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, Wash- ington, 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 Em- ployment and Reemployment Rights Act when it termi- nated 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 dis- crimination 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 no- tice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprison- ment may be imposed, stating the spe- cific 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 doc- umentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific rea- sons therefor at the earliest practicable date. 5 U.S.C. § 7513(b)(1)–(4). An excepted civil service em- ployee 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 em- ployee status and CSRA benefits after completing a one- year probationary period of “current continuous” employ- ment. Id. § 7511(a)(1)(B). Non-veterans in the excepted civil service receive employee status and CSRA benefits af- ter completing two years of current continuous employ- ment. 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 Administra- tion (“SSA” or the “agency”), Office of Disability Adjudica- tion 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 Ad- ministrative Law Judges (“ALJ”) by researching and draft- ing decisions. SSA evaluates its attorney advisors based on a variety of factors, which vary depending on the seniority of the at- torney advisor. First, as noted in the SSA Personnel Policy Manual, SSA evaluates new hires, like Mr. McGuffin, dur- ing the first year of employment under a limited perfor- mance evaluation program based on the following two elements: “interpersonal skills” and “engages in new learn- ing.” 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 Per- sonnel 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, com- municate 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 independ- ent 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 ap- peal is the “achieves business results” element, which re- quires 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 deci- sions. 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 standard does not apply to attorney advisors during their first year of employment. Third, SSA tracks the productivity of all attorney ad- visors, 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 as- signed 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 accu- racy 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 expecta- tions,” 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 bench- mark. 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 em- ployees 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 employ- ment 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 Di- rector 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 op- portunities, noting that he wanted to take “immediate and comprehensive steps to increase [his] productivity to an ap- propriate 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 decision- writer 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. Thomp- son completed an evaluation report for Mr. McGuffin, not- ing 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 em- ployee.” Id. In July 2010, ALJ Lisa Hall, also located in the Raleigh ODAR office, provided feedback to Mr. McGuf- fin, 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 mid- October 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 an- other attorney advisor also hired in February 2010, Angela Banks. Id. Mr. Strong noted that “[n]either of them is per- forming 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 Kath- leen McGraw, the Deputy Regional Chief ALJ in the Re- gional Office, regarding the termination of Mr. McGuffin and Ms. Banks. ALJ McGraw, whose duties included ad- vising local ODAR offices on labor-and-management is- sues, 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. (empha- sis added). ALJ McGraw responded that, as a preference- eligible veteran in the excepted service, Mr. McGuffin would acquire procedural and appellate rights after com- pleting one year of service. Id. Having received clarifica- tion, 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. McGuf- fin’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 applica- ble to new hires. First, under the “engages in learning ele- ment,” Mr. Thompson noted that Mr. McGuffin “demonstrates the willingness to progress towards inde- pendent 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 unac- ceptable.” 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 in- dicated concerns regarding Mr. McGuffin’s ability to com- plete his fair share, Mr. Thompson gave Mr. McGuffin an overall rating of “Successful Contribution.” Id. In November 2010, SSA proceeded with its plan to ter- minate Mr. McGuffin. On November 3, 2010, Mr. Thomp- son emailed Mr. Strong that it was better to terminate Mr. McGuffin rather than to provide him with additional train- ing 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 for- warded Ms. Bosworth’s email to Mr. Thompson, noting that “we will have to approach this [termination] using the ter- minology that [Mr. McGuffin’s] low production . . . shows that he is not engaging in learning adequately/suffi- ciently.” 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 ap- peal 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. McGuf- fin] 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 “nu- merics [sic] standard,” which the agency did not employ, and that they “may need to think about another way to ap- proach 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 disa- bility which is characteristic of a preference-eligible vet- eran, 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 re- minded 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 employ- ment 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 super- visors placed Mr. McGuffin in a training assistance pro- gram 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 Bowl- ing, 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 de- cision.” J.A. 503. Most notably, Mr. McGuffin significantly improved in productivity under the training assistance plan, increasing his monthly DWSI rating from 46% in De- cember 2010 to 80% in January 2011. On January 26, 2010, despite Mr. McGuffin’s