                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2010-3037


                               RICHARD A. BECKER,

                                                    Petitioner,

                                          v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                    Respondent.


      Richard A. Becker, of Coram, New York, pro se.

       Joan Stentiford Swyers, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Steven J. Gillingham, Assistant Director.


Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit


                                      2010-3037

                                RICHARD A. BECKER,

                                                      Petitioner,
                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                      Respondent.



             Petition for review of the Merit Systems Protection Board in
             NY4324090141-I-1.

                              ______________________

                              DECIDED: March 10, 2010
                              ______________________

Before GAJARSA, PLAGER, and DYK, Circuit Judges.

PER CURIAM.

      Richard A. 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. See Becker v. Dep’t of Veterans Affairs, NY4324-09-0141-I-1 (M.S.P.B. Nov. 3,

2009). For the reasons noted, we affirm the decision of the Board.

                                   BACKGROUND

      In 1999, Congress enacted the USERRA to prevent employers from

discriminating against persons because of military service.     38 U.S.C. § 4301(a)(1)
(2006).   As a result, the USERRA prohibits employers from “den[ying] initial

employment, reemployment, retention in employment, promotion, or any benefit of

employment” on the basis of an applicant’s military service. Id. § 4311(a). Furthermore,

the USERRA prohibits an employer from taking adverse action against an employee

who has taken an action under the USERRA. Id. at § 4311(b).

      Becker served in the United States Army (“Army”) for twenty-two years including

active duty from 1958 to 1961, service in the Gulf war in 1991, and reserve duty.

Because of his service in the Army, Becker is afforded USERRA protection. See id.

§ 4311(a). He holds the position of Nursing Assistant, GS-5, with the Department of

Veterans Affairs (“DVA”), Northport, New York. Over the past ten years, Becker has

applied for various positions within the DVA but has not been promoted. He contends

that less-qualified non-veterans have been selected for the positions.        During an

investigation of an equal employment opportunity (“EEO”) complaint in 2007, an

investigator learned that the head of the Human Resources office at the facility informed

the management about numerous appeals that Becker and others had filed with the

Board. Becker argues that as a result of that statement, he and other employees are

not selected when they apply for new positions.

      In January of 2009, Becker applied for a position as a Human Resources

Assistant at the Veterans Affairs Medical Center in Northport, New York. Becker and

six other candidates applied for and were interviewed for the position.        The DVA

determined that Becker was qualified, but another employee was selected and accepted

the position. The DVA submitted declarations to the Board, regarding the interviews,

from the selecting official and the panel members who interviewed the seven




2010-3037                                  2
candidates.   The declarations stated that all seven candidates answered the same

seven questions. Each of the seven candidates were scored by each member of the

interview panel on a scale of 0-5 based on responses to the questions; Becker ranked

fifth out of the seven candidates. The candidate with the highest score was selected for

the position; and neither Becker’s veteran status nor prior appeals had any impact on

his failure to be selected.   The selection panel’s notes also indicated that Becker

mentioned his duties as a nursing assistant and a part-time clerk at Wal-Mart. The

panel’s notes further indicated that the selected candidate discussed her experience

with credentialing and privileges, the admissions office, and hospital accreditation. The

selected candidate is not a veteran.

      On February 13, 2009, Becker appealed the DVA’s decision claiming that the

DVA’s failure to select him, over a non-veteran, for the Human Resources Assistant

position constituted a violation of the USERRA, 38 U.S.C. §§ 4301–4333.               The

USERRA prohibits an employer from denying a person a promotion or employment

because of such person’s military service. 38 U.S.C. § 4311(a). On July 16, 2009, an

administrative judge (“AJ”) issued an Order stating that to prevail on the merits of his

claim, “[Becker] would have to show that his military service was at least a motivating or

substantial factor in management’s decision not to select him for the position of Human

Resources Assistant.”

