Petition for review of the Merit Systems Protection Board in
Edward Byrnes, FH, PLLC, Tysons, VA, argued for petitioner.
Moses, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, argued for
respondent. Also represented by Robert Edward Kirschman, Jr.,
Patricia M. McCarthy, Joseph H. Hunt.
Moore, Taranto, and Chen, Circuit Judges.
Sharpe appeals a decision of the Merit Systems Protection
Board ("MSPB") denying his request for corrective
action under the Uniformed Services Employment and
Reemployment Rights Act ("USERRA"). Because we hold
that the MSPB abused its discretion in excluding evidence, we
vacate the MSPB's decision and remand for further
Sharpe has been employed as an agent at the Drug Enforcement
Agency ("DEA") since 1995. Until 2008, he also
served as a reservist in the United States Navy. While at the
DEA, Mr. Sharpe was deployed three times as a reservist: for
three weeks in 1998, for six months in 2003, and again for
six months in 2006.
Sharpe was transferred from the Los Angeles Field Division to
the San Diego Field Division ("SDFD") in 2007.
Aside from a temporary promotion to a GS-14 position in 2012,
he has served in a GS-13 position since 2001. As of 2015, Mr.
Sharpe has applied for fourteen GS-14 positions since 2012,
but he has never been selected for promotion.
2009, Mr. Sharpe has been supervised by William Sherman, who
served first as an Assistant Special Agent in Charge
("ASAIC") and later as Special Agent in Charge
("SAIC") of the SDFD. As SAIC, Sherman was and is
responsible for recommending agents for promotion to GS-14
positions. For each GS-14 position, SAIC Sherman selects and
ranks three agents from a Best Qualified List
("BQL") composed of agents with qualifying scores
on the Special Agent Promotion Program ("SAPP")
examination. Because he scored 91 out of 100 on his SAPP
examination, Mr. Sharpe was on the BQL for every GS-14
position for which he applied, but he was only selected by
SAIC Sherman three times and was never SAIC Sherman's
first-ranked agent. Based on SAIC Sherman's
recommendation, a Career Board selects an agent for
promotion. The Career Board often selects SAIC Sherman's
first-ranked agent, absent an agent requiring a lateral
transfer from abroad or for hardship.
2015, Mr. Sharpe requested corrective action under USERRA,
asserting his non-selection for the fourteen GS-14 positions
was motivated by his military status as a reservist. He
alleged that the Career Board had discriminated against him
through its reliance on the recommendations of SAIC Sherman,
whom Mr. Sharpe alleged was hostile towards reservists.
time, six other current and former reservists working as
agents in the SDFD had also filed USERRA claims. Three of
these claims named SAIC Sherman, including that filed by
reservist Andrew Sorrells. Mr. Sor-rells, like Mr. Sharpe, worked
under SAIC Sherman. Sorrells, No.
SF-4324-15-0584-I-2, at *44.
the MSPB, Mr. Sharpe sought to introduce as evidence of SAIC
Sherman's hostility towards reservists an email sent to
Mr. Sorrells by ASAIC Stephen Tomaski shortly after Mr.
Sorrells' USERRA claim was filed. ASAIC Tomaski reported
directly to SAIC Sherman and was two levels above Mr.
Sorrells in the SDFD, though not in Mr. Sorrells' direct
supervisory chain. In making recommendations regarding
promotions to the Career Board, SAIC Sherman allowed ASIACs,
including ASAIC To-maski, to "weigh in." J.A. 1449.
The email had the subject line "You are a
coward…" and stated, in full, "I do not know
how to phrase it any other way.. [sic] Do NOT ever contact me
again." J.A. 1793. ASAIC Tomaski copied SAIC Sherman on
Mr. Sharpe's hearing, the government objected to the
Tomaski email based on relevance, and the MSPB excluded it,
determining "it is not relevant in [Mr. Sharpe's]
case." At the hearing, Mr. Sharpe sought to question
SAIC Sherman about any hostility he had towards Mr.
Sharpe's reservist status or the reservist status of
others in the SDFD. Only general questioning was permitted,
for example, whether SAIC Sherman's decision not to
recommend Mr. Sharpe for certain GS-14 positions "ha[d]
anything to do with his former military reservist
status" and whether SAIC Sherman "consider[ed] [Mr.
Sharpe's] military background" in making
recommendations. J.A. 239, 258. And he was permitted to ask
SAIC Sherman his "opinion of reservists." J.A.
2455. But when Mr. Sharpe sought to question SAIC
Sherman-ASAIC To-maski's direct supervisor and ...