Beck v. Navy

Case: 19-1205 Document: 56 Page: 1 Filed: 05/14/2021
United States Court of Appeals
for the Federal Circuit
______________________
JERRY EDWARD BECK,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2019-1205
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-4324-13-0128-B-1.
______________________
Decided: May 14, 2021
______________________
KEVIN EDWARD BYRNES, FH&H, PLLC, Tysons, VA, for
petitioner. Also represented by RACHEL LEAHEY.
IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent. Also represented by JEFFREY B.
CLARK, ROBERT EDWARD KIRSCHMAN, JR., PATRICIA M.
MCCARTHY; EVA MARIE CLEMENTS, Office of General Coun-
sel, United States Department of the Navy, Washington,
DC.
______________________
Before REYNA, MAYER, and TARANTO, Circuit Judges.
Case: 19-1205 Document: 56 Page: 2 Filed: 05/14/2021
2 BECK v. NAVY
Opinion for the court filed by Circuit Judge REYNA.
Concurring Opinion filed by Circuit Judge TARANTO.
REYNA, Circuit Judge.
This appeal marks the decade-long journey of a hard-
working man who served his country honorably, only to
face workplace discrimination on the basis of that service.
Jerry Edward Beck challenges a decision of the Merit
Systems Protection Board denying corrective action under
the Uniformed Services Employment and Reemployment
Rights Act of 1994. The Board determined that Beck’s
prior military service was a motivating or substantial fac-
tor in the United States Department of the Navy’s decision
not to select him for an employment position. The Board,
however, found that the Navy had permissibly preselected
the successful applicant and, thus, met its evidentiary bur-
den to establish that it would have hired her regardless of
Beck’s military service.
In view of the totality of this record, we conclude that
the Navy’s preselection determination is not supported by
substantial evidence. We further hold that under the Uni-
formed Services Employment and Reemployment Rights
Act of 1994, preselection can buttress an agency’s person-
nel decision to hire a less qualified candidate, but only
when the preselection is not tainted by an unlawful dis-
criminatory intent. Because we hold that the Board erred
in finding that Beck’s nonselection would have occurred re-
gardless of his prior military service as required under
38 U.S.C. § 4311(c)(1), we affirm in part and reverse in part
the Board’s decision denying Beck’s request for corrective
action.
I. BACKGROUND
On May 16, 2011, the United States Department of the
Navy (Navy) Office of the Chief of Naval Operations
Case: 19-1205 Document: 56 Page: 3 Filed: 05/14/2021
BECK v. NAVY 3
(OPNAV) published a job announcement for an Event Fo-
rum Project Chief. J.A. 267. The vacancy was a full-time,
permanent, GS-13/14 grade position with an annual salary
range of $89,033 to $115,742. J.A. 267–68. The job’s pri-
mary responsibility entailed the overall management of
senior-level executive events, including conferences, sym-
posia, and other star-flag level meetings on behalf of the
Chief of Naval Operations. J.A. 267. Prior to the an-
nouncement, OPNAV determined that Captain Tyrone
Payton—then Deputy Director, Navy Staff—would hire
and serve as the supervisor of the individual selected.
J.A. 269. The job posting remained open for four days until
May 20, 2011. J.A. 267. By the closing date, only two can-
didates—Beck and Suzanne Wible—were certified as qual-
ified for the position. J.A. 250. Captain Payton ultimately
selected Wible for the vacancy. Id.A. Jerry Beck’s Military Service
Beck, the petitioner, is a Navy veteran who served in
various roles for nearly twenty-one years from 1984 until
his retirement in 2005. 1 J.A. 261. After graduating high
school, he enlisted in the Navy as a junior sailor and grad-
ually rose through the ranks to noncommissioned-officer
status, until he became a chief petty officer 2 (CPO).
J.A. 260–61.
1 During active duty, Beck received an Armed Forces
Expeditionary Medal, a Kuwait Liberation Medal (Saudi
Arabia), another Kuwait Liberation Medal (Kuwait), and
two South West Asia Service Medals (bronze stars for “he-
roic and notorious achievement on the battlefield”).
J.A. 261, 1353.
2 Enlisted members in the Navy can be apprentices
(paygrades E-1–E-3), noncommissioned petty officers
(E-4–E-6), and senior noncommissioned chief petty officers
(E-7–E-9). See U.S. Military Rank Insignia, U.S. DEP’T OF
Case: 19-1205 Document: 56 Page: 4 Filed: 05/14/2021
4 BECK v. NAVY
Beck’s curriculum vitae—the veracity of which the
Navy does not dispute—demonstrates a series of gradual
and progressive accomplishments relevant to this appeal.
In the early days of his military career as a sailor, Beck was
a cook and had to ensure the availability of consumable
items in refrigerated and dry storage areas. J.A. 260, 2367.
Over time, his superiors entrusted him with more respon-
sibilities and promoted him to second-class petty officer.
J.A. 260. Beck’s duties expanded to managing over 15,000
square feet of living space, procuring consumable goods,
preparing reports, and supervising and mentoring person-
nel. Id. By 1993, Beck had acquired a Nutrition for the
Foodservice Manager certification and completed training
in a Commercial Foods and Culinary Arts program.
J.A. 261.
Beck’s work performance and newly acquired skills did
not go unnoticed. Soon, he was promoted to first-class
petty officer. The Chief of Naval Operations (CNO) hand-
picked Beck to serve as his lead in-flight Logistics Coordi-
nator and Personal Chef. J.A. 260. In the four years he
held that position, Beck provided aircraft logistics support
for approximately thirty missions per year in over forty-two
countries. Id. Beck also served as the personal representa-
tive to various CNOs, coordinated with foreign embassies
DEFENSE, https://www.defense.gov/Resources/Insignia/
(last visited Jan. 9, 2021). Beck retired as a chief petty of-
ficer at the E-7 paygrade. J.A. 261. The Navy recognizes
chiefs “for exemplary technical expertise within their rat-
ing, superior administrative skills, and strong leadership
ability. Most importantly, chiefs bridge the gap between
officers and enlisted personnel, acting as supervisors as
well as advocates for their Sailors.” The Chief Petty Officer,
NAVAL HIST. AND HERITAGE COMMAND (Aug. 10, 2020, 09:29
AM), https://www.history.navy.mil/browse-by-topic/com-
munities/chief-petty-officers.html.
Case: 19-1205 Document: 56 Page: 5 Filed: 05/14/2021
BECK v. NAVY 5
and all branches of the US military to provide accommoda-
tions for visiting foreign officials, and assumed greater per-
sonnel management responsibilities. Id.Beck continued to impress his superiors with his job
performance. In 1997, he was promoted to CPO and moved
to Washington, DC. J.A. 259, 2369. The scope of his ser-
vice expanded to encompass coordination of all official func-
tions and diplomatic protocols at the CNO residence,
including visits from congressional and flag officers, as well
as foreign CNO counterparts in other NATO countries.
J.A. 259. He also advised high-ranking officials on admin-
istrative decisions and undertook other military-personnel
management duties. Id. In 1998, Beck became the CPO
for the Defense Logistics Agency (DLA) within the US De-
partment of Defense, where he served as project manager
in support of senior military officers and senior-executive
service personnel. J.A. 258. In that capacity, he provided
support to the Agency’s Director, Vice Director, and more
than 190 senior-executive members of the corporate board.
Id. He also performed team-leadership functions, includ-
ing hearing and resolving employee complaints, and main-
tained effective working relationships with mid- and
senior-level civilian and military leaders. J.A. 258–59.
Like many working-class Americans striving to im-
prove their lives, Beck decided to pursue a college educa-
tion in his thirties. He juggled work and academic duties
as a full-time CPO and student at National Louis Univer-
sity (NLU). See J.A. 260. By 2001, Beck had earned a
bachelor’s degree in business. He graduated magna cum
laude with a grade-point average (GPA) of 3.91 on a 4.0
scale and received an invitation to be the student speaker
at the University’s annual graduation ceremony.
