after the upgrade request wassubmitted and after the B Flight Protocol Office haddeclared two GS-12 Protocol Officers in surplus status afew months earlier. Id. at 29. The record showed,therefore, that the protocol office no longer needed anoth-er GS-12 protocol officer. Id. In any event, the Boardfound that Hayden would have had to compete for theupgraded position because there was another GS-11

protocol officer in A Flight. Id. Accordingly, the Boardfound no guarantee that Hayden would have received theupgraded position but for his military service. Id. at 31.

Finally, the Board rejected Haydens third claimthat the agency retaliated against him for seeking assis-tance from the ESGR to enforce his USERRA rights. TheBoard found that Hayden adduced no evidence . . . thatthe agency bore any discriminatory animus towards himand he thus failed to meet his initial burden of proof. Id.at 33. To the contrary, the Board found that the agency

established that Haydens supervisors were concernedabout helping him overcome a decline in his performanceand prepare for eventual promotion to GS-12. Id.

Hayden timely appealed the Boards decision to thiscourt, and we have jurisdiction pursuant to 28 U.S.C. 1295(a)(9) and 5 U.S.C. 7703(b)(1). By letter datedOctober 14, 2015, counsel for Hayden informed the courtthat Hayden was promoted to a GS-12 Protocol Specialistposition effective September 20, 2015. That promotionmoots some of the relief requested in this appeal. Haydencontinues to seek an award of back pay, interest, andother benefits to which he is entitled, including attorneysfees and litigation expenses, however. Petr Br. 17 (citing38 U.S.C. 4324; 20 C.F.R. 1002.312).


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DISCUSSION

The scope of our review in an appeal from a decisionof the Board is limited. We must affirm the Boardsdecision unless it is (1) arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law;(2) obtained without procedures required by law, rule, orregulation having been followed; or (3) unsupported bysubstantial evidence. 5 U.S.C. 7703(c).

Hayden maintains that the agency committed threeseparate USERRA violations and that the Board erred inits analysis of each. First, he argues that the Board failedto apply the requisite burden shifting framework to his

discrimination claim. According to Hayden, the Boardsrejection of his discrimination claim is premised onhindsight that allows the Air Force to justify its discrimi-nation based on the later results of that discrimination.Petr Br. 16. Next, Hayden argues that the Board erred infinding that he failed to meet his burden to demonstratethat he was entitled to reemployment at the GS-12 levelwhen he returned from military service. Finally, Haydenargues that the Boards analysis of his retaliation claim isunsupported by substantial evidence and ignores its ownrecognition of discriminatory animus in its analysis of the

discrimination claim. We address each of these issues inturn.

A. Discrimination Claim

USERRA prohibits employers from discriminatingagainst their employees because of their military service,and affords certain protections to military service mem-bers with respect to their civilian employment. 38 U.S.C. 4311(a). It provides, in relevant part, that:

A person who is a member of, applies to be a

member of, performs, has performed, applies toperform, or has an obligation to perform service ina uniformed service shall not be denied initial


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employment, reemployment, retention in em-ployment, promotion, or any benefit of employ-

ment by an employer on the basis of thatmembership, application for membership, perfor-mance of service, application for service, or obliga-tion.

Id.

We analyze USERRA discrimination claims under aburden-shifting framework. Sheehan v. Dept of the Navy,240 F.3d 1009, 1013 (Fed. Cir. 2001). Applying thisframework, an employee who makes a discriminationclaim under USERRA bears the initial burden of showing,

by a preponderance of the evidence, that his militaryservice was a substantial or motivating factor in theadverse employment action. Id. As we have explained,military service is a motivating factor for an adverseemployment action if the employer relied on, took intoaccount, considered, or conditioned its decision on theemployees military-related absence or obligation. Erick-son v. U.S. Postal Serv., 571 F.3d 1364, 1368 (Fed. Cir.2009) (quotingPetty v. Metro. Govt of NashvilleDavidsonCty., 538 F.3d 431, 446 (6th Cir. 2008)).

Discriminatory motivation or intent may be provenby either direct or circumstantial evidence. Sheehan, 240F.3d at 1014. In Sheehan, we explained that:

Discriminatory motivation under the USERRAmay be reasonably inferred from a variety of fac-tors, including proximity in time between the em-ployees military activity and the adverseemployment action, inconsistencies between theproffered reason and other actions of the employ-er, an employers expressed hostility towardsmembers protected by the statute together withknowledge of the employees military activity, anddisparate treatment of certain employees com-


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pared to other employees with similar work rec-ords or offenses.

