United States Court of Appeals
for the Federal Circuit
______________________
CLARENCE ANDREW MCGUFFIN,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2017-2433
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-4324-14-0938-B-1.
______________________
Decided: November 7, 2019
______________________
CLARENCE ANDREW MCGUFFIN, Raleigh, NC, argued
pro se.
SONIA MARIE ORFIELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by
CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN, JR., JOSEPH
H. HUNT.
______________________
2 MCGUFFIN v. SSA
Before MOORE, REYNA, and CHEN, Circuit Judges.
REYNA, Circuit Judge.
Clarence McGuffin appeals from a determination of the
Merit Systems Protection Board that the Social Security
Administration did not violate the Uniformed Services Employment and Reemployment Rights Act when it terminated Mr. McGuffin’s employment. Because we conclude
that substantial evidence does not support the Board’s
findings, we reverse the decision of the Board and remand
for further proceedings.
I. BACKGROUND
A. Statutory Background
Mr. McGuffin brings a discrimination claim pursuant to
the Uniformed Services Employment and Reemployment
Rights Act (“USERRA”), Pub. L. No. 103–353 (codified as
amended at 38 U.S.C. §§ 4301–35), which prohibits discrimination based on prior or current military service.
Central to Mr. McGuffin’s discrimination claim is the Civil
Service Reform Act of 1978 (“CSRA”), Pub. L. No. 95–454,
92. Stat. 1111 (codified as amended in scattered sections of
Title 5 of the United States Code), which provides certain
procedural safeguards (“CSRA benefits”) to an “employee”
serving in the excepted civil service. See 5 U.S.C. §§ 7511,
7513. The CSRA provides that
An employee against whom an action is proposed is
entitled to—
(1) at least 30 days’ advance written notice, unless there is reasonable cause to
believe the employee has committed a
crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action;
(2) a reasonable time, but not less than 7
days, to answer orally and in writing
MCGUFFIN v. SSA 3
and to furnish affidavits and other documentary evidence in support of the
answer;
(3) be represented by an attorney or other
representative; and
(4) a written decision and the specific reasons therefor at the earliest practicable
date.
5 U.S.C. § 7513(b)(1)–(4). An excepted civil service employee is also entitled to appeal an adverse action to the
Merit Systems Protection Board (the “Board” or the
“MSPB”).
Id. § 7513(d).
Qualifying veterans in the excepted civil service, also
referred to as “preference-eligible” veterans, receive employee status and CSRA benefits after completing a one-year probationary period of “current continuous” employment. Id. § 7511(a)(1)(B). Non-veterans in the excepted
civil service receive employee status and CSRA benefits after completing two years of current continuous employment. Id. § 7511(a)(1)(C). An employer may terminate an
individual during his probationary period if the individual
“fails to demonstrate his fitness or his qualifications for
continued employment . . . .” 5 C.F.R. § 315.804(a). The
employer, however, “must honestly be dissatisfied with the
probationer’s conduct or performance after giving him a
fair trial on the job.” Shaw v. United States,
622 F.3d 520,
544 (Ct. Cl. 1980) (quotation omitted) (discussing
5 C.F.R.
§ 315.804(a) (1975)).
B. SSA Policies and Procedures
Mr. McGuffin, a preference-eligible veteran, was hired
as an attorney advisor by the Social Security Administration (“SSA” or the “agency”), Office of Disability Adjudication and Review (“ODAR”), for its office in Raleigh, North
Carolina. As SSA’s appellate branch, ODAR reviews and
issues decisions on disability claims. Attorney advisors,
4 MCGUFFIN v. SSA
also known as “decision writers,” assist the agency’s Administrative Law Judges (“ALJ”) by researching and drafting decisions.
SSA evaluates its attorney advisors based on a variety
of factors, which vary depending on the seniority of the attorney advisor. First, as noted in the SSA Personnel Policy
Manual, SSA evaluates new hires, like Mr. McGuffin, during the first year of employment under a limited performance evaluation program based on the following two
elements: “interpersonal skills” and “engages in new learning.” J.A. 464, 640–41. The SSA Personnel Policy Manual
notes that new hires are placed on this limited evaluation
program because “the first year of employment in their new
SSA position may be spent in formal classroom and on-thejob training,” and, thus, the limited evaluation program
“allows those employees additional time to demonstrate
performance in all elements of their positions.” J.A. 480.
