Lentz v. Interior

Case: 22-2007 Document: 19 Page: 1 Filed: 11/04/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

CHASE M. LENTZ,
Petitioner

v.

DEPARTMENT OF THE INTERIOR,
Respondent
______________________

2022-2007
______________________

Petition for review of the Merit Systems Protection
Board in No. SF-4324-16-0680-I-1.
______________________

Decided: November 4, 2022
______________________

CHASE M. LENTZ, Fresno, CA, pro se.

JOSHUA W. MOORE, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by REGINALD
T. BLADES, JR., BRIAN M. BOYNTON, PATRICIA M.
MCCARTHY.
______________________

Before DYK, TARANTO, and HUGHES, Circuit Judges.
PER CURIAM.
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2 LENTZ V. INTERIOR

Chase M. Lentz, a veteran, was employed as a botanist
by the Bureau of Land Management (BLM), which is a com-
ponent of the Department of the Interior. After he resigned
his position, he filed a petition with the Merit Systems Pro-
tection Board under the Uniformed Services Employment
and Reemployment Rights Act (USERRA), complaining
that Interior had retaliated against him for exercising his
USERRA rights. Specifically, he alleged that his BLM su-
pervisors provided negative references to prospective em-
ployers in retaliation for a USERRA complaint he had filed
with the Department of Labor, while he was working at
BLM, asserting that he had not been selected for various
BLM vacancies because he was a veteran.
The Board denied Mr. Lentz relief, concluding that he
did not prove that his pre-resignation USERRA complaint
motivated his BLM supervisors to provide negative post-
resignation employment references. Lentz v. Department
of Interior, No. SF-4324-16-0680-I-1, 2022 WL 2389189
(M.S.P.B. June 30, 2022) (Board Op.). Mr. Lentz appeals,
arguing that the Board improperly split this appeal from
other appeals he had pending before the Board and, in any
event, reached an unreasonable conclusion. Because there
was no improper bifurcation that prevented a full and fair
adjudication of the issues Mr. Lentz raised, and because he
has not established a basis for disturbing the Board’s fac-
tual findings under the applicable standard of review, we
affirm.
I
Mr. Lentz worked as a GS-0430-11 botanist at BLM’s
Field Office in Redding, California, for several years, re-
ceiving “superior” performance appraisals in fiscal years
2007 through 2012 and “fully successful” appraisals in
2013 and 2014. Lentz v. Department of Interior, No. SF-
4324-16-0680-I-1, 2016 WL 6236516 (M.S.P.B. Oct. 20,
2016) (Initial Decision, by Administrative Judge) (AJ Op.),
Appx. 14; see Supplemental Appendix (SAppx.) 66, 81, 95.
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LENTZ V. INTERIOR 3

Mr. Lentz’s immediate supervisor—from August 24, 2014,
to February 13, 2015—was Ms. Acridge, the Supervisory
Resources Management Specialist for the BLM Redding
Field Office. AJ Op., Appx. 14; see SAppx. 51. Mr. Lentz’s
second-level supervisor was—from September 12, 2010, to
February 13, 2015—Ms. Mata, the Field Manager for the
BLM Redding Field Office. AJ Op., Appx. 14; see SAppx.
44.
On May 15, 2014, Ms. Mata issued a letter of repri-
mand to Mr. Lentz, charging him with “acting outside the
scope of [his] authority” and with “conduct unbecoming.”
AJ Op., Appx. 14 (capitalization removed); see SAppx. 88–
98. Six months later, on November 13, 2014, Ms. Acridge
proposed a fourteen-day suspension, invoking the same
two types of charges, based on additional alleged miscon-
duct. AJ Op., Appx. 14; see SAppx. 70–87. Ms. Mata partly
sustained that proposed suspension on February 10, 2015,
and Mr. Lentz resigned three days later. AJ Op., Appx. 14;
see SAppx. 54–69.
Both before and after resigning, Mr. Lentz applied for
several positions (with BLM as well as other government
agencies) and received job references from Ms. Mata and
Ms. Acridge. AJ Op., Appx. 14–15. Specifically, Ms. Mata
wrote references on Mr. Lentz’s behalf to (1) the U.S. Forest
Service on December 17, 2013, and July 14, 2015; (2) the
U.S. Army Corps of Engineers on April 21, 2015; and (3)
the BLM Winnemucca Field Office on September 30, 2015.
Id., Appx. 14; see SAppx. 44–50. Ms. Acridge provided ref-
erences to (1) the Bureau of Reclamation on March 2, 2015;
(2) the BLM office in Oregon on March 18, 2015; (3) the
BLM office in Nevada on June 2, 2015; and (4) the U.S.
Army Corps of Engineers on April 22, 2015. AJ Op., Appx.
14–15; see SAppx. 51–53. But Mr. Lentz secured none of
the positions for which Ms. Mata and Ms. Acridge provided
references. AJ Op., Appx. 15.
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4 LENTZ V. INTERIOR