Id. In determining whether the employee has proventhat his protected status was part of the motivation forthe agencys conduct, all record evidence may be consid-ered, including the agencys explanation for the actionstaken. Id.

Where an employee makes the prima facie showing ofdiscriminatory motivation or intent, the employer canavoid liability by demonstrating, as an affirmative de-fense, that it would have taken the same action withoutregard to the employees military service. Erickson, 571

F.3d at 1368; see 38 U.S.C. 4311(c)(1). An employertherefore violates section 4311 if it would not have takenthe adverse employment action but for the employeesmilitary service or obligation. Erickson, 571 F.3d at1368.

Here, the Board found that the agency considered[Haydens] absences for Reserve duty when it decided notto process the upgrade request during his absence and notto pursue the upgrade upon his return. Final Decision,2014 WL 6879135, at 19. Weighing all of the evidence,

the Board concluded that the agency considered theappellants military absences to be problematic, and theabsences were a motivating factor in the agencys failureto provide the position upgrade. Id. Accordingly, theBoard found that Hayden satisfied his initial burden.

The Board then purported to shift the burden to theagency to demonstrate, by preponderant evidence, that itwould have taken the same action without considering hismilitary service. Id. at 20 (citing Erickson, 571 F.3d at1368). The agency explained that it did not upgradeHaydens position because: (1) the position classifier hadthe practice of conducting in-person desk audits for anyposition at the GS-12 level or above; and (2) by the timeHayden returned, the A Flight Protocol Office had a


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reduced workload. Id. at 20-21. The agency furtherargued that Hayden would have had to compete for the

upgraded position, and that the GS-12 employees from BFlight who had been declared as surplus would have hadinternal priority over the applicant. Id. at 20.

The Board found that, taken as a whole, the evidencedoes not show that the agency denied the upgrade requestbecause the appellant was on military duty. Instead, itshows that processing of the request was delayed becausethe appellant was temporarily unavailable for part of theconsideration process and was on leave without pay. Id.at 25. The Board concluded that the agency has thus

shown that it decided not to pursue the upgrade bothduring and after the appellants absence based on validreasons other than the appellants service in the Air ForceReserve. Accordingly, the agency met its burden of proofunder section 4311(a). Id.

On appeal, Hayden contends that the Board failed toproperly shift the burden to the agency to justify itsactions in not promoting him and that, if it had, theagency could not have met its burden. In particular,Hayden argues that: (1) the Board erred in finding that adesk audit was required to process his position upgrade;

(2) the Board erred in determining that he would havehad to compete for the promotion; and (3) the Boardsfinding that the Protocol Office no longer needed GS-12employees is irrelevant because at the time Mr. Haydensupgrade request was placed . . . there were not enoughGS-12s to perform the duties of the office and thus [his]position needed to be upgraded. Petr Br. 21. As ex-plained below, we agree with Hayden that the Board didnot hold the agency to its burden.

First, as the Board noted, the Office of Personnel

Management (OPM) Classifiers Handbook explains thata desk audit is no more than a conversation []or inter-view with the person in the job, or with the supervisor of


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the position, or with both . . . to gain as much informationas possible about the position. Final Decision, 2014 WL

6879135, at 21. The position classifier testified thatshe normally conducted an in-person desk audit whenthe upgraded position would have been at or above theGS-12 level. Id. It is undisputed, however, that thedecision to conduct a desk audit is discretionary. Id.Indeed, Haydens supervisor testified that none of herprior position upgrade requests had required in-persondesk audits and that she had participated in a telephon-ic audit for [Haydens] position upgrade to GS-11. Id.at 16.

Although the Board recognized that a desk audit wasnot necessary for Haydens position upgrade, it nonethe-less credited the agencys argument that it was unable tocomplete the desk audit and process the upgrade because[Hayden] was unavailable. Id. at 20. The Board thenconcluded that the agency had shown that it denied theupgrade request in part because Hayden was temporarilyunavailable for part of the consideration process. Id. at 25. We agree with Hayden that his inability to com-plete an optional procedure cannot form a legally cogniza-ble basis to discriminate against him because of his

military service. Petr Br. 23.This court has made clear that an employer cannot

escape liability under USERRA by claiming that it wasmerely discriminating against an employee on the basis ofhis absence when that absence was for military service.Erickson, 571 F.3d at 1368. And we have recognized thatthe overarching goal of [USERRA] is to prevent thosewho serve in the uniformed services from being disadvan-taged by virtue of performing their military obligations.Id. As we explained in Erickson, the most significantand predictableconsequence of reserve service withrespect to the employer is that the employee is absent toperform that service. Id. Although an agency is entitledto remove an employee for prolonged non-military leaves


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of absence . . . an employer can not treat employees onmilitary duty like those on non-military leave of absence.

