Yates v. Merit Systems Protection Bd., 97-3316

• Decision Date: 23 June 1998
• Docket Number: No. 97-3316,97-3316
• Citation: 145 F.3d 1480
• Parties: 158 L.R.R.M. (BNA) 2720 Sonya L. YATES, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1480

145 F.3d 1480

158 L.R.R.M. (BNA) 2720

Sonya L. YATES, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 97-3316.

United States Court of Appeals, Federal Circuit.

June 23, 1998.

Stan Barnett, Smith, Bundy, Bybee & Barnett, P.C., Charleston, SC, argued, for petitioner.

Joyce G. Friedman, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued, for respondent. With her on the brief were Mary L. Jennings, General Counsel, and Martha B. Schneider, Assistant General Counsel.

Before CLEVENGER, Circuit Judge, SMITH, Senior Circuit Judge, and SCHALL, Circuit Judge.

SCHALL, Circuit Judge.

Sonya L. Yates petitions for review of the final decision of the Merit Systems Protection Board (Board) that dismissed for lack of jurisdiction her appeal of her removal by the United States Postal Service (Postal Service or agency). Yates v. United States Postal Serv., 75 M.S.P.R. 218 (1997). Because we conclude that Ms. Yates presented a claim within the Board's jurisdiction under the Uniformed Services Employment and Reemployment Rights Act of 1994, Pub.L. No. 103-353, 1994 U.S.C.C.A.N. (108 Stat.) 3149 (USERRA) (codified at 38 U.S.C. §§ 4301-33 (1994)), ¹ we reverse the Board's decision and remand the case to the Board for an adjudication of the merits of the appeal.

BACKGROUND

The facts relating to the jurisdictional issue are not in dispute. At all times relevant to this appeal, Ms. Yates was a reservist in the United States Army. She began her employment with the Postal Service on January 27, 1996, when she entered on duty as a transitional, or part-time, employee. On May 25, 1996, her status was converted to that of a career employee, subject to a 90-day probationary period. Also on May 25th, she accepted transfer into a program in which she was to be trained as a Data Conversion Operator. During the training period, she was required to achieve a minimum level of proficiency with a key punch system in order to earn a permanent position with the agency. When Ms. Yates entered the program, she was told that her training progress would be evaluated at 30-day, 60-day, and 90-day intervals.

On July 6, 1996, some 40 days after beginning the training program, Ms. Yates went on duty with her Reserve unit. She served with her unit until July 23, 1996. While she was on duty, she missed her 30-day evaluation. After she returned from Reserve duty, she received her 60-day evaluation and continued with the training program. However, the agency did not extend the training period to make up for the two weeks that she had lost while she was on Reserve duty. Near the end of the training period, the Postal Service evaluated Ms. Yates' performance. Shortly thereafter, on August 21, 1996, she was removed from her position as a Data Conversion Operator for unacceptable performance during her probationary period.

Ms. Yates timely appealed her removal to the Board. In Box 27 of the appeal form, she was asked to explain why she thought that the Postal Service was wrong in removing her. In response, she stated in relevant part as follows:

I was absent (2) two-week periods for military duty, once during probation. I didn't realize I wouldn't have the option to extend for those days, if this was addressed to me, I probably would have declined the career position and stayed employed as a transitional emp. working part-time and kept my full-time job of ten years, or would have spoken with my reserve commander to see about scheduling my duty at a later date.

In Box 30.b, Ms. Yates stated why she believed the Postal Service had committed harmful procedural error in her case:

If I had received my 30 day eval. I would have thought twice about resigning from my other job. Looking at the last edit I In addition, Ms. Yates attached to her appeal form a letter addressed to the "Board Members." In the letter, she explained that the Postal Service had promised her that she would receive 30, 60, and 90-day evaluations. She stated that she had been "scheduled to go on military duty (July 6-21), and [she] hadn't had [her] first evaluation prior to that date." She further stated that she had "assumed that [she] would [be] given the chance to complete the two weeks that [she] had missed." Finally, Ms. Yates reiterated in her letter that she never received a 30-day evaluation because she was on Reserve duty when the other individuals in the training program received their 30-day evaluations. In neither her appeal form nor her letter did Ms. Yates mention any statutes or regulations under which she believed she was entitled to relief.

received prior to becoming career, I was nowhere close to the required performance levels they were asking for.

