Miller v. Fdic , 657 F. App'x 977 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT M. MILLER,
Petitioner
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
Respondent
______________________
2016-1137
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-4324-14-0598-I-3.
______________________
Decided: August 11, 2016
______________________
ROBERT M. MILLER, Fairfax, VA, pro se.
CORINNE ANNE NIOSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., CLAUDIA
BURKE; KATHRYN R. NORCROSS, MICHELLE OGNIBENE,
Federal Deposit Insurance Corporation, Arlington, VA.
______________________
2 MILLER v. FDIC
Before PROST, Chief Judge, CHEN, and STOLL, Circuit
Judges.
PER CURIAM.
Robert Miller appeals from a decision of the Merit
Systems Protection Board (“Board”) denying his request
for corrective action under the Uniformed Services Em-
ployment and Reemployment Rights Act (USERRA).
Miller v. Fed. Deposit Ins. Corp., No. SF-4324-14-0598-I-3
(M.S.P.B. July 24, 2015). For the reasons below, we
affirm. 1
BACKGROUND
Dr. Miller is a preference-eligible disabled veteran
and was employed as a Financial Analyst with the Divi-
sion of Insurance and Research of the Federal Deposit
Insurance Corporation (“agency”) at the time of his non-
selection for a Financial Economist position with the
agency. When Dr. Miller expressed interest in applying
for the Financial Economist position, he was informed
that the vacancy announcement for the position had
closed. Dr. Miller informed the agency that his prefer-
ence-eligible status entitled him to apply to the closed
position. The agency then forwarded him an application
packet and requested he return the completed application
by the end of the next business day. The application
included a questionnaire regarding the applicant’s quali-
fications; the vacancy announcement explained that the
applicant’s resume must substantiate responses to the
questionnaire.
1 Dr. Miller filed a motion seeking to supplement
the record and seeking sanctions against the agency.
Miller v. Fed. Deposit Ins. Corp., No. 16-1137, Dkt. No. 43.
We grant-in-part and deny-in-part. We grant Dr. Miller’s
request to supplement the record but deny his request for
sanctions.
MILLER v. FDIC 3
The agency reviewed applications for the position and
placed applicants into categories A–C. Within each
category, preference-eligible veterans would receive
selection priority. Dr. Lee, a subject matter expert for the
agency, reviewed Dr. Miller’s application. Per Dr. Lee’s
assessment, several of Dr. Miller’s questionnaire respons-
es were not substantiated by his resume. As such,
Dr. Miller’s responses were downgraded, and the agency’s
scoring algorithm placed Dr. Miller in category B. Only
applicants in category A were referred to the selecting
official.
Dr. Miller sought information from the agency regard-
ing the basis for his category B placement. Dissatisfied
with the agency’s response, Dr. Miller filed a USERRA
appeal with the Board.
The administrative judge (“AJ”) found that Dr. Miller
failed to meet his burden to show, by a preponderance of
evidence, that the agency discriminated against him on
the basis of his military service in connection with his
non-selection. Dr. Miller did not seek review by the full
Board, and the AJ’s decision became final.
DISCUSSION
The scope of our review in an appeal from a decision
of the Board is limited. We 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 without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). USERRA
prohibits employers from discriminating against employ-
ees or prospective employees on the basis of their military
service. 38 U.S.C. § 4311(a). In relevant part, it provides:
A person who is a member of, applies to be a
member of, performs, has performed, applies to
perform, or has an obligation to perform service in
4 MILLER v. FDIC
a uniformed service shall not be denied initial
employment, reemployment, retention in em-
ployment, promotion, or any benefit of employ-
ment by an employer on the basis of that
membership, application for membership, perfor-
mance of service, application for service, or obliga-
tion.
Id.
USERRA discrimination claims are analyzed under a
burden-shifting framework. Sheehan v. Dep’t of the Navy,
240 F.3d 1009, 1013 (Fed. Cir. 2001). Under this frame-
work, an individual who makes a USERRA discrimination
claim bears the initial burden to show, by a preponder-
ance of evidence, that his military service was a substan-
tial or motivating factor in the adverse employment
action. Id. This burden can be met by either direct or
circumstantial evidence:
Discriminatory motivation under the USERRA
may be reasonably inferred from a variety of fac-
tors, including proximity in time between the em-
ployee’s military activity and the adverse
employment action, inconsistencies between the
proffered reason and other actions of the employ-
er, an employer’s expressed hostility towards
members protected by the statute together with
knowledge of the employee’s military activity, and
disparate treatment of certain employees com-
pared to other employees with similar work rec-
ords or offenses.
