Becker v. Department of Veterans Affairs , 414 F. App'x 274 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
RICHARD A. BECKER,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2010-3151
__________________________
Petition for review of the Merit Systems Protection
Board in NY4324090228-I-1.
___________________________
Decided: January 13, 2011
___________________________
RICHARD A. BECKER, of Coram, New York, pro se.
SCOTT A. MACGRIFF, Trial Attorney, Commercial Liti-
gation 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 BRYANT G. SNEE,
Deputy Director.
__________________________
BECKER v. VA 2
Before BRYSON, GAJARSA, and MOORE, Circuit Judges.
PER CURIAM.
DECISION
Richard A. Becker appeals from a decision of the
Merit Systems Protection Board denying his claim under
the Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”). We affirm.
BACKGROUND
Mr. Becker, a U.S. Army veteran, holds the position of
Nursing Assistant, GS-5, in the Department of Veterans
Affairs (“DVA”). He applied for the position of Adminis-
trative Support Assistant, GS-6, but that position was
offered to a non-veteran employee. Mr. Becker filed a
USERRA complaint with the Board claiming that he was
discriminated against in the selection process because he
is a veteran.
In response to Mr. Becker’s complaint, the DVA as-
serted that Mr. Becker was not selected because he did
not meet the specialized experience requirements for the
position. The vacancy announcement stated that appli-
cants needed one year of specialized experience, including
“skill in typing and transcribing a wide variety of mate-
rial” and performance of “office automation duties using
software applications to perform appointment scheduling,
calendar, and spreadsheets to gather pertinent data.”
The DVA submitted the declaration of Virginia Casso-
lino, a Human Resources specialist, who had reviewed the
applications for the position and had qualified candidates
for interview referrals. She stated that of the 27 appli-
cants for the position, she had qualified 19 for interviews
3 BECKER v. VA
and had rated seven as best qualified. In her declaration,
Ms. Cassolino stated that she did not submit Mr. Becker’s
name for an interview because he lacked the specialized
experience required for the position and thus was not
found qualified.
In his submission to the administrative judge, Mr.
Becker did not directly challenge Ms. Cassolino’s conclu-
sion as to his qualifications. Instead, he challenged the
decisionmaking of agency officials such as Ms. Cassolino
on the ground that, according to Mr. Becker, they were
non-veterans and promoted only non-veterans. He also
asserted that in connection with prior applications for
new positions, the chief of Human Resources, Ellen Fos-
ter, had informed the DVA interviewers that Mr. Becker
was a veteran and had previously filed appeals with the
Board.
Mr. Becker posed a list of discovery questions to the
DVA seeking, inter alia, the qualifications and veteran
status of those persons involved with the selection deci-
sion, including Ms. Cassolino and Ms. Foster. He also
sought information regarding their involvement in other
Board proceedings and in a previous claim of his before
the Equal Employment Opportunity Commission
(“EEOC”). In response, the DVA identified Ms. Cassolino
as the person who qualified the candidates for selection
and Dr. Patrick Massone as the selecting official. The
response added that Ms. Cassolino had served as a tech-
nical adviser on previous Board cases; that Dr. Massone
had not been not involved in any previous Board cases;
and that neither had been involved with Mr. Becker’s
EEOC claim. The agency did not respond to Mr. Becker’s
request for information as to whether Ms. Foster had
been involved with any of Mr. Becker’s previous employ-
ment disputes, and it did not disclose the veteran status
BECKER v. VA 4
of any of the officials who had been involved in the selec-
tion process. The agency also did not comply with Mr.
Becker’s demand that DVA officials state under oath that
they had violated his privacy rights.
Dissatisfied with the DVA’s response, Mr. Becker filed
a motion to compel further discovery. The administrative
judge granted his motion in part, ordering the DVA to
supplement its responses in several respects. In compli-
ance, the DVA set forth the requisite specialized experi-
ence that Mr. Becker was determined to be lacking—skill
in typing and transcribing, and performance of office
automation duties. The DVA also disclosed that the
candidate who was selected for the position was not a
veteran. Mr. Becker filed a request for the administrative
judge to reconsider her order regarding discovery, in
response to which she directed the DVA to disclose the
veteran status of the 19 candidates that Ms. Cassolino
had qualified for interviews and the seven candidates she
had found to be best qualified. The DVA disclosed that of
the 19 qualified candidates, four were veterans, and that
of the seven best qualified candidates, one was a veteran.
