Jones v. Hhs ( 2017 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    JOHN PAUL JONES, III,
    Petitioner
    v.
    DEPARTMENT OF HEALTH AND HUMAN
    SERVICES,
    Respondent
    ______________________
    2017-2310
    ______________________
    Petition for review of the Merit Systems Protection
    Board in Nos. DE-3330-17-0119-I-1, DE-4324-17-0121-I-1.
    ______________________
    Decided: December 11, 2017
    ______________________
    JOHN PAUL JONES, III, Albuquerque, NM, pro se.
    JIMMY MCBIRNEY, Commercial Litigation Branch,
    Civil Division, United States Department of Justice,
    Washington, DC, for respondent. Also represented by
    CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., DEBORAH
    BYNUM.
    ______________________
    2                                               JONES   v. HHS
    Before NEWMAN, WALLACH, and STOLL, Circuit Judges.
    PER CURIAM.
    John Paul Jones, III appeals the final decision of the
    Merit Systems Protection Board, denying his claims
    under the Uniformed Services Employment and
    Reemployment Rights Act of 1994 (“USERRA”) and the
    Veterans Employment Opportunities Act of 1998
    (“VEOA”). Mr. Jones contends that the Department of
    Health and Human Services violated his USERRA and
    VEOA rights by not selecting him for the position of
    Public Health Advisor (International Program Director) in
    HHS’s Health Resources and Services Administration
    (“HRSA”). We conclude that the Board’s decision is
    supported by substantial evidence.       Accordingly, we
    affirm.
    BACKGROUND
    Mr. Jones is a Vietnam War veteran who applied for
    the position of Public Health Advisor (International
    Program Director) in the HRSA. The vacancy announce-
    ment specified that the basic requirements for the posi-
    tion included:         (1) “[k]nowledge of organizational,
    operational, and programmatic concepts and practices
    applied by public, private, or nonprofit agencies and
    organizations engaged in public health”; (2) “[k]nowledge
    of the methods, processes, and techniques used to develop
    and deliver public health . . . programs”; (3) “[k]nowledge
    of a specialized public health program”; (4) “[k]nowledge
    of, and skill in . . . methods and techniques necessary for
    working within . . . a public health . . . organization”; and
    (5) “[s]kill in oral and written communications.” J.A. 71.
    The announcement required that applicants have “one
    full year of public health program specialized experience”
    in international healthcare programs. J.A. 72.
    HRSA afforded Mr. Jones a five-point veterans pref-
    erence to which he was entitled when he applied for the
    JONES   v. HHS                                            3
    Public Health Advisor position.            HRSA referred
    Mr. Jones’s application to three subject matter experts
    who were all active duty uniformed services members in
    the Commissioned Corps of the Public Health Service.
    The experts were tasked with reviewing Mr. Jones’s
    resume to assess whether his qualifications met the basic
    requirements for the position. After independently re-
    viewing Mr. Jones’s qualifications, each expert deter-
    mined that Mr. Jones lacked the requisite specialized
    experience in public health for the position.
    Mr. Jones initially sought corrective action for his
    non-selection from the Department of Labor, which ulti-
    mately closed its inquiry of Mr. Jones’s VEOA claim.
    Mr. Jones appealed to the Board, arguing that HRSA
    failed to credit all of his relevant work experience for the
    position in violation of the VEOA. Mr. Jones also alleged
    that he was not selected because of his prior military
    service and in retaliation for his prior USERRA appeals.
    The Board joined the appeals and conducted a hearing.
    Following the hearing, the Board denied Mr. Jones’s
    VEOA and USERRA claims. The Board concluded that
    HRSA evaluated all of Mr. Jones’s material experience.
    The Board credited HRSA’s subject matter experts’ testi-
    mony that Mr. Jones’s prior military and private sector
    experience was largely clinical in nature. The experts
    further testified that Mr. Jones’s resume revealed no
    evidence that he collected or analyzed data to prevent
    health problems for a generalized population or had any
    experience in public or international public health. The
    Board also concluded that Mr. Jones failed to provide
    preponderant evidence that his military service or his
    prior USERRA activity was a substantial or motivating
    factor in HRSA’s non-selection decision.
    The Board’s decision became final on August 11, 2017.
    Mr. Jones timely appealed. We have jurisdiction under
    
