                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HECTOR SOTO,                                    DOCKET NUMBER
                         Appellant,                  AT-4324-15-0070-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: August 4, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Hector Soto, Riviera Beach, Florida, pro se.

           Ogochukwu Ekwuabu, Esquire, West Palm Beach, Florida,
             and Dana C. Heck, Esquire, St. Petersburg, Florida, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied his request for corrective action under the Uniformed Services
     Employment and Reemployment Rights Act of 1994 (USERRA). Generally, we
     grant petitions such as this one only when: the initial decision contains erroneous

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                         2

     findings of material fact; the initial decision is based on an erroneous
     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the judge’s rulings during either the course of the appeal or
     the initial decision were not consistent with required procedures or involved an
     abuse of discretion, and the resulting error affected the outcome of the case; or
     new and material evidence or legal argument is available that, despite the
     petitioner’s due diligence, was not available when the record closed. See Title 5
     of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
     After fully considering the filings in this appeal, and based on the following
     points and authorities, we conclude that the petitioner has not established any
     basis under section 1201.115 for granting the petition for review. Therefore, we
     DENY the petition for review and AFFIRM the initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant, a GS-11 Cytotechnologist, applied for a GS-12 Pathology
     Specialist position in response to a vacancy announcement open to all permanent
     agency employees. See Initial Appeal File (IAF), Tab 6 at 14-18, 26. Thereafter,
     he received a “Notice of Results” informing him that he was eligible for the
     vacancy, but that his qualifications were subject to verification by the human
     resources office. Id. at 26. According to the agency, the appellant was the only
     applicant for the position and, in order to obtain at least three qualified candidates
     for the position, the agency cancelled the first announcement and issued a second
     vacancy announcement open to all U.S. citizens. Id. at 7, 32, 34, 37-42. The
     appellant applied through the all-sources announcement, but the agency later
     informed him that his application did not meet the minimum requirements
     specified in the vacancy announcement. See id. at 53.
¶3         In his petition for review in the appeal of an agency action unrelated to his
     nonselection for the GS-12 Pathology Specialist position, the appellant
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     complained of his nonselection for the Pathology Specialist position. See MSPB
     Docket No. AT-4324-13-0134-B-1, Final Order (Oct. 10, 2014).                  Because it
     appeared that the appellant was raising a new USERRA claim, the Board
     forwarded the matter to the regional office to be docketed as a new appeal. Id.
¶4         After docketing the forwarded appeal, the administrative judge notified the
     appellant of the law and burdens of proof applicable to his USERRA claim and,
     after holding the requested hearing, issued an initial decision denying corrective
     action. IAF, Tab 12 at 5, Tab 15, Initial Decision (ID) at 5-6. Specifically, the
     administrative judge found that the appellant was not qualified for the GS-12
     Pathology Specialist position, and that neither his veteran status nor his prior
     USERRA activity played any role in his nonselection for that vacancy. ID at 4-6.
     Further, the administrative judge found that, even if the appellant could establish
     a prima facie case of USERRA discrimination, the agency had shown by
     preponderant evidence that it would have cancelled the first vacancy to expand
     the scope of competition and it would have selected a candidate with specialized
     pathology experience over the appellant. ID at 6.
¶5         The appellant filed a petition for review, and the agency has responded in
     opposition. Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant
     appears to argue that: (1) the agency’s actions amount to negligence under tort
     law; (2) the agency discriminated against him based on his military status when it
     did not select him for the GS-12 Pathology Specialist position; (3) the agency
     denied him a benefit of employment when it bypassed his Area of Consideration
     (AOC) 2 and cancelled the first vacancy announcement; and (4) an unspecified
     “defected” agency policy is “indirectly discriminative” against veteran employees


     2
       The Master Agreement between the American Federation of Government Employees
     and the agency provides that, in filling competitive vacancies in the bargaining unit, the
     first AOC must be facility-wide and that, although the AOC may be expanded under
     certain exceptions, “in all cases … first and full consideration shall be given to any best
     qualified candidates within the facility (or more narrow area).” IAF, Tab 6 at 20-21.
                                                                                       4