J.A. 260–61. Beck then went on to earn a master’s degree
in Human Resource Management and Development from
NLU in 2002, graduating with a 3.87 GPA. J.A. 260.
Case: 19-1205 Document: 56 Page: 6 Filed: 05/14/2021
6 BECK v. NAVY
Beck held his post as CPO in the DLA until his retire-
ment from military service on September 30, 2005.
J.A. 261.
B. Beck Rejoins the Navy as a Civilian
In February 2006, Beck rejoined the Navy workforce as
a civilian Special-Events Planning Officer (SEPO), a
GS-13-1 grade position in the Office of the Director, Navy
Staff. J.A. 253. As part of his duties, Beck planned, coor-
dinated, and provided support for all CNO-hosted events
and conferences, including several recurring executive ses-
sions and symposia for Navy senior leadership. Id. He
worked directly with executive-staff members and the CNO
Strategic Action Office to organize training events for all
active and retired Navy flag officers and members of the
Senior Executive Service. Id. When distinguished heads
of state, national and local elected officials, and business
leaders visited the CNO, Beck’s job was to coordinate and
oversee logistics. Id. The position also required Beck to
coordinate closely with senior government and military of-
ficials in organizing various types of events and confer-
ences. Id.In September 2007, Beck applied for a new GS-13-7
grade position with higher pay as a Deputy Protocol Officer
(DPO) in the OPNAV. See id. He was hired and immedi-
ately started performing duties as a DPO. But he contin-
ued to simultaneously coordinate the functions of SEPO
well into the Spring of 2008. See J.A. 183. Beck’s final task
before fully transitioning to his DPO post was to train Wi-
ble—his SEPO replacement—after the Navy hired her in
March 2008. J.A. 183, 262.
Although the DPO and SEPO duties were not identical,
the two positions overlapped in many respects. For exam-
ple, as DPO, Beck coordinated and executed protocols for
various events, foreign dignitary visits, conferences, and
other social events; developed agendas and itineraries for
CNO-hosted events, such as luncheons, dinners,
Case: 19-1205 Document: 56 Page: 7 Filed: 05/14/2021
BECK v. NAVY 7
receptions, award ceremonies, and special gatherings; and
provided oversight in the preparation of detailed reports
related to international travel and foreign-CNO counter-
part visits. J.A. 253. As the record undisputably demon-
strates, Beck had—since at least the early to mid-1990s—
held positions related to the coordination and planning of
various military events, as well as personnel management.
Over the next three years, Wible coordinated three
main annual events—the new-flag, all-flag, and retired-
flag officer symposia—alongside other collateral duties.
J.A. 14. According to Captain Payton, who supervised Wi-
ble’s immediate boss, see J.A. 2494–95, the symposia had
“greatly expanded” every year and required complex plan-
ning. J.A. 16 n.5. In particular, Payton explained that the
SEPO duties had moved beyond “being limited to protocol”
and expanded to “dealing with flag schedules, developing
the agenda, coordinating with different offices, dealing
with contracts for the logistics, general transportation and
room set up issues, and any other task required by the Vice
Admiral.” Id.As the symposium events increased in size and gran-
deur, Payton’s supervisor, Vice Admiral Bird, purportedly
decided to create a new full-time position—an Event Fo-
rum Project Chief (EFPC)—for “an individual” to focus ex-
clusively on those events. J.A. 2614 (emphasis added); see
also J.A. 14. Payton allegedly drafted the EFPC job de-
scription based on Vice Admiral Bird’s vision for the job.
J.A. 2505. Bird had explicitly noted his desire to open the
job opportunity for competition, rather than announce it as
an accretion-of-duties promotion 3 or sole selection, so as to
3 The term “accretion of duties” refers to a promotion
that occurs via a noncompetitive process, in which an in-
cumbent employee’s position is “classified at a higher grade
because of additional duties and responsibilities.” Hay-
wood v. Locke, 387 F. App’x 355, 357–58 (4th Cir. 2010).
Case: 19-1205 Document: 56 Page: 8 Filed: 05/14/2021
8 BECK v. NAVY
attract applications from “the right candidates.” Id.;
J.A. 15 n.4.
Beck testified that in April 2011, before the public re-
lease of any EFPC information, Wible came to visit him at
his office to ask for a copy of his résumé. J.A. 2385. Wible
then explained that she wanted to “glean some information
out of” it so as to adjust her own résumé in anticipation for
“a new position that was being developed.” J.A. 2385, 2397.
During that conversation, Beck testified that Wible told
him “she was ‘excited, yet overwhelmed’ about her new po-
sition.” J.A. 183.
OPNAV posted the EFPC announcement on the USA-
Jobs website on May 16, 2011. J.A. 267. Both Beck and
Wible applied for the position. On May 24, 2011, Human
Resources (HR) issued an internal certificate listing Wible
as the only qualified candidate and selectee. J.A. 251–52.
Upon receiving a notification that the announcement had
closed and he was ineligible for the position, Beck contacted
HR. J.A. 193. HR determined that the certification had
been erroneously issued because Beck was qualified and
should have been listed as a candidate. J.A. 193, 2506.
Payton was informed that a certification error had been
made about another individual’s application and, thus,
Payton requested that the position be reopened to accept
the applicant’s file. J.A. 2506. HR subsequently cancelled
the first certificate and issued a new one featuring Beck as
the “best qualified” candidate and Wible as a “qualified”
candidate. J.A. 249–50. Neither candidate was inter-
viewed, and Payton selected Wible for the position. Wible
then informed Beck of her selection. J.A. 202.
C. The Relationship between Beck and Payton
The EFPC selection marked the culmination of a series
of escalating workplace incidents, the origin of which—ac-
cording to Beck—traces back to a September 2010 meeting
with Payton. In the Summer of 2010, the CNO decided to
reallocate $1.2 million from Payton’s budget in the
Case: 19-1205 Document: 56 Page: 9 Filed: 05/14/2021
BECK v. NAVY 9
subordinate command of the Director of Naval Systems
(DNS) to perform certain office renovations in the Penta-
gon. J.A. 2361, 2822. The CNO had assigned Beck, in his
capacity as DPO, the development of the renovation plans.
Captain Grady, then Beck’s supervisor, instructed Beck to
inform Payton of the reallocation of funds as a courtesy.
J.A. 2362. Given their limited prior interactions, Beck felt
uncomfortable about delivering the news to Payton, the
Deputy DNS, and decided to make an appointment to tell
him in person. J.A. 2365.
Beck recounted the meeting in great detail in his testi-
mony. As soon as Beck walked into Payton’s office, he no-
ticed several photos from various P-3 Orion squadrons. 4
Id. Beck had served as a naval-air crewman on a P-3 Orion
earlier in his career and, thus, immediately felt that the
shared experience would be a good way to “break the ice.”
Id. Payton was initially very “enthused” about Beck’s affil-
iation with the P-3 community, and the two had a brief,
pleasant exchange. Id. Eventually, Payton asked what
Beck did on the aircraft, and when Beck told him he was a
cook, the conversation turned sour. J.A. 2367. Beck testi-
fied that Payton reacted negatively and began pacing
around the room repeating “a cook, a cook”—as if in disbe-
lief. Id. In a last-ditch effort to turn the conversation
around, Beck shared, to no avail, that he had eventually
retired as a CPO. Id. When Payton heard Beck was a CPO,
he blurted out, “[A] chief? . . . I can’t believe it” and contin-
ued to pace around the room while shaking his head.
J.A. 11, 2368. Payton then asked, “[H]ow does a retired
chief petty officer become the protocol officer to the [CNO]?”