      Becker did not request a hearing, and on September 9, 2009, the AJ issued an

initial decision denying Becker’s claim. The AJ considered the fact that the head of

Human Resources had advised certain management officials that Becker had filed

appeals with the Board. The AJ, however, found that there was no evidence of “any




2010-3037                                   3
anti-veteran animus” or “any negative remarks about [Becker]” communicated from the

management to the members of the interviewing panel. Therefore, the AJ found that

there was insufficient evidence that Becker’s “military service was a substantial or

motivating factor in the agency’s decision not to select him for the position of Human

Resources Assistant.” Becker’s claim was therefore denied.

      Becker sought review of the AJ’s decision before the Board. The Board will only

review the decision of an administrative judge when significant new evidence is

presented that was not available for consideration or when the AJ made an error

interpreting a statute or regulation. See 5 C.F.R. § 1201.115. The Board denied review

and the decision of the AJ thus became final. This appeal followed.

                                     DISCUSSION

      This court has jurisdiction over Becker’s petition pursuant to 5 U.S.C. § 7703.

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.” Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1545

(Fed. Cir. 1994) (citing 5 U.S.C. § 7703(c) (2006)). This court “will not overturn an

agency decision if it is supported by such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Hogan v. Dep’t of the Navy, 218 F.3d

1361, 1364 (Fed. Cir. 2000) (quoting Brewer v. United States Postal Serv., 647 F.2d

1093, 1096 (Ct. Cl. 1981)).

      An employer engages in the conduct proscribed under § 4311(a) if the

performance of service “is a motivating factor in the employer’s action.”             Id.




2010-3037                                  4
§ 4311(c)(1). In addition, an employer may not discriminate in employment against an

employee because such employee “has taken action to enforce a protection afforded

any person under [the USERRA].” Id. § 4311(b)(1).

       USERRA claims are analyzed under a burden-shifting mechanism, where an

employee making a claim under the Act “bears the initial burden of showing by a

preponderance of the evidence that his military service 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 employer, however, does not violate the Act if it can show

“that the action would have been taken in the absence of such . . . service.” 38 U.S.C.

§ 4311(c)(1), (c)(2)(D); see also Erickson, 571 F.3d at 1364 (“If the employee makes

that prima facie showing, the employer can avoid liability by demonstrating, as an

affirmative defense, that it would have taken the same action without regard to the

employee's military service.”). In other words, an employer only violates § 4311 “if it

would not have taken the adverse employment action but for the employee’s military

service.”   Erickson, 571 F.3d at 1364.      Becker’s claim against the Department of

Veterans Affairs does not provide sufficient evidence to meet his initial burden.

       First, there is no evidence presented that Becker’s military service was “a

motivating factor” in the agency’s decision.        The Board relied on the agency’s

submission of declarations from the interviewing panel that all seven candidates were

asked the same seven questions and evaluated under the same scale of 0-5. Also,

each panel member declared that Becker’s military service was not a factor in the

panel’s decision. Becker has presented no evidence disputing the panel members’

declarations.




2010-3037                                   5
       Second, there is insufficient evidence that the DVA’s decision not to offer the

position to Becker was based on Becker’s prior actions under the USERRA. Although

during an EEO investigation an investigator discovered that the head of the Human

Resources office notified management about Becker’s actions, the Board did not find

any evidence that this information was communicated to the members of the

interviewing panel. Rather, the panel members’ declarations indicated that Becker’s

prior actions were not considered in their decision making process. Becker, therefore,

has not shown by a preponderance of the evidence that his military service or prior

USERRA actions were a motivating factor in the agency’s decision.

       Because Becker did not meet his “initial burden of showing by a preponderance

of the evidence that his military service [or prior USERRA actions] was a substantial or

motivating factor in the adverse employment action,” we need not address whether the

agency would have taken the same action regardless of Becker’s service.             See

Erickson, 571 F.3d at 1364.

       Because the Board’s decision is supported by substantial evidence that neither

Becker’s military service nor his prior USERRA actions were “motivating factor[s]” in the

agency’s decision, this court affirms.

       No costs.




2010-3037                                  6
