Lodge v. Equal Opportunity Employment Commission

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LOUIS A. LODGE,
Petitioner,
v.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Respondent.
__________________________
2010-3076
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. AT4324090911-I-1.
____________________________
Decided: August 10, 2010
____________________________
LOUIS A. LODGE, of Atlanta, Georgia, pro se.
MICHAEL GOODMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and HAROLD D. LESTER,
JR., Assistant Director.
LODGE v. EEOC 2
__________________________
Before RADER, Chief Judge, LOURIE and PROST, Circuit
Judges.
PER CURIAM.
Louis A. Lodge (“Lodge”) petitions for review of the fi-
nal decision of the Merit Systems Protection Board (“the
Board”) denying his request for corrective action under
the Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”). We affirm.
BACKGROUND
On July 7, 2009, the Equal Employment Opportunity
Commission (“EEOC” or “Agency”) posted two vacancy
announcements, an open competition announcement and
a merit promotion announcement, for the same Program
Assistant position in its Atlanta District Office. On July
8, 2009, Terri Cook (“Cook”), an employee in the Atlanta
District Office, submitted an application to the open
competition. Her application indicated her prior military
service and her eligibility for ten veterans’ preference
points. On July 12, 2009, Lodge also submitted an appli-
cation to the open competition. His application similarly
indicated his prior military service and his eligibility for
ten veterans’ preference points.
After the competitions closed, a list of the best eligible
candidates for the open competition was submitted to
Bernice Williams-Kimbrough, the Director of the Atlanta
District Office. The list included the names of both Lodge
and Cook along with the names of twenty-eight other
candidates, all of whom were assigned veterans’ prefer-
ence. On September 14, 2009, Williams-Kimbrough
selected Cook for the position, and Cook signed a Declara-
3 LODGE v. EEOC
tion of Federal Employment that same day. On Septem-
ber 16, 2009, Henry Wesloski, the District Resource
Manager in the Atlanta District Office, sent an e-mail
requesting clearance to hire Cook. Approval was given on
September 25, 2009, and Williams-Kimbrough finalized
Cook’s selection for the position on October 1, 2009.
Lodge filed an appeal with the Board under USERRA
alleging that his prior military service was a substantial
or motivating factor in the Agency’s decision not to select
him for the Program Assistant vacancy. Lodge later
amended his appeal to include a claim that the filing of
his appeal was a substantial or motivating factor in the
Agency’s decision not to select him for the position.
Receipt of the initial complaint was acknowledged on
September 8, 2009.
In an initial decision dated December 24, 2009, the
administrative judge (“AJ”) held that Lodge had failed to
show that either his prior military service or his filing an
appeal with the Board was a substantial or motivating
factor in the EEOC’s decision not to select him for the
Program Assistant position. In rejecting Lodge’s dis-
crimination claim, the AJ relied on the fact that all the
candidates on the competitive list were preference-eligible
veterans and that the selectee, Cook, like Lodge, had
performed prior military service. The AJ also credited the
testimony of Williams-Kimbrough and Wesloski that
Lodge’s military service had not affected the selection
process and rejected Lodge’s assertion that Cook’s em-
ployment status with the Agency precluded her from
claiming veterans’ preference when competing on a com-
petitive list. Regarding Lodge’s retaliation claim, the AJ
held that Lodge had failed to establish that any Agency
official involved in the selection process was aware of
Lodge’s appeal. Rather, the AJ credited Williams-
LODGE v. EEOC 4
Kimbrough and Wesloski’s testimony that they did not
learn of Lodge’s appeal until after the decision to hire
Cook was made on September 14, 2009.
The initial decision became final on January 28, 2010.
Lodge timely appealed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
DISCUSSION
We must affirm a Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). To prevail on his discrimination or
retaliation claim under USERRA, Lodge must prove by a
preponderance of the evidence (1) that his membership or
performance of service in a uniformed service of the
United States was a substantial or motivating factor in
the Agency’s decision to deny him initial employment, or
(2) that his taking action to enforce a protection afforded
him under USERRA was a substantial or motivating
factor in the Agency’s decision. 38 U.S.C. § 4311(a), (b).