J.A. 2369. Beck tried to explain that he had worked for
every CNO since 1992 and that his experiences with them
and other senior-level staff contributed to his advancement
in the military. Id. But the conversation could no longer
4 P-3 is a term that refers to a large naval aircraft.
Case: 19-1205 Document: 56 Page: 10 Filed: 05/14/2021
10 BECK v. NAVY
be salvaged, and Beck felt he could not “get [Payton] on
[his] side.” J.A. 2370–71. Payton interrupted Beck and
asked, “[L]ook, chief . . . [w]hy are you here?” J.A. 2371.
In response, Beck gave Payton a brief overview of the
renovation project and its costs. Id. And instead of framing
the budget reallocation as an order coming directly from
the CNO, he mentioned they needed his support. Id. Pay-
ton dismissed Beck from his office and told him that “it’s
going to take somebody from the CNO’s office with some
authority to pull $1.2 million out of my money.” J.A. 2372.
Beck excused himself from Payton’s office and immediately
reported the conversation to Captain Grady, who then
picked up the phone and informed Payton that the renova-
tions project was a direct order from the CNO, and Beck
was going to be the lead for the project. J.A. 2374.
From then on, Beck alleges that Payton began to un-
dermine his authority on the renovations project by, for ex-
ample, assigning a “shadow” employee to report back
regularly on the status of the renovations, ignoring him at
staff meetings, and demeaning Beck before the project’s
contractors and other third parties. J.A. 2376–79. Payton
testified he did not remember having an office meeting
with Beck in September 2010. J.A. 2522.
D. Procedural Context
Perceiving unfair treatment in the EFPC selection pro-
cess, Beck approached Deborah Cubbage—the HR special-
ist working under Payton’s supervision—to express his
discontent in June 2011. J.A. 189–92. Beck complained
that he had not even been interviewed for the position and
shared his belief that Payton harbored animus and biases
toward him. J.A. 193, 1432. Beck told Cubbage he wanted
to file a formal grievance. J.A. 192, 2399. In response,
Cubbage indicated “he could not grieve nonselection.”
J.A. 222. Beck claims that Cubbage then advised him that
(1) the only way “to challenge [Wible’s] selection lay under
federal [Equal Employment Opportunity (EEO)] law,” (2)
Case: 19-1205 Document: 56 Page: 11 Filed: 05/14/2021
BECK v. NAVY 11
he should not request a hearing before the Equal Employ-
ment Opportunity Commission (EEOC), and (3) he should
“pursue a final agency action.” J.A. 152.
Based on those recommendations, Beck indicated he
would file an EEO complaint, and Cubbage provided him
with the contact information of a deputy EEO officer. 5
J.A. 192, 222. Beck met with the EEO officer, who helped
“frame” his discrimination complaint within the EEO con-
text. J.A. 1432. Acting pro se, Beck filed a formal EEO
action alleging discrimination based on race, gender, age,
and disability on September 15, 2011. 6 J.A. 196.
Beck’s protests engendered a retaliatory and hostile
work environment. Throughout the Summer of 2011, Beck
alleges that Payton “ridiculed [him] at office meetings,
challenged his responsibilities and workplace authority[,]
and attempted to denigrate him before his superiors and
co-workers.” J.A. 1434–35. It became clear that the griev-
ance had all but foreclosed his prospects for advancement
at the OPNAV and, therefore, Beck decided to resign.
J.A. 1433. He left to pursue a lower, GS-11 grade position
with the US Army in Germany. J.A 202, 1433.
And just as Beck’s career prospects at OPNAV ended,
a protracted litigation journey had begun.
5 Cubbage submitted written statements corroborat-
ing that she provided the contact information of the EEO
officer and told Beck he could not grieve the nonselection.
See J.A. 192, 222. But she did not confirm or deny recom-
mending a legal strategy.
6 Beck is a Caucasian male. J.A. 196. At the time of
filing the complaint, he was forty-five years old. See id.The Department of Veteran Affairs had previously deter-
mined that, in connection to his service, Beck was 80% dis-
abled. J.A. 276. Captain Payton is African American.
J.A. 167.
Case: 19-1205 Document: 56 Page: 12 Filed: 05/14/2021
12 BECK v. NAVY
In July 2012, the Navy issued a Final Agency Decision
denying his EEO claims. J.A. 154. Beck immediately ap-
pealed the decision to the EEOC and sought the advice of
counsel. J.A. 1432. After a discussion of the facts, Beck’s
lawyer determined that the discriminatory motive behind
the nonselection was rooted in Beck’s prior military service,
rather than an EEO cause of action. J.A. 152, 1432. Ac-
cordingly, in November 2012, Beck voluntarily withdrew
his complaint before the EEOC and filed a claim under the
Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA) before the Merit Systems
Protection Board (Board). J.A. 152.
A series of discovery-related delays ensued. The first
Administrative Judge (AJ) assigned to the case, Raphael
Ben-Ami, allowed the Navy to depose Beck but never
granted Beck’s requests to depose Payton, Wible, Cubbage,
Grady, and Bird. J.A. 1355. The AJ allegedly questioned
the merits of Beck’s case and made remarks that Beck’s
case was weak because “one service member could not dis-
criminate against another.” J.A. 1354. In March 2013, the
AJ dismissed the case, sua sponte, on grounds that rank-
based discrimination was not a violation of the USERRA.
J.A. 1355. Beck petitioned for review of the Initial Decision
and dismissal. In January 2014, the Board reversed and
remanded the AJ’s Initial Decision. J.A. 835.
The case languished for more than two years until Beck
filed a petition for a writ of mandamus in this court on Feb-
ruary 25, 2016. J.A. 1357. That same day, a new, second
AJ was assigned to the case and Beck, therefore, withdrew
his petition before it was docketed. Id. On September 15,
2016, the AJ issued an Initial Decision laying out findings
of fact and denying corrective action. J.A. 7.
E. The AJ’s Factual Determinations
After hearing testimony and reviewing the evidence in
the record, the AJ found that Beck’s military service was a
motivating or substantial factor in the Navy’s decision not
Case: 19-1205 Document: 56 Page: 13 Filed: 05/14/2021
BECK v. NAVY 13
to hire him for the EFPC position. J.A. 10. The AJ credited
Beck’s account of the September 2010 meeting notwith-
standing Payton’s hesitant testimony. J.A. 12. According
to the AJ, Beck’s testimony was “inherently more probable”
and “more credible” than Payton’s, especially in light of
contradictions in the record about the Navy’s reasons for
selecting Wible over Beck. J.A. 13–14. The AJ further
found that the Navy “expressed hostility toward [Beck] af-
ter Payton learned of [his] military status.” J.A. 14. Nota-
bly, despite Payton’s testimony that he hired Wible because
she (1) “had more hands[-]on experience as an event plan-
ner and was able to have professional and constructive con-
versations with three or four star generals”; (2) “could
perform under pressure and demonstrated great leader-
ship qualities”; and (3) had an “upper edge” because he had
witnessed her perform in “high-intensity events,” J.A. 16
n.5, the AJ determined:
Viewing all of the record evidence in an objective
light, it is unusually clear that [Beck] had greater
objective qualifications: [H]e had more years of ex-
perience in the duties required [and] a higher de-
gree of education, he was highly experienced in the
requirements of both the DNS and the CNO, he had
a respectable reputation with high[-]ranking mili-
tary officials, and that he, in fact, was the person
who trained Wible to perform [the job] duties prior
to her selection for the position at issue. These at-
tributes were confirmed when the [Navy] listed
[Beck] as the best qualified [candidate]—more
qualified than Wible—on the certification form. I
observe that Payton’s direct testimony in support
of Wible’s qualifications was general, and was ulti-
mately not supported by the written record. As
such, I find that under the circumstances in this
case, [Beck] has proffered preponderant substan-
tial evidence of inconsistencies between the
Case: 19-1205 Document: 56 Page: 14 Filed: 05/14/2021
14 BECK v. NAVY
[Navy’s] actions during the selection and its ulti-
mate explanation for his nonselection.
