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McGuffin v. Social Security Administration

United States Court of Appeals, Federal Circuit

November 7, 2019

CLARENCE ANDREW MCGUFFIN, Petitioner
v.
SOCIAL SECURITY ADMINISTRATION, Respondent

          Petition for review of the Merit Systems Protection Board in No. DC-4324-14-0938-B-1.

          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.

          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 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, 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-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.

         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 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 ...


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