Grayton v. Social Security Administration , 683 F. App'x 952 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MAURICE GRAYTON,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2017-1349
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-4324-16-0551-I-1.
______________________
Decided: April 7, 2017
______________________
MAURICE GRAYTON, Chula Vista, CA, pro se.
LAUREN MOORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by CHAD A.
READLER, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM.
______________________
Before TARANTO, SCHALL, and STOLL, Circuit Judges.
2 GRAYTON v. SSA
PER CURIAM.
Maurice Grayton appeals a final decision by the Merit
Systems Protection Board denying his request for correc-
tive action. Mr. Grayton appealed to the Board alleging
that the Social Security Administration discriminated
against him by not selecting him for a Claims Specialist
position based on his military service, in violation of the
Uniformed Services Employment and Reemployment
Rights Act of 1994 (codified at 38 U.S.C. §§ 4301–4335)
(“USERRA”). After considering documentary and testi-
monial evidence related to his nonselection, the Board
found Mr. Grayton’s USERRA claim unsupported by the
record. Because we find no error in the Board’s decision,
we affirm.
BACKGROUND
Mr. Grayton served in the United States Marine
Corps and was honorably discharged in 1993.
On March 8, 2016, Mr. Grayton applied for a Claims
Specialist position in the SSA. Mr. Grayton’s application
included, among other things, his resume and a copy of
his DD-214 indicating his prior military service. Mr.
Grayton claimed eligibility for a 10-point enhancement
based on his military service, but he was only awarded 5
points because his application lacked the necessary docu-
mentation to support his disability in order to receive a
higher rating.
Although Mr. Grayton was eligible for a Claims
Specialist position, he was not recommended for a second
interview and ultimately was not selected. Notably, all
the candidates who interviewed for the position were also
preference-eligible veterans.
Mr. Grayton appealed the SSA’s nonselection decision
to the Board. His appeal asserted that the SSA did not
assign him the correct veteran preference points and
discriminated against him based on his prior military
GRAYTON v. SSA 3
service by not selecting him for a Claims Specialist posi-
tion. Mr. Grayton argued that his prior military service
was a motivating factor for his nonselection, asserting
that “but for” his prior service, he would have been re-
ferred for a second interview and selected. The appeal
also raised claims under the Veterans Employment Op-
portunities Act (“VEOA”), and a claim for discrimination
based on national origin. 1
The Board held a hearing during which Mr. Grayton
testified that based on his resume and prior military
service, he should have been recommended for a second
interview for a Claims Specialist position. At the same
time, Mr. Grayton admitted that his application did not
contain the necessary supporting documents to certify his
disabled veteran status to support a higher 10-point
veterans rating. Mr. Grayton explained that he tried to
“mitigate” this deficiency by contacting the SSA, to no
avail. Grayton v. Soc. Sec. Admin., No. SF-4324-16-0551-
I-1 (M.S.P.B. Oct. 12, 2016). Nonetheless, Mr. Grayton
averred that his resume and DD-214 indicating his prior
military service and an SSA employee’s statement that
“we just want to put a face to the name,” were a “strong
indication” that he was being targeted and discriminated
against. Id. at 4. Mr. Grayton maintained that because
he honorably served in the military, he was “a direct pass
to go” and should have received preferential treatment in
the SSA’s hiring decision. Id.The Board also considered the testimony of five agen-
cy witnesses, including Human Resources and other
1 We note that Mr. Grayton’s initial appeal to the
Board asserted a claim for discrimination based on na-
tional origin, but the Board did not address this claim,
and Mr. Grayton does not raise it on appeal. Therefore,
we do not reach Mr. Grayton’s claim for discrimination
based on national origin.
4 GRAYTON v. SSA
personnel involved in interviewing Mr. Grayton or review-
ing his application. Each witness testified that Mr.
Grayton’s military service played no role in their decision
to not recommend Mr. Grayton for a position.
Based on its review of the record, the Board found the
SSA Human Resources employees’ testimony credible and
found that there was no evidence that Mr. Grayton’s
military service played a role in the SSA’s decision to not
refer him for a second interview or select him for a Claims
Specialist position. The Board found the record “totally
devoid of any evidence raising any inference of discrimi-
nation based on his uniformed service.” Id. at 6. Accord-
ingly, the Board found that Mr. Grayton failed to meet his
burden of proving, by a preponderance of evidence, that
his military service was a motivating factor in his nonse-
lection for a Claims Specialist position. Mr. Grayton now
appeals the Board’s decision.
DISCUSSION
I.
When reviewing a decision by the Board, we must af-
firm unless its decision 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) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c). Substan-
tial evidence is that which “a reasonable mind might
accept as adequate to support a conclusion.” See Gal-
lagher v. Dep’t. of Treasury, 274 F.3d 1331, 1336 (Fed. Cir.
2001) (quoting Hogan v. Dep’t of Navy, 218 F.3d 1361,
1364 (Fed. Cir. 2000)). Further, the Board has discretion
to evaluate witness credibility, and “such evaluations are
‘virtually unreviewable’ on appeal.” King v. Dep’t. of
Health & Human Servs., 133 F.3d 1450, 1453 (Fed. Cir.
1998) (quoting Clark v. Dep’t of Army, 997 F.2d 1466,
1473 (Fed. Cir. 1993)).