J.A. 17–18 (emphasis added).
Next, the AJ considered whether the Navy had estab-
lished that it would have hired Wible regardless of Beck’s
military service. On that point, the AJ summarily found—
in one paragraph—that the Navy was “determined to select
Wible for the position” and, thus, it did not matter “who
else had applied.” J.A. 19. Accordingly, the AJ denied
Beck’s request for corrective action.
Beck filed a petition for review of the AJ’s Initial Deci-
sion with the Board on November 22, 2016. J.A. 2799. As
a result of the Board’s petition backlog, Beck’s petition
went unreviewed for nearly two years. On September 26,
2018, Beck requested permission to withdraw the petition
for review so he could file an appeal with this court.
J.A. 2824. The Board granted his request on October 12,
2018, see J.A. 1, and issued the Board’s final order, from
which Beck now appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
II. STANDARD OF REVIEW
Our review of Board decisions is constrained by the
statutory limits set forth in 5 U.S.C. § 7703(c). We may not
reverse unless the Board’s decision is “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law; (2) obtained without adherence to procedures re-
quired by law, rule, or regulation; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). An agency
abuses its discretion when it renders a decision “based on
an erroneous interpretation of the law, on factual findings
that are not supported by substantial evidence, or repre-
sents an unreasonable judgment in weighing relevant fac-
tors.” Star Fruits S.N.C. v. United States, 393 F.3d 1277,
1281 (Fed. Cir. 2005) (citation omitted). “Substantial evi-
dence ‘means such relevant evidence as a reasonable mind
Case: 19-1205 Document: 56 Page: 15 Filed: 05/14/2021
BECK v. NAVY 15
might accept as adequate to support a conclusion.’” In re
Bayer Aktiengesellschaft, 488 F.3d 960, 964 (Fed. Cir. 2007)
(quoting Consol. Edison Co. v. NLRB., 305 U.S. 197, 229
(1938)).
III. DISCUSSION
Section 4311 of the USERRA prescribes, in relevant
part, that “[a] person who . . . has performed . . . service in
a uniformed service shall not be denied initial employment,
. . . promotion, or any benefit of employment by an em-
ployer on the basis of that . . . performance of service . . . .”
38 U.S.C. § 4311(a). To determine whether an employer
has violated the law, the statute requires application of a
two-prong test: (1) the employee must first establish, by
preponderant evidence, that her military service was a
“motivating factor in the employer’s action”; and (2) the em-
ployer must prove, also by preponderant evidence, that the
adverse “action would have been taken in the absence of
such . . . service.” Id. § 4311(c)(1); Sheehan v. Dep’t of
Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). Thus, an ag-
grieved employee can only prevail on a USERRA claim if
she meets the requirements of the first prong, and the em-
ployer fails to meet its burden under the second prong.
At the outset, we affirm the Board’s determinations
vis-à-vis the first prong of the USERRA framework. The
AJ carefully weighed all the evidence in the record and de-
voted nine pages of the Initial Decision to substantiate the
finding that Payton’s animus toward Beck’s prior military
service as a cook and chief petty officer was a motivating or
substantial factor in his nonselection. That same careful
analysis, however, is absent from the Board’s determina-
tion—in one conclusory paragraph—that the Navy met its
burden to show it would have taken the same action not-
withstanding Beck’s prior military service. We therefore
affirm the Board’s findings of discrimination and focus the
discussion that follows on the second prong of the USERRA
test.
Case: 19-1205 Document: 56 Page: 16 Filed: 05/14/2021
16 BECK v. NAVY
A. The Navy’s Evidentiary Burden
To evaluate whether the Navy has satisfied its eviden-
tiary burden under the statutory requirements of
§ 4311(c)(1), we must turn to the record for evidence under-
lying the Navy’s proffered rationale for selecting Wible re-
gardless of Beck’s prior military service. The Navy
contended that Payton selected Wible because “she was all
around more qualified, . . . had more ‘hands-on experi-
ence[’] as an [e]vent [p]lanner [c]oordinator, and had supe-
rior proven performance in her current position.”
J.A. 1535. Payton further testified that he selected Wible
because he thought “she had better leadership skills . . .
and was a better fit for dealing with three- and four-star
admirals.” J.A. 2514. Throughout this litigation, the Navy
has consistently claimed that only “legitimate” reasons ac-
count for Wible’s selection, including “her work perfor-
mance, ability, aptitude, or general qualifications.” See,
e.g., J.A. 2739. The evidence in the record, however, belies
the Navy’s rationale for selecting Wible.
The AJ, for example, found that “the reasons the
[A]gency provided for selecting Wible over [Beck] [were]
contradicted by the record.” J.A. 14. The AJ explicitly re-
jected the Navy’s assertion that Wible possessed superior
qualifications compared to Beck. See J.A. 17 (“Viewing all
of the record evidence in an objective light, it is unusually
clear that [Beck] had greater objective qualifications: [H]e
had more years of experience in the duties required [and] a
higher degree of education, he was highly experienced in
the requirements of both the DNS and the CNO, [and] he
had a respectable reputation with high[-]ranking military
officials . . . .”) (emphasis added).
Payton’s testimony that Wible had superior leadership
skills is also unavailing. Unlike Beck, who served in lead-
ership and supervisory positions throughout his military
career, Wible only served as an administrative assistant to
federal contractors prior to becoming a special-events
Case: 19-1205 Document: 56 Page: 17 Filed: 05/14/2021
BECK v. NAVY 17
planning officer. See J.A. 262. Beck, on the other hand,
advised high-ranking officials on administrative matters,
performed supervisory personnel-management responsi-
bilities, held project-management roles in direct support of
senior military officers and senior executive-service per-
sonnel, and worked directly under several CNOs.
J.A. 253–60. The Navy did not present any evidence that
Wible ever supervised any personnel or held positions of
leadership to substantiate Payton’s testimony. The notion
that Wible “had better leadership skills” and “was a better
fit” for working with high-ranking officers, see J.A. 2514, is
simply not supported by the record on appeal.
When asked about his résumé-evaluation process and
how he did not arrive at the “objective conclusion” that
Beck had more substantial work experience than Wible,
Payton traversed the question and indicated that he “based
[his] decision on [Wible’s] current experience.” J.A. 2559.
According to Payton, Wible’s experience “was a little bit
more than what Mr. Beck offered on his r[é]sum[é],” and
that based on Vice Admiral Bird’s requirements, he
thought Wible “was the better candidate.” J.A. 2559–60.
We agree with the AJ’s finding that no objective re-
viewer could have reasonably concluded that Wible’s expe-
rience, as a whole, was more substantial than Beck’s. See
J.A. 17–18. Although Payton stated that “both r[é]sum[é]s
were very impressive,” see J.A. 2514, Beck simply pos-
sessed greater professional training, a higher level of edu-
cation, more years of experience in event planning, greater
supervisory and leadership experience, a more extensive
familiarity and experience in dealing with senior military
and high-ranking officials, more knowledge and exposure
to the inner workings of the OPNAV, and more significant
professional and military accomplishments than Wible.
Because the Navy’s proffered rationale and evidence
for selecting Wible—namely, that she was better qualified
for the EFPC position—does not show that she would have
Case: 19-1205 Document: 56 Page: 18 Filed: 05/14/2021
18 BECK v. NAVY
been hired in the absence of Beck’s military service as re-
quired under § 4311(c)(1), we hold that the Navy has failed
to establish its evidentiary burden under the second prong
of the USERRA.
B. The Board’s Preselection Determination
Faced with the lack of evidentiary support to corrobo-
rate the Navy’s purported rationale for selecting Wible, the
AJ proposed, sua sponte, an alternate theory of preselection
to deny Beck’s request for corrective action under
§ 4311(c)(1). We next appraise this theory in view of the
record.