Id. at 1369 (quoting Allen v. U.S. Postal Serv., 142 F.3d1444, 1447 (Fed. Cir. 1998)). Erickson thus stands forthe proposition that an employees military absencecannot be held against him, and that employers cannottreat employees on military leave like those on non-military leave of absences.

Hayden was not available for an in-person desk auditprecisely because he was performing his military obliga-tions. That the agency may otherwise be entitled tocancel a position upgrade request when an employee on

non-military leave fails to attend a requested interview isof no moment. SeeErickson, 571 F.3d at 1369. The factremains that Hayden was absent from work because ofhis military service, and USERRA protects against ad-verse employment actions resulting from such absences.

The mere fact that the position classifier preferred toconduct an in-person desk audit for an upgrade at orabove the GS-12 level is irrelevant. Under Erickson, shewas not entitled to impose that mere preference on aperson who is on military leave. The bottom line is thatan in-person desk audit was not required. To say that

Hayden was not eligible for an upgrade because he wasunavailable for a discretionary audit that could have beenperformed via telephone or by interviewing his immediatesupervisor violates USERRA. See id. at 1368 (permittingan employer to take an adverse action against an employ-ee because of his military absence would eviscerate theprotections afforded by USERRA). Accordingly, theBoard erred in finding that the agency could avoid liabil-ity for failing to process the position upgrade requestbecause Hayden was unavailable for an in-person deskaudit.

Next, Hayden argues that the Board erred in deter-mining that he was not entitled to a noncompetitive


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position upgrade at the time his supervisor requested theupgrade. In support, Hayden points out that OPM regu-

lations give agencies discretion to except certain actionsfrom competitive procedures. 5 C.F.R. 335.103(c)(3).One such exception is for a promotion resulting from anemployees position being classified at a higher gradebecause of additional duties and responsibilities. Id. at 335.103(c)(3)(ii). Hayden also argues that he qualifiedfor a noncompetitive upgrade under the Air Forces civil-ian staffing rules.1 As the Board recognized, Haydenssupervisor submitted the upgrade request because he wasperforming additional duties and responsibilities at theGS-12 level and because there were not enough GS-12s

[sic] to perform the duties. Final Decision, 2014 WL6879135, at 4. Hayden submits that, in these circum-stances, he was entitled to a noncompetitive positionupgrade.

The agency responds that, even if the agency proceed-ed with the upgrade request, Hayden would have had tocompete for the GS-12 position. In particular, the agency

1

Specifically, the Air Force Manual provides that:If a position is upgraded due to accre-tion/assignment of additional higher grade dutiesand responsibilities, the incumbent may be non-competitively promoted provided there is clear ev-idence that the employee continues to perform thesame basic functions as in the former position,that there are no other employees serving in simi-lar or identical positions to whom the duties couldbe assigned, and he/she meets all qualificationand legal requirements for promotion.

Air Force Manual 36-203: Staffing Civilian Positions, 2.9.6 (Dec. 12, 2002) (Incorporating Change 1, June2006).


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submits that: (1) there was another GS-11 protocol spe-cialist in the office who would have been eligible to com-

pete; and (2) the surplus employee whose GS-12 positionhad been eliminated would have had priority over Haydenfor any such position. According to the agency, the Boardproperly determined that those employees status consti-tuted evidence supporting the agencys claim that it wouldnot have promoted Mr. Hayden even if it had not consid-ered his military absence when it decided not to upgradethe position. Respt Br. 19.

As counsel for the agency conceded at oral argument,the agency had the burden to show, by a preponderance of

the evidence, that Hayden would have had to compete forthe position upgrade and that he would not have receivedit, regardless of his military service. Oral Argument at16:48-17:15, available at http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2015-3073.mp3. Carefulreview of the Boards decision reveals that it did not holdthe agency to that burden, however.