To meet the “interpersonal skills” element, the SSA Personnel Policy Manual notes that a new hire should treat
the public and fellow employees with courtesy and respect,
listen to feedback from co-workers and managers, communicate effectively and maintain positive and productive
working relationships. To satisfy the “engages in new
learning” element, the SSA Personnel Policy Manual notes
that a new hire should participate in training, accurately
process work, and demonstrate progress toward independent completion of work.
Second, SSA evaluates employees past their first year
of employment under four elements: “interpersonal skills,”
“participation,” “demonstrates job knowledge,” and
“achieves business results.” J.A. 465. Relevant to this appeal is the “achieves business results” element, which requires an employee to produce his “fair share of work.”
J.A. 468.
The “fair share” standard is determined by dividing the
total number of cases Congress funds SSA to adjudicate by
MCGUFFIN v. SSA 5
the number of SSA decision writers available to write decisions. An attorney advisor’s fair share varies month-tomonth, depending on the amount of cases assigned to a
given ODAR office. The fair share standard does not apply
to attorney advisors during their first year of employment.
Third, SSA tracks the productivity of all attorney advisors, both new and permanent, by utilizing the Decision
Writer Statistical Index (“DWSI”). Based on this index, the
agency circulates a monthly report that indicates whether
an employee has completed his assigned cases for that
month. If an attorney advisor completes all the work assigned to him each month, his DWSI score would be 100%.
The DWSI allots four hours for a decision where the ALJ
grants a claim, and eight hours where the ALJ denies a
claim. As the SSA Personnel Policy Manual notes, numeric
data—such as the DWSI rating, the timeliness and accuracy of work, and the need to produce a fair share of the
workload—“may be gathered and maintained in order to
provide context to performance standards and expectations,” but it cannot be the sole basis for terminating an
employee. J.A. 823, 842.
Fourth, SSA tracks the productivity of both new and
permanent attorney advisors by using a seven-day benchmark. Under that benchmark, attorney advisors should
write a decision in seven days. This benchmark is a goal,
not an absolute requirement. SSA does not remove employees based solely on their failure to meet the seven-day
benchmark.
C. Mr. McGuffin’s Employment at SSA
On February 8, 2010, Mr. McGuffin began his employment with SSA as a preference-eligible veteran who was
entitled to receive CSRA benefits after one year of service.
Mr. McGuffin’s direct supervisor was Mark Thompson, who
in turn reported to William Strong, the Hearing Office Director for the Raleigh ODAR office.
6 MCGUFFIN v. SSA
During Mr. McGuffin’s initial months at the agency,
Mr. McGuffin had a low monthly case completion rate, as
measured by the DWSI, and Mr. McGuffin had some cases
that were past the seven-day benchmark. Aware of this,
Mr. McGuffin reached out to Mr. Thompson for training opportunities, noting that he wanted to take “immediate and
comprehensive steps to increase [his] productivity to an appropriate level,” and requested “some needed orientation
and training.” J.A. 580. Mr. McGuffin noted that he was
specifically “looking forward” to attending “decision writer
training” “as soon as possible” and that “it would help [him]
to do [his] job more competently and more quickly.” Id.
SSA eventually sent Mr. McGuffin to a two-week decisionwriter training course in July 2010.
Also, during these initial months, SSA was satisfied
with Mr. McGuffin’s performance. In March 2010, ALJ
John Thawley, located in the Raleigh ODAR office, noted
that Mr. McGuffin “did a very nice job,” on a decision he
drafted for him, noting it was “[d]etailed, thorough, [and]
well put together.” J.A. 1157. In April 2010, Mr. Thompson completed an evaluation report for Mr. McGuffin, noting that Mr. McGuffin “continues to work on processing his
work timely and accurately,” and that he “demonstrates
willingness to progress towards independent completion of
his work.” J.A. 500. Mr. Thompson also noted that “[o]nce
[Mr. McGuffin] completes training,” he “will be a great employee.” Id. In July 2010, ALJ Lisa Hall, also located in
the Raleigh ODAR office, provided feedback to Mr. McGuffin, noting that, aside from going into too much detail and
some spelling errors, Mr. McGuffin did a “good job on the
substantive summary” in a decision he drafted. S. J.A. 28.