Id. at 1014. “In determining whether the employee has
proven that his protected status was part of the motiva-
tion for the agency’s conduct, all record evidence may be
considered, including the agency’s explanation for the
actions taken.” Id. If this initial burden is satisfied by
the appellant, the burden shifts to the employer to show,
by a preponderance of evidence, that the employer would
MILLER v. FDIC 5
have taken the same action for a valid reason. Id. at
1013.
Dr. Miller challenges the Board’s procedural rulings
and the merits of its conclusions, and he alleges bias of
the AJ. Dr. Miller also supplemented the record with
newly-discovered documents. We address each of these
issues in turn.
A.
Dr. Miller alleges several procedural errors by the AJ,
including refusing to allow expert testimony, refusing to
compel production of applications from veterans who were
also placed in category B, and admitting into evidence
applications of non-veterans Dr. Lee deemed ineligible.
We find that the AJ did not abuse his discretion in mak-
ing these determinations.
First, regarding the AJ’s refusal to allow testimony
from Dr. Miller’s proffered expert, the AJ explained that
Dr. Miller’s proffered expert did not have sufficient exper-
tise with respect to the qualifications of candidates for the
position at issue. Dr. Miller does not demonstrate that
the expert possessed expertise in governmental hiring
processes or the particular Financial Economist position
at issue. As such, the AJ did not abuse his discretion by
precluding testimony from the expert.
With respect to the AJ’s denial of Dr. Miller’s motion
to compel production of applications from other veterans
in category B, the AJ found these applications were not
relevant. Specifically, the AJ determined that because
Dr. Lee reviewed Dr. Miller’s application, only applica-
tions reviewed by Dr. Lee were relevant to Dr. Miller’s
discrimination claim. As Dr. Lee did not review the
applications that were the subject of the motion to compel,
the AJ refused to compel their production. Despite
Dr. Miller’s arguments to the contrary, the AJ did not
abuse his discretion by finding only applications reviewed
6 MILLER v. FDIC
by Dr. Lee relevant to Dr. Miller’s appeal, which was
based on alleged discrimination by Dr. Lee.
Dr. Miller also challenges the AJ’s decision allowing
the agency to admit evidence that Dr. Lee deemed several
non-veterans ineligible for the position. Dr. Miller asserts
that this evidence was irrelevant because, unlike him,
these non-veterans lacked basic qualifications for the
position, rendering them ineligible. While Dr. Miller’s
arguments may go to the weight this evidence should be
given, the AJ’s decision to admit the evidence was not an
abuse of discretion.
B.
We next consider Dr. Miller’s argument that he met
his burden of showing that his non-selection was motivat-
ed by discrimination. Although Dr. Miller raises numer-
ous disputes with the merits of the AJ’s findings, we find
that substantial evidence supports the ultimate conclu-
sion that Dr. Miller failed to meet his burden of proof.
According to Dr. Miller, the agency discriminated
against him for exercising his right as a disabled veteran
to apply late for the Financial Economist position. As
support, he points to the closeness in time between exer-
cising his right to apply late and Dr. Lee’s discounting of
some of his questionnaire responses, asserting a connec-
tion between those two actions. But the AJ explained
that there was no evidence that Dr. Lee was aware that
Dr. Miller had applied late based on his disabled veteran
status. While Dr. Miller posits reasons why Dr. Lee could
have known the reason for his late application, he con-
cedes the lack of evidence in the record. Petitioner’s
Br. 18–19. Dr. Miller also points to the agency’s request
that he submit his completed application within one
business day of receiving the application packet, impeding
his ability to submit a more thorough application. But
Dr. Miller does not dispute that he had a month’s notice of
MILLER v. FDIC 7
the vacancy, asserting only that he initially lacked inter-
est in the position.
Dr. Miller also argues that the AJ erred in weighing
the evidence. He asserts the AJ weighed the following
evidence too heavily: (1) the fact that the agency ultimate-
ly selected a veteran for the position; (2) testimony from
certain individuals involved in the review of his applica-
tion that they had ties to and positive views of the mili-
tary; and (3) the fact that Dr. Lee deemed ineligible
several non-veterans lacking basic qualifications for the
position. We agree with the AJ that these are all relevant
considerations in a USERRA appeal, and weigh in favor of
the AJ’s determination that Dr. Miller’s non-selection was
not motivated by discrimination prohibited by USERRA.