In the context of Haydens discrimination claim, theBoard merely noted the agencys argument that it couldnot upgrade the position noncompetitively because:(1) there were two protocol specialists at the GS-11 level,

which would have triggered competition under the agen-cys regulations; and (2) even if the position were filledcompetitively, surplus employees would have had inter-nal priority over the appellant. Final Decision, 2014 WL6879135, at 20. In the next sentence, however, theBoard stated that, appellant thus could not show hewould have been placed automatically in the upgradedposition or whether the position upgrade would have beenapproved. Id. (emphasis added). But the burden wasnot on Hayden to show he would have won any competi-tion for the upgrade position. Having demonstrated thathis military service was a motivating factor in the agen-cys decision to cancel his upgrade, Hayden satisfied hisburden with respect to the discrimination claim, and the


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burden shifted to the agency to show it would not haveprocessed the upgrade without regard to his military

service. Erickson, 571 F.3d at 1368; Sheehan, 240 F.3d at1013.

On this record, we conclude that the Board failed tomake sufficient factfindings with respect to: (1) whetherHayden would have had to compete for the position;and (2) whether he would have been successful in doingso. There are no findings as to whether the position couldhave been noncompetitively upgraded at the time theupgrade was requested. Nor is there any evidence orfactfinding as to whether the surplused employee neces-

sarily would have been chosen over Hayden. Althoughthe Board states that Hayden would have had to competefor the upgraded position such that it is not certain hewould have been selected, those findings were in thecontext of Haydens reemployment claim which, as dis-cussed below, requires application of a different standardand different burden of proof. Final Decision, 2014 WL6879135, at 29. The fact remains that, in the context ofHaydens discrimination claim, the agency had the bur-den to show that its decision to cancel the upgrade re-quest would have remained the same even if his military

leave was not a factor. Because there is insufficientevidence that, had the agency processed the upgrade atthe time it was requested, Hayden would have had tocompete for the position and would not have won, wevacate the Boards decision and remand for further find-ings.

Finally, Hayden argues that the Board erroneouslycredited the agencys argument that the A Flight ProtocolOffice no longer needed additional GS-12 officers afterHaydens return. Specifically, he argues that reliance onthis evidence was erroneous because the changes to theProtocol Offices organizational structure occurred afterthe Air Force cancelled Mr. Haydens position upgraderequest. Petr Br. 25.


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It is undisputed that the workload in the A FlightProtocol Office decreased in July 2012. Final Decision,

2014 WL 6879135, at 5. Given this change, the Boardfound that, by the time Hayden returned to the office inDecember 2012, the office no longer needed additional GS-12 protocol officers. Id. at 25. Substantial evidencesupports the Boards conclusion that, at the time Haydenreturned to work, the agency had a legitimate reason fornot upgrading Haydens position to the GS-12 level. Therecord is devoid of evidence as to how long an upgraderequest typically takes to process, however. The agencyhas not proven, accordingly, that, had the request goneforward in March 2012, Hayden would not have received

the upgrade before the workload in the A Flight ProtocolOffice decreased. There is also no evidence as to how longany decrease in workload lasted, leaving largely unex-plained why Haydens upgrade was not renewed until solong after his return.

Because the agency could not use the discretionary in-person desk audit to justify its decision to cancel Haydensupgrade request, and because the Board did not hold theagency to its burden with respect to competition at thetime the request was made, we remand for further fact-

finding. Accordingly, we vacate the Boards decision withrespect to Haydens discrimination claim.

B. Reemployment Claim

USERRA also provides service members protection inthe form of a right to reemployment in their civilian jobsafter completing their military obligations. 38 U.S.C. 4312(a). The regulations further provide that an agencymust consider employees absent on military duty for anyincident or advantage of employment that they may havebeen entitled to had they not been absent. 5 C.F.R.

353.106(c). The agency must therefore evaluate wheth-er:


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(1) the incident or advantage is one generallygranted to all employees in that workplace and

whether it was denied solely because of absencefor military service;

(2) the person absent on military duty was treat-ed the same as if the person had remained atwork; and

(3) it was reasonably certain that the benefitwould have accrued to the employee but for theabsence for military service.

Id.

The Board concluded that Hayden was not entitled toreemployment at the GS-12 level when he returned frommilitary leave. First, the Board found that Hayden couldnot establish that a position upgrade is a benefit generallygranted to all agency employees. Final Decision, 2014 WL6879135, at 28. In reaching this conclusion, the Boardexplained, [a]n example of a generally granted benefit ofemployment is a within-grade increase, which is grantedwhen an employee performing at the fully satisfactorylevel or better accrues a certain amount of time-in-grade.Id.