During the June 23, 2016 Board hearing in this case,
AJ DeCrescenzo stated, sua sponte, her view that the Navy
had preselected Wible and requested additional briefing on
the impact of such a determination on issues related to bur-
den of proof and Beck’s USERRA claim. See, e.g., J.A. 2597
(“[H]ow can you explain to me that [preselection] did not
happen?”); J.A. 2598 (“Anything else that weighs against
this being a preselection of Ms. Wible?”); J.A. 2667 (“If I
find that the Agency was motivat[ed] by preselection of Ms.
Wible, what is the impact on the Agency’s burden of
proof . . . [?]”); id. (“If I find essentially that the Agency had
a different illegal motive for Mr. [Beck’s] non[]selection,
what, if any, impact does it have on Mr. [Beck’s] USERRA
claim[?]”).
Following briefing on the preselection issue, the AJ de-
termined that the Navy “would have selected Wible for
[the] vacancy regardless of who else had applied” and that
it “was determined to select [her] for the position.” Beck v.
Navy, No. DC-4324-13-0128-B-1, 2016 WL 4990269, at
*5–6 (M.S.P.B. Sept. 15, 2016); J.A. 19. The AJ thus issued
an implicit finding of preselection without overtly
Case: 19-1205 Document: 56 Page: 19 Filed: 05/14/2021
BECK v. NAVY 19
mentioning the term. 7 The inference is palpable because if
the Navy was “determined” to hire Wible “regardless of
who else had applied,” J.A. 19, the decision would have log-
ically been made well ahead of the closing of the vacancy—
in other words, she would have been preselected for the job.
The AJ’s one-paragraph preselection determination
was presented as an alternative ground to establish the
Navy’s evidentiary burden under the USERRA’s second
prong and deny Beck’s request for corrective action. See
J.A. 18–19. On appeal, Beck argues that the sua sponte
determination was improper because the “AJ became an
advocate for the Agency, advancing a novel theory that the
Agency itself did not advocate or argue and suggesting that
it is a defense to discrimination.” Pet’r’s Br. 5. The Navy,
on the other hand, argues that the issue of preselection is
a “red herring” because preselection simply did not happen.
Resp’t’s Br. 22. The Navy did not raise preselection as an
affirmative defense, but it argues on appeal that “[p]rese-
lection can constitute a valid and legitimate reason for the
Navy to have selected” Wible. Resp’t’s Suppl. Br. 6.
C. Substantial Evidence Does Not Support
the Preselection Determination
The AJ based her one-paragraph preselection finding
entirely on a portion of Payton’s testimony. This was an
abuse of discretion.
7 Despite stating her view that Wible had been pre-
selected during the hearing, see, e.g., J.A. 2597–98, 2667,
the AJ’s Initial Decision soft-pedaled the issue by mention-
ing the term “preselection” only once, in a footnote. Beck,
2016 WL 4990269, at *6 n.6 (“[W]hile the appellant cites to
several cases arguing that evidence of preselection may es-
tablish pretext in a discrimination analysis, none of those
cases derived their jurisdiction from [the] USERRA and
are, thus, not limited to its authority.”).
Case: 19-1205 Document: 56 Page: 20 Filed: 05/14/2021
20 BECK v. NAVY
In the Initial Decision’s last paragraph, the AJ credited
Payton’s statement at the hearing that “the vacancy . . . at
issue was created because Vice Admiral Bird was im-
pressed with Wible, and wanted a job created that would
capture and isolate only the[] particular duties that Wible
had been performing so well.” Beck, 2016 WL 4990269,
at *5. Relying on that testimony, the AJ found that the
EFPC job description had “mirrored Wible’s current
peroformance [sic].” Id. The AJ also credited Payton’s ex-
planation that despite Beck’s relevant comparable experi-
ence, “Wible was advantaged by already holding the
current responsibilities that the new position would en-
tail,” which “gave her an ‘upper edge.’” Id. Payton’s hand-
picked testimony in those respects, according to the AJ,
“was clear and credible, and is undisputed in the record.”
Id. We disagree.
The AJ’s characterization of Payton’s testimony as “un-
disputed” is not accurate. In fact, during the hearing, when
the AJ asked Payton about Bird’s involvement in the case,
Beck’s counsel explicitly objected to the line of questioning.
See J.A. 2502 (“Your Honor, I’m going to object here.
They’ve blocked me from talking to [Vice] Admiral B[i]rd
on the grounds that he was not relevant. I mean, when I
had questions about other officials, I was told that the only
relevant official for this job was [Payton] and that’s how it
was answered in discovery.”). Beck subsequently raised
the issue again during his October 20, 2016 Petition for Re-
view of the AJ’s Initial Decision. See, e.g., J.A. 2755 (call-
ing out “Payton’s hearsay testimony” that Bird sought to
create the EFPC position); J.A. 2556 (“[T]here was no men-
tion of any involvement of [Vice] Admiral Bird in any as-
pect of the process.”); J.A. 2757 (expressing concern that
the AJ “became an advocate for the Agency” by allowing
Payton to “lay[] the foundation for the creation of the posi-
tion on [Vice] Admiral Bird,” while denying Beck the oppor-
tunity to call Bird as a witness); J.A. 2759 (arguing that
Case: 19-1205 Document: 56 Page: 21 Filed: 05/14/2021
BECK v. NAVY 21
Payton’s lack of credibility and “hearsay response was not
subject to reflexive, uncritical acceptance by the [AJ]”).
Bird’s alleged comments influencing Payton’s preselec-
tion of Wible played a key role in the AJ’s rationale for find-
ing that the Navy was “determined to select” her
“regardless of who else had applied.” J.A. 19. However,
the record is completely devoid of any evidence that Bird
sought to either directly or indirectly preselect Wible for
the position. To the contrary, Payton testified that Bird did
not want the position to be an accretion-of-duties promo-
tion or “a sole selection.” J.A. 2505. Rather, Bird had ex-
plicitly indicated he wanted to open up the position so as to
attract applications for “the right candidates” from which
to select “an individual.” Id.; J.A. 2585, 2614. Bird’s only
direct appearance in this record is in the form of a one-page
sworn declaration submitted on April 15, 2016, in which he
stated: “Payton was the selecting official in this matter
and . . . made the ultimate decision to select Ms. Wible. He
did not need my approval to make this selection.”
J.A. 1381.
Despite Beck’s attempts to depose Vice Admiral Bird,
Deborah Cubbage, Suzanne Wible, and Captain Grady,
neither AJ Ben-Ami nor AJ DeCrescenzo granted any of
Beck’s deposition requests. See J.A. 30, 350, 356, 1355,
1357, 1387. The Navy, however, was allowed to depose
Beck. We have previously held that “it is an abuse of dis-
cretion to categorically exclude all witnesses” who may be
relevant to a plaintiff’s case. Whitmore v. Dep’t of Lab.,
680 F.3d 1353, 1370 (Fed. Cir. 2012). Such exclusion pre-
cludes plaintiffs from “effectively presenting [their case]
and leaves only the agency’s side of the case in play. This
can have a substantial effect on the outcome of the case,
and so constitutes harmful error.” Id.The Board’s hollow, one-paragraph determination also
ignores numerous other instances in the record that either
detract from, or contradict, the Board’s preselection
Case: 19-1205 Document: 56 Page: 22 Filed: 05/14/2021
22 BECK v. NAVY
finding. For instance, Payton’s testimony that preselection
did not occur has been consistent throughout this litiga-
tion. At the same time, the record shows manifest contra-
dictions related to the issue of preselection. During the
very same June 23, 2016 hearing, in which the AJ alluded
to her alternate preselection theory, Payton claimed he did
not know the meaning of the term preselection.
[AJ]: Do you know what a preselection is?
[Payton]: A preselection?
[AJ]: Yeah. Do you know the terminology
preselection?
[Payton]: In what context?
