Moore v. Navy

Case: 20-1770 Document: 27 Page: 1 Filed: 01/05/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

MICHAEL B. MOORE,
Petitioner

v.

DEPARTMENT OF THE NAVY,
Respondent
______________________

2020-1770
______________________

Petition for review of the Merit Systems Protection
Board in No. DC-4324-19-0863-I-1.
______________________

Decided: January 5, 2021
______________________

MICHAEL B. MOORE, Monroe, LA, pro se.

ANTHONY F. SCHIAVETTI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
JEFFREY B. CLARK, STEVEN JOHN GILLINGHAM, ROBERT
EDWARD KIRSCHMAN, JR.
______________________

Before PROST, Chief Judge, TARANTO and CHEN, Circuit
Judges.
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2 MOORE v. NAVY

PER CURIAM.
Mr. Michael Moore, appearing pro se, appeals a deci-
sion from the Merit Systems Protection Board (Board)
denying his request for corrective action after finding no
violation of the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA). The Board’s
determinations are not arbitrary nor capricious nor con-
trary to law and are supported by substantial evidence.
We, therefore, affirm.
BACKGROUND
Mr. Moore was appointed the role of Contract Special-
ist with the Department of the Navy (Navy) on January 22,
2018. This employment was subject to a two-year proba-
tionary period. During the initial six months of his civilian
employment, Mr. Moore was required to report for training
in his role as a military reservist, taking leave from his ci-
vilian employment at the Navy to do so. See App’x at M-1
(showing petitioner-appellant as attending to military re-
serve duties from March 21 to April 20, 2018 and on June
4, 2018). 1 On June 8, 2018, the Navy terminated
Mr. Moore’s employment, citing poor performance as the
reason for termination.
Mr. Moore appealed his termination to the Board, al-
leging that the termination was improper because it was
motivated by his military service and thus, violated
USERRA, which prohibits discrimination in employment

1 Petitioner submitted various attachments with his
informal opening brief. Citations to these attachments will
be cited as “App’x at [Letter]-[Page Number].” The page
number refers to the document location within the refer-
enced appendix letter.
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MOORE v. NAVY 3

on the basis of military service. SApp’x at 2. 2 The Board
concluded that Mr. Moore “failed to show that his military
service was a substantial or motivating factor” in his ter-
mination. Id. at 4. The Board found, instead, that
Mr. Moore’s termination during his probation period was
based on his performance, as the Navy had indicated. Id.
The Board made a number of factual findings in reach-
ing this conclusion. First, the Board found that
Ms. Melissa Carpenter, Mr. Moore’s supervisor during his
agency employment, was aware of Mr. Moore’s reservist
status at the time of hiring. Id. Second, the Board found
that another employee, whom Mr. Moore alleged received
more flexible leave treatment than he, was not similarly
situated to Mr. Moore because that employee was fully
trained (not in her probationary period) and on a maxi-flex
schedule that allowed for certain absences because of her
special-needs child. Id. at 5–6. Third, the Board noted that
another employee was also terminated by Ms. Carpenter
during that employee’s probation period for poor perfor-
mance. Id. at 7. Fourth, the Board explained that, con-
trary to Mr. Moore’s assertions, he was not singled out for
not adhering to the break policy while other employees
flouted the same rules absent punishment. Id. at 7–8. The
Board noted an absence of evidence that the other employ-
ees exceeded their allowable break times. Id. at 7. Fifth,
the Board found that appellant did not receive a dispropor-
tionately large amount of work in comparison to his
coworkers, and, even if true, he failed to show how this re-
lated to his military service. Id. at 8–9. Lastly, the Board
found that Ms. Carpenter had listed sufficient instances of
Mr. Moore’s poor performance in her memorandum sent to
the human resources department to support terminating

2 Citations to the SApp’x refer to the sequentially-
numbered attachment filed with respondent’s response
brief.
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4 MOORE v. NAVY

Mr. Moore during his probation period, including “com-
municating inaccurate information regarding a solicita-
tion, making errors in recording the [l]ine of [a]ccounting
in two contracts,[] failing to include [b]udget and [f]iscal on
requests,” id. at 10, “lack of effort and willingness to learn,”
id. at 11, and sleeping during training, id.
Mr. Moore appeals this decision to our court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of the Board’s decision is guided by statute.
See 5 U.S.C. § 7703(c). The Board’s decision must be set
aside when it is “(1) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law; (2) ob-
tained without procedures required by law, rule or
regulation having been followed; or (3) unsupported by sub-
stantial evidence.” McGuffin v. Soc. Sec. Admin., 942 F.3d
1099, 1107 (Fed. Cir. 2019) (quoting Hayes v. Dep’t of the
Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984)). We review the
Board’s factual findings for substantial evidence. Id. (cita-
tion omitted). Substantial evidence is “such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. v. Nat’l Labor
Rels. Bd., 305 U.S. 197, 229 (1938).
USERRA, codified in relevant part at 38
U.S.C. § 4311(a), prohibits “[d]iscrimination against per-
sons who serve in the uniformed services.” It states,
A person who is a member of, . . . performs, . . . or
has an obligation to perform service in a uniformed
service shall not be denied initial employment,
reemployment, retention in employment, promo-
tion, or any benefit of employment by an employer
on the basis of that membership, . . . performance
of service, . . . or obligation.
§ 4311(a). A violation of this provision will be found “if the
person’s . . . uniformed service[] is a motivating factor in
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MOORE v. NAVY 5

