Becker v. Department of Veterans Affairs , 480 F. App'x 988 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
RICHARD A. BECKER,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2011-3224
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. NY4324100222-I-1.
____________________________
Decided: May 15, 2012
____________________________
RICHARD A. BECKER, of Coram, New York, pro se.
AUSTIN M. FULK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director.
__________________________
BECKER v. DVA 2
Before LOURIE, DYK, and WALLACH, Circuit Judges.
PER CURIAM.
Petitioner Richard A. Becker seeks review of a final
decision by the Merit Systems Protection Board (“Board”)
denying his claim under the Uniformed Services Em-
ployment and Reemployment Rights Act (“USERRA”), 38
U.S.C. §§ 4301–33, regarding a non-promotion decision by
the Department of Veterans Affairs (“DVA”). Becker v.
Dep’t Veterans Affairs, No. NY-4324-10-0222-I-1 (M.S.P.B.
Feb. 7, 2011) (“Initial Decision”); (M.S.P.B. Aug 25, 2011)
(“Final Order”). For the reasons described below, we
affirm the decision of the Board.
BACKGROUND
Becker is an Army veteran employed as a Nursing
Assistant, GS-5, at a DVA medical facility in Northport,
New York. On January 19, 2010, the DVA posted a
vacancy announcement inviting applications for four GS-6
Health Technician positions. The announcement stated
that the positions would be open to permanent DVA
medical center employees and requested that applications
be submitted no later than January 21, 2010. Although
Becker did not apply until January 27, 2010, his applica-
tion was accepted because he had been on sick leave
during the specified application period.
In total, twenty-three individuals applied for the four
open positions. Seven of those were deemed not qualified;
the remaining sixteen applications, including Becker’s,
were referred with the applicants’ names omitted for
evaluation by a promotion panel. The promotion panel
consisted of two subject matter experts holding GS-6
Health Technician positions, Decoteur Samuel and Ber-
nadette Anderson. The panel evaluated the sixteen
3 BECKER v. DVA
anonymous applications and assigned a numerical score
to each based on the candidates’ listed background infor-
mation, supervisory appraisals, and relevant knowledge,
skills, and abilities. Following review by the promotion
panel, only the five highest-rated candidates were se-
lected for further consideration. Those candidates re-
ceived scores of 50, 50, 42, 30, and 28. Becker, with a
score of 10, was not selected. Accordingly, Becker re-
ceived a letter from the DVA on February 25, 2010, ex-
plaining that although he was qualified for the announced
positions, he had not ranked highly enough among the
pool of qualified applicants to merit selection.
On June 11, 2010, Becker filed an appeal to the
Board, alleging that the DVA’s non-promotion decision
had violated his rights under the USERRA. On February
7, 2011, an administrative judge (“AJ”) issued an initial
decision denying Becker’s USERRA claim because he had
failed to establish that his military service was a substan-
tial or motivating factor in the DVA’s personnel decision.
In particular, the AJ found that Becker had provided no
evidence that anyone involved in the hiring process was
hostile to military service members, that the promotion
panel’s scoring of his application was influenced by his
military service, or even that the promotion panel had
been aware of his or any other applicant’s identity in
scoring the applications.
Becker sought review of the AJ’s decision by the full
Board. The Board denied review on August 25, 2011,
finding no error in the AJ’s decision, and the AJ’s decision
therefore became the final decision of the Board. This
appeal followed.
BECKER v. DVA 4
DISCUSSION
We must affirm decisions of the Board unless they are
“(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).
The USERRA prohibits public and private employers
from denying employment or promotion based on a candi-
date’s military service. 38 U.S.C. § 4311(a). To prevail on
such a claim, a plaintiff employee or applicant must
establish by a preponderance of the evidence that his or
her military service was a motivating or substantial factor
in the disputed employment decision. Id. § 4311(c)(1);
Erickson v. U.S. Postal Serv., 571 F.3d 1364, 1368 (Fed.
Cir. 2009). If the employee makes that prima facie show-
ing, the employer must demonstrate that it would have
taken the same action regardless of the employee’s mili-
tary service to avoid liability. Erickson, 571 F.3d at 1368.
Becker maintains that the DVA violated his rights
under the USERRA by failing to select him for a GS-6
Health Technician position. Becker’s position appears to
rest primarily on his contentions that (1) no veterans
were selected for the open positions, (2) the members of
the promotion panel (Samuel and Anderson) are not
themselves veterans, and (3) Anderson holds personal
animus against Becker due to his alleged previous in-
volvement in a misconduct charge filed against her. The
government responds that Becker failed to satisfy his
statutory burden under the USERRA because he provided
no evidence indicating that his military service was a
motivating or substantial factor in the non-promotion
decision.
5 BECKER v. DVA
As recognized by the Board, Becker’s bare assertions
of discrimination cannot support his USERRA claim.
Becker seems to suggest that the mere selection of a non-
veteran by a promotion panel made up of non-veterans
establishes discriminatory motivation. But Becker pro-
vided no evidence indicating that Samuel or Anderson
actually held any such bias, nor does he dispute that the
promotion panel rated each application without knowing
the applicants’ identities or that one of the three appli-
cants ultimately hired as a Health Technician served in
the Army National Guard. Similarly, Becker’s argument
that Anderson harbors personal prejudice against him
fails to account for the anonymous nature of the selection
process, and, even if true, that allegation concerns a
workplace dispute wholly unrelated to Becker’s military
service. In short, Becker’s allegations of discrimination
lack any foundation in the record and are insufficient to
establish by a preponderance of the evidence that his
military service was a substantial or motivating factor in
denying his application for promotion.
CONCLUSION
We have considered Becker’s other arguments and
find them to be without merit. Accordingly, because
Becker failed to carry his burden under the USERRA, the
Board’s decision is affirmed.
AFFIRMED