Petition for review of the Merit Systems Protection Board in
Clarence Andrew McGuffin, Raleigh, NC, argued pro se.
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.
Moore, Reyna, and Chen, Circuit Judges.
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.
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
(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
(2) a reasonable time, but not less than 7 days, to answer
orally and in writing and to furnish affidavits and other
documentary evidence in support of the answer;
(3) be represented by an attorney or other representative;
(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).
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)).
Policies and Procedures
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, also known as "decision
writers," assist the agency's Administrative Law
Judges ("ALJ") by researching and drafting
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-the-job 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.
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.
"fair share" standard is determined by dividing the
total number of cases Congress funds SSA to adjudicate by the
number of SSA decision writers available to write decisions.
An attorney advisor's fair share varies month-to-month,
depending on the amount of cases assigned to a given ODAR
office. The fair share ...