Despite Mr. McGuffin’s favorable performance, by midOctober 2010, SSA began to consider terminating Mr.
McGuffin. On October 16, 2010, Mr. Strong emailed Paula
Bosworth, a senior attorney advisor at ODAR, that he was
“considering removing” Mr. McGuffin. J.A. 234. Mr.
MCGUFFIN v. SSA 7
Strong also indicated that he was considering removing another attorney advisor also hired in February 2010, Angela
Banks. Id. Mr. Strong noted that “[n]either of them is performing up to the standards we expect.”
Id. Ms. Banks,
unlike Mr. McGuffin, was not a preference-eligible veteran
and would therefore receive procedural safeguards after a
two-year probationary period.
On October 25, 2010, Ms. Bosworth emailed ALJ Kathleen McGraw, the Deputy Regional Chief ALJ in the Regional Office, regarding the termination of Mr. McGuffin
and Ms. Banks. ALJ McGraw, whose duties included advising local ODAR offices on labor-and-management issues, replied that “[t]he vet[eran] has to be terminated
in his first year—for [Ms. Banks] it is 2 years.” J.A. 223
(emphasis added). Ms. Bosworth asked: “why must the
veteran be terminated within his first year?” Id. (emphasis added). ALJ McGraw responded that, as a preference-eligible veteran in the excepted service, Mr. McGuffin
would acquire procedural and appellate rights after completing one year of service.
Id. Having received clarification, Ms. Bosworth notified Mr. Strong on October 27, 2010,
that “Mr. McGuffin must be terminated prior to the end
of his first year. Angela Banks may be terminated any time
within her 2-year trial work period, but if you want to let
her go within the first year also, that is fine.” J.A. 234.
(emphasis added). Ms. Banks was not fired and ultimately
received a promotion.
That same day, Mr. Thompson evaluated Mr. McGuffin’s performance for a second time. Mr. Thompson noted
twice in Mr. McGuffin’s evaluation report that he was not
producing his “fair share,” a factor which is part of the
“achieves business results” element, which is not applicable to new hires. First, under the “engages in learning element,” Mr. Thompson noted that Mr. McGuffin
“demonstrates the willingness to progress towards independent work, but he has not been able to complete his fair
8 MCGUFFIN v. SSA
share since he began,” and that his “level of work is unacceptable.” J.A. 501. Second, under the “interpersonal
skills” element, Mr. Thompson noted that Mr. McGuffin
“has not produced his fair share of the workload since he
began to count as a full time writer.” Id. Although he indicated concerns regarding Mr. McGuffin’s ability to complete his fair share, Mr. Thompson gave Mr. McGuffin an
overall rating of “Successful Contribution.”
Id.
In November 2010, SSA proceeded with its plan to terminate Mr. McGuffin. On November 3, 2010, Mr. Thompson emailed Mr. Strong that it was better to terminate Mr.
McGuffin rather than to provide him with additional training because he was going to “be a problem for us in the long
run.” J.A. 825. Additionally, Mr. Strong requested sample
termination letters from Ms. Bosworth and informed her
that Mr. McGuffin was performing “well below his fair
share” and that “[b]y and large the ALJs are not satisfied
with his quality.” J.A. 824. Ms. Bosworth responded that
the fair share standard was not usually applied to first year
hires and asked whether “Mr. McGuffin’s low productivity
shows he is not engaging learning.” Id. Mr. Strong forwarded Ms. Bosworth’s email to Mr. Thompson, noting that
“we will have to approach this [termination] using the terminology that [Mr. McGuffin’s] low production . . . shows
that he is not engaging in learning adequately/sufficiently.”
Id.
In December 2010, Mr. Thompson reached out to Mr.