In December 2014, before his resignation but after Ms.
Mata had issued the letter of reprimand and Ms. Acridge
had proposed the suspension, Mr. Lentz filed a complaint
with the Department of Labor, as well as several appeals
with the Board, alleging USERRA violations. Id. Specifi-
cally, he maintained that his non-selection for the positions
for which he had applied was based on his military service,
in violation of the employment protections USERRA af-
fords to veterans. Id. Labor informed Ms. Mata of the
USERRA claim in December 2014. Id.
Mr. Lentz also filed a complaint with Labor—and sub-
sequently requested referral of his claim to the Office of
Special Counsel—after his February 2015 resignation from
BLM. Id. He attributed his failure to obtain post-BLM
employment to the prospective employers’ receipt of nega-
tive references from Ms. Mata and Ms. Acridge, who, he
alleged, wrote them in reprisal for his December 2014
USERRA complaint. Id., Appx. 13, 15. On August 7, 2016,
after failing to obtain relief from Labor or the Office of Spe-
cial Counsel, Mr. Lentz filed the present appeal with the
Board, focusing on his non-selection for positions after his
resignation from BLM. Id.; see SAppx. 38.
The Board administrative judge to whom the present
appeal was assigned defined the issue raised by Mr. Lentz’s
appeal as “[w]hether the appellant was discriminated
against based on his prior protected USERRA activities in
the job references issued by [his supervisors].” AJ Op.,
Appx. 16. The parties have not disputed that statement of
the issue. See id.
After reciting USERRA standards, see id., and confirm-
ing Board jurisdiction, see id., Appx. 17, the AJ evaluated
the evidence—including the job references at issue, sworn
declarations from Ms. Mata and Ms. Acridge, and the doc-
uments associated with the disciplinary actions taken
against Mr. Lentz—and concluded that none of the refer-
ences suggested any “unlawful hostility or bias based on
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LENTZ V. INTERIOR 5

[Mr. Lentz’s] prior USERRA activity,” id., Appx. 20; see id.,
Appx. 17–24. The AJ considered and found unpersuasive
Mr. Lentz’s argument that specific statements in the refer-
ences were inconsistent, contradicted by other record evi-
dence, or otherwise not credible. See id., Appx. 19–20, 23–
24. The AJ found that the “comments in the job references
at issue were overall either neutral or positive,” and any
concerns noted in the references, e.g., regarding Mr.
Lentz’s “communication abilities[,] were well supported by
the specific incidents cited in the notice of proposed re-
moval.” Id., Appx. 20. Nor was the timing of the refer-
ences, i.e., after Mr. Lentz engaged in protected USERRA
activities, “suspicious,” as the supervisors “simply w[ere]
responding to inquiries from third parties after [Mr. Lentz]
had already resigned the position,” id.; see id., Appx. 24 n.4,
and temporal proximity here did not prove the alleged mo-
tive, id., Appx. 24. And insofar as Ms. Mata’s 2015 refer-
ences were different from her 2013 one, she “plausibl[y]
expla[ined]” that she had, during that interval, “perceiv[ed]
a change in [Mr. Lentz’s] workplace attitude and de-
meanor, as evidenced in the conflicts and communication
issues documented in his reprimand and suspension deci-
sion.” Id., Appx. 23. As a result, the AJ determined that
Mr. Lentz “failed to prove by preponderant evidence that
his protected activity under USERRA was a motivating or
substantial factor in the agency actions at issue.” Id.,
Appx. 24. What is more, he concluded that “even if [Mr.
Lentz] had met his burden of proof on this issue, the agency
nevertheless would have taken the same actions in the ab-
sence of his protected activity, for the valid reasons de-
scribed above.” Id.
Mr. Lentz filed a petition for review to the full Board in
November 2016. SAppx. 39. On June 30, 2022, the Board
denied the petition, affirmed the AJ’s initial decision, and
adopted that decision as the Board’s final decision. See id.;
Board Op. at *1. The Board agreed with the AJ’s findings
that there was “no inconsistency in the answers” in the
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6 LENTZ V. INTERIOR

