Case: 21-2000 Document: 20 Page: 1 Filed: 11/17/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL BROADEN,
Petitioner
v.
DEPARTMENT OF TRANSPORTATION,
Respondent
______________________
2021-2000
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-4324-20-0168-I-2.
______________________
Decided: November 17, 2021
______________________
MICHAEL BROADEN, Denver, CO, pro se.
MATTHEW PAUL ROCHE, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, MARTIN F. HOCKEY, JR., FRANKLIN E. WHITE, JR.
______________________
Before REYNA, CLEVENGER, and HUGHES, Circuit
Judges.
Case: 21-2000 Document: 20 Page: 2 Filed: 11/17/2021
2 BROADEN v. TRANSPORTATION
PER CURIAM.
Petitioner, Michael Broaden, an Air Force veteran, ap-
pearing pro se, appeals a final decision of the Merit Sys-
tems Protection Board denying corrective action with
respect to his unsuccessful application for employment as
an Air Traffic Control Specialist with the Federal Aviation
Administration. Because the MSPB’s decision was sup-
ported by substantial evidence, and was not arbitrary, ca-
pricious, an abuse of discretion, or otherwise not in
accordance with law, we affirm.
BACKGROUND
Mr. Broaden, served in the U.S. Air Force beginning in
1997 and was honorably discharged in 2002. In 2011, Mr.
Broaden began working for the Federal Aviation Admin-
istration (“FAA”) in a “Management and Program Analyst”
position. On November 15, 2019, Mr. Broaden applied for
an advertised position as an Air Traffic Control Specialist
(MSS-1, Level 12), Support Specialist, at the Denver Ter-
minal Radar Approach Control.
To be eligible for the position, Mr. Broaden needed to
satisfy one of the following three requirements:
1. Must have held an FAA 2152 FG-14 or above
regional or headquarters position for at least 1
year (52 weeks);
2. Must have been facility rated or area certified
for at least 1 year (52 weeks) in an ATS4 facil-
ity; Note: An employee who has been facility
rated or area certified for at least 1 year (52
weeks) in an ATS facility that is upgraded is
considered to meet qualification requirements
of the upgraded position, since he or she has
been performing the higher-graded work; or
3. Must have held an MSS position for at least 1
year (52 weeks) in an ATS facility.
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BROADEN v. TRANSPORTATION 3
Mr. Broaden’s application was reviewed and rejected
by a Senior Human Resources Specialist with the U.S. De-
partment of Transportation (“DOT”), Susana Meister
(“Meister”). After review, Meister decided not to refer Mr.
Broaden’s application to the Hiring Manager because Mr.
Broaden did not satisfy any of the three specified require-
ments.
On February 20, 2020, Mr. Broaden filed an appeal
with the U.S. Merit Systems Protections Board (“MSPB” or
“Board”) alleging that the DOT violated the Uniformed
Services Employment and Reemployment Rights Act of
1994 (codified as amended at 38 U.S.C. §§ 4301–4335)
(“USERRA”) in the process of not selecting Mr. Broaden for
the Air Traffic Control Specialist position. On February 26,
2021, the MSPB issued a decision denying corrective ac-
tion, finding that Mr. Broaden failed to meet his burden to
show that his military service was a substantial or moti-
vating factor in his non-selection. The MSPB also found
that the agency proved Mr. Broaden did not meet the re-
quirements for the position, and that those requirements
were based on valid non-discriminatory reasons.
As to whether Mr. Broaden showed that his military
service was a motivating factor in the relevant employment
decision, the Administrative Law Judge (“ALJ”) found that
the agency did not rely on, take into account, consider, or
condition the non-selection on Mr. Broaden’s military ser-
vice. In doing so, the ALJ credited the testimony of Meis-
ter, finding that Meister merely applied the requirements,
as written, and concluded that Mr. Broaden did not qualify.
