Becker v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
RICHARD A. BECKER,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2012-3052
__________________________
Petition for review of the Merit Systems Protection
Board in case no. NY4324100278-I-1.
__________________________
Decided: May 15, 2012
___________________________
RICHARD A. BECKER, of Coram, New York, pro se.
LARTEASE M. TIFFITH, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and REGINALD T.
BLADES, JR., Assistant Director.
__________________________
BECKER v. VA 2
Before LOURIE, DYK, and WALLACH, Circuit Judges.
PER CURIAM.
Richard A. Becker (“Becker”) petitions for review of a
final decision of the Merit Systems Protection Board
(“Board”) denying his claim under the Uniformed Services
Employment and Reemployment Rights Act of 1999
(“USERRA”), 38 U.S.C. §§ 4301-4333. Becker v. Dep’t of
Veterans Affairs (“Final Decision”), No. NY4324-10-0278-
I-1 (M.S.P.B. Dec. 7, 2011). We affirm.
BACKGROUND
In 1994, Congress enacted USERRA to prevent em-
ployers from discriminating against persons because of
military service. 38 U.S.C. § 4301(a)(3) (2006). As a
result, USERRA prohibits employers from denying em-
ployment or promotion on the basis of an applicant’s
military service, id. § 4311(a), or from taking adverse
action against an employee who has brought an action
under USERRA, id. § 4311(b). Becker, a U.S. Army
veteran, holds the position of Nursing Assistant, GS-5, in
the Department of Veterans Affairs. He applied for the
position of Medical Support Assistant, GS-6, but his
application was denied because he did not meet the
specialized experience requirements for the position.
Becker filed a USERRA complaint with the Board, alleg-
ing that he was discriminated against in the selection
process because he was a veteran or because of his prior
actions to enforce his rights under USERRA, or both.
On March 31, 2011, the administrative judge dis-
missed Becker’s appeal for lack of jurisdiction, finding
that Becker failed to make a nonfrivolous allegation that
his military service or previous USERRA appeals were a
factor in the agency’s determination not to hire him. On
petition for reconsideration, the Board vacated the initial
3 BECKER v. VA
decision and found jurisdiction over Becker’s USERRA
claim. The Board, however, denied the claim on the
merits, finding that Becker “failed to produce any evi-
dence suggesting that his military service or prior
USERRA activity contributed to the agency’s determina-
tion regarding his qualifications and experience,” and that
he therefore “failed to meet his initial burden” under
USERRA. Final Decision, slip op. at 4-5. Becker timely
appealed. We have jurisdiction pursuant to 5 U.S.C.
§ 7703.
DISCUSSION
This court must sustain a decision of the Board unless
it is “found to be . . . (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) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). USERRA
claims are analyzed under a burden-shifting mechanism,
where a veteran making a claim “bears the initial burden
of showing by a preponderance of the evidence that his
military service [or prior action to enforce his rights under
USERRA] was a substantial or motivating factor in the
adverse employment action.” Erickson v. U.S. Postal
Serv., 571 F.3d 1364, 1368 (Fed. Cir. 2009).
The Board did not err in finding that Becker’s claim
did not provide sufficient evidence to meet his initial
burden. Becker has not, either before the Board or here
on appeal, offered sufficient evidence to demonstrate that
his military service or prior USERRA claims were a
substantial or motivating factor in the agency’s decision to
not hire him for the Medical Support Assistant position.
The fact that non-veterans are making hiring decisions
does not support Becker’s argument that the decision not
to hire him must have been improperly motivated. It
BECKER v. VA 4
appears that Becker simply disagrees with the agency’s
assessment of his qualifications. We note that Becker has
previously been involved in numerous USERRA appeals
alleging that his military service was a factor in non-
veterans being hired instead. See, e.g., 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).
The Board also did not err in finding that Becker
waived his rights to a hearing. In USERRA cases, the
veteran has a right to an administrative hearing if re-
quested. See Kirkendall v. Dep’t of the Army, 479 F.3d
830, 844 (Fed. Cir. 2007). With respect to hearings on
USERRA appeals, the regulations provide that “[a]n
appellant must submit any request for a hearing with the
USERRA appeal, or within any other time period the
judge sets.” 5 C.F.R. § 1208.13(b) (emphasis added). But,
despite having been advised of his rights to a hearing
here by the administrative judge, Becker never requested
a hearing.
Becker’s remaining arguments have been considered
and are also without merit.