references, as “the questions on the . . . separate job refer-
ences are different,” Board Op. at *3, and that any changes
over time in the references were more plausibly attributa-
ble to Mr. Lentz’s changing workplace conduct than to any
improper retaliatory motive, see id. at *4–5. The Board fur-
ther concluded that there had been “no abuse of discretion
by the administrative judge in considering the record as a
whole, including the letter of reprimand and the notice and
decision letter for [Mr. Lentz’s] suspension,” especially
given that Mr. Lentz himself included the documents with
his initial appeal, and the documents help “support the ex-
planations of [Mr. Lentz’s] supervisors regarding their re-
sponses to questions asked in the job references.” Id. at *4.
There was thus no suggestion of unlawful bias or hostility
based on Mr. Lentz’s past USERRA activity or that the ac-
tivity “was a motivating or substantial factor in these iden-
tified job references.” Id. The references instead “were
either neutral or positive,” and while Mr. Lentz may “have
preferred only positive references, the neutral comments
reflect . . . valid concerns regarding his performance in spe-
cific areas.” Id. Finally, the Board rejected Mr. Lentz’s ar-
gument that the AJ had been biased against him. Id. at *5.
The Board’s decision became final on June 30, 2022,
Appx. 31, and Mr. Lentz filed a petition for review on July
11, 2022, ECF No. 1, within the sixty days permitted by 5
U.S.C. § 7703(b)(1)(A). We have jurisdiction under 28
U.S.C. § 1295(a)(9).
II
We must affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). Under the substantial-evidence standard, the
Board’s findings of fact need only be “supported by such
relevant evidence as a reasonable mind might accept as
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LENTZ V. INTERIOR 7

adequate to support a conclusion.” Gallagher v. Depart-
ment of Treasury, 274 F.3d 1331, 1336 (Fed. Cir. 2001) (ci-
tation omitted). “As an appellate court,” we broadly accept
the Board’s “credibility determinations” where they are not
“inherently improbable or discredited by undisputed fact.”
Pope v. United States Postal Service, 114 F.3d 1144, 1149
(Fed. Cir. 1997) (citation omitted); see Kahn v. Department
of Justice, 618 F.3d 1306, 1313 (Fed. Cir. 2010). 1
USERRA provides that “[a]n employer may not dis-
criminate in employment against or take any adverse em-
ployment action against any person because such person
. . . has taken an action to enforce a protection afforded any
person under this chapter . . . or . . . has exercised a right
provided for in this chapter.” 38 U.S.C. § 4311(b). A plain-
tiff bringing a USERRA retaliation claim must show the
threshold premises, i.e., an action to enforce a USERRA
protection or exercise of a USERRA right, see, e.g., Kitlinski
v. Merit Systems Protection Board, 857 F.3d 1374, 1381
(Fed. Cir. 2017), and prove by a preponderance of the evi-
dence that the USERRA-protected activity was “‘a substan-
tial or motivating factor’ in the adverse employment
action,” Sheehan v. Department of Navy, 240 F.3d 1009,
1013 (Fed. Cir. 2001) (citation and footnote omitted); see
Hayden v. Department of Air Force, 812 F.3d 1351, 1363
(Fed. Cir. 2016) (“The standard for a retaliation claim is the
same as that for a discrimination claim . . . .” (citing
Sheehan, 240 F.3d at 1013)). “If this requirement is met,
the employer then has the opportunity to come forward
with evidence to show, by a preponderance of the evidence,
that the employer would have taken the adverse action an-
yway, for a valid reason.” Sheehan, 240 F.3d at 1013.