The ALJ also credited the testimony of Barry Still (“Still”),
a witness put forward by the FAA who has over 30 years of
experience with the Air Force and FAA, in finding that
Meister was correct in her determination that Mr. Broaden
did not meet any of the three eligibility requirements.
More specifically, the ALJ found that Mr. Broaden did not
meet the first eligibility requirement because his highest
level of employment was only at the developmental level of
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4 BROADEN v. TRANSPORTATION
AT-2152-EG; Mr. Broaden did not meet the second eligibil-
ity requirement because he was never a facility-rated con-
troller at an ATS facility; and Mr. Broaden did not meet
the third eligibility requirement because he never held an
MSS position at an ATS facility. The ALJ further found
that Mr. Broaden did not prove discriminatory motivation
based on circumstantial evidence.
Mr. Broaden timely filed a petition for review. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
We hold unlawful and set aside an MSPB decision that
is (1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c); see also Appleberry v. Dep’t of Homeland
Sec.,
793 F.3d 1291, 1295 (Fed. Cir. 2015). “Substantial
evidence is more than a mere scintilla of evidence, but less
than the weight of the evidence.” Jones v. Dep’t of Health
& Hum. Servs.,
834 F.3d 1361, 1366 (Fed. Cir. 2016) (inter-
nal quotation marks and citations omitted). In other
words, substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Shapiro v. Soc. Sec. Admin.,
800 F.3d 1332,
1336 (Fed. Cir. 2015) (quotation marks and citation omit-
ted). The petitioner bears the burden of establishing error
in the MSPB’s decision. Jenkins v. Merit Sys. Prot. Bd.,
911 F.3d 1370, 1373 (Fed. Cir. 2019) (alteration adopted).
LEGAL BACKGROUND
USERRA affords various protections to current and
former military service members with respect to their em-
ployment, and prohibits employers from discriminating
against their current or prospective employees because of
their military service. 38 U.S.C. § 4311(a) provides in rel-
evant part:
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BROADEN v. TRANSPORTATION 5
A person who is a member of, applies to be a mem-
ber of, performs, has performed, applies to perform,
or has an obligation to perform service in a uni-
formed service shall not be denied initial employ-
ment, reemployment, retention in employment,
promotion, or any benefit of employment by an em-
ployer on the basis of that membership, application
for membership, performance of service, or obliga-
tion.
The individual making a USERRA discrimination
claim bears the initial burden of showing, by preponderant
evidence, the individual’s military service was “a substan-
tial or motivating factor” in the adverse employment ac-
tion. McMillan v. Dep’t of Justice,
812 F.3d 1364, 1372
(Fed. Cir. 2016); 38 U.S.C. § 4311(c)(1). If the employee
makes the requisite showing, the employer has the oppor-
tunity to come forward with evidence to show, by prepon-
derant evidence, the employer would have taken the
adverse action anyway, for a valid reason. Id.
Military service is a motivating factor for an adverse
employment action if the employer “relied on, took into ac-
count, considered, or conditioned its decision” on the em-
ployee’s military service. McMillan, 812 F.3d at 1372
(quoting Erickson v. U.S. Postal Serv.,
571 F.3d 1364, 1368
(Fed. Cir. 2009)). Because employers rarely concede an im-
proper motivation for their employment actions, employees
may satisfy their burden to establish that their military
service or obligation was a motive in the challenged action
by submitting evidence from which such a motive may be
fairly inferred.
Id. This analysis requires investigating the
Sheehan factors: (a) proximity in time between the em-
ployee’s military activity and the adverse employment ac-
tion; (b) inconsistencies between the proffered reason and
other actions of the employer; (c) an employer’s expressed
hostility towards members protected by the statute to-
gether with knowledge of the employee’s military activity;
and (d) disparate treatment of certain employees compared
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6 BROADEN v. TRANSPORTATION
to other employees with similar work records or offenses.
Id. (citing Sheehan v. Dep’t of Navy,
240 F.3d 1009, 1014
(Fed. Cir. 2001)).