     and “has a disparate discriminating impact” on veteran employee candidates for
     which there is “no good business justification.” PFR File, Tab 1 at 5-9.
¶6        As an initial matter and as the agency correctly points out, the Board lacks
     jurisdiction to consider a tort claim against the agency. PFR File, Tab 3 at 5-6;
     Paul v. Department of Agriculture, 66 M.S.P.R. 643, 650 (1995).            Thus, we
     will not consider the appellant’s claim that the agency’s actions amount to
     negligence under tort law. See PFR File, Tab 1 at 5-9.
¶7         An appellant raising a discrimination claim under 38 U.S.C. § 4311(a) bears
     an initial burden of proving, by preponderant evidence, that his military status
     was a substantial or motivating factor in the agency action.          Sheehan v.
     Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). To establish that
     his military service was a substantial or motivating factor in an adverse
     employment decision, an appellant must show that the agency “relied on, took
     into account, considered, or conditioned its decision” upon his military-related
     absence or obligation.      Erickson v. U.S. Postal Service, 571 F.3d 1364, 1368
     (Fed. Cir. 2009).   If the appellant meets his burden, the burden shifts to the
     agency to prove that legitimate reasons, standing alone, would have induced it to
     take the same action. Id.
¶8         The administrative judge found that the agency’s evidence established that
     the appellant was not qualified for the GS-12 Pathology Specialist position
     because he did not meet the minimum qualifications for the position—namely, at
     least 1 year of specialized experience at the GS-11 level. ID at 4-5. On review,
     the appellant has not challenged this finding, and we agree that his application
     reflects reflect that he did not meet the minimum qualifications and, moreover, he
     did not include all of the required documentation. See PFR File, Tab 1; see also
     IAF, Tab 6 at 38-39, 47, 49, 51. Because the appellant was unqualified for the
     GS-12 Pathology Specialist position, we find no merit to his contentions insofar
     as he alleges that his military status or prior USERRA activity was a motivating
     factor in the agency’s decision not to select him.
                                                                                            5

¶9         Next, the appellant appears to contend that the agency denied him a benefit
      of employment based on his military status and prior USERRA activity when it
      bypassed his AOC and cancelled the first vacancy announcement.                PFR File,
      Tab 1 at 7.       The administrative judge found, however, that the appellant’s
      uniformed service could not have played a role in the selecting official’s decision
      to take these actions because she had no knowledge that the only applicant for the
      first vacancy announcement was the appellant or that the only applicant was a
      veteran.    ID at 3-4.   The administrative judge credited the selecting official’s
      hearing testimony and, on review, the appellant has not challenged the veracity or
      accuracy of her testimony.      See PFR File, Tab 1 at 5-10.      Nevertheless, in an
      apparent attempt to show discriminatory motivation, the appellant alleges the
      agency treated him less favorably than a nonveteran GS-7 Medical Technician,
      who did not have a year of Pathology Specialist experience but was “properly
      treated to his AOC consideration” and hired. Id. at 7-9. Although an employer’s
      discriminatory motivation may be reasonably inferred from, among other things,
      disparate    treatment   of   certain   employees,   McMillan     v.    Department    of
      Justice, 120 M.S.P.R. 1, ¶ 20 (2013), the appellant has failed to offer any
      evidence to support his assertion that the agency previously hired a nonveteran as
      a Pathology Specialist without the required specialized experience. See PFR File,
      Tab 1 at 5-10. On the other hand, the administrative judge recounted the hearing
      testimony of the human resources representative, who explained that, contrary to
      the appellant’s understanding, the person previously hired as a Pathology
      Specialist at the developmental level did have 1 year of specialized experience in
      pathology. ID at 5.
¶10        Lastly, the appellant argues that a “defected non-veteran centric policy rule
      process”    was    “indirectly discriminative”   against,   and    had    a   “disparate
      discriminatory impact” on, veteran employee candidates.                PFR File, Tab 1
      at 5-10. The Board has held, however, that USERRA does not provide for a claim
      under a disparate impact theory because intent is a required element of proof to
                                                                                          6

      establish   discrimination   under   USERRA.         Harellson    v.     U.S.   Postal
      Service, 115 M.S.P.R. 378, ¶¶ 12, 21 (2011). Although a known disparate impact
      of an agency policy or practice may be some evidence of discriminatory intent,
      id., ¶ 21, the appellant has not shown any such known impact on veterans, see
      PFR File, Tab 1 at 5-10.
¶11         Based on the foregoing, we agree with the administrative judge’s finding
      that the appellant’s uniformed service was not a factor in the agency’s decision to
      bypass the internal AOC and cancel the first vacancy announcement.                See
      Burroughs v. Department of the Army, 120 M.S.P.R. 392, ¶ 6 (2013) (finding that
      the appellant failed to meet his burden of proof under USERRA where he
      provided speculation, but no evidence, that his uniformed service was a
      substantial or motivating factor in the agency’s action). Although the appellant
      did not meet his initial burden of proof, the administrative judge also found that,
      even if the appellant could establish a prima facie case of USERRA
      discrimination, the agency has shown by preponderant evidence that it would
      have cancelled the first vacancy in order to expand the scope of competition and
      that it would have selected a candidate with specialized pathology experience
      over the appellant.   See PFR File, Tab 1 at 5-10; ID at 5-6.          On review, the
      appellant has not challenged, and we discern no basis to disturb, this finding.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      United States Court of Appeals for the Federal Circuit. You must submit your
      request to the court at the following address:
                                 United States Court of Appeals
                                     for the Federal Circuit
                                   717 Madison Place, N.W.
                                    Washington, DC 20439
                                                                                    7

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).      You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional         information     is      available       at      the         court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
     If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono for       information     regarding     pro     bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
