Becker v. Department of Veterans Affairs ( 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NOTE: This disposition is nonprecedential.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.
__________________________
2012-3111
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. NY4324110013-I-1.
___________________________
Decided: December 10, 2012
___________________________
RICHARD A. BECKER, of Coram, New York, pro se.
LAUREN S. MOORE, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were STUART F. DELERY, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director.
__________________________
BECKER v. VA 2
Before BRYSON, SCHALL, and MOORE, Circuit Judges.
PER CURIAM.
DECISION
Richard A. Becker seeks review of a decision of the
Merit Systems Protection Board denying his claim under
the Uniformed Services Employment and Reemployment
Rights Act (“USERRA”), 38 U.S.C. §§ 4301-4333, contest-
ing his non-selection for a position with the Department
of Veterans Affairs (“DVA”). We affirm.
BACKGROUND
USERRA prohibits employers from discriminating
against employees or prospective employees on the basis
of prior military service. It forbids the denial of employ-
ment or promotion on the basis of an applicant’s military
service, 38 U.S.C. § 4311(a), and forbids retaliation
against an individual who has exercised his or her rights
under USERRA, id. § 4311(b).
Mr. Becker is a United States Army veteran. In July
2010, the DVA issued a vacancy announcement for the
position of Health Technician (Peer Support), GS-640-06,
in Social Work Service at the Veterans Affairs Medical
Center in Northport, New York. The announcement
explained that applicants must possess certain specialized
experience related to serious mental illness and substance
use disorders. Mr. Becker submitted an application but
was informed that he did not meet the specialized experi-
ence requirement for the position.
Mr. Becker then filed a complaint with the Merit Sys-
tems Protection Board asserting a violation of his rights
under USERRA. The administrative judge who was
3 BECKER v. VA
assigned to the case issued an order explaining what Mr.
Becker had to show to establish that the Board had
jurisdiction over his claim and to prevail on the merits.
Mr. Becker submitted a response challenging the DVA’s
decision on the merits and alleging that less qualified
non-veterans had been selected for the position over him.
The DVA responded that Mr. Becker “without question”
lacked the requisite specialized experience and that “five
of the candidates referred for selection were veterans.”
The administrative judge dismissed Mr. Becker’s ap-
peal for lack of jurisdiction on the ground that Mr. Becker
had “failed to assert a nonfrivolous allegation that his
performance of duty in the uniformed service was a
substantial or motivating factor in the loss of a benefit of
employment.” On Mr. Becker’s petition for review, the
full Board issued an order holding that it had jurisdiction
over Mr. Becker’s appeal but denying his request for
corrective action on the merits. The Board ruled that he
had “failed to meet his initial burden of proving that his
military service or prior USERRA activity was a substan-
tial or motivating factor in the agency’s determination
that he did not meet the specialized experience require-
ments.” Mr. Becker now seeks review in this court.
DISCUSSION
In a USERRA discrimination case, the claimant bears
the initial burden to show, by a preponderance of the
evidence, that the employee’s military service or prior
exercise of USERRA rights was “‘a substantial or motivat-
ing factor’ in the adverse employment action.” Sheehan v.
Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001); see
also 38 U.S.C. § 4311(c). The Board held that Mr. Becker
failed to meet that initial burden of proof, and we agree.
BECKER v. VA 4
As to section 4311(a), Mr. Becker makes a variety of
contentions, but none bears on the critical threshold
inquiry of whether his military service was a substantial
or motivating factor in the decision not to select him for
the Health Technician position. For example, Mr. Becker
claims that he has prior experience as a nurse assistant.
But that does not establish specialized experience in
mental illness or, more importantly, that his military
service was relevant to the DVA’s selection decision. To
the contrary, as the administrative judge noted, five of the
thirteen candidates who were referred for selection were
veterans, which tends to undercut his claim that his
military service was a factor in his non-selection.
Nor has Mr. Becker provided any evidence to support
a finding that his prior USERRA actions were a substan-
tial or motivating factor in the hiring decision at issue. It
is true that Mr. Becker has filed a number of complaints
and appeals to this court, many of which express dis-
agreement with agency employment decisions. See, e.g.,
Becker v. Dep’t of Veterans Affairs, 480 F. App’x 988 (Fed.
Cir. 2012); Becker v. Dep’t of Veterans Affairs, 480 F.
App’x 990 (Fed. Cir. 2012); Becker v. Dep’t of Veterans
Affairs, 474 F. App’x 761 (Fed. Cir. 2012); Becker v. Dep’t
of Veterans Affairs, 414 F. App’x 274 (Fed. Cir. 2011);
Becker v. Dep’t of Veterans Affairs, 393 F. App’x 723 (Fed.
Cir. 2010); Becker v. Dep’t of Veterans Affairs, 373 F.
App’x 54 (Fed. Cir. 2010); Becker v. Dep’t of Veterans
Affairs, 350 F. App’x 439 (Fed. Cir. 2009). The number of
those unsuccessful complaints, however, does not consti-
tute evidence of collusion or retaliation against Mr.
Becker. The Board determined that Mr. Becker failed to
show that the DVA’s decision not to select him for the
position in Northport was motivated by his earlier
USERRA actions rather than the stated reason that he
lacked the required specialized experience. Mr. Becker
5 BECKER v. VA
has not provided us with any basis for overturning that
determination.
No costs.
AFFIRMED