1 Because the Board affirmed the AJ’s “initial deci-
sion” and adopted it as “the Board’s final decision,” Board
Op. at *1, we hereafter refer to the AJ as the Board.
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8 LENTZ V. INTERIOR

A
We first address Mr. Lentz’s “bifurcation” argument—
that the Board improperly decided this appeal separately
from other appeals he had before the Board—in particular,
a set of appeals that were back before the Board (in consol-
idated form) after we remanded them in Lentz v. Merit Sys-
tems Protection Board, 876 F.3d 1380 (Fed. Cir. 2017),
along with two other appeals with which those remanded
appeals were consolidated in 2022, see Appx. 2. But the
government asserts that Mr. Lentz never presented any ar-
guments regarding consolidation or bifurcation to the
Board, see Resp. Br. 27, and Mr. Lentz identifies nothing to
the contrary. He has thus forfeited this argument. See
Bosley v. Merit Systems Protection Board, 162 F.3d 665,
668 (Fed. Cir. 1998) (“A party in an MSPB proceeding must
raise an issue before the administrative judge if the issue
is to be preserved for review in this court.”); see also Sistek
v. Department of Veterans Affairs, 955 F.3d 948, 953 n.1
(Fed. Cir. 2020) (same).
In any event, Mr. Lentz’s argument lacks merit. He
relies on this court’s decision in 2017 reversing the Board’s
splitting of what he had brought as a single appeal into two
related and overlapping cases, where that splitting preju-
diced a full adjudication of the relevant claim. Lentz, 876
F.3d at 1382, 1386. Here, in contrast, Mr. Lentz brought
separate appeals in the first place. And not only did he not
ask the Board for consolidation of the present appeal with
those remanded in 2017 (and the two additional appeals
with which they were later consolidated), but he has not
shown prejudice that would justify overriding the Board’s
exercise of its “broad discretion to control its own docket”
and “substitut[ing] our judgment for that of the [B]oard in
this regard.” Olivares v. Merit Systems Protection Board,
17 F.3d 386, 388 (Fed. Cir. 1994).
Mr. Lentz’s assertion that a lack of consolidation would
prevent consideration of the totality of the evidence, see
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LENTZ V. INTERIOR 9

Petr. Opening Br. 3–4, is also unavailing. The appeals we
remanded in 2017 address Mr. Lentz’s claims regarding his
resignation, see Lentz, 876 F.3d at 1386 (reversing the
Board’s bifurcation because both cases dealt with “involun-
tary resignation based on alleged coercive agency actions”);
accord Appx. 2, 9–11 (consolidating the four appeals be-
cause all “involve the underlying allegations identified by
the court that are relevant to the issue of the voluntariness
of [Mr. Lentz’s] resignation”), whereas this appeal focuses
on the job references that his supervisors provided to pro-
spective employers after his resignation. Some overlap in
documentary evidence does not require Board consolida-
tion of proceedings concerned with different asserted
wrongs. Mr. Lentz himself says: “Whether or not I was
rightfully or wrongfully disciplined does not answer the
question of whether or not I was retaliated against for ex-
ercising my rights under USERRA . . . .” Petr. Opening Br.
12.
Relatedly, Mr. Lentz’s assertion that the Board erred
not only by failing to order consolidation with the resigna-
tion-related appeals but also by considering the discipli-
nary documents in this appeal, see id. at 7, 12, provides no
basis for vacatur. That the merits of the disciplinary ac-
tions are at issue elsewhere does not deprive those actions
and the conduct that prompted them of relevance here,
where a key question is whether they, rather than an im-
proper motive, influenced the supervisors’ later job refer-
ences. The Board did not abuse its discretion in
considering this evidence, see 5 C.F.R. § 1201.41(b)(3), es-
pecially because Mr. Lentz included those documents in his
appeal, see Board Op. at *4.
B
Mr. Lentz’s remaining arguments for disturbing the
Board’s decision also fall short. The Board determined that
there were two independent bases for denying relief, see AJ
Op., Appx. 24, but Mr. Lentz challenges only one of them
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10 LENTZ V. INTERIOR