According to Hayden, even if the position upgrade wasnot an incident or advantage generally granted to allemployees, as found by the MSPB, consideration for aposition upgrade is available to all employees. Petr Br.29-30. In support, Hayden argues that the agency pro-moted another GS-11 Protocol Office employee, one whowas not serving in the military, to a GS-12 position. Id.at 30. The evidence Hayden cites does not establish thatthe agency failed to consider him for an upgrade, however.The agency explains, moreover, that the employee who

was promoted had a position with a full performance levelof GS-12, which meant that it was a personal, noncompet-itive promotion, not a position upgrade. Importantly,


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there is no evidence that all employees are considered forposition upgrades beyond their current performance

levels.Next, because the A Flight Protocol Office lost its ad-

ditional duties four months after the upgrade request,and after the B Flight Protocol Office placed two GS-12protocol officers on surplus status, the Board could notdetermine what would have happened if Hayden hadremained at work. Id. 29. It concluded, however, that itwas not reasonably certain that Hayden would havereceived the upgrade. Although Hayden was a valuedemployee with outstanding performance ratings, the

Board found that he and another employee were in GS-11 positions at the full performance level, unlike theemployee who was promoted to GS-12. Id. at 31. TheBoard further noted that Haydens performance sufferedafter his return, which the agency documented, but thatit was still willing to promote him if a GS-12 positionbecame available. Id.

On appeal, Hayden argues that the upgrade wasreasonably certain given: (1) testimony from the positionclassifier that she was aware of only ten upgrade requestsout of the hundreds that she had processed that were not

granted; (2) his outstanding performance reviews; (3) hisprior upgrade from GS-9 to GS-11; and (4) the fact that hewas already performing GS-12 duties. Although Haydendisagrees with the Boards factfindings, we decline hisinvitation to reweigh the facts on appeal. Substantialevidence supports the Boards determination that theposition upgrade is not a generally granted benefit andthat it was not reasonably certain that Hayden wouldhave received it, a showing that, in this context, wasHaydens burden to make. As such, we affirm the Boardsdecision with respect to Haydens reemployment claim.


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C. Retaliation Claim

USERRA prohibits retaliation against employees forexercising their rights under the statute. 38 U.S.C. 4311(b). It provides that:

An employer may not discriminate in employmentagainst or take any adverse employment actionagainst any person because such person (1) hastaken an action to enforce a protection affordedany person under this chapter, (2) has testified orotherwise made a statement in or in connectionwith any proceeding under this chapter, (3) hasassisted or otherwise participated in an investiga-

tion under this chapter, or (4) has exercised aright provided for in this chapter. The prohibitionin this subsection shall apply with respect to aperson regardless of whether that person has per-formed service in the uniformed services.

Id. The standard for a retaliation claim is the same asthat for a discrimination claim: the employee must firstestablish that his protected actions were a motivatingfactor in the employers adverse action, and then theburden shifts to the employer to establish that it would

have taken the same action without regard to the employ-ees military service. Sheehan, 240 F.3d at 1013.

Hayden argued that the agency retaliated against himfor seeking assistance with the ESGR to enforce hisUSERRA rights. The Board found that Hayden failed topresent any evidence that the agency bore any discrimi-natory animus towards him and he thus failed to meet hisinitial burden of proof. Final Decision, 2014 WL6879135, at 33. To the contrary, the agency presentedevidence that it did not need additional GS-12 ProtocolOfficers at the time, and that Haydens supervisors wereconcerned about helping him overcome a decline in hisperformance and prepare for eventual promotion to GS-12. Id.


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On appeal, Hayden argues that the Boards retalia-tion analysis contradicts its finding that there was evi-

dence the agency improperly considered his militaryservice and that there was animus based on his militaryservice. Petr Br. 34. But Hayden attempts to equatediscrimination based on his military servicewhich is thebasis for his first claimwith retaliation based on hisattempt to enforce his USERRA rights. Although the twoclaims utilize the same standard, they stem from differentevents. Importantly, Haydens retaliation claim is thathis consultation with the ESGR about his USERRA rightsafter his return from military service prompted an imme-diate negative performance evaluation. The Board found,

however, that Hayden admitted at the hearing that theconcerns [about his performance] did not lack foundation.Final Decision, 2014 WL 6879135, at 7. The Boardfurther found that Haydens performance suffered afterhis return, which the agency documented. Id. at 31.Given these factfindings, substantial evidence supportsthe Boards conclusion that Hayden failed to meet hisburden with respect to retaliation.

CONCLUSION

For the foregoing reasons, we agree with the Board

that Hayden failed to meet his burden of proof withrespect to his reemployment and retaliation claims underUSERRA. With respect to his claim of discriminationbased on military service, however, we vacate the Boardsdecision and remand for further factfinding.

AFFIRMED-IN-PART, VACATED-IN-PART,

REMANDED

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Hayden v. Air Force (2015-3073)

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