CARL D. HAYDEN, Petitioner
DEPARTMENT OF THE AIR FORCE, Respondent
Petition for review of the Merit Systems Protection Board in No. CH-4324-13-0534-I-1.
STEPHEN J. SMITH, Cadwalader, Wickersham & Taft LLP, Washington, DC, argued for petitioner. Also represented by KRISTIN LEIGH YOHANNAN MOORE.
RENÉ E GERBER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., FRANKLIN E. WHITE, JR.
Before LOURIE, O'MALLEY, and STOLL, Circuit Judges.
O'Malley, Circuit Judge.
Carl D. Hayden (" Hayden" ) seeks review of the Merit Systems Protection Board (" the Board" ) decision denying his request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (" USERRA" ), 38 U.S.C. § 4301, et. seq. Specifically, Hayden alleged that the Department of the Air Force (" Air Force" ) violated USERRA when it: (1) denied him a promotion due to his military service; (2) denied him the benefit of reemployment in the position he would have obtained had the agency processed his position upgrade; and (3) retaliated against him after he sought USERRA protections. The Board rejected all three of Hayden's claims. Hayden v. Dep't of Air Force, 122 M.S.P.R. 49, 2014 WL 6879135 (M.S.P.B. 2014) (" Final Decision " ). We agree with the Board that Hayden failed to meet his burden of proof with respect to his reemployment and retaliation claims. With respect to his claim of discrimination based on military service, however, we vacate the Board's decision and remand for further factfinding.
A. Factual Background
Hayden is a member of the Air Force Reserve and has worked as a protocol
specialist at the Wright-Patterson Air Force Base since March 2002. The Wright-Patterson Air Force Base is geographically divided into Area A and Area B--each of which has its own protocol office. When Hayden began working at the Base, he worked in B Flight, which is responsible for all protocol support arising on Area B of the Base. At that time, his position was classified as GS-9. Final Decision, 122 M.S.P.R. 49, 2014 WL 6879135, at ¶ 2.
In 2010, Hayden transferred to the protocol office in A Flight, which is responsible for protocol support for Area A as well as the Air Force Security Assistance Center (" AFSAC" ). Id. Because he acquired new duties during the transfer, the agency upgraded Hayden's position from GS-9 to GS-11. Id.
The B Flight Protocol Office lost two GS-12 positions in November 2011. 122 M.S.P.R. 49, Id. at ¶ 3. The employees in those positions were declared as " surplus," meaning that they " were not working in permanently authorized positions." Id. While one of those employees was subsequently placed in another position, the other became a " mandatory placement priority and was still in that status when the appellant filed the petition for review." Id.
On March 26, 2012, Hayden's supervisor submitted a request to upgrade his position to GS-12, " based on accretion of duties at the higher grade level." 122 M.S.P.R. 49, Id. at ¶ 4. To justify the upgrade, his supervisor wrote:
Over abundance [sic] of events to work and not enough GS-12's to perform the duties. Often assign Carl events that are above GS-11 duties due to both requirements and to develop his growth. He is working above his pay grade and has shown he is capable of performing at a GS-12 grade level.
At the end of March 2012, Hayden received military orders to begin active service on April 10, 2012. His duty was subsequently extended in July 2012. In May 2012, a human resources position classifier notified Hayden's supervisor that she needed to conduct a desk audit before upgrading his position. The position classifier explained that she needed to interview Hayden in person for the audit, and was unable to do so while he was on extended active duty. 122 M.S.P.R. 49, Id. at ¶ 5. Hayden's supervisor notified him that the upgrade had been cancelled because he was in nonpay status, but " [o]nce [you] return in January we will re-engage!" Id. In July 2012, however, protocol support duties for the AFSAC were transferred from the A Flight protocol 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 received his within-grade increase, his supervisor did not resubmit the request to upgrade his position. 122 M.S.P.R. 49, Id. at ¶ 6. According to Hayden, his supervisor " was unable to explain why the upgrade was not being processed." Id. Hayden performed additional reserve duty from March 4-8, 2013. He subsequently met with his supervisor on March 13, 2013, and asked her to resubmit the upgrade request. According to Hayden, " she informed him that she did not recommend his promotion because he had been absent too often for his Reserve duties." Id. Hayden " immediately sought assistance from the base Employer Support of the Guard Reserve (ESGR) office." Id.
The next day, Hayden met with his supervisors to discuss his performance. " During the meeting, the Chief of Protocol raised concerns about [Hayden's] performance that, he alleged, had never been raised before, though he admitted at the hearing that the concerns did not lack foundation." 122 M.S.P.R. 49, Id. at ¶ 7. On May 20, 2013,
Hayden received a performance feedback memorandum which stated that he was no longer working at the GS-12 level. 122 M.S.P.R. 49, Id. at ¶ 8. The agency did not request an upgrade to Hayden's position.
B. Procedural History
On May 28, 2013, Hayden filed a request for corrective action with the Board, alleging USERRA violations. Hayden argued that: (1) he was denied a promotion due to his military service; (2) he was denied a benefit of reemployment in the position he would have obtained had the agency processed his upgrade; and (3) the agency retaliated against him after he sought USERRA protections.
In response, the agency argued that, due to organizational restructuring in July 2012, while Hayden was on reserve duty, there was a reduced need for GS-12 protocol officers in the A Flight Protocol Office. The agency also explained that: (1) it could not have placed Hayden in a GS-12 position without allowing other officers at his same level to compete; and (2) it was obligated to place the remaining surplus GS-12 employee. Final Decision, 122 M.S.P.R. 49, 2014 WL 6879135, at ¶ 9.
After a videoconference hearing, the administrative judge (" AJ" ) denied Hayden's request for corrective action, " finding that he had not shown by preponderant evidence that his military service was a substantial or motivating factor in the agency's failure to promote him." 122 M.S.P.R. 49, Id. at ¶ 10. Indeed, the AJ found that Hayden " produced no evidence whatsoever that his military service was considered adversely when the agency failed to promote him." Hayden v. Dep't of the Air Force,
No. CH-4324-13-0534-I-1 (M.S.P.B. Nov. 5, 2013) (" Initial Decision " ). During the hearing, there was testimony that the Chief of Protocol requested a desk audit and that the audit could not be completed because Hayden 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 the GS-12 position. Id. Finally, the AJ found that Hayden failed to meet his burden of proof with respect to retaliation. Id. at *6.
Hayden filed a petition for review to the full Board. The Board vacated the Initial Decision, but denied Hayden's request for corrective action. Final Decision, 122 M.S.P.R. 49, 2014 WL 6879135, at ¶ 1. As to Hayden's first claim--that he was denied a benefit due to his military service--the Board found that, contrary to the AJ's decision, there was evidence from which one could conclude that Hayden's military service was a motivating factor in the agency's decision not to upgrade his position. 122 M.S.P.R. 49, Id. at ¶ 14. The Board found " a temporal link between the appellant's extended period of Reserve duty and the agency's decision not to upgrade his position." 122 M.S.P.R. 49, Id. at ¶ 16. In particular, the Board pointed to testimony from Hayden's supervisor that none of her prior position upgrade requests had required in-person desk audits, and that she had participated in a telephone audit for Hayden's earlier position upgrade to GS-11. Id. The position classifier who examined the upgrade request testified that she was aware of only about ten requests that had not been granted out of the hundreds she had processed. Id. And Hayden testified that, during his March 13, 2013 conversation with his supervisor, she ...