McGuffin concerning various outstanding cases. Mr.
McGuffin responded, acknowledging that his cases were
overdue and that he “derive[d] no pleasure from being the
slowest writer in Raleigh ODAR.” S. J.A. 46. Mr. McGuffin
also noted that he was “willing to try almost anything” to
achieve the “numbers expectation.” Id.
During this month, Mr. McGuffin received positive
feedback from ALJ Robert Phares, who was located in the
Raleigh ODAR office. ALJ Phares emailed Mr. McGuffin
MCGUFFIN v. SSA 9
that he “especially appreciate[d] the time [Mr. McGuffin]
spent going into detail as to why the medical findings do
not support disability,” which was “[s]o much better than
just canned language.” J.A. 504. ALJ Phares noted that
the “details” in the opinion prepared by Mr. McGuffin “are
just crushing to any lawyer deciding as to whether an appeal would be successful.” Id.
Despite ALJ Phares’ praise, Mr. Thompson emailed a
draft termination letter for review to Ms. Bosworth just two
days later, stressing that he “hope[d] to relieve [Mr. McGuffin] of his duties prior” to the end of Mr. McGuffin’s one-year probationary period. J.A. 822. Upon review of the
draft, Ms. Bosworth responded, warning Mr. Thompson
that he could not base Mr. McGuffin’s termination on a “numerics [sic] standard,” which the agency did not employ,
and that they “may need to think about another way to approach this.” J.A. 823.
In late December 2010, Ms. Bosworth emailed ALJ
McGraw that Mr. McGuffin’s “performance situation is a
bit problematic because of his disability,” a cognitive disability which is characteristic of a preference-eligible veteran, and asked whether they should put Mr. McGuffin on
a two-week training assistance plan. ALJ McGraw agreed
that a “quick assistance plan may be in order” and reminded Ms. Bosworth that a preference-eligible veteran’s
procedural rights vest after one year. Ms. Bosworth then
emailed Mr. Thompson that Mr. McGuffin should be placed
on a two-week training assistance plan “ASAP,” reminding
Mr. Thompson that Mr. McGuffin was a preference-eligible
veteran and that “any action separating him from employment must be issued and effective on 2/8/11 to be on the
safe side.” J.A. 1110.
At the behest of Ms. Bosworth, Mr. McGuffin’s supervisors placed Mr. McGuffin in a training assistance program from January 5, 2011 to January 26, 2011. As part
of the plan, the agency assigned Mr. McGuffin cases daily,
10 MCGUFFIN v. SSA
as opposed to weekly, to help him prioritize and efficiently
manage his time. During this time, ALJ Hall requested
that Mr. McGuffin take another “stab” at a decision he
wrote for her. S. J.A. 50. In addition, ALJ Edward Bowling, located in the Raleigh ODAR office, noted that Mr.
McGuffin did an “excellent job” on a case and that Mr.
McGuffin “even convinced” him that he “made the right decision.” J.A. 503. Most notably, Mr. McGuffin significantly
improved in productivity under the training assistance
plan, increasing his monthly DWSI rating from 46% in December 2010 to 80% in January 2011.
On January 26, 2010, despite Mr. McGuffin’s improvement throughout the previous three weeks, Mr. Strong
emailed Ms. Bosworth, stating that Mr. McGuffin “had not
fared well” under the training assistance plan and that
they needed to “pursue removal before [Mr. McGuffin’s]
year expires on 02/08/2011.” J.A. 1112. Mr. Strong also
stated that “[w]e have bent over backwards to try to be
fair.” J.A. 247. Ms. Bosworth responded to Mr. Strong’s
email, requesting a draft termination letter for Mr. McGuffin “immediately.” J.A. 1113. Mr. Thompson subsequently
sent Ms. Bosworth a draft termination letter.
On January 27, 2011, Ms. Bosworth reviewed Mr.
McGuffin’s draft termination letter and notified Mr.
Thompson that the draft termination letter should not
“talk[] about the statistical index,” which was a measure
for assigning cases, not measuring performance. J.A. 508.