on appeal, see Petr. Opening Br. 6–12. Specifically, the
Board determined not only that Mr. Lentz “failed to prove
by preponderant evidence that his protected activity under
USERRA was a motivating or substantial factor in the
agency actions at issue” but also that “the agency neverthe-
less would have taken the same actions in the absence of
his protected activity, for the valid reasons described
above,” AJ Op., Appx. 24, i.e., Mr. Lentz’s “conflicts with
management,” id. Mr. Lentz has not challenged this sec-
ond basis, which is supported by substantial evidence. See
SAppx. 44 (Ms. Mata’s declaration); SAppx. 46–50 (Ms.
Mata’s references); SAppx. 51 (Ms. Acridge’s declaration);
SAppx. 52–53 (Ms. Acridge’s references); SAppx. 54–99
(discipline-related documents). That unchallenged basis
suffices to sustain the Board’s decision.
In any event, the Board’s finding that Mr. Lentz failed
to prove an improper motive, see Board Op. at *2–5, is sup-
ported by substantial evidence. To establish that his su-
pervisors had a retaliatory motive, Mr. Lentz asserts that
(1) “factually inaccurate references . . . that have a negative
result . . . suggest unlawful hostility or bias,” Petr. Opening
Br. 5, and (2) “the relationship between the references and
[his] USERRA activity,” specifically that “the responses
came after [his] . . . activity,” is “suspicious” and shows an
improper motive, id. at 11. We reject these asserted bases
for setting aside the Board’s finding.
1
Mr. Lentz first accuses his supervisors of “[l]ying by
omission” and thereby providing factually inaccurate refer-
ences, and he maintains that these inaccuracies support in-
ferring a retaliatory motive. Id. at 4; see id. at 5–11. These
complaints are ultimately directed to the Board’s weighing
of facts and evaluating of witness credibility. See id. at 1
(“In this appeal, I dispute the Board’s interpretation of the
evidence and determinations which are discredited by un-
disputed fact. . . . In my appeal to . . . the Board[], I raised
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LENTZ V. INTERIOR 11

the issue of factually inaccurate employment references
given by my supervisors . . . .” (emphasis added)); contra id.
(“This is not a request to re-weigh conflicting evidence.
This is not a request to re-evaluate credibility determina-
tions . . . .”). But we must defer to the Board’s evaluation
of credibility, see Pope, 114 F.3d at 1149, and we cannot
“reweigh evidence on appeal,” Jones v. Department of
Health & Human Services, 834 F.3d 1361, 1369 (Fed. Cir.
2016) (citation omitted). Here, the Board carefully weighed
the references, disciplinary documents, and declarations by
Mr. Lentz’s supervisors, see AJ Op., Appx. 17–24; Board
Op. at *2–5, and substantial evidence supports the Board’s
finding that the references were neither negative nor lies
by omission.
None of the “inconsistencies” identified by Mr. Lentz
deprive the Board’s findings of substantial-evidence sup-
port. See Petr. Opening Br. 8–11. Mr. Lentz faults Ms.
Mata for stating that he “‘didn’t really have an opportunity
to function in’ a leadership role,” and Ms. Acridge for stat-
ing that she had “‘no direct experience to speak to’ regard-
ing [his] leadership style or approach,” despite both
supervisors having elsewhere acknowledged that his posi-
tion “[a]s the botany team lead” involved “consensus build-
ing to provide team leadership when given the lead in
assignments.” Id. at 8 (citations and emphases omitted);
see id. at 9–11 (citing supervisor statements describing him
as “mentor/technical lead for student interns,” “lead bota-
nist,” “program lead for botany,” “leader for projects initi-
ated by botanical actions,” and “coordinating ‘the work of
seasonal/temporary employees’” (emphases omitted)); see
SAppx. 46–53 (supervisor references). That Mr. Lentz’s po-
sition description makes references to “team leadership”
and “botany team lead,” however, does not imply that he in
fact had the opportunity to perform those functions. Cf.
SAppx. 49–50 (describing Mr. Lentz’s “experience in the
field of Program Leadership” while acknowledging that he
has not been able to “perform in the roles described as
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12 LENTZ V. INTERIOR