The administrative judge did not compel discovery with
respect to Mr. Becker’s other discovery demands.
The administrative judge then addressed the merits
and denied Mr. Becker’s USERRA claim based on his
failure to show that his military service was a substantial
or motivating factor behind Ms. Cassolino’s decision not to
qualify him for an interview. Mr. Becker then petitioned
the full Board to review the administrative judge’s discov-
ery decisions. The Board noted that the administrative
judge had granted Mr. Becker’s requests for discovery in
part and had twice directed the DVA to produce various
items of discovery that Mr. Becker had requested relating
to the selection process. The Board concluded that the
5 BECKER v. VA
administrative judge had not abused her discretion in
refusing to compel additional discovery, as the other
discovery requests were not relevant to Mr. Becker’s
claim. Mr. Becker then petitioned for review by this
court.
DISCUSSION
We review evidentiary and discovery rulings by a
Board administrative judge for abuse of discretion and
will reverse only if the petitioner can “prove that the error
caused substantial harm or prejudice to his rights which
could have affected the outcome of the case.” Curtin v.
Office of Pers. Mgmt., 846 F.2d 1373, 1379 (Fed. Cir.
1988); see also Guise v. Dep’t of Justice, 330 F.3d 1376,
1380 (Fed. Cir. 2003) (denial of an employee’s request for
discovery is not an abuse of discretion in the absence of “a
sufficient showing of how the requested evidence would
have supported his case”). In a USERRA case, the em-
ployee bears the initial burden of showing by a prepon-
derance of the evidence that the employee’s military
service was a substantial or motivating factor in the
adverse employment action. Erickson v. U.S. Postal
Serv., 571 F.3d 1364, 1368 (Fed. Cir. 2009). The adminis-
trative judge correctly ruled that Mr. Becker failed to
make such a showing, and we conclude that even if Mr.
Becker had received the discovery he requested, he still
would not have been able to show that his military service
was a substantial or motivating factor in his non-
selection.
The evidence showed that Mr. Becker lacked the spe-
cialized experience required by the position. Mr. Becker
did not timely dispute that the position required one year
of experience developing skill in typing and performance
BECKER v. VA 6
of office automation duties. 1 He also did not dispute Ms.
Cassolino’s conclusion that he lacked the required experi-
ence. He did not contend that the employee who was
selected for the position lacked the required experience; in
fact, the record contains substantial documentation
showing that the selected employee possessed the requi-
site experience and skills. Mr. Becker asserted that he
had more seniority and education than the selected em-
ployee, but he did not explain how his seniority and
experience related to the specific qualifications for the
position in question.
Even if we assume that all the agency officials were
non-veterans and that Ms. Foster was involved in Mr.
Becker’s previous appeals, the preponderance of the
evidence would still show that Mr. Becker was not quali-
fied for the position because he lacked the required ex-
perience. Ms. Cassolino qualified other veterans for the
interview, implying that something other than Mr.
Becker’s military service caused him not to be selected.
The only evidence in the record supplying such an expla-
nation points to Mr. Becker’s lack of experience in typing.
As to Mr. Becker’s allegations that both the adminis-
trative judge and the EEOC in prior proceedings had
found that the DVA violated his privacy rights, he has
failed to provide any support for those allegations in the
record or explain their relevance to his USERRA claim.
Mr. Becker cites to EEOC complaint No. 200H-0632-2007-
102387, but in that case the EEOC found that Mr. Becker
1 For the first time in his petition for review to the
full Board, Mr. Becker claimed that typing was a minor
qualification for the position. We will not evaluate that
belated assertion, particularly in light of the vacancy
announcement, which clearly stated that the position
required one year of experience developing skill in typing.
7 BECKER v. VA
had failed to prove he was subject to discrimination.
Richard A. Becker, EEOC Appeal No. 0120082865, 2010
WL 1060100. Mr. Becker also points to the administra-
tive judge’s October 27, 2009, ruling in another Board
case, but that ruling dismissed Mr. Becker’s privacy
claims on jurisdictional grounds. Neither of those rulings
found any privacy violation, but even if such a violation
had been found, Mr. Becker has failed to show why such a
violation would be relevant to his non-selection for the
position in this case. Because his requested discovery
could not have changed the outcome of this case, we
affirm the Board’s decision. To the extent that his appeal
is directed to the denial of relief on the merits, the Board
was plainly correct in holding that Mr. Becker failed to
establish a prima facie case of discrimination based on his
status as a veteran.
No costs.
AFFIRMED