On September 26, 1996, the administrative judge (AJ) to whom the appeal was assigned issued an acknowledgment order. Addressing the issue of jurisdiction, the AJ informed Ms. Yates in the order that she had the burden of establishing the Board's jurisdiction and that the Board might not have jurisdiction over her appeal:

Because you are a Postal Service employee, the Board may not have jurisdiction to decide your appeal. You must 1) be a preference-eligible employee, a management or supervisory employee or an employee engaged in personnel work in other than a purely nonconfidential clerical capacity and 2) have completed one year of current, continuous service in the same or a similar position for the Board to exercise jurisdiction over your appeal. See 39 U.S.C. § 1005(a) and 5 U.S.C. § 2108.

The AJ's order did not mention the possibility of jurisdiction under USERRA. The acknowledgment order directed Ms. Yates "to file evidence and argument" to establish that the appeal was within the Board's jurisdiction. Ms. Yates did not respond to the order.

On October 23, 1996, the AJ issued an initial decision granting the agency's motion to dismiss for lack of jurisdiction. The AJ stated that, in order for Ms. Yates' appeal to come within the Board's jurisdiction, Ms. Yates had to be an "employee" within the meaning of 5 U.S.C. § 7511, or she had to fall within the purview of 39 U.S.C. § 1005(a). The AJ pointed out that under 5 U.S.C. § 7511(a)(1)(B), in order to be entitled to appeal to the Board, an employee of the Postal Service had to be a "preference eligible" employee who had completed one year of current continuous service in the same or a similar position. Turning to 39 U.S.C. § 1005(a)(4)(A), the AJ stated that, in order to establish Board jurisdiction under that statute, in addition to having completed one year of current continuous service, an appellant had to be a supervisor or management employee, or be engaged in personnel work in other than a purely nonconfidential clerical capacity. As far as Ms. Yates was concerned, the AJ noted that, although there was evidence in the record indicating that she was a veteran, she had not asserted in her appeal that she had preference-eligible status as a veteran. The AJ also noted that Postal Service records indicated that she was not entitled to a veteran's preference. The AJ further noted that it was undisputed that Ms. Yates did not have one year of current continuous service. Accordingly, the AJ concluded, Ms. Yates could not establish Board jurisdiction under either 5 U.S.C. § 7511(a)(1)(B) or 39 U.S.C. § 1005(a)(4)(A). In his decision, the AJ did not address the question of whether the Board had jurisdiction under USERRA.

On November 27, 1996, Ms. Yates petitioned the Board for review. In so doing, she challenged the AJ's determination that she was not entitled to a veteran's preference. She asserted no other grounds in support of her petition, however. On April 4, 1997, the AJ's initial decision became the final decision of the Board pursuant to 5 C.F.R. § 1201.113(b) (1997), ² when the Board denied Ms. Yates' petition for review for failure to meet the criteria for review set

forth in 5 C.F.R. § 1201.115. This appeal followed.

DISCUSSION

I.

Our standard of review with respect to a decision of the Board is limited. We must affirm the Board's decision unless it is 1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2) obtained without procedures required by law, rule or regulation having been followed; or 3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c); see also King v. Department of the Navy, 130 F.3d 1031, 1033 (Fed.Cir.1997). Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law which we review de novo. See King v. Briggs, 83 F.3d 1384, 1387 (Fed.Cir.1996). Ms. Yates had the burden of establishing the Board's jurisdiction by facts supported by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2); see also Waldau v. Merit Sys. Protection Bd., 19 F.3d 1395, 1402 (Fed.Cir.1994). In petitioning for review, Ms. Yates argues that the Board erred in dismissing her appeal for lack of jurisdiction because she established Board jurisdiction under USERRA. We agree.

II.

A.

One of the purposes of USERRA is to "prohibit discrimination against persons because of their service in the uniformed services." 38 U.S.C. § 4301(a)(3). To that end, the statute provides:

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, promotion, 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). Under the statute, an employer is considered to have engaged in actions prohibited under § 4311(a) if, among other things, a person's "membership" or "obligation for service in the uniformed services" is "a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the...