the employer’s action, unless the employer can prove that
the action would have been taken in the absence of such
[uniformed service].” § 4311(c)(1). “The employee assert-
ing a USERRA claim has the initial burden of showing by
a preponderance of the evidence that his ‘membership . . .
in the uniformed services’ was a substantial or motivating
factor in the adverse employment action.” McGuffin, 942
F.3d at 1108 (quoting § 4311(c)(1)) (additional citation
omitted).
Uniformed service is considered a motivating factor for
an adverse employment action if the “‘employer “relied on,
took into account, considered, or conditioned its decision”
on the employee’s military-related . . . obligation.’” Id.
(quoting McMillan v. Dep’t of Justice, 812 F.3d 1364, 1372
(Fed. Cir. 2016)). An employee may meet its “burden by
submitting evidence from which such a motive may fairly
be inferred.” Id. (citing McMillan, 812 F.3d at 1372). If an
employee meets this burden, the burden then shifts to the
employer to prove by preponderant evidence that it would
have taken the adverse action regardless of the employee’s
uniformed-service obligation, for a valid reason, such as
poor performance. See id.
The Board considers four factors, known as the
“Sheehan factors,” in determining whether the employer’s
action was based on discriminatory motive. The Sheehan
factors are:
(1) proximity in time between the employee’s mili-
tary activity and the adverse employment action;
(2) inconsistencies between the proffered reason
and other actions of the employer; (3) an employer’s
expressed hostility towards members protected by
the statute together with knowledge of the em-
ployee’s military activity; and (4) disparate treat-
ment of certain employees compared to other
employees with similar work records or offenses.
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6 MOORE v. NAVY

Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1014 (Fed. Cir.
2001). The Board found that Mr. Moore failed to meet his
burden of persuasion to show that his military service was
a motivating factor in his termination. Mr. Moore alleges
myriad errors in the Board’s decision; we review these chal-
lenges seriatim but see no errors in the Board’s conclu-
sions.
Mr. Moore argues that the Board should have found
Ms. Carpenter to have “diminished credibility” because her
testimony allegedly contains inconsistencies. Appellant’s
Br. ¶ 1. We see no reason on this record, however, to dis-
turb the credibility determinations of the Board. See
Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir.
2002). Mr. Moore also argues that the Board failed to ac-
count for his “collective bargaining agreement,” which he
suggests “requires probationary employees to be notified in
writing anytime their performance has fallen below an ‘ac-
ceptable’ level.” Appellant’s Br. ¶ 2. But this allegation is
not relevant to the Board’s finding that his military service
was not a motivating factor in his termination, and as the
government notes, the Board lacked jurisdiction over alle-
gations beyond the scope of the USERRA claim at issue, see
Appellee’s Br. at 15.
Mr. Moore additionally suggests that the Board failed
to account for numerous detailed examples and evidence he
put forth. See, e.g., Appellant’s Br. ¶¶ 3, 16, 18–19. For
example, Mr. Moore suggests that the Board incorrectly de-
termined that he failed to provide evidence that other em-
ployees were exceeding their allowable break time. See
id. ¶ 18. Mr. Moore points the court only to allegations in
his complaint—but these claims are not evidence that un-
dercut the Board’s conclusions.
A large swath of Mr. Moore’s appeal brief is dedicated
to the Board’s discussion of a fellow employee, Ms. Ub-
elacker, whom Mr. Moore appears to suggest received more
favorable treatment than he, and thus demonstrates that
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MOORE v. NAVY 7

he was treated disparately compared to his coworkers. See,
e.g., id. ¶¶ 4, 7, 14. Two flaws are present in Mr. Moore’s
allegations of error. First, Mr. Moore has not presented
any instance where the Board failed to consider the evi-
dence before it in reaching its conclusion that Ms. Ub-
elacker is not similarly situated enough to Mr. Moore as to
serve as a meaningful comparison. In reviewing the
Board’s determinations on this evidentiary record, the
Board’s conclusions are supported by substantial evidence.
Second, Mr. Moore did not present meaningful evidence as
to why any such alleged disparate treatment between he
and Ms. Ubelacker was motivated by a disdain for his mil-
itary service obligations. On the contrary, the Board con-
cluded that “any preference or special accommodation, if
indeed one was given, appeared to be made out of compas-
sion for [Ms. Ubelacker], and not animus toward the appel-
lant.” SApp’x at 6.
In considering Mr. Moore’s remaining arguments, we
see no error in the Board’s determination that he was ter-
minated, during his probation period, for the reason put
forth by the Navy—poor performance. Mr. Moore provides
no evidence of inconsistencies between the specifically enu-
merated instances of his poor job performance cited in
Ms. Carpenter’s letter recommending termination and the
other actions of the employer. We therefore agree with the
Board that Mr. Moore “failed to show by a preponderance
of the evidence that he was discriminated against because
of his military service.” Id. at 12. The record evidence sup-
ports the finding that “the agency action terminating the
appellant during his probationary period [was] for perfor-
mance[-]based reasons.” Id.
CONCLUSION
We have considered Mr. Moore’s remaining arguments
and are unpersuaded that the Board erred. The Board cor-
rectly denied Mr. Moore’s request for corrective action be-
cause he failed to establish a violation of USERRA.
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8 MOORE v. NAVY

AFFIRMED
COSTS
No costs.