       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               LANCE MCDERMOTT,
                    Petitioner

                           v.

       UNITED STATES POSTAL SERVICE,
                   Respondent
             ______________________

                      2017-1258
                ______________________

   Petition for review of the Merit Systems Protection
Board in Nos. SF-3330-15-0432-I-1, SF-3330-15-0432-I-2.
                ______________________

                Decided: June 13, 2017
                ______________________

    LANCE MCDERMOTT, Seattle, WA, pro se.

    JESSICA TOPLIN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BENJAMIN C.
MIZER, ROBERT E. KIRSCHMAN, JR., DOUGLAS K. MICKLE.
                  ______________________

      Before NEWMAN, DYK, and STOLL, Circuit Judges.
PER CURIAM.
2                                      MCDERMOTT   v. USPS



    Petitioner Lance McDermott appeals the decision of
the Merit Systems Protection Board denying Mr. McDer-
mott’s request for corrective action under the Uniformed
Services Employment and Reemployment Rights Act of
1994, 38 U.S.C. §§ 4301-4333 (2012) (“USERRA”). Mr.
McDermott requested corrective action to challenge the
decision by the United States Postal Service (“USPS”) to
place Mr. McDermott on enforced leave. We affirm the
Board’s decision.
                      BACKGROUND
     Mr. McDermott was a maintenance mechanic at the
Seattle Priority Mail Annex. His position involves “trou-
ble-shooting and complex maintenance work throughout
the system of mail processing equipment,” and performing
“preventative maintenance inspections of mail processing
equipment, building and building equipment.” McDer-
mott v. U.S. Postal Serv., SF-0752-13-0633-I-1,
2015 WL 1976017 (M.S.P.B. Apr. 28, 2015) (“McDermott
I”). The position is technically and physically demanding,
and requires the “ability to distinguish colors.” McDer-
mott v. U.S. Postal Serv., SF-3330-15-0432-I-2,
2016 WL 5369335, ¶ 2 (M.S.P.B. Sept. 23, 2016)
(“McDermott II”).
    After his employer instituted a color-coded system to
track maintenance operations, Mr. McDermott disclosed
that he was colorblind. Even though the use of the color-
coded system ceased due to Mr. McDermott’s objections,
Mr. McDermott’s superiors expressed concerns as to
whether Mr. McDermott could safely perform his job,
which included working with colored electric wiring for
buildings and machinery. Thus, USPS attempted to
engage Mr. McDermott in an established reasonable
accommodation and light duty process to address the
issue. Mr. McDermott, however, did not respond to these
attempts. Mr. McDermott reportedly stated that he did
not want to participate in the reasonable accommodation
MCDERMOTT   v. USPS                                        3



process or go on light duty because of his belief that
another employee was fired on light duty. Thereafter,
USPS referred Mr. McDermott to the District Reasonable
Accommodation Committee (“DRAC”) for assessment.
    After not hearing from Mr. McDermott, he was hand-
delivered a letter from his supervisor concerning his
colorblindness. The letter formally offered Mr. McDer-
mott the opportunity to request a Permanent Light Duty
Assignment and discuss his “permanent restriction as it
related to the essential functions of [Mr. McDermott’s]
position, and possible accommodations” with DRAC.
McDermott I, 2015 WL 1976017. The letter requested a
response, and informed Mr. McDermott that, while re-
questing either light duty or a reasonable accommodation
was voluntary, “absent participation in [one] or the other
process, management is unable to conclude that [Mr.
McDermott] can perform the essential functions of [his]
position with or without reasonable accommodation,” and
that “refusal to take advantage of either avenue may
result in [Mr. McDermott’s] placement in an enforced
leave status.” Id. Mr. McDermott did not contact his
supervisor to discuss the matter.
     A month later, Mr. McDermott was sent another let-
ter regarding the reasonable accommodation and light
duty process. The letter informed Mr. McDermott that he
was prohibited from performing his work because his
continued work, considering his colorblindness, “can
result not only in damage to the equipment but also pose
a significant safety risk.” Id. The letter once again
extended Mr. McDermott the option to request light duty
and/or reasonable accommodation. The letter also noticed
Mr. McDermott that he was to be placed on enforced leave
“effective no sooner than ten (10) days from [his] receipt of
this letter.” S.A. 23.
   After receiving no response from Mr. McDermott,
USPS sent him another letter notifying him of his official
4                                       MCDERMOTT   v. USPS



