According to the appeals court’s opinion in Sharpe v Department of Justice (CAFC No. 2017-2356, 3/1/19), the DEA passed over Kevin Sharpe fourteen times for promotion to a GS-14 agent position over the course of 3-4 years. Sharpe was a Navy reservist who was deployed three times while a DEA agent. Since 2001 he remained a GS-13 in spite of a brief stint with a temporary GS-14, and fourteen applications for promotion to GS-14. (Opinion p. 2)
Sharpe was transferred from the LA Field Division to the San Diego Field Division in 2007, and assigned to supervisor William Sherman, Special Agent in Charge of the SDFD. This meant Sherman was the one who recommended agents for promotion to GS-14 positions. Following the agency procedure, Sherman would pick the top three agents from a Best Qualified List (BQL) from among those who made qualifying scores on the promotion exam. Because of his high score, Sharpe was on the BQL for each and every GS-14 position for which he applied, but was placed by Sherman on his top three lists only three times out of 14, and never listed as the top ranked agent. Sherman’s lists went to the Career Board that in turn typically selected Sherman’s top ranked agent, meaning Sharpe was not selected for the GS-14 vacancies. (pp. 2-3)
Sharpe filed a complaint in 2015 alleging Sherman was hostile towards reservists, the Career Board rubber-stamped his recommendations; therefore Sherman’s non-selection was unlawfully motivated by his reservist status. This added up to discrimination prohibited under the USERRA (Uniformed Services Employment and Reemployment Rights Act). Six other current and former reservists working under Sherman similarly accused him of violating the USERRA. (p. 3)
Mr. Sharpe’s claim went to the Merit Systems Protection Board (MSPB) where he asked to present evidence of Sherman’s anti-reservist attitudes in memos involving other reservists. The government objected based on relevance of these other cases to Sharpe’s specific complaint. Further when Sharpe sought to ask Sherman direct questions about his attitude toward reservists, he was only allowed to ask if Sharpe had anything against reservists or had he considered Sharpe’s reservist status in his GS-14 promotion list recommendations. He was precluded from asking Sherman about a particular email received by another reservist from one of Sherman’s deputies that was critical of that reservist’s decision to file a USERRA claim. (p. 4)
USERRA requires that the agency may not deny promotion on the basis of reserve status. If reserve status is a motivating factor in the non-promotion decision the employer must prove that the same decision would have been made even if the employee were not a reservist. The claimant must prove that it was a motivating factor. Then the employer has to prove why it would have made the same decision for other valid reasons. (p. 5)
MSPB ruled that Sharpe had not met his burden and ruled against him. The appeals court now overturns that decision, stating “Here, the MSPB abused its discretion by excluding the Tomaski email and preventing Mr. Sharpe from questioning SAIC Sherman about it because this evidence is relevant to Mr. Sharpe’s burden…” (p. 5)
By excluding the evidence, the Board tied Sharpe’s hands and thus abused its discretion. The evidence “should have been admitted….” (p. 8)
The court held, “Because we hold that the MSPB abused its discretion by excluding the Tomaski email and SAIC Sherman’s testimony, we vacate the MSPB’s decision and remand for further proceedings…the MSPB should consider all the evidence in reevaluating the USERRA claim once it conducts appropriate proceedings in light of our ruling today.” (p. 8)
The court goes on to award costs to Mr. Sharpe.