DISCUSSION
Mr. Broaden contends that the MSPB’s decision must
be set aside because “the Board’s wrongful decision follows
from a record that contains no evidence on which its deci-
sion could be made.” Pet’r’s Br. at 15; Pet’r’s Reply Br. at
2. We disagree. For example, the ALJ credited the testi-
mony of Meister and Still in finding that Mr. Broaden’s mil-
itary service was not considered in his employment
decision, that there are material differences between the
type of experience obtained by Mr. Broaden and the respon-
sibilities of the advertised position, and that individuals
within the FAA with similar experience to Mr. Broaden
would also not qualify for the position. As to the Sheehan
factors, the ALJ found that (1) the timing did not suggest
discrimination because it was 17 years from the time of Mr.
Broaden’s service to the time of the non-selection, (2) that
there were no material discrepancies in testimony that
suggested discrimination, and (3) there was no evidence of
expressed hostility towards military members. On appeal,
Mr. Broaden does not point to a single finding that was not
supported by substantial evidence. Accordingly, we deter-
mine that the Board determination finding that Mr.
Broaden did not satisfy his initial burden to show that his
military service was a motivating factor in the FAA’s deci-
sion not to hire him as an Air Traffic Control Specialist
(MSS-1, Level 12), Support Specialist is supported by sub-
stantial evidence.
Mr. Broaden also contends that the MSPB’s decision
must be set aside because the FAA failed to recognize and
credit his professional experiences and certifications
simply because they were with the Air Force, and not the
FAA. Pet’r’s Br. at 15–16. Mr. Broaden contends that the
position requirements set forth in the advertisement were
Case: 21-2000 Document: 20 Page: 7 Filed: 11/17/2021
BROADEN v. TRANSPORTATION 7
discriminatory in that they define experience in terms that
discriminate against veterans in favor of individuals who
gained flight-related experience with the FAA. Pet’r’s Br.
at 9–12.
Generally, agencies have broad discretion to define
their own needs. See, e.g., Savantage Fin. Servs., Inc. v.
United States,
595 F.3d 1282, 1286 (Fed. Cir. 2010) (hold-
ing that determining an agency’s minimum needs “is a
matter within the broad discretion of agency officials ... and
is not for [the] court to second guess” (citations omitted and
alterations in the original)). Appellant is correct, however,
that all employers, including agencies, should carefully
evaluate whether any employment requirements are dis-
criminatory against veterans. See 38 U.S.C. § 4311(a).
Nonetheless, we conclude that the ALJ’s finding that
the requirements of the advertised position are not dis-
criminatory against veterans is supported by substantial
evidence. For example, Still testified that non-veterans
with similar flight-related experience with the FAA also do
not meet the requirements for the advertised position. Still
also testified that the requirements of the advertised posi-
tion are reasonable and related to the duties of the position,
independent of whether previous flight traffic experience
was civilian or military.
Mr. Broaden’s witnesses tried to establish that Mr.
Broaden’s experience was equivalent to the experience re-
quired for the relevant position. The ALJ, however, found
that Still’s testimony was far more authoritative and per-
suasive. We lack authority to re-evaluate these credibility
determinations that are not inherently improbable or dis-
credited by undisputed fact. Pope v. United States Postal
Serv.,
114 F.3d 1144, 1149 (Fed. Cir. 1997) (citations omit-
ted). Thus, we conclude that the MSPB determination that
the qualifications of the advertised position were not dis-
criminatory in nature is supported by substantial evidence.
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8 BROADEN v. TRANSPORTATION
CONCLUSION
We have considered Mr. Broaden’s remaining argu-
ments but find them unpersuasive. For the reasons dis-
cussed above, and based on the record before us on appeal,
we conclude that the MSPB’s decision, denying Mr.
Broaden’s request for corrective action is supported by sub-
stantial evidence and is not arbitrary, capricious, an abuse
of discretion, or otherwise contrary to law. Accordingly, we
affirm.
AFFIRMED
COSTS
No costs.