Ms. Bosworth then revised the draft termination letter by
recrafting Mr. Thompson’s concern that Mr. McGuffin consistently failed to meet his fair share into one regarding
Mr. McGuffin’s inability to independently complete his
work, a factor within the “engages in new learning” element applicable only to new hires. J.A. 510, 514. Ms. Bosworth also included in the draft termination letter that Mr.
McGuffin had attended training in January 2011 and that
ALJ Hall requested that Mr. McGuffin re-draft a decision
MCGUFFIN v. SSA 11
but failed to mention that Mr. McGuffin’s DWSI rating dramatically improved and that he received positive feedback
from ALJ Bowling. Id.
Ms. Bosworth then sent the revised draft termination
letter to the SSA Office of General Counsel and the SSA
Labor-Management Employee Relations Team for their approval. Ms. Bosworth noted that Mr. McGuffin was a “veteran’s preference” and that “we want to terminate him
within his first year of service so that he does not acquire
MSPB rights.” J.A. 1117, 1124. Because Mr. McGuffin
would complete one year of employment on February 7,
2011, Ms. Bosworth highlighted that they needed to terminate him no later than February 4, 2011.
On February 4, 2011, four days before attaining full
employee status, SSA terminated Mr. McGuffin. Mr.
McGuffin’s termination letter states that he was being terminated for “failure to demonstrate” the ability to “satisfactorily perform the duties” of the attorney advisor
position. J.A. 190. The letter further explains that Mr.
McGuffin did not perform his duties “accurately and independently,” and that Mr. Strong did “not believe that further training efforts would be productive.” Id.
D. Post-Termination Proceedings
Following his termination, Mr. McGuffin unsuccessfully challenged his termination before the Equal Employment Opportunity Commission (“EEOC”), alleging that
SSA had unlawfully discriminated against him based on
his disability. During the EEOC proceeding, Mr. McGuffin
deposed ALJ McGraw, asking her whether the “fact that
[he] would obtain MSPB appeal rights after one year” as a
preference-eligible veteran was “relevant in the decision to
terminate [his] employment.” J.A. 555. ALJ McGraw responded “yes.” J.A. 556. ALJ McGraw further testified
that it was “true” that there was a “rush” to terminate Mr.
McGuffin prior to the end of his first year. J.A. 558. ALJ
McGraw also testified that “we would prefer not to have to
12 MCGUFFIN v. SSA
go through the formal process of an MSPB hearing,” and
that “[w]e advise managers if they know someone is not going to work out as a – as a writer . . . to terminate that
individual before their MSPB appeal rights vest . . ..”
J.A. 556, 559.
Following his EEOC case, Mr. McGuffin sought corrective action before the MSPB, claiming that the SSA denied
him a benefit of his employment because of his military status when he was terminated within the one-year probationary period applicable to preference-eligible veterans, in
violation of USERRA. On June 16, 2017, the Board denied
Mr. McGuffin’s request for corrective action, finding that
SSA’s termination of Mr. McGuffin did not violate
USERRA. The Board concluded that SSA properly found
Mr. McGuffin’s “performance during that initial year unacceptable, and acting [sic] promptly to terminate his employment before he acquired employee status with Board
appeal rights.” J.A. 9. The Board also found credible the
testimony of Mr. Strong, Mr. Thompson, and ALJ McGraw
that “they would have terminated any employee who was
performing as poorly as the appellant was after almost a
year of training, even if their trial periods extended for an
additional year.” J.A. 22. The Board concluded that, based
on the testimonies of Mr. Strong, Mr. Thompson, and ALJ
McGraw, SSA “demonstrated by preponderant evidence
that it would have taken the same action against [Mr.
McGuffin] without regard to his military status.” J.A. 22.
The Board’s decision became final on July 21, 2017. Mr.
McGuffin appealed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
II. STANDARD OF REVIEW
Our review of MSPB decisions is statutorily limited.
See 5 U.S.C. § 7703(c). We must set aside a Board decision
when 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
MCGUFFIN v. SSA 13
been followed; or [3] unsupported by substantial evidence.”
