Case: 23-1307 Document: 18 Page: 1 Filed: 06/30/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AISHA TRIMBLE,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2023-1307
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-4324-22-0350-I-1.
______________________
Decided: June 30, 2023
______________________
AISHA TRIMBLE, Dallas, TX, pro se.
DANIEL FALKNOR, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN E. WHITE, JR.
______________________
Before HUGHES, CUNNINGHAM, and STARK, Circuit Judges.
PER CURIAM.
Case: 23-1307 Document: 18 Page: 2 Filed: 06/30/2023
2 TRIMBLE v. DVA
Ms. Aisha Trimble appeals a decision from the Merit
Systems Protection Board (MSPB) denying her request for
corrective action under the Uniformed Services Employ-
ment and Reemployment Rights Act of 1994 (USERRA).
Because the Board’s conclusion is supported by substantial
evidence, we affirm.
I
Ms. Trimble is a veteran who has service-connected
disabilities rated at 30% or greater. In November 2021, she
applied for an Executive Assistant position with the Board
of Veterans Appeals (the agency). On November 16, 2021,
the agency notified Ms. Trimble that it would “assess [her]
qualifications based upon [her] resume, the responses [she]
provided in the questionnaire, as well as all other materials
requested in the job opportunity announcement.” SAppx3. 1
On December 10, 2021, the agency notified Ms. Trimble
that she had been referred to the hiring manager.
After accepting applications, the agency identified
around 500 candidates, including about 92 individuals who
were 30% or more disabled veterans. Six executives acted
as the selecting officials and reviewed certificates of eligi-
ble candidates and applications. The selecting officials
rated candidates as either meriting or not meriting an in-
terview based on the candidates’ ability or experience in
four areas: (1) supporting a senior executive (or equivalent)
in the Federal service; (2) overseeing or leading tasks or
programs involving compliance with deadlines or organiza-
tional change; (3) working collaboratively with executives,
peers, and subordinates; and (4) supporting operations in a
judicial or quasi-judicial environment. One of the selecting
officials listed Ms. Trimble as a “maybe” for an interview,
1 We use “SAppx” to refer to the appendix attached
to the government’s response brief, and “Appx” to refer to
the appendix attached to Ms. Trimble’s opening brief.
Case: 23-1307 Document: 18 Page: 3 Filed: 06/30/2023
TRIMBLE v. DVA 3
but she was not one of the 26 individuals ultimately inter-
viewed.
Ms. Trimble was notified that she had not been selected
for an Executive Assistant position on February 9, 2022. Of
the six individuals given offers, this record indicates that
four are veterans or have prior military service, and two of
those veterans have service-connected disability ratings of
at least 30%.
II
This is the second of two related appeals from Ms.
Trimble. On March 17, 2022, Ms. Trimble filed a complaint
with the Department of Labor alleging a violation of her
right to compete as a preference-eligible veteran. After the
agency denied her claim, she filed two appeals with the
Merit Systems Protection Board. The first sought correc-
tive action under the Veterans Employment Opportunities
Act of 1998 (VEOA). See Trimble v. Dep’t of Veterans Affs.,
23-1306, slip op. (Fed. Cir. June 30, 2023) (per curiam). The
second, which led to the current appeal, sought corrective
action under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA).
In the USERRA appeal, the Board held an evidentiary
hearing over two days on October 19, 2022 and October 24,
2022. During the hearing, all six selecting officials testified
for the agency. The Board summarized the relevant testi-
mony in its final decision as follows:
All the panelists testified the review process for the
appellant was the same as the process for other
candidates, including the selectee[s]. They all ex-
pressed favorable views of veterans in the work-
force. Four of the panelists are veterans, two are
disabled veterans, and both Human Resources per-
sonnel involved in this action are disabled veter-
ans. Four of the selectees are veterans, and three
are disabled veterans. Two of the selectees have
Case: 23-1307 Document: 18 Page: 4 Filed: 06/30/2023
4 TRIMBLE v. DVA
the same service-connected disability rating as the
appellant.
Appx15. The Board found that the agency witnesses were
credible “in their explanations of their selection decisions
and denials of discriminatory animus.” Appx15. The Board
also credited at least five of the witness’ testimony that
they were looking for a candidate who had experience
working at the agency or had experience supporting execu-
tives in the Federal Government. Based on the evidence
developed at the hearing, the Board concluded that there
was no direct or circumstantial evidence that Ms. Trimble’s
military service was a motivating factor for non-selection.
Ms. Trimble appeals. We have jurisdiction under
28
U.S.C. § 1295(a)(9).
III
We set aside the Board’s decision only if it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.”
5 U.S.C.
§ 7703(c). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” McLaughlin v. Off. of Pers. Mgmt.,
353 F.3d
1363, 1369 (Fed. Cir. 2004).
IV
We affirm the Board’s decision denying Ms. Trimble’s
USERRA claim because substantial evidence supports that
Ms. Trimble’s military service was not a motivating factor
in her non-selection.
An employee who makes a discrimination claim un-
der USERRA bears the initial burden of showing
by a preponderance of the evidence that [their] mil-
itary service was a substantial or motivating factor
in the adverse employment action. If the employee
Case: 23-1307 Document: 18 Page: 5 Filed: 06/30/2023
TRIMBLE v. DVA 5
makes that prima facie showing, the employer can
avoid liability by demonstrating, as an affirmative
defense, that it would have taken the same action
without regard to the employee’s military service.
