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Sharpe v. Department of Justice

United States Court of Appeals, Federal Circuit

March 1, 2019

KEVIN SHARPE, Petitioner

          Petition for review of the Merit Systems Protection Board in No. SF-4324-15-0593-B-1.

          Kevin Edward Byrnes, FH, PLLC, Tysons, VA, argued for petitioner.

          Jana 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.

          Before Moore, Taranto, and Chen, Circuit Judges.

          Moore, Circuit Judge.

         Kevin 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 proceedings.


         Mr. 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.

         Mr. 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.

         Since 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.

         In 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.

         At that 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.[1] Mr. Sor-rells, like Mr. Sharpe, worked under SAIC Sherman. Sorrells, No. SF-4324-15-0584-I-2, at *44.

         Before 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 the email.

         Before 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 ...

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