Hayes v. Dep’t of the Navy,
727 F.2d 1535, 1537 (Fed. Cir.
1984). “Underlying factual determinations are reviewed
for substantial evidence.” McMillan v. Dep’t of Justice,
812 F.3d 1364, 1371 (Fed. Cir. 2016).
Substantial evidence “means such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938); see also In re Jolley,
308 F.3d 1317, 1320
(Fed. Cir. 2002). “The substantiality of evidence must take
into account whatever in the record fairly detracts from its
weight.” Miller v. Dep’t of Justice,
842 F.3d 1252, 1258
(Fed. Cir. 2016) (quotation omitted). Accordingly, “[a]ny
determination by an AJ that is based on findings made in
the abstract and independent of the evidence which fairly
detracts from his or her conclusions is unreasonable and,
as such, is not supported by substantial evidence.”
Id.
(quotation omitted).
III. DISCUSSION
USERRA prohibits discrimination in employment on
the basis of military service. 38 U.S.C. § 4311; Erickson v.
U.S. Postal Serv.,
571 F.3d 1364, 1368 (Fed. Cir. 2009);
Sheehan v. Dep’t of Navy,
240 F.3d 1009, 1012 (Fed. Cir.
2001). The statute provides:
(a) 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.
....
14 MCGUFFIN v. SSA
(c) An employer shall be considered to have engaged in actions prohibited . . . under subsection (a), if the person’s membership,
application for membership, service, application for service, 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 absence of such membership, application
for membership, service, application for service, or obligation for service . . . .
38 U.S.C. § 4311. A “benefit of employment” includes “any
advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement.”
Id. § 4303(2).
The employee asserting 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. Id. § 4311(c)(1); Erickson, 571 F.3d at 1368.
Once an employee has met this burden, the burden shifts
to the employer to prove by preponderant evidence that it
“would have taken the adverse action anyway, for a valid
reason.” Sheehan,
240 F.3d at 1013. An employer violates
USERRA “if it would not have taken the adverse employment action but for the employee’s military service or obligation.” Erickson,
571 F.3d at 1368.
A.
We first turn to whether Mr. McGuffin sufficiently
proved by preponderant evidence that his preference-eligible veteran status was a substantial or motivating factor in
his termination. “[M]ilitary service is 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.”
MCGUFFIN v. SSA 15
McMillan, 812 F.3d at 1372 (quoting Erickson,
571 F.3d at
1368). Because employers “rarely concede an improper motivation for their employment actions,” employees may
meet their burden by submitting evidence from which such
a motive may be fairly inferred.
Id.
To determine if discriminatory motive can be reasonably inferred, this court considers the so-called four, non-exclusive “Sheehan factors,” which are:
[1] proximity in time between the employee’s military 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 employee’s military activity, and [4] disparate treatment of certain employees compared to other
employees with similar work records or offenses.
Sheehan, 240 F.3d at 1014.
The Board determined that SSA’s rush to terminate
Mr. McGuffin before he obtained his CSRA benefits was a
proper exercise of its “management prerogative.” J.A. 8.
SSA, however, cannot escape liability under USERRA
when Mr. McGuffin’s CSRA benefits are intrinsically tied
to his preference-eligible veteran status. Guiding our reasoning is Erickson, in which this court explained that an
employer cannot discriminate against an employee for action that is intrinsically tied to his military service. See
Erickson, 571 F.3d at 1368.
In Erickson, the Postal Service stated that the sole reason for removing the employee was his excessive use of military leave. Id. The Board found that “Erickson had failed
to show that his military service was a motivating factor
for the agency’s action because the ‘real reason’ for his removal was his absence from work—regardless of whether
that absence was caused by his military obligation.”
Id.
16 MCGUFFIN v. SSA
This court rejected that argument, holding that “[a]n employer cannot escape liability under USERRA by claiming
that it was merely discriminating against an employee on
the basis of his absence when that absence was for military
service.”
Id. Permitting otherwise “would eviscerate the
protections afforded by USERRA” to those who serve or
have served in the military.