Erickson v. U.S. Postal Serv.,
571 F.3d 1364, 1368 (Fed.
Cir. 2009). Here, the Board concluded that Ms. Trimble had
not made a prima facie showing that her military service
was a motivating factor in her non-selection. To reach that
conclusion, the Board credited the selecting officials’ testi-
mony that they hold favorable views of veterans in the
workforce, they applied the same review process to all ap-
plicants, and they were generally looking for candidates
who had experience working at the agency or had experi-
ence supporting executives in the Federal Government or
a judicial support role. The Board also credited one select-
ing official’s testimony that, while he listed her as a
“maybe” for an interview, he ultimately did not interview
Ms. Trimble because her resume reflected no Federal expe-
rience and no judicial support experience. Also relevant to
showing a lack of discrimination was the evidence that four
of the selecting officials were veterans (and two of those
were disabled veterans), both HR specialists involved in
hiring for this role are disabled veterans, and multiple of
the selectees were veterans, including a veteran with the
same disability rating as Ms. Trimble. This evidence—in-
cluding the selecting officers’ testimony, the HR specialists’
testimony, and the Board’s credibility determinations—
constitutes substantial evidence to support the Board’s
conclusion.
Ms. Trimble argues that the selection of at least one
non-veteran shows at least one selecting official “did not
want to hire a veteran or honor laws that grant veterans
preferences for federal jobs.” Pet. Br. 4–5. Not only is this
speculation belied by the evidence discussed above, but
“claimants must show evidence of discrimination other
than the fact of non-selection and membership in the pro-
tected class.” Sheehan v. Dep’t of Navy,
240 F.3d 1009, 1015
Case: 23-1307 Document: 18 Page: 6 Filed: 06/30/2023
6 TRIMBLE v. DVA
(Fed. Cir. 2001). The mere fact that at least one of the se-
lectees is not a member of the protected class cannot make
out a prima facie case of discrimination.
Ms. Trimble also argues that the agency discriminated
against her because it preselected candidates and hired in-
dividuals with less experience than her. But the Board in a
USERRA appeal is not tasked with determining who is best
qualified for a position. Rather, the question for the Board
is whether Ms. Trimble’s military service was a motivating
factor in her non-selection. See Becker v. Dep’t of Veterans
Affs.,
474 F. App’x 761, 762 (Fed. Cir. 2012) (“[R]egardless
of how the facts were evaluated as to the respective quali-
fications of the candidates, Becker needed to show that his
military service was a substantial factor in his non-selec-
tion to establish his USERRA claim.”). The Board credited
testimony that the selecting officials were looking for a spe-
cific type of experience: supporting executives in the Fed-
eral government or a supporting role in a judicial context.
Although Ms. Trimble may have more years of one type of
experience, Ms. Trimble’s resume did not reflect the pre-
ferred type of experience. This is substantial evidence that
Ms. Trimble’s military service was not a motivating factor
in her non-selection.
Ms. Trimble also argues that she was entitled to veter-
ans’ preference. But “while USERRA prevents the denial of
a promotion on the basis of military service, it does not it-
self provide a remedy to veterans who are not given prefer-
ences in employment decisions.” Wilborn v. Dep’t of Just.,
230 F.3d 1383 (Fed. Cir. 2000) (unpublished table deci-
sion). The proper statutory hook for this argument is the
VEOA, which is addressed in our related opinion issued to-
day. Trimble v. Dep’t of Veterans Affs., 23-1306, slip op.
(Fed. Cir. June 30, 2023) (per curiam).
Ms. Trimble also argues that the Board did not produce
evidence showing the hearing was not rehearsed, asserts
without evidence that documents were falsified, and
Case: 23-1307 Document: 18 Page: 7 Filed: 06/30/2023
TRIMBLE v. DVA 7
speculates about bias. But it was Ms. Trimble who had the
burden of proof. At best, Ms. Trimble’s accusations reflect
her own opinions and are not part of the record. As dis-
cussed above, substantial evidence supports the Board’s
conclusion that her military service was not a motivating
factor for non-selection.
Finally, Ms. Trimble alleges that one or more of the se-
lecting officials illegally accessed her medical records or VA
claim files. First, this argument is forfeited because it was
not raised before the Board. Bosley v. Merit. Sys. Prot. Bd.,
162 F.3d 665, 668 (Fed. Cir. 1998). Second, even if not for-
feited, there is no evidence that any of the officials accessed
her medical records or claim file. Ms. Trimble placed a
FOIA request seeking the names of individuals who ac-
cessed her records. None of the names identified through
this request match the names of the selecting officials.
Moreover, one of the selecting officials testified that he did
not access her medical records or claim file, and Ms. Trim-
ble concedes that she forgot to ask the other officials about
this issue. Thus, no evidence supports Ms. Trimble’s sub-
jective belief that a selecting official accessed this infor-
mation.
V
We have considered Ms. Trimble’s remaining argu-
ments and do not find them persuasive. Because substan-
tial evidence supports the Board’s conclusion that Ms.
Trimble’s military service was not a motivating factor for
non-selection, we affirm.
AFFIRMED
No costs.