placement on enforced leave. The letter explained that
his placement on enforced leave was “a direct result” of
his “refusal to interact with management on this very
important issue.” McDermott I, 2015 WL 1976017. The
letter also explained that Mr. McDermott continued to
“have the right to request reasonable accommodation
and/or light duty” but that he “must avail [himself] of
these options which includes a willingness to sit down and
discuss [his] medical limitations, if any, and the impact of
[his] medical limitations on the performance of the essen-
tial functions of [his] job.” Id. Mr. McDermott’s enforced
leave was implemented on the same day.
    Mr. McDermott filed multiple complaints concerning
his enforced leave in the United States District Court for
the Western District of Washington. See, e.g., McDermott
v. U.S. Postal Serv., No. C16-0377-JCC, 2016 WL
3364892, at *1 (W.D. Wash. June 17, 2016). Relevant to
this appeal, Mr. McDermott first challenged his place-
ment on enforced leave before the Board in 2015, in
McDermott I.     While that appeal was pending, Mr.
McDermott filed the instant action before the Board.
    During the litigation of McDermott I, the parties dis-
covered that Mr. McDermott’s classification as a prefer-
ence-eligible veteran was removed from his file due to an
internal USPS error. Upon this discovery, USPS correct-
ed the error in Mr. McDermott’s employment record, and
also initiated a process to review other USPS employee
records to correct any other preference-eligible status
errors. The Administrative Judge determined, based on
the record and witness testimony, that the misclassifica-
tion of Mr. McDermott’s veteran status was an inadvert-
ent error by the responsible human resource specialist at
USPS, not part of an effort to “deprive [Mr. McDermott] of
his preference eligible status because of his prior military
service.” S.A. 28.
MCDERMOTT   v. USPS                                       5



    After holding a consolidated hearing to address the is-
sues in McDermott I and the current action, the AJ issued
a decision in McDermott I confirming USPS’s action to
place Mr. McDermott on enforced leave, which ultimately
became the final decision of the Board. In this action, the
AJ granted Mr. McDermott’s motion to terminate his
claim under the Veterans Employment Opportunities Act
of 1998 (VEOA) because Mr. McDermott elected to pursue
the matter in district court. McDermott II, 2016 WL
5369335, at ¶ 6.
    As for the remaining USERRA claim in this action,
the AJ rejected Mr. McDermott’s allegations that the
USPS violated USERRA when it: (1) failed to recognize
his veteran’s preference status; and (2) placed him in
enforced leave status. Id. at ¶ 1. The Board affirmed the
AJ’s denial of Mr. McDermott’s request for corrective
action. Id. We have jurisdiction under 5 U.S.C. §
7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
                       DISCUSSION
    The scope of our review in an appeal from a decision
of the Board is limited. We must affirm a Board decision
unless it is “(1) arbitrary, capricious, an abuse of discre-
tion, 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) (2012). “A decision is sup-
ported by substantial evidence when ‘a reasonable mind
might accept [it] as adequate to support a conclusion.’”
Jacobsen v. Dep’t of Justice, 500 F.3d 1376, 1379 (Fed.
Cir. 2007) (quoting Matsushita Elec. Indus. Co. v. United
States, 750 F.2d 927, 933 (Fed. Cir. 1984)).
    The scope of our review is also limited to the issues
properly before us. Thus, we cannot address those argu-
ments in Mr. McDermott’s appeal that implicate McDer-
6                                        MCDERMOTT   v. USPS



mott I. 1 For example, we cannot consider Mr. McDer-
mott’s arguments that address the merits and appropri-
ateness of being placed on enforced leave, including
evidentiary issues such as Mr. McDermott’s claim that he
was denied his “only witness who worked in the same
facility,” Pet’r’s Br. at 2; Mr. McDermott’s claim that
USPS used “false information” to remove his preference
status, see Pet’r’s Br. at 7–9; Mr. McDermott’s claim that
he was “denied any discovery and a number of exhibits” in
McDermott I that could have assisted him in McDermott
II, Pet’r’s Br. at 2, 8, 18, as well as his whistleblower and
retaliation claims, which were adjudicated in McDermott
I. See Pet’r’s Br. at 3–4, 10–11, 13, Pet’r’s Resp. 1–6.
    We also cannot address any arguments presented by
Mr. McDermott that fall outside the scope of this appeal
in McDermott II, including those addressing the contents
of Office of Personnel Management records, see Pet’r’s Br.
at 6, and on issues concerning his VEOA claims, see
Pet’r’s Br. at 9. Accordingly, this appeal is limited to Mr.
McDermott’s arguments pertaining to the USERRA
claims in McDermott II.
    USERRA prohibits discrimination in employment on
the basis of military service. The operative provision, 38
U.S.C. § 4311, states in pertinent part as follows:
    (a) A person who is a member of, applies to be a
       member of, performs, has performed, applies to
       perform, or has an obligation to perform service
       in a uniformed service shall not be denied ini-
       tial employment, reemployment, retention in
       employment, promotion, or any benefit of em-
       ployment by an employer on the basis of that