[AJ]: It’s a human resources term in terms of
civilian service?
[Payton]: No.
[AJ]: Okay. To paraphrase, it is a situation
in which a person is, as you might
guess, identified as an ideal candidate
for hire and then a selection process is
orchestrated in order to place them in
that position.
....
[Payton]: I can tell you that did not happen.
J.A. 2596–97. That testimony is partially inconsistent
with Payton’s declaration on March 13, 2012, in which he
also denied preselection took place while demonstrating a
clear understanding of the meaning of preselection.
Question: Complainant contends pre[]selection
was involved in the selection process
because other employees knew about
the selection. Can you explain fully?
Answer: I can’t explain Complainant’s pre[]se-
lection accusation. The hiring process
was conducted from start to finish with
full disclosure and transparency.
Case: 19-1205 Document: 56 Page: 23 Filed: 05/14/2021
BECK v. NAVY 23
Question: Complainant says . . . [Wible] had prior
knowledge of the position and her selec-
tion before the announcement was
made. What is your response?
Answer: This is not a true statement. Ms. Wible
may have known a job was open, but
she was not preselected because she did
not apply for the position until the an-
nouncement just before it was going to
close. Prior to her applying, there were
no other candidates. I think she would
have applied sooner if she had
knowledge of her being preselected.
J.A. 174.
The record does not show that the AJ was aware of Pay-
ton’s previous inconsistent 2012 statements regarding pre-
selection, but it does reveal that the AJ questioned the
testimony offered on the issue.
[AJ]: Okay. And how can you explain to me
how [preselection] did not happen?
[Payton]: Because after Ms. Wible was selected
and I informed her of her selection, she
told me she was not aware that the po-
sition was even open. She was called
by a coworker outside of our organiza-
tion that had saw it actually posted and
had recommended that she apply for
the position. She didn’t even know the
position was even being advertised.
[AJ]: Okay. Anything else that weighs
against this being a preselection of Ms.
Wible?
[Payton]: I can say we — I wouldn’t question the
integrity of [Vice Admiral Bird], that
that was his motive. That definitely
wasn’t my motive.
Case: 19-1205 Document: 56 Page: 24 Filed: 05/14/2021
24 BECK v. NAVY
J.A. 2597–98. Still, Payton’s narrative, if true, would only
explain that Wible was not aware of having been prese-
lected. It does not prove she was not preselected for the
job.
Payton’s preselection testimony is also directly at odds
with Beck’s sworn testimony that Wible asked him for a
copy of his résumé—before the EFPC position was even
made public—because she wanted to use it as an example
from which to prepare her own résumé in anticipation of “a
new position that was being developed.” J.A. 2385, 2397.
During that conversation, Beck testified that Wible told
him “she was ‘excited, yet overwhelmed’ about her new po-
sition.” J.A. 183.
The record is inconsistent at best on the issue of prese-
lection. It is also incomplete. Had Beck been allowed to
depose witnesses, the record would paint a clearer picture
of the Navy’s alleged preselection. We have previously held
that an AJ’s determination “that is based on findings made
in the abstract and independent of the evidence which
fairly detracts from his or her conclusions is unreasonable
and, as such, is not supported by substantial evidence.”
Whitmore, 680 F.3d at 1376.
In view of the totality of this underdeveloped record, we
hold that the AJ’s one-paragraph, sua sponte preselection
determination, which relied solely on Payton’s cherry-
picked testimony, is not supported by substantial evidence.
The exclusion of numerous witnesses by AJs Ben-Ami and
DeCrescenzo “caused substantial harm and prejudice” to
Beck’s ability to develop a complete case and record on ap-
peal. Id. at 1368. The record is devoid of the evidentiary
threshold necessary to buttress the AJ’s determination
that the Navy would have hired Wible regardless of Beck’s
prior military service, as required under the second prong
of the USERRA. Accordingly, we conclude that the Board’s
preselection and discovery-related determinations are “ar-
bitrary, capricious, an abuse of discretion, or otherwise not
Case: 19-1205 Document: 56 Page: 25 Filed: 05/14/2021
BECK v. NAVY 25
in accordance with law” and “unsupported by substantial
evidence.” 5 U.S.C. § 7703(c).
***
Under most circumstances, our judgment would call for
vacatur and remand of the Board’s preselection and discov-
ery-related determinations. See Whitmore, 680 F.3d at
1376 (“Because considerable countervailing evidence was
manifestly ignored, overlooked, or excluded, we must va-
cate and remand for consideration of all the evidence.”).
But this case is not ordinary. It has lingered in legal
limbo for well over a decade and has been marked by count-
less delays and discovery errors, none of which can be at-
tributed to Beck. Vacatur and remand is not appropriate
under the facts of this case because it would further pro-
long and exacerbate the harm and undue prejudice that
has been perpetrated upon Beck. 8
A remand is also unnecessary under these facts. There
is no principled reason to depart from well-established Su-
preme Court jurisprudence interpreting analogous employ-
ment anti-discrimination statutes, such as Title VII of the
Civil Rights Act of 1964. As explained below, we are guided
by a wealth of precedent demonstrating that preselection
can apply with full force to a USERRA cause of action. Un-
der this record, even if the Board determined that
8 The Merit Systems Protection Board has operated
without a quorum for more than four years and, therefore,
cannot issue final decisions on any petitions for review
(PFR). TRISTAN L. LEAVITT, MESSAGE FROM THE ACTING
CHIEF EXEC. & ADMIN. OFFICER, U.S. MERIT SYSTEMS
PROTECTION BOARD FISCAL YEAR 2020 ANNUAL REPORT 1
(Jan. 19, 2021), https://www.mspb.gov/MSPBSEARCH/
viewdocs.aspx?docnumber=1800131&version=1806402&a
pplication=ACROBAT. As of December 31, 2020, there was
a backlog of 3,071 PFRs at the Board. Id.Case: 19-1205 Document: 56 Page: 26 Filed: 05/14/2021
26 BECK v. NAVY
preselection occurred on remand, the Navy cannot, as a
matter of law, establish its evidentiary burden under the
USERRA statutory requirements because the unlawful
discrimination and preselection are inextricably inter-
twined.
D. Preselection under the USERRA
We hold that preselection is a category of personnel
practices that can give rise to a USERRA claim when, as
here, the plaintiff has established that the preselection was
coupled to unlawful discrimination based on an individ-
ual’s current or past military service. Our holding today is
grounded in well-known Supreme Court jurisprudence in-
terpreting Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e–e-17.
We begin by recognizing the dearth of precedents ex-
amining the scope of preselection as a factor in a USERRA
inquiry. Notwithstanding this gap in the case law, the Su-
preme Court has noted that the USERRA “is very similar
to Title VII, which prohibits employment discrimination
‘because of . . . race, color, religion, sex, or national origin’
and states that such discrimination is established when
one of those factors ‘was a motivating factor for any em-
ployment practice, even though other factors also moti-
vated the practice.’” Staub v. Proctor Hosp., 562 U.S. 411,
417 (2011). Our analysis therefore embarks from this au-
thority and looks to analogous case law in other employ-
ment contexts under Title VII.