Lodge challenges the Board’s decision on multiple
grounds. With regard to his discrimination claim, Lodge
argues that the Agency, and specifically HR Manager and
ADR Supervisor Rosemary Rhodes, unlawfully pre-
selected Cook for the Program Assistant position based on
friendship rather than qualifications. Lodge cites as
evidence the fact that the Agency did not conduct any
interviews for the position and specifically did not inter-
view him. Lodge also argues that the Agency should not
have given Cook the benefit of veterans’ preference be-
cause she was already employed at the Agency, making
5 LODGE v. EEOC
her selection not an initial hiring, but an intra-agency
promotion not subject to veterans’ preference under
Brown v. Department of Veterans Affairs, 247 F.3d 1222(Fed. Cir. 2001). With regard to his retaliation claim,
Lodge argues that because he hand delivered a copy of his
complaint to the Atlanta Office on September 3, 2009, the
Agency was on notice and Director Williams-Kimbrough
was most likely aware of his appeal prior to Cook’s selec-
tion.
The government responds that the Board correctly
held that Lodge had failed to establish discrimination
under USERRA in light of the past military service of
selectee Cook, who was properly afforded veterans’ pref-
erence in the Agency’s open competitive selection process.
The government also argues that the EEOC properly
selected Cook for the Program Assistant position, but
regardless, Lodge’s allegation of pre-selection fails to state
a claim under USERRA because Lodge has not identified
any evidence that the pre-selection related to his military
service. Finally, with regard to Lodge’s retaliation claim,
the government argues that there is substantial evidence
to support the Board’s decision that Lodge had failed to
show that any Agency employee involved in the selection
process knew about his Board appeal prior to Cook’s
selection.
We agree with the government and affirm the Board’s
decision. Lodge’s allegation that an Agency employee pre-
selected Cook for the Program Assistant position fails to
state a claim under USERRA as Lodge neither claims nor
presents any evidence that the alleged pre-selection, and
thus his non-selection, related to his military service.
Because a claim for non-selection is not independently
appealable to the Board, Tines v. Dep’t of the Air Force, 56
M.S.P.R. 90, 93 (1992); see also Briley v. Nat’l Archives &
LODGE v. EEOC 6
Records Admin., 236 F.3d 1373, 1377 (Fed Cir. 2001), and
the Board cannot take jurisdiction over a claim for a
prohibited personnel practice under USERRA, see Gold-
berg v. Dep’t of Homeland Sec., 99 M.S.P.R. 660, 667
(2005), we decline to address the claim.
Lodge’s sole discrimination allegation relating to mili-
tary service is that Cook was not eligible for veterans’
preference based on her employment status with the
Agency. We disagree. The record shows that the EEOC
conducted an open competition to fill the Program Assis-
tant position and that Cook applied for the position via
the open competition. Under an open competitive process,
all veterans are given the benefit of their veterans’ pref-
erence points, including veterans currently employed by
the hiring agency. Joseph v. Fed. Trade Comm’n, 505
F.3d 1380, 1383 (Fed. Cir. 2007); Perkins v. U.S. Postal
Service, 100 M.S.P.R. 48, 58-59 (2005). Contrary to
Lodge’s assertion, the EEOC’s simultaneous announce-
ment of the position for merit promotion, which under
Brown is not subject to veterans’ preference, 247 F.3d at
1224, did not alter Cook’s entitlement to veterans’ prefer-
ence in the open competitive process. The entitlement is
based on the hiring method used by the Agency, not the
employment status of the applicant.
Regardless, Lodge’s claim fails to establish that the
EEOC did not select him for the position based on his
military service. The Board rejected Lodge’s discrimina-
tion claim based in part on the fact that all the applicants
on the list of eligible candidates were preference-eligible
veterans and that Cook, like Lodge, had a history of
military service. As such, the Board held that Lodge had
failed to establish that the Agency was motivated not to
hire him based on his military service. We find no error
in that decision.
7 LODGE v. EEOC
Finally, regarding Lodge’s retaliation claim, the
Board found that no EEOC employee involved in the
selection process knew of Lodge’s Board appeal until after
the selection of Cook had been made, and that selection
occurred at least by September 16, 2009. Lodge argues
that because he hand delivered his complaint to a recep-
tionist on September 3, 2009, the Agency was on notice.
It is, however, insufficient that someone at the Agency
had knowledge of Lodge’s appeal. Rather, Lodge had to
show that an Agency employee involved in the selection
process had knowledge of his appeal prior to the selection
and acted based on that knowledge. The Board credited
the testimony of Williams-Kimbrough and Wesloski, the
employees involved in the selection process, that they did
not become aware of Lodge’s complaint until after Cook
had been selected for the position. The Board found the
employee’s testimony to be truthful and found no evidence
contradicting their testimony. We again see no error in
the Board’s decision.
We have considered Lodge’s other arguments and find
them unpersuasive. Accordingly, we affirm the Board’s
final order.
COSTS
No costs.