above,” i.e., “lead or supervisory duties”). Nor does it imply
that Ms. Mata and Ms. Acridge observed his performance
of those functions, especially because Ms. Acridge had held
her position for less than a year by the time Mr. Lentz re-
signed and had only supervised him for two-and-a-half
months due to him being on sick leave. See Board Op. at
*3.
Even if Ms. Mata and Ms. Acridge had observed Mr.
Lentz performing leadership functions, see Petr. Opening
Br. 10–11, their statements are still internally consistent,
as the questions to which they responded were all phrased
differently, see Board Op. at *3. In particular, Ms. Mata’s
2013 reference explained the differences between the lead-
ership skills exercised by Mr. Lentz as botany program lead
and those required by the supervisory roles for which he
was applying:
Chase currently manages the botany and range
program for the field office. . . . He does a good job
of developing project level budgets and tracking im-
plementation and accomplishments. . . . Chase
needs exposure to higher level work in order to as-
sess his potential as a supervisor and program
lead. He has been managing his program at the
local level and coordinates well with our state office
but has not had the opportunity to perform in situ-
ations that would demonstrate his abilities to be a
first line supervisor or program lead at the Super-
visor’s Office level. . . . During my time in the Red-
ding Field Office Chase has only served as the
program lead for botany, range and weeds and as
the primary contact for several seasonal employees
and contractors. He has not served as the official
supervisor of record for any employees, although I
know that he is very interested in pursuing super-
visory positions. . . . I have not seen Chase perform
in [any] roles [involving] . . . lead or supervisory du-
ties . . . . With some mentoring and time to grow
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LENTZ V. INTERIOR 13

into a supervisory role he could serve in that type
of position but has not had the chance to work on
those roles within this office.
SAppx. 49–50. The Board could reasonably find no contra-
dictions here, and no inconsistencies with the references
Ms. Mata provided after Mr. Lentz’s resignation. See
SAppx. 46 (“I think that . . . his Leadership Skills . . . would
improve given time, [but he] didn’t really have an oppor-
tunity to function in that role[.]”); AJ Op., Appx. 20, 23–24;
Board Op. at *3–5. Similarly, despite supervising Mr.
Lentz for such a brief time, Ms. Acridge still provided pos-
itive comments regarding his “[l]eadership capabilities”; it
was only his “leadership style or approach” with which she
professed to be unfamiliar. SAppx. 52–53; see Board Op. at
*3.
In sum, substantial evidence supports the Board’s de-
cision to reject Mr. Lentz’s assertion “that the employment
references provided by Mata and Acridge were not accurate
and factual and were not honest.” Petr. Opening Br. 4.
And because these references were not factually inaccu-
rate, they do not demand an inference of “unlawful hostility
or bias.” Id. at 5.
2
As proof of an improper motive, Mr. Lentz further
points to the fact that the references were provided only
after he had engaged in protected USERRA activity. See
id. at 11–12. But the Board properly found that mere tem-
poral proximity is insufficient here. See AJ Op., Appx. 24.
A USERRA retaliation claim necessarily arises only after
a claimant has engaged in a protected USERRA activity, so
the fact that “the responses came after [Mr. Lentz’s] pro-
tected USERRA activity,” Petr. Opening Br. 11, does not
alone show improper motive, especially given that Ms.
Mata and Ms. Acridge were “simply . . . responding to in-
quiries from third parties,” AJ Op., Appx. 20; see id., Appx.
24 n.4. Mr. Lentz has not alleged anything else to compel
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14 LENTZ V. INTERIOR

an inference that Ms. Mata or Ms. Acridge had acted with
a retaliatory motive. He has never identified, for instance,
any “inconsistencies between the proffered reason and
other actions of the employer,” his “employer’s expressed
hostility towards members protected by the statute to-
gether with knowledge of [Mr. Lentz’s] . . . activity,” or
“disparate treatment of certain employees compared to
other employees with similar work records or offenses.”
Sheehan, 240 F.3d at 1014.
III
For the foregoing reasons, we affirm the decision of the
Board.
The parties shall bear their own costs.
AFFIRMED