Id. So too here. The one-year
timeline for obtaining CSRA benefits is intertwined with a
veteran’s prior military service. If employers could discriminate against veterans based on this one-year timeline,
then what Congress created as a benefit to veterans for
their service—a shortened timeframe for obtaining CSRA
protection—could be turned against the veteran by employers, who, like ALJ McGraw, “would prefer not to have to go
through the formal process of an MSPB hearing.” J.A. 556.
Thus, the proper inquiry on appeal is not simply whether
Mr. McGuffin’s preference-eligible veteran status played a
substantial or motivating factor in his termination, but
also whether it was a substantial or motivating factor in
SSA’s timing of his termination, which occurred four days
before he was set to receive CSRA benefits.
In this case, no reasonable inference of discrimination
under the Sheehan factors is needed. The record compels
a finding that SSA’s decision to terminate Mr. McGuffin
when it did—four days before he completed one year of employment—was substantially motivated by Mr. McGuffin’s
preference-eligible veteran status.
To summarize, by late October 2010, after becoming
aware of Mr. McGuffin’s preference-eligible veteran status,
SSA decided that Mr. McGuffin “must” be terminated before his one-year mark in order to prevent him from receiving CSRA benefits. J.A. 234. Then, from November 2010
to December 2010, Mr. McGuffin’s supervisors refused to
offer additional training to Mr. McGuffin and became solely
focused on finalizing his termination before his one-year
mark. J.A. 825, 1099, 1100, 1113. In January 2011, at the
MCGUFFIN v. SSA 17
behest of Ms. Bosworth, Mr. McGuffin’s supervisors finally
placed Mr. McGuffin in additional training. J.A. 1110. Despite Mr. McGuffin’s dramatic increase in his DWSI rating
and positive feedback from ALJ Bowling during the training, Mr. Strong characterized Mr. McGuffin as not having
“fared well” during January 2011 and pressed forward with
terminating Mr. McGuffin. J.A. 1112. The record is clear
that SSA closed the door on Mr. McGuffin well before the
end of his first year to avoid the inconvenience of defending
itself should Mr. McGuffin assert his procedural safeguards afforded under the CSRA. For these reasons, substantial evidence supports only one conclusion: Mr.
McGuffin’s preference-eligible veteran status was a substantial factor in SSA’s decision to terminate Mr. McGuffin
just four days shy of his one-year anniversary at SSA.
B.
Having determined that Mr. McGuffin carried his burden under the USERRA inquiry, we now turn to whether
SSA carried its burden to prove that it terminated Mr.
McGuffin for a valid reason. The Board determined that
SSA sufficiently proved that Mr. McGuffin was terminated
because he was a “poor” performer who had not demonstrated the “required productivity, timeliness and quality
after a year of training.” J.A. 22.
The documentary evidence, however, does not support
a finding that Mr. McGuffin was a poorly performing new
hire attorney advisor. As previously noted, SSA evaluates
newly hired attorney advisors like Mr. McGuffin under a
limited evaluation plan during the first year. J.A. 480. The
record indicates, however, that Mr. Thompson and Mr.
Strong instead held Mr. McGuffin to a higher standard of
meeting his “fair share,” an evaluation element that is applied to attorney advisors only after their first year of employment. The record further indicates that Mr. Thompson
and Mr. Strong became fixated on Mr. McGuffin’s inability
to meet his fair share, having noted this concern multiple
18 MCGUFFIN v. SSA
times in Mr. McGuffin’s October 2010 evaluation report, as
well as raising it with Ms. Bosworth. J.A. 508, 823–24. Mr.
Thompson and Mr. Strong knew that this element was not
applicable to Mr. McGuffin until his second year, at which
point Mr. McGuffin would acquire his CSRA benefits.
J.A. 824. Not willing to wait until then, Mr. Thompson and
Mr. Strong, with the help of Ms. Bosworth, modified the
“engages in new learning” element to implicitly contain a
fair share standard. J.A. 510, 514, 823–24. For example,
after instructing Mr. Thompson that the fair share standard could not be a basis for Mr. McGuffin’s termination,
Ms. Bosworth recrafted Mr. McGuffin’s draft termination
letter by replacing the “fair share” reference with a reference to an inability to independently complete his work, a
sub-element to the “engages in new learning” element.