Save for few notable distinctions, such as the divergent
scheme for burden-of-proof allocation among USERRA and
Title VII cases, 9 courts have long analyzed both statutes
9 In Sheehan, this court explained that “[t]he proce-
dural framework and evidentiary burdens set out in
§ 4311 . . . are different from those in discrimination cases
under Title VII of the Civil Rights Act of 1964 . . . , as
Case: 19-1205 Document: 56 Page: 27 Filed: 05/14/2021
BECK v. NAVY 27
analogously in other employment contexts. See, e.g.,
Tridico v. District of Columbia, 130 F. Supp. 3d 17, 31
(D.D.C. 2015) (finding agreement with other courts that
hostile-work-environment claims under the USERRA and
Title VII are analogous); Montoya v. Orange Cty. Sheriff’s
Dep’t, 987 F. Supp. 2d 981, 1016 (C.D. Cal. 2013) (incorpo-
rating Title VII standards to evaluate a harassment claim
under the USERRA); Mock v. City of Rome, 851 F. Supp. 2d
428, 434 (N.D.N.Y. 2012) (considering Title VII case law to
evaluate a hostile-work-environment claim under the
USERRA); Vega-Colon v. Wyeth Pharm., 625 F.3d 22, 33
(1st Cir. 2010) (analyzing a claim of adverse employment
action in violation of the USERRA under a Title VII frame-
work); Lisdahl v. Mayo Found. for Med. Educ. & Rsch.,
698 F. Supp. 2d 1081, 1110 (D. Minn. 2010), aff’d sub nom.
Lisdahl v. Mayo Found., 633 F.3d 712 (8th Cir. 2011)
described in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), and subsequent decisions.” Sheehan, 240 F.3d
at 1014 (internal citation omitted). “Under the McDonnell
Douglas framework, the burden of persuasion in Title VII
actions always remains with the employee.” Velazquez-
Garcia v. Horizon Lines of Puerto Rico, Inc., 473 F.3d 11,
17 (1st Cir. 2007). Thus, under Title VII: (1) the employee
must first prove discriminatory animus, (2) the employer
then has the burden to show some legitimate nondiscrimi-
natory basis for the adverse action, and (3) the employee
must ultimately show that the adverse action is rooted in
pretext. Id. (citations omitted). Conversely, under the
USERRA, (1) the employee must show that discriminatory
animus was a motivating factor in the adverse action, and
(2) the employer then has the burden to show that the ad-
verse action would have taken place in the absence of the
protected status. See 38 U.S.C. § 4311. Thus, unlike in the
Title VII framework, the burden shifts entirely from em-
ployee to employer once the employee establishes discrim-
inatory animus under the USERRA.
Case: 19-1205 Document: 56 Page: 28 Filed: 05/14/2021
28 BECK v. NAVY
(“Although many of the cited cases involve alleged Title VII
violations, . . . ‘[t]here is no reason to understand “adverse
employment action” differently in the USERRA context.’”).
As to preselection, courts have held that the practice
“does not violate Title VII when such preselection is based
on the qualifications of the party and not on some basis
prohibited by [law].” Oliver-Simon v. Nicholson, 384 F.
Supp. 2d 298, 310 (D.D.C. 2005) (quoting Goostree v. Ten-
nessee, 796 F.2d 854, 861 (6th Cir. 1986)). “[T]here is noth-
ing per se improper about ‘preselection,’ at least from the
standpoint of Title VII.” Glass v. Lahood, 786 F. Supp. 2d
189, 224 (D.D.C. 2011), aff’d, 2011 WL 6759550 (D.C. Cir.
2011). “Preselection, even if accompanied by subsequent
manipulation to guarantee that the preselected candidate
gets the position over more qualified candidates, does not
equate automatically to discrimination.” Hunnicutt v. S.C.
Dep’t of Revenue, Civil Action No. 3:08–2589–JFA–JRM,
2010 WL 1344632, at *10 (D.S.C. Feb. 26, 2010). Even if
favoritism occurred in the selection process, preselection is
not unlawful if based on the selectee’s qualifications, and
not on some basis prohibited by law. Nyunt v. Tomlinson,
543 F. Supp. 2d 25, 39 (D.D.C. 2008), aff’d sub nom. Nyunt
v. Chairman, Broad. Bd. of Governors, 589 F.3d 445 (D.C.
Cir. 2009) (citation omitted).
The bar for scrutiny of personnel decisions in the work-
place is, in general, set fairly low. This court has acknowl-
edged the existence of “thousands of . . . routine personnel
decisions regularly made by the [armed forces] which are
variously held nonjusticiable or beyond the competence or
the jurisdiction of courts to wrestle with.” Voge v. United
States, 844 F.2d 776, 780 (Fed. Cir. 1988) (citing examples
of nonjusticiable personnel decisions). “Title VII does not
ensure the best will be selected—only that the selection
process will be free from impermissible discrimination.”
Blue v. U.S. Dep’t of Army, 914 F.2d 525, 541 (4th Cir.
1990) (quoting Casillas v. U.S. Navy, 735 F.2d 338, 344
(9th Cir. 1984)). Without evidence that preselection is
Case: 19-1205 Document: 56 Page: 29 Filed: 05/14/2021
BECK v. NAVY 29
itself motivated by unlawful discrimination, “pre[]selection
does not bear materially on [a] Title VII claim.” Downing
v. Tapella, 729 F. Supp. 2d 88, 94 (D.D.C. 2010).
Although preselection by itself is not prohibited by the
law, “[e]vidence of preselection operates to discredit the
employer’s proffered explanation for its employment deci-
sion.” Goostree, 796 F.2d at 861 (citations omitted). Prese-
lection can also constitute “relevant evidence of the
employer’s motivation.” Id. “The motivation is key because
preselection based on a reason not prohibited by the federal
anti-discrimination statutes is not probative of pretext.”
Blackledge v. Ala. Dep’t of Mental Health & Mental Retar-
dation, Civil Action No. 2:06CV321-ID, 2007 WL 3124452,
at *24 (M.D. Ala. Oct. 25, 2007).
These precedents demonstrate that preselection under
Title VII jurisprudence may be lawful. Employers may ex-
ercise wide latitude in making personnel-hiring decisions.
Such latitude in personnel-recruitment policies also ex-
tends to agencies of the armed forces. See Allphin v. United
States, 758 F.3d 1336, 1341 (Fed. Cir. 2014) (“The merits of
a military staffing decision are committed ‘wholly to the
discretion of the military.’”) (citations omitted).
But deference to an employer under Title VII is not
without limits. An employer shall not couple preselection
to unlawful discrimination. To do so is to exceed the per-
missible bounds of the law.
Here, the Navy strayed from those legal boundaries.
The Board’s determination that Beck’s prior military ser-
vice was a motivating or substantial factor in the Navy’s
decision not to select him for the EFPC vacancy was de-
tailed and well supported by the record. The Board’s find-
ings of fact revealed that the EFPC selection process in this
case was tainted with discriminatory motive against Beck.
See supra, Section I.E. We agree, in view of the record as
a whole, with the Board’s determination that Payton’s ani-
mus toward Beck’s prior military service as a cook and CPO
Case: 19-1205 Document: 56 Page: 30 Filed: 05/14/2021
30 BECK v. NAVY
played a role in his nonselection. Payton’s testimony at the
June 2016 hearing corroborates this proposition. The fol-
lowing exchange ensued when Payton was asked about Hu-
man Resources certifying Beck as the best qualified
candidate.
Question: Okay. [A]nd did you realize that Mr.
Beck was listed as the best qualified?
Answer: I think during my testimony for the
EEO complaint, I have said no. And so,
I’m going to go with that answer. Re-
viewing the paperwork, it’s obvious
that it was listed as he was the best
qualified person.
Question: All right. And did you ever find — do
you know — have you ever had occasion
to know whether you could choose a
qualified over a BQ, best qualified?
Answer: Well, I think I asked that question. Am
I bound by HR — HR’s assessment on
who I want to recommend we select.
And Ms. Cubbage informed me that I
was not.
J.A. 2513.
The Navy’s proffered rationale for selecting Wible, in
view of the above testimony, strains credulity. After clos-
ing of the EFPC announcement, Human Resources pro-
vided Payton with an Internal Certificate bearing the
names of only two individuals—Beck, who was listed as
“best qualified,” and Wible, who appeared in the line im-
mediately below and was listed as “qualified.” See J.A. 250.
