Raymanda Preacely v. Department of the Treasury

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RAYMANDA PREACELY,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
______________________
2014-3190
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-4324-12-0521-B-1.
______________________
Decided: January 7, 2015
______________________
RAYMANDA P REACELY , of Chicago Heights, Illinois, pro
se.
HEIDI L. O STERHOUT , Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were J OYCE R. BRANDA, Acting Assistant
Attorney General, ROBERT E. K IRSCHMAN , J R., Director,
and STEVEN J. G ILLINGHAM , Assistant Director.
______________________

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PREACELY v. TREASURY 2
Before L OURIE, D YK, and T ARANTO, Circuit Judges.
P ER CURIAM .
Raymanda Preacely (“Preacely”) appeals from the fi-
nal decision of the Merit Systems Protection Board (the
“Board”) denying her claim under the Uniformed Services
Employment and Reemployment Rights Act of 1994
(“USERRA”), 38 U.S.C. §§ 4301–4335 (2012). See Preacely
v. Dep’t of the Treasury, No. CH-4324-12-0521-B-1
(M.S.P.B. Aug. 1, 2014) (“Final Decision”). Because the
Board did not err in denying the petition for review and in
affirming the initial decision, we affirm.
BACKGROUND
The Department of the Treasury (“Treasury”) em-
ployed Preacely as a secretary. Before her one-year
probationary period ended, Treasury terminated Preace-
ly’s employment. Preacely filed a first appeal at the
Board, in which the Administrative Judge (“AJ”) issued
an initial decision finding that her employment was
terminated during her probationary period and according-
ly dismissing the appeal for lack of jurisdiction. The
Board denied her petition for review, and the initial
decision became the final decision of the Board. Preacely
v. Dep’t of the Treasury, No. CH-315H-11-0535-I-1
(M.S.P.B. Jan. 26, 2012). She appealed to this court, but
her appeal was dismissed for failure to prosecute.
Preacely filed a second appeal at the Board, alleging
that her termination was discriminatory, and therefore
both violated her rights under USERRA and breached her
employment contract. The AJ dismissed the second
appeal for lack of jurisdiction, and Preacely filed another
petition for review. The Board agreed with the AJ that it
lacked jurisdiction over her breach of contract claim, but
remanded the case for adjudication of her USERRA claim.
Preacely v. Dep’t of the Treasury, No. CH-4324-12-0521-I-1
(M.S.P.B. Sept. 6, 2013). On remand, the AJ found that

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PREACELY v. TREASURY 3
Preacely failed to show by a preponderance of the evi-
dence that her prior military service or status as a veter-
an was a substantial or motivating factor in the agency’s
decision to terminate her employment during her proba-
tionary period. Preacely v. Dep’t of the Treasury, No. CH-
4324-12-0521-B-1 (M.S.P.B. Feb. 25, 2014).
Preacely again filed a petition for review, but the
Board denied the petition and affirmed the AJ’s initial
decision, adopting it as the Board’s final decision. Final
Decision at ¶ 1. Specifically, the Board agreed with the
AJ and held that Preacely failed to meet her burden of
showing that her military status was a substantial or
motivating factor in her termination. Id. at ¶ 5–6. The
Board also declined to consider the additional evidence
provided on review because Preacely failed to show that
the evidence was unavailable to her before the close of the
record, and she failed to show how the evidence demon-
strated that her military service was a substantial or
motivating factor in her termination. Id. at ¶ 7.
Preacely appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must affirm the decision of the Board unless we
find it to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c).
An employee asserting a claim of discrimination un-
der USERRA bears the initial burden of showing, by a
preponderance of the evidence, that the employee’s veter-
an status was “a substantial or motivating factor for an
adverse employment action.” Erickson v. U.S. Postal
Serv., 571 F.3d 1364, 1368 (Fed. Cir. 2009). “[M]ilitary
service is a motivating factor for an adverse employment

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PREACELY v. TREASURY 4
action if the employer relied on, took into account, consid-
ered, or conditioned its decision on” the employee’s veter-
an status. Id. (internal quotations omitted). However,
the employer does not violate USERRA if it can prove that
the action would have been taken in the absence of the
military service. 38 U.S.C. § 4311(c); Sheehan v. Dep’t of
the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001).
Preacely contends that the Board erroneously inter-
preted the law pursuant to 5 C.F.R. § 1208.15, and should
have applied 5 C.F.R. § 1201.117(a)(4) to remand the case
for the AJ to take further testimony or evidence or make
further findings or conclusions. She also contends that
the Board erred in not accepting the additional evidence
under 5 C.F.R. § 1201.58(c)(2).
The government responds that the Board followed
proper procedures, considered her testimony and the
evidence of record, applied the correct law, and found that
Treasury terminated Preacely’s employment for reasons
not related to her veteran status. The government also
responds that the Board did not err in refusing to consider
the additional evidence submitted for the first time with
the petition for review.
We conclude that the Board’s decision was supported
by substantial evidence that Preacely failed to show that
her veteran status was a substantial or motivating factor
for her termination, and therefore that the Board did not
err in denying the petition for review and affirming the
initial decision. See, e.g., Motley v. Dep’t of the Navy, 317
Fed. App’x 975, 978 (Fed. Cir. 2008). We agree with the
government that the Board did not err in interpreting the
law to require proof of a substantial or motivating factor
for a USERRA claim. In addition, it was Preacely’s
burden to show, as she has not, that her veteran status
was such a factor in Treasury’s decision to terminate her
during her probationary period. We also agree with the
government that the Board did not err in declining to

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PREACELY v. TREASURY 5
consider the additional evidence because Preacely did not
allege that the evidence was in rebuttal to new evidence
or argument, that it was unavailable to her before the
close of the record, or how it demonstrated that her mili-
tary status was a substantial or motivating factor in her
termination.
CONCLUSION
For the foregoing reasons, and in light of our limited
standard of review and the record before us, the decision
of the Board is affirmed.
AFFIRMED
COSTS
No costs.

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