GRAYTON v. SSA 5
USERRA provides that a person who is a member of,
performs, or has performed service in, a uniformed service
shall not be denied employment or any benefit of employ-
ment on the basis of that membership. See 38 U.S.C.
§ 4311(a). The statute further provides that an employer
shall be deemed to have engaged in discriminatory con-
duct if the person’s service in a uniformed service is a
motivating factor in the employee’s action. Id. at
§ 4311(c)(1). “USERRA discrimination claims are ana-
lyzed under a burden-shifting mechanism.” Erickson v.
U.S. Postal Serv., 571 F.3d 1364, 1368 (Fed. Cir. 2009).
An employee making a claim under USERRA “bears the
initial burden of showing by a preponderance of the
evidence that his military service was a substantial or
motivating factor in the adverse employment action.” Id.Here, substantial evidence supports the Board’s determi-
nation that Mr. Grayton failed to meet his burden to show
that his military service was a motivating factor in his
nonselection.
As explained above, the Board considered the testi-
mony of several witnesses, including Mr. Grayton, in
reaching its decision. The Board heard testimony from
the human resources assistant who processed Mr. Gray-
ton’s application. She testified that Mr. Grayton failed to
provide supporting documentation to meet the eligibility
requirements for a 10-point rating and received a 5-point
status instead. Mr. Grayton admitted that he did not
submit the required documentation, explaining that he
did not have enough time to get the required certifications
before the vacancy announcement closed.
The record evidence shows that Mr. Grayton was ini-
tially referred for a Claims Specialist position as a pre-
ferred-veteran candidate for the SSA’s Chula Vista,
National City, and San Diego offices. The Board consid-
ered the testimony of three agency witnesses who were
involved in the SSA’s decision to not select him for a
second interview. The witnesses all testified that
6 GRAYTON v. SSA
Mr. Grayton’s military service played no role in their
decision not to recommend Mr. Grayton for a second
interview. The Board credited this testimony, which we
do not disturb on appeal. See King, 133 F.3d at 1453.
Further, the evidence demonstrated that each candidate
interviewed for a position was also a preference-eligible
veteran. The fact that these candidates were themselves
veterans refutes Mr. Grayton’s claim that he was discrim-
inated against based on his military service. Thus, there
is no evidence in the record, other than Mr. Grayton’s
conclusory allegations, to support Mr. Grayton’s claim
that he was not selected because of his military service.
Therefore, we conclude that substantial evidence sup-
ports the Board’s finding that Mr. Grayton failed to prove
by a preponderance of evidence that his military service
was a motivating factor in the SSA’s decision not to select
him. Accordingly, we affirm the Board’s decision.
II.
Lastly, we note that in his petition for appeal,
Mr. Grayton asks us to review his claims raised under the
VEOA and Veterans Readjustment Act’s (“VRA”) Sched-
ule A hiring authority based on his disability. See
5 U.S.C. § 3330a; 38 U.S.C. § 4214. A claim under
USERRA, which provides that veterans may not be dis-
criminated against, differs from a claim brought under
the VEOA, which relates to a veteran’s eligibility for
preference in the hiring process through which they may
be awarded additional points based on their veteran
status. Thus, USERRA requires that veterans are treated
equally, while VEOA actually provides veterans prefer-
ence in some circumstances. See 5 U.S.C. §§ 3309–3312.
While we acknowledge that Mr. Grayton’s initial appeal
to the Board did include a claim under the VEOA, alleg-
ing that the SSA did not properly assign him 10 points
based on his veteran status, this claim is not addressed in
the Board’s decision currently on appeal. We take notice,
GRAYTON v. SSA 7
however, that Mr. Grayton’s VEOA claim is being pursued
in a separate appeal currently pending before the Board.
See Grayton v. Soc. Sec. Admin., No. SF-3330-16-0552-I-1
(Notice of Appeal). Because Mr. Grayton’s VEOA claim
has yet to be decided by the Board, there is no final deci-
sion with respect to his VEOA claim. Mr. Grayton’s
appeal based on the VEOA is therefore premature and we
lack jurisdiction to consider it at this time. See 28 U.S.C.
§ 1295(a)(9) (2011) (providing that this Court has jurisdic-
tion to review a “final order or final decision of the Merit
Systems Protection Board”); see also Weed v. Soc. Sec.
Admin., 571 F.3d 1359, 1361–63 (Fed. Cir. 2009) (holding
that this Court’s review of Board decisions is limited to
final orders or final decisions).
On appeal, Mr. Grayton also asserts that he should
have been hired pursuant to the VRA hiring authority
based on his disability. See 38 U.S.C. §§ 4212(a)(3), 4214.
As stated above, however, although the Board considered
evidence related to Mr. Grayton’s disability status, the
issue of whether the SSA applied the correct veterans
preference rating based on Mr. Grayton’s disability is an
issue currently pending before the Board, which we do not
reach for lack of jurisdiction. See 28 U.S.C. § 1295(a)(9);
Weed, 571 F.3d at 1361–63.
CONCLUSION
Because we find that the Board’s decision was not ar-
bitrary, capricious, an abuse of discretion, or not in ac-
cordance with law, and is supported by substantial
evidence, we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.