    28 U.S.C. § 1295
    (a)(9).
    4                                              JONES   v. HHS
    DISCUSSION
    This court must affirm the Board’s decision unless 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
    been followed; or (3) unsupported by substantial evi-
    dence.” 
    5 U.S.C. § 7703
    (c) (2012). Substantial evidence is
    that which “a reasonable mind might accept as adequate
    to support a conclusion.” Gallagher v. Dep’t of the Treas-
    ury, 
    274 F.3d 1331
    , 1336 (Fed. Cir. 2001) (quoting Hogan
    v. Dep’t of the Navy, 
    218 F.3d 1361
    , 1364 (Fed. Cir. 2000)).
    I.
    We first address Mr. Jones’s VEOA claim. To obtain
    relief for a VEOA violation, Mr. Jones must demonstrate
    that HRSA failed to afford him a bona fide opportunity to
    compete for the Public Health Advisor position or violated
    his veteran’s preference rights by not crediting him “for
    all experience material to the position.”        
    5 U.S.C. § 3311
    (2); Abell v. Dep’t of the Navy, 
    343 F.3d 1378
    , 1383
    (Fed. Cir. 2003) (“Under the VEOA, certain veterans and
    preference eligibles ‘may not be denied the opportunity to
    compete for vacant positions for which the agency making
    the announcement will accept applications from individu-
    als outside its own workforce under merit promotion
    procedures.’” (quoting 
    5 U.S.C. § 3304
    (f)(1))).
    Mr. Jones does not dispute that he was afforded an
    opportunity to compete for the Public Health Advisor
    position, nor could he. The record is replete with evidence
    that HRSA considered Mr. Jones for the position and
    afforded him the five points to which he was entitled for
    his veteran’s preference-eligible status.          Instead,
    Mr. Jones alleges that the HRSA omitted qualifying
    information from its evaluation. Mr. Jones contests the
    weight HRSA gave to his prior medical and healthcare
    experience in considering whether he was qualified for the
    Public Health Advisor position. He also challenges the
    JONES   v. HHS                                           5
    subject matter experts’ qualifications to determine wheth-
    er he is qualified. Mr. Jones’s arguments, however, fail to
    demonstrate that the HRSA violated his VEOA rights.
    The record shows that HRSA’s subject matter experts
    reviewed his qualifications and independently determined
    that he lacked the specialized experience in public health
    to qualify for the position. The Board credited the ex-
    perts’ testimony, which is “virtually unreviewable” by this
    court. Jones, 834 F.3d at 1368; see Pope v. U.S. Postal
    Serv., 
    114 F.3d 1144
    , 1149 (Fed. Cir. 1997) (“As an appel-
    late court, we are not in position to re-evaluate these
    credibility determinations . . . .”). Moreover, neither the
    Board nor this court is in the position to second-guess the
    weight HRSA gave Mr. Jones’s work experience or how it
    assessed his qualifications for the position. See Jones,
    640 F. App’x at 863 (“The Board’s role in a VEOA appeal
    is limited: the VEOA does not empower the Board to
    supplant the [agency’s] criteria with its own.” (alteration
    in original) (internal quotation marks and citation omit-
    ted)).
    II.
    We also conclude that Mr. Jones failed to demonstrate
    that HRSA violated his USERRA rights when it did not
    select him for the Public Health Advisor position. To
    obtain relief under USERRA, Mr. Jones must demon-
    strate by preponderant evidence that his prior military
    service was a “substantial or motivating factor” in HRSA’s
    adverse employment action. Sheehan v. Dep’t of the Navy,
    
    240 F.3d 1009
    , 1013 (Fed. Cir. 2001). In the absence of
    direct evidence, discriminatory motivation can be demon-
    strated by circumstantial evidence. 
    Id. at 1014
    . Relevant
    factors include:
    proximity in time between the employee’s military
    activity and the adverse employment action, in-
    consistencies between the proffered reason and
    other actions of the employer, an employer’s ex-
    6                                             JONES   v. HHS
    pressed hostility towards members protected by
    the statute together with knowledge of the em-
    ployee’s military activity, and disparate treatment
    of certain employees compared to other employees
    with similar work records or offenses.
    
    Id.
       As the employee making the USERRA claim,
    Mr. Jones bears the initial burden of proof. 
    Id.
    We conclude that the Board did not err in finding that
    Mr. Jones failed to point to any direct evidence that his
    prior military service was a substantial or motivating
    factor in HRSA’s decision to not select him for the Public
    Health Advisor position. We also agree with the Board
    that under the Sheehan factors, Mr. Jones failed to prove
    by preponderant circumstantial evidence that his military
    service or prior USERRA activity was a motivating factor
    in HRSA’s non-selection decision.
    As the Board correctly found, the record demonstrates
    that Mr. Jones’s military service was completed forty-
    seven years prior to HRSA’s selection decision, negating
    the proximity and nexus between his military service and
    HRSA’s adverse employment action. We see no reason to
    disturb the Board’s determination that HRSA’s subject
    matter experts credibly testified that they did not consid-
    er Mr. Jones’s military service or his prior USERRA
    claims in their decision that he was not qualified for the
    position. We also see no error in the Board’s determina-
    tion that HRSA’s experts credibly testified that they were
    unaware of any hostility toward military service members
    within HHS. Moreover, we agree with the Board that the
    fact that HRSA’s subject matter experts themselves were
    active duty service members in the Commissioned Corps
    of the Public Health Service further militates against the
    finding of any animus toward veterans.
    Repeating arguments made in his prior appeals,
    Mr. Jones alleges systemic discrimination toward veter-
    ans in HHS, including discriminatory remarks made
    JONES   v. HHS                                           7
    toward him and other veterans, targeted delays in render-
    ing Board decisions, low hiring rates of veterans, and
    HHS’s continuing refusal to hire him. As we have ex-
    plained before, these arguments are not tied to HRSA’s
    hiring decision in this case. To prevail in this case,
    Mr. Jones must demonstrate by direct or circumstantial
    evidence that HRSA decided to not select him for the
    Public Health Advisor position based on his military
    service or his prior USERRA activity. We conclude that
    the Board did not err in finding that Mr. Jones failed to
    do so here, and hold that the Board’s decision is supported
    by substantial evidence.
    CONCLUSION
    We have considered Mr. Jones’s remaining arguments
    and find them unpersuasive. Because we hold that the
    Board’s decision is supported by substantial evidence, we
    affirm.
    AFFIRMED
    COSTS
    No costs.