    1   On his petition for review form, Mr. McDermott
requested review of only McDermott II. He did not re-
quest review of McDermott I.
MCDERMOTT   v. USPS                                         7



      membership, application for membership, per-
      formance of service, application for service, or
      obligation.
   ....
   (c) An employer shall be considered to have en-
      gaged in actions prohibited—
   (1) under subsection (a), if the person’s member-
      ship, application for membership, service, ap-
      plication for service, or obligation for service in
      the uniformed services is a motivating factor in
      the employer’s action, unless the employer can
      prove that the action would have been taken in
      the absence of such membership, application
      for membership, service, application for service,
      or obligation for service.
     Thus, USERRA was enacted to protect an employee
against discrimination in which the employee’s military
service is a “motivating factor” in the discriminatory
action. See id. We explained that an employee making a
USERRA claim of discrimination must “bear the initial
burden of showing by a preponderance of the evidence
that the employee’s military service was ‘a substantial or
motivating factor’ in the adverse employment action.”
Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir.
2001) (citations omitted). Here, the Board affirmed the
AJ’s determination that Mr. McDermott did not meet his
initial burden. McDermott II, 2016 WL 5369335, at ¶ 14.
    On appeal, Mr. McDermott argues that the Board
erred in determining that his preference status clerical
error was not motivated by his military service. The
Board determined that the record does not support Mr.
McDermott’s claim that the error was intentional and
motivated by his military service. We find that that the
Board’s determination is supported by substantial evi-
dence. Specifically, after considering “all the evidence of
8                                       MCDERMOTT   v. USPS



record, including the hearing testimony,” the AJ deter-
mined that the error resulted from the human resource
specialist’s inadvertent failure to “report [Mr. McDer-
mott’s] Desert Storm military service,” and that there was
“no evidence that the reviewing HR Specialist was aware
of [Mr. McDermott’s] 1990-91 military service and chose
to ignore it, or that she was motivated to deprive him of
his preference eligible status because of his prior military
service.” S.A. 28. The AJ found “no evidence that the
2006 modification was anything other than a clerical
error.” McDermott II, 2016 WL 5369335, at ¶ 12. And as
the Board noted in affirming the AJ’s determinations,
“there was no evidence the Human Resources Specialist
responsible for the error was aware of [Mr. McDermott’s]
qualifying military service, nor was there any evidence
that anyone in [Mr. McDermott’s] chain of command had
anything to do with reviewing or denying his eligibility for
preference-eligible status.” Id. Nor does Mr. McDermott
offer any such evidence here.
    Mr. McDermott also appears to assert that the Board
erred in its determination that his placement on enforced
leave was not motivated by his military service. The
Board had found that the record does not support Mr.
McDermott’s claim. Id. at ¶ 13. The Board explained
that the AJ “determined that the [USPS] referred [Mr.
McDermott] to the District Reasonable Accommodation
Committee (DRAC) and later took the enforced leave
action, not because of his military service, but because of
his failure to cooperate with [USPS] efforts to address his
colorblindness and ability to perform his duties.” Id.
    We find that the Board’s determination is supported
by substantial evidence. The record reflects that Mr.
McDermott was placed on enforced leave after he failed to
respond to repeated requests by the USPS to pursue a
light duty assignment or other reasonable accommoda-
tions that might mitigate the legitimate safety risks that
could result from his colorblindness. Nothing in the
MCDERMOTT   v. USPS                                       9



record suggests that Mr. McDermott’s military service
was a motivating factor in any of USPS’s actions to place
Mr. McDermott on enforced leave. Nor has Mr. McDer-
mott directed us to any evidence to the contrary.
    The mere fact that USPS management knew of
Mr. McDermott’s prior military service does not change
this. Here, the AJ weighed the knowledge of Mr. McDer-
mott’s prior military service with all other evidence on the
record, and after considering the relevant Sheehan factors
that help determine whether a discriminatory motivation
may be reasonably inferred in any given USERRA chal-
lenge, determined that the USPS’s knowledge of
Mr. McDermott’s prior military service created no infer-
ence of discriminatory motivation. 2 Id. at ¶ 14. We agree.
We find nothing in the record to suggest that USPS’s
knowledge of Mr. McDermott’s prior military service was
a motivating factor in its actions.
    Mr. McDermott also appears to assert an ineffective
assistance of counsel claim against the USPS’s counsel.
Mr. McDermott claims that USPS’s counsel failed to
properly investigate the facts and “engag[ed] in conduct
involving dishonesty, fraud, deceit, misrepresentation”
and “conduct that is prejudicial to the administration of
justice.” Pet’r’s Br. at 1. However, as USPS pointed out,
its counsel did not represent Mr. McDermott in his pro-



   2    The Sheehan factors include “proximity in time
between the employee’s military activity and the adverse
employment action, inconsistencies between the proffered
reason and other actions of the employer, an employer’s
expressed hostility towards members protected by the
statute together with knowledge of the employee’s mili-
tary activity, and disparate treatment of certain employ-
ees compared to other employees with similar work
records or offenses.” Sheehan, 240 F.3d at 1014.
10                                    MCDERMOTT   v. USPS



ceedings before the Board. And in any event, we do not
find sufficient evidence to support this claim.
                      CONCLUSION
    We have considered Mr. McDermott’s remaining ar-
guments and find them unconvincing. For the reasons
stated above, we affirm the Board’s decision. All pending
motions, including Mr. McDermott’s motion for appoint-
ment of counsel, are denied as moot.
                      AFFIRMED
                         COSTS
     No costs.