improve- ment 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. McGuf- fin “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 con- sistently 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” ele- ment applicable only to new hires. J.A. 510, 514. Ms. Bos- worth 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 dra- matically 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 ap- proval. Ms. Bosworth noted that Mr. McGuffin was a “vet- eran’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 termi- nate 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 ter- minated for “failure to demonstrate” the ability to “satis- factorily 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 inde- pendently,” and that Mr. Strong did “not believe that fur- ther training efforts would be productive.” Id. D. Post-Termination Proceedings Following his termination, Mr. McGuffin unsuccess- fully challenged his termination before the Equal Employ- ment 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 re- sponded “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 go- ing 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 correc- tive action before the MSPB, claiming that the SSA denied him a benefit of his employment because of his military sta- tus when he was terminated within the one-year probation- ary 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 unac- ceptable, and acting [sic] promptly to terminate his em- ployment 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 with- out 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 ini- tial employment, reemployment, retention in employment, promotion, or any benefit of em- ployment by an employer on the basis of that membership, application for membership, per- formance of service, application for service, or obligation. .... 14 MCGUFFIN v. SSA
(c) An employer shall be considered to have en- gaged in actions prohibited . . . under subsec- tion (a), if the person’s membership, application for membership, service, applica- tion 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 ser- vice, or obligation for service . . . . 38 U.S.C. § 4311. A “benefit of employment” includes “any advantage, profit, privilege, gain, status, account, or inter- est (including wages or salary for work performed) that ac- crues by reason of an employment contract or agreement.” Id. § 4303(2). The employee asserting a USERRA claim has the ini- tial 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 employ- ment 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 employ- ment action but for the employee’s military service or obli- gation.” Erickson, 571 F.3d at 1368. A. We first turn to whether Mr. McGuffin sufficiently proved by preponderant evidence that his preference-eligi- ble 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 deci- sion’ 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 mo- tivation 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 reasona- bly inferred, this court considers the so-called four, non-ex- clusive “Sheehan factors,” which 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. 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 rea- soning is Erickson, in which this court explained that an employer cannot discriminate against an employee for ac- tion that is intrinsically tied to his military service. See Erickson, 571 F.3d at 1368. In Erickson, the Postal Service stated that the sole rea- son for removing the employee was his excessive use of mil- itary 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 re- moval 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 em- ployer 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 dis- criminate 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 employ- ers, 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 em- ployment—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 be- fore his one-year mark in order to prevent him from receiv- ing 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. De- spite Mr. McGuffin’s dramatic increase in his DWSI rating and positive feedback from ALJ Bowling during the train- ing, 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 safe- guards afforded under the CSRA. For these reasons, sub- stantial evidence supports only one conclusion: Mr. McGuffin’s preference-eligible veteran status was a sub- stantial 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 bur- den 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 demon- strated 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 ap- plied to attorney advisors only after their first year of em- ployment. 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 stand- ard 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 refer- ence 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. McGuf- fin’s inability to meet his fair share and other numeric data, the agency’s evaluation report for October 2010 indi- cates 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 occa- sions occurred in late December 2010 and January 2011, well after Mr. Thompson had already decided in early No- vember 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 advi- sor and to require edits to that decision. J.A. 407–08, 413. In addition, the record indicates that Mr. McGuffin re- ceived positive feedback from various ALJs about the qual- ity 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 rea- son for terminating Mr. McGuffin—his poor performance— is inconsistent with the documentary evidence, which points to only one reasonable motive: SSA rushed to termi- nate 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 suffi- ciently 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 re- view 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 proba- tionary 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 in- dicates that SSA was honestly concerned with the admin- istrative 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 em- ployer’s reason for termination is valid. Based on the cir- cumstances 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 work- place 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 vio- lated, and remand for determination of an appropriate remedy. REVERSED AND REMANDED COSTS Costs to Mr. McGuffin.