The certificate instructed Payton to click on the applicants’
names to view their résumés and identify his selection from
the “selection order menu.” Id. That Payton felt compelled
to ask whether he was “bound” to select the individual HR
had labeled as the best-qualified candidate is illustrative of
his motive and intent. Given the numerous inconsistencies
Case: 19-1205 Document: 56 Page: 31 Filed: 05/14/2021
BECK v. NAVY 31
in Payton’s testimony throughout the record, we see no rea-
son to lend credence to the Navy’s hiring explanations.
“Evidence of preselection operates to discredit the em-
ployer’s proffered explanation for its employment decision.”
Goostree, 796 F.2d at 861 (citations omitted).
When an employer couples unlawful discrimination
with preselection to foreclose an applicant’s access to em-
ployment, the employer cannot disentangle the discrimina-
tion from actions that would otherwise constitute benign
preselection. As the Supreme Court articulated it: “The
employer is a wrongdoer; he has acted out of a motive that
is declared illegitimate by the statute. It is fair that he
bear the risk that the influence of legal and illegal motives
cannot be separated, because he knowingly created the risk
and because the risk was created not by innocent activity
but by his own wrongdoing.” NLRB v. Transp. Mgmt.
Corp., 462 U.S. 393, 403 (1983), abrogated on other
grounds by Dir., Off. of Workers’ Comp. Programs, Dep’t of
Lab. v. Greenwich Collieries, 512 U.S. 267 (1994).
We therefore conclude that, to the extent the Navy
could establish that it preselected Wible, it nevertheless
cannot disentangle its purported preselection from its
USERRA-based discrimination. Unlike oil and water, the
two are wholly miscible.
We further hold that under the USERRA, preselection
can buttress an agency’s personnel decision to hire a less
qualified candidate, but only when the preselection is not
tainted by an unlawful discriminatory intent. Our judg-
ment is guided by the Supreme Court’s Title VII jurispru-
dence, which we conclude applies with full and equal force
in the USERRA context. 10 Because we conclude that the
10 Because we extend the full scope of preselection un-
der Title VII cases to the USERRA context, we need not
reach the issue of whether the USERRA can serve as a
Case: 19-1205 Document: 56 Page: 32 Filed: 05/14/2021
32 BECK v. NAVY
Navy has not satisfied its evidentiary burden to show that
it would have hired Wible in the absence of Beck’s prior
military service, we reverse the Board’s denial of Beck’s re-
quest for corrective action.
***
Lastly, the Navy argues on appeal that the Board’s de-
cision should be affirmed on the alternate ground that the
USERRA does not extend to acts of discrimination against
a service member based on military rank or status in the
uniformed services. 11 See, e.g., Resp’t’s Br. 24–32. We de-
cline the Navy’s invitation to hold that an individual’s mil-
itary rank falls outside the gamut of potential
classifications protected under the USERRA. For purposes
of this appeal, it suffices to note that § 4311 explicitly pro-
tects the “performance of service” in the armed forces.
38 U.S.C. § 4311(a) (emphasis added).
Throughout the span of more than two decades, the
scope of Beck’s military service expanded to encompass,
among other things, cooking and performing the functions
of a CPO—the two activities that underlie the Board’s find-
ings of military service-based discrimination. An
jurisdictional basis for the Board to consider preselection
as a violation of 5 U.S.C. § 2302(b)(6), which prohibits
“grant[ing] any preference or advantage not authorized by
law, rule, or regulation to any employee or applicant for
employment (including defining the scope or manner of
competition or the requirements for any position) for the
purpose of improving or injuring the prospects of any par-
ticular person for employment.”
11 Neither “rank” nor “status” appears in the § 4311
statutory text. We note, however, that the AJ’s Initial De-
cision used the terms interchangeably to refer to military
service. See, e.g., J.A. 18 (“[Beck’s] military status was at
least a motivating factor in his nonselection . . . .”).
Case: 19-1205 Document: 56 Page: 33 Filed: 05/14/2021
BECK v. NAVY 33
individual’s commitment and obligation to, for example,
provide health care (nurse), fly aircraft during armed con-
flict (fighter pilot), write legal briefs (Judge Advocate Gen-
eral’s officer), or even cook meals for fellow service
members ought not to diminish the significant contribu-
tions of that person’s service in the armed forces.
IV. CONCLUSION
Beck has endured a decade of delayed justice. We can-
not correct every wrong in society; but we remedy this
wrong today. Working-class men and women striving to
improve their lives must frequently overcome great barri-
ers—including increasing inequality, insidious discrimina-
tion, and the lack of access to opportunity—in the arduous
path to success. In a world where inequities often go un-
checked, the judiciary stands as a beacon of hope to ensure
that justice and the values and principles that form the
bedrock of democracy do not become a mere afterthought.
Honest and hardworking members of our military as-
piring to improve their lives deserve to be treated with
equality and respect under the law, regardless of social sta-
tus or the scope of their military service or related duties.
That is the overarching purpose of the USERRA, which
pays homage to all our military service members who, day
in and out, help to strengthen the backbone of our country
through their countless contributions.
For the reasons set forth in this opinion, we hold that
the Board erred in denying Beck’s claim for corrective ac-
tion under § 4311(c) of the USERRA. We remand the case
to the Board with instructions to enter corrective action
that is consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
COSTS
Costs for the petitioner.
Case: 19-1205 Document: 56 Page: 34 Filed: 05/14/2021
United States Court of Appeals
for the Federal Circuit
______________________
JERRY EDWARD BECK,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2019-1205
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-4324-13-0128-B-1.
______________________
TARANTO, Circuit Judge, concurring in part and in the
judgment.
I join the opinion through Section A of the Discussion,
and I concur in the judgment.
I agree with affirmance of the Merit Systems Protec-
tion Board’s finding at the first step of the analysis re-
quired by Sheehan v. Department of Navy, 240 F.3d 1009,
1013 (Fed. Cir. 2001): Substantial evidence supports the
finding that Mr. Beck showed that his performance of his
military service was a motivating factor in the Navy’s deci-
sion not to select him for the position at issue in 2011, and
Mr. Beck’s showing comes within the coverage of 38 U.S.C.
§ 4311. I agree, as well, with reversal of the Board’s find-
ing, at the second step of the Sheehan analysis, that the
Navy carried its burden to show that it would have taken
Case: 19-1205 Document: 56 Page: 35 Filed: 05/14/2021
2 BECK v. NAVY
the same action in the absence of the motivating factor
found at Sheehan’s first step. I agree, therefore, with re-
versal of the Board’s rejection of Mr. Beck’s claim for cor-
rective action, which the Board must provide when this
matter returns to the Board.
I respectfully depart from the majority in one respect.
I would decide no more, under the second step of Sheehan,
than that the Navy failed to support its assertion that it
had legitimate reasons for not choosing Mr. Beck for the
position in May 2011. The assertion of legitimate reasons
was the only basis on which the Navy sought to meet its
Sheehan burden. Although the Navy addressed “preselec-
tion” in response to our request for supplemental briefing
about the topic, the Navy did not, before the Board or in its
brief as appellee, present any meaningful argument that it
met its Sheehan burden on any ground other than that it
had legitimate reasons, in a comparative-qualifications
judgment, for selecting Ms. Wible over Mr. Beck. In its
brief as appellee, the Navy, in its very short discussion of
“preselection,” asserted only that the Board did not rely on
preselection, that no preselection occurred because the
Navy had legitimate reasons for choosing Ms. Wible, and
that there was “no finding of intent here,” i.e., an intent to
give “an unauthorized preference.” Navy Response Br. at
23 (internal quotation marks omitted); id. at 22–23. The
Navy presented no argument that it should prevail at the
second step of Sheehan based on “preselection” even if the
evidence did not support its assertion that it had legitimate
reasons for choosing Ms. Wible. In this circumstance, the
conclusion that the evidence does not support the Navy’s
assertion of legitimate reasons suffices for reversal, and I
would not address questions about preselection in this
case.