J.A. 510, 514.
Disregarding the improper references to Mr. McGuffin’s inability to meet his fair share and other numeric
data, the agency’s evaluation report for October 2010 indicates that Mr. McGuffin successfully met the limited two
element evaluation standard for new hires. J.A. 500–01.
Furthermore, despite SSA’s argument that the “quality” of
Mr. McGuffin’s work was lacking, Mr. Thompson testified
at Mr. McGuffin’s EEOC hearing that Mr. McGuffin had to
re-write a decision on only two occasions throughout his
first year at SSA. J.A. 408. Additionally, these two occasions occurred in late December 2010 and January 2011,
well after Mr. Thompson had already decided in early November 2010 that Mr. McGuffin should be fired instead of
being trained. Mr. Thompson further testified at that same
EEOC hearing that it was “not uncommon” for an ALJ to
be “unhappy with a decision” drafted by an attorney advisor and to require edits to that decision. J.A. 407–08, 413.
In addition, the record indicates that Mr. McGuffin received positive feedback from various ALJs about the quality of his work. This evidence demonstrates that Mr.
McGuffin was not performing poorly, let alone so poorly as
MCGUFFIN v. SSA 19
to justify the agency’s rush to remove him four days before
his one-year mark. For these reasons, SSA’s purported reason for terminating Mr. McGuffin—his poor performance—
is inconsistent with the documentary evidence, which
points to only one reasonable motive: SSA rushed to terminate Mr. McGuffin four days before he completed his first
year at the agency solely to prevent him from obtaining
CSRA benefits.
The Board determined that, based on the testimony of
Mr. Strong, Mr. Thompson, and ALJ McGraw, SSA sufficiently proved that Mr. McGuffin was validly terminated
due to his poor performance. The Board noted that Mr.
McGuffin’s supervisors “credibl[y]” testified that they
would have terminated any employee who was performing
as poorly as Mr. McGuffin “after almost a year of training.”
J.A. 22. The testimony relied on by the Board, however, is
undermined by the documentary evidence reviewed above
and, thus, the Board erred by not giving due weight to this
evidence. The Board may not insulate its findings from review by denominating them credibility determinations
when “documents or objective evidence may contradict the
witness’ story.” Anderson v. City of Bessemer City, N.C.,
470 U.S. 564, 575 (1985); see also Jones v. Dep’t of Health
& Human Servs.,
834 F.3d 1361, 1368 (Fed. Cir. 2016).
In sum, as noted above, the preference-eligible veteran
must satisfy his statutory burden. If met, then the burden
shifts to the employer, who must show a “valid” reason for
terminating a preference-eligible veteran within his probationary period to not run afoul of USERRA. Sheehan, 240
F.3d at 1013. SSA’s improper evaluation of Mr. McGuffin
based on the fair share standard, SSA’s delay in providing
Mr. McGuffin with adequate training, and its disregard of
the positive results of that training in January 2011 do not
support Mr. Strong’s self-serving and incorrect statement
that the agency “bent over backwards to try to be fair,” or
a conclusion that SSA was honestly dissatisfied with Mr.
20 MCGUFFIN v. SSA
McGuffin’s performance. J.A. 247. Instead, the record indicates that SSA was honestly concerned with the administrative burden of defending itself should Mr. McGuffin
assert his CSRA procedural safeguards. For these reasons,
substantial evidence does not support a finding that SSA
terminated Mr. McGuffin when it did for poor performance.
To be clear, USERRA allows for termination of veterans
within their first year of employment so long as the employer’s reason for termination is valid. Based on the circumstances of this case, however, substantial evidence
does not support such a conclusion. SSA’s discriminatory
treatment of Mr. McGuffin violates USERRA’s objective of
protecting veterans from being disadvantaged in the workplace by virtue of their military service, and, thus, cannot
stand. See Erickson,
571 F.3d at 1368.
IV. CONCLUSION
We have considered all of SSA’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
reverse the Board’s decision that USERRA was not violated, and remand for determination of an appropriate
remedy.
REVERSED AND REMANDED
COSTS
Costs to Mr. McGuffin.
