                       NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                         Is not citable as precedent. It is a public record.

    United States Court of Appeals for the Federal Circuit
                                             06-3248

                                      NORBERT L. MCKEE,

                                                               Petitioner,

                                                 v.

                              UNITED STATES POSTAL SERVICE,

                                                               Respondent.

                                ___________________________

                                DECIDED: November 21, 2006
                                ___________________________


Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and PROST, Circuit
Judge.

PER CURIAM.

       Norbert L. McKee seeks review of the final order of the Merit Systems Protection

Board (Board) finding that the United States Postal Service (Agency) did not

discriminate against him because of his prior military status when it failed to non-

competitively covert him from a temporary to a career employee. Finding no reversible

error, this court affirms.

                                             I

       In 1995, Mr. McKee took an entrance examination for employment with the

Agency and received a score of 85.2, which included a five point veterans’ preference.

After receiving this score, Mr. McKee was rated a thirty percent or more disabled
veteran by the Department of Veterans Affairs. In December 2004, Mr. McKee was first

hired by the Agency as a casual/temporary employee at the Processing and Distribution

Center in Roanoke, Virginia.

      In the summer of 2005, Mr. McKee contacted the Human Resources Department

of the Agency and requested to be extended on the examination register. Mr. McKee

was notified that the score on his 1995 entrance examination had only been valid for

two years and expired in 1997. Mr. McKee was further notified that because his score

was expired, he could not be considered for employment from the register.

      In August 2005, Mr. McKee requested a special entrance examination for

disabled veterans be opened. The Agency, however, informed Mr. McKee the next

available examination would be open to the public.        If he took this examination,

however, he would be entitled to a ten point addition to his score because he was now a

thirty percent or more disabled veteran.    Mr. McKee took the September 29, 2005

examination and received the additional ten points.

      Additionally, sometime in the summer of 2005, Mr. McKee heard the Agency was

planning to hire between three to five career Mail Handlers. Mr. McKee requested a

non-competitive conversion to a career position based on his disabled veteran’s status.

Mr. McKee was denied conversion. He further asserts the Agency filled these positions

noncompetitively with non-veterans or non-disabled veterans.

                                           II

      This court must affirm any agency action, findings, or conclusions unless they

are: (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance

with the law; (2) obtained without procedure required by law, rule, or regulation having




06-3248                                    2
been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1996);

Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

         In the present appeal, Mr. McKee argues the Agency violated the Uniformed

Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301-

4332 (2000), Veterans Employment Opportunities Act (VEOA), 5 U.S.C. § 3330a

(2004), Veterans Readjustment Act (VRA), 38 U.S.C. § 4214 (2003), and 5 U.S.C.

§§ 3308-3320 (2000) in failing to convert him from a temporary to a career employee.

Violations of 5 U.S.C. §§ 3308-3320 and 38 U.S.C. § 4214 were not raised below and

therefore are not properly before this court.

         Regarding Mr. McKee’s VEOA claim to establish Board jurisdiction over an

appeal brought under the VEOA, Mr. McKee must: (1) show that he exhausted his

remedy with the Department of Labor (DOL); and (2) make nonfrivolous allegations that

(i) he is a preference eligible within the meaning of the VEOA, (ii) the action(s) at issue

took place on or after the October 30, 1998 enactment date of the VEOA, and (iii) the

agency violated his rights under a statute or regulation relating to veterans' preference.

Abrahamsen v. Dep’t of Veterans Affairs, M.S.P.B. 2003, 94 M.S.P.R. 377. The Board

held, and Mr. McKee does not dispute, that Mr. McKee failed to provide any evidence

that he had exhausted his remedies before the Department of Labor.              This court

therefore affirms the Board’s holding that it lacked jurisdiction over Mr. McKee’s VEOA

claim.

         In support of his USERRA claim, Mr. McKee argued the Appalachian District

violated Postal Service Handbook EL-312 when it failed to noncompetitively appoint him




06-3248                                         3
to one of the career Mail Handlers positions.        Postal Service Handbook EL-312

§ 233.35 states:

      A veteran, who has a compensable service-connected disability of 30
      percent or more and who is currently working as a casual or temporary
      employee, may be considered for noncompetitive conversion to a career
      vacancy. The veteran must have worked in the temporary appointment for
      at least 60 days and must meet the qualification requirements of the
      position, including any currently required examinations. Appointing officials
      may, but are not obligated to, administer examinations noncompetitively, if
      it is determined that applicants are otherwise viable candidates. A prior
      rating on the appropriate examination is acceptable.

      If necessary, a veteran with 30 percent or more disability can be given a
      direct career appointment. This appointment authority is entirely
      discretionary. There are no time limits for these appointments.

Postal Handbook EL-312 § 233.35 (2001) (emphasis added).

      In response to Mr. McKee’s contentions, two witnesses testified for the Agency.

Robin L. Clay, Human Resources Specialist for the Agency, testified that non-

competitive appointments per EL-312 are optional and not used in the Appalachian

District. Gary Hutchinson, Manger for Personal Services for the Appalachian District,

testified that it is within each district’s discretion whether to invoke EL-312 § 233.35

when hiring veterans with a thirty percent or higher disability. Mr. Hutchinson further

testified that the Appalachian District had never used EL-312 § 233.35 to hire

employees. Additionally, Mr. Hutchinson testified that the Appalachian District took the

position that the normal hiring procedures, in which the veteran gets a preference,

already provided an advantage over non-veterans.

      Mr. Hutchinson also testified that while the District does engage in non-

competitive hiring of severely disabled individuals on occasion according to EL 312

§ 235.4, these people could not complete in the regular hiring process because their

disabilities present barriers for them to take the examination.       Severely disabled


06-3248                                    4
individuals, however, unlike veterans, do not receive a higher point score on their

examinations because of their disabilities.

      Mr. McKee admits his 1995 test score was “way out of date,” and that he knew

he had to take a new test. Mr. McKee further concedes he was given his ten point

veterans’ preference for being a thirty percent or more disabled veteran on the most

recent examination.      He also admits he was aware the Agency sometimes hired

employees noncompetitively, but not so for veterans.

      Based on Mr. McKee’s admissions below and the unrefuted testimony of the

Agency, the Board held Mr. McKee had produced insufficient circumstantial or direct

evidence that his status as a disabled former service member was a substantial or

motivating factor in the Agency’s decisions not to reopen an exam, and not to select him

noncompetitively for a vacant position. The administrative judge correctly found that the

fact that Mr. McKee may not have been treated better than non-veterans does not

establish discrimination in an USERRA appeal, but rather Mr. McKee must show that he

was treated more harshly than non-veterans. See, Sheehan v. Dep’t of Navy, 240 F.3d

1009 (Fed. Cir. 2001).

      Regarding Mr. McKee’s general allegations of discrimination, the administrative

judge found Mr. McKee’s evidence and the testimony provided by his witnesses wholly

inadequate to establish that the Agency’s actions were motivated by animus because of

his former military status. Also the judge found no support for the assertion that Mr.

McKee’s military service was a substantial or motivating factor in his nonselection. We

find these conclusions neither arbitrary nor capricious, and supported by substantial

evidence.




06-3248                                       5
      For the foregoing reasons, the final decision of the Board is affirmed.




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