Dr. Miller next challenges Dr. Lee’s rationale for dis-
crediting some of his responses to the questionnaire while
crediting those of certain non-veterans. He argues that
Dr. Lee failed to credit certain experience she found
unsupported by his resume, yet credited other applicants
with experience not well supported by their resumes. In
Dr. Miller’s view, Dr. Lee’s evaluation of his and other
applications was so inconsistent and illogical that the only
reasonable conclusion is that Dr. Lee discriminated
against him because he is a veteran. The AJ considered
this argument and determined, however, that Dr. Lee
provided a reasoned basis for her evaluations. Specifical-
ly, the AJ concluded that to the extent Dr. Lee treated
applicants differently, it was due to her own professional
background and expertise. When applicants had profes-
sional and educational experience similar to Dr. Lee’s, she
was more willing to infer relevant experience from their
resumes. For example, applicants who completed their
doctoral studies in the field of Labor Economics, the same
field studied by Dr. Lee, were at times credited with
experience not explicitly detailed in their resumes. While
Dr. Miller clearly disagrees with the accuracy and con-
sistency of Dr. Lee’s assessments, this evidence does not
8 MILLER v. FDIC
demonstrate that Dr. Lee discriminated based on
Dr. Miller’s military service.
Finally, Dr. Miller disputes the AJ’s credibility de-
terminations regarding agency witnesses. But “an evalu-
ation of witness credibility is within the discretion of the
Board” and in general such credibility determinations
“are ‘virtually unreviewable’ on appeal.” Kahn v. Dep’t of
Justice, 618 F.3d 1306, 1313 (Fed. Cir. 2010) (quoting
King v. Dep’t of Health & Human Servs., 133 F.3d 1450,
1453 (Fed. Cir. 1998)). We do not find the AJ’s credibility
determinations arbitrary or capricious.
C.
Dr. Miller next claims the AJ who presided over his
appeal exhibited bias against him. Dr. Miller asserts bias
because the same AJ presided over all six of his appeals to
the Board and ruled against him in each one. The AJ’s
bias, according to Dr. Miller, is further demonstrated by
the AJ’s numerous rulings against Dr. Miller on proce-
dural motions. To show bias, an appellant must meet a
high standard:
[O]pinions formed by the judge on the basis of
facts introduced or events occurring in the course
of the current proceedings, or of prior proceedings,
do not constitute a basis for bias or partiality mo-
tion unless they display a deep-seated favoritism
or antagonism that would make fair judgment im-
possible. Thus, judicial remarks during the course
of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality chal-
lenge.
Beiber v. Dep’t of Army, 287 F.3d 1358, 1362 (Fed. Cir.
2002) (alteration in original) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)). While we appreciate
Dr. Miller’s frustration resulting from his lack of success
MILLER v. FDIC 9
in appeals to the Board, we detect no reasonable basis for
finding the AJ’s decisions in this case reflect bias against
Dr. Miller.
D.
Finally, Dr. Miller has supplemented the record with
recently acquired documents. While we have considered
these documents, we find they do not establish any error
in the Board’s decision. First, an email exchange and
agency scoring rubric confirm that Dr. Miller would have
been placed in category A if his questionnaire responses
had not been downgraded by Dr. Lee. Because the AJ
assumed as much, the confirmation provided in these
documents has no impact on the AJ’s analysis and conclu-
sions. Dr. Miller also supplements the record with the
application files of other veterans that were placed in
category B. But because there is no evidence these appli-
cations were reviewed by Dr. Lee, the basis for their
placement in category B is not probative of the reasons
Dr. Lee downgraded Dr. Miller’s application.
CONCLUSION
We have considered Dr. Miller’s remaining arguments
and find them unconvincing. The AJ did not abuse his
discretion in his procedural rulings. The AJ’s determina-
tion that Dr. Miller did not meet his burden of showing
discrimination toward his military service or status as a
disabled veteran was a motivating factor in his non-
selection is supported by substantial evidence and is not
arbitrary or capricious. Because Dr. Miller failed to meet
his burden, we need not consider whether the agency
would have taken the same action for a valid reason. The
decision of the Board is therefore affirmed.
AFFIRMED
COSTS
No costs.