       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

               RICHARD A. BECKER,
                    Petitioner,
                           v.
     DEPARTMENT OF VETERANS AFFAIRS,
               Respondent.
              __________________________

                      2010-3109
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. NY4324090360-I-1.
              ___________________________

             Decided: September 14, 2010
             ___________________________

   RICHARD A. BECKER, of Coram, New York, pro se.

    DAVID A. LEVITT, Trial Attorney, Commercial Litiga-
tion 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 STEVEN J.
GILLINGHAM, Assistant Director.
               __________________________
BECKER   v. VA                                             2


    Before RADER, Chief Judge, LINN and DYK, Circuit
                        Judges.
PER CURIAM.
    The Merit Systems Protection Board (the “Board”) de-
nied Mr. Richard A. Becker’s petition claiming discrimi-
nation under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”). Because
substantial evidence supports the Board’s decision, this
court affirms.
                             I.
    Mr. Becker, a veteran of the Gulf War, worked as a
Nursing Assistant, GS-5, in the Department of Veterans
Affairs, Northport, New York. In response to a job open-
ing announcement, Mr. Becker, and six other applicants,
applied for the position of Nursing Assistant, GS-6, in the
Psychiatry Service. Of the seven applicants interviewing
for the advertised position, Mr. Becker was the only
veteran.
    The opening was for a GS-6 level position. Mr. Becker
and four other applicants were eligible for promotion to
the GS-6 level, but were currently working at a GS-5
level. Two other applicants, including Julie Giralidi, were
already working at a GS-6 level, and were eligible for a
reassignment to the advertised position.
    On July 17, 2009, a three-member interview panel in-
dividually interviewed all seven applicants. The panel
consisted of Hester Freeley, Geraldine Kaplan, and Rich-
ard Blockett. The panel asked each applicant the same
questions and rated each applicant’s answer on a scale of
1 to 5, 5 being the best possible score of “excellent,” and 1
being the worst possible score of “poor.” Mr. Becker
earned 48 points on his interview, tied for the worst score
among the applicants. The winning applicant, Julie
3                                              BECKER   v. VA


Giraldi, earned 86 points and was the highest scoring
applicant.
    In addition to scoring answers, the panel members
took notes during the interviews. Ms. Kaplan and Ms.
Freeley noted that Mr. Becker “did not come across with
any warmth, was flat, and . . . denigrated fellow employ-
ees . . . .” On Ms. Giraldi’s score sheet, Ms. Freeley noted
“[Ms. Giraldi] demonstrates excellent boundaries.”
     Dr. Charlene Thompson was the selecting official for
the advertised position. In selecting Ms. Giraldi, Dr.
Thompson explained that the highest ranking candidate
was selected for the advertised position and denied that
“[Mr. Becker’s] veteran status or any alleged whistleblow-
ing activity had anything to do with him not being elected
for that position.”
    On September 2, 2009, Mr. Becker filed an action be-
fore the Board challenging the Department of Veteran
Affairs’ decision not to select him for the advertised
position. Following a paper hearing, on December 20,
2009, the administrative judge (“AJ”) denied Mr. Becker’s
action because he did not “prove by a preponderance of
the evidence that his military service was a substantial or
motivating factor in not selecting him for the advertised
position.” Mr. Becker appealed the AJ’s initial decision to
the Board. On March 12, 2010, the Board denied Mr.
Becker’s petition. Mr. Becker timely appealed to this
court.    This court has jurisdiction under 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
                            II.
    The scope of this court’s review from a Board appeal is
limited. This court must affirm the Board’s decision
unless it was “arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; obtained
BECKER   v. VA                                           4


without procedures required by law, rule, or regulation
having been followed; or unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); Chase-Baker v. Dep’t of
Justice, 198 F.3d 843, 845 (Fed. Cir. 1999).
    To prevail on his discrimination action under
USERRA, Mr. Becker 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 the advertised position, or (2) that his taking
action under USERRA was a substantial or motivating
factor in the Agency’s decision. 38 U.S.C. § 4311(a), (b).
    Mr. Becker challenges the qualifications of the other
applicants and the panel. Mr. Becker claims that his
work history distinguishes him from the other applicants.
Mr. Becker considers his status as a union member with
over nineteen years of experience as a Nurse Assistant,
work history, and one year of graduate classes as evidence
of his superior qualifications to his competition. Mr.
Becker asserts the panel was under-qualified and specifi-
cally unable to rate him and appreciate his qualities
because none of the panelists were veterans.
    Mr. Becker claims his interview performance was
predetermined to be substandard because of the panel’s
bias against veterans. Mr. Becker accuses the interview
questions and interview grades of showing animosity
towards him because of his veteran status. Mr. Becker
additionally contended that Ellen Foster, the head of the
Human Resources office, told the panel that he was a
veteran and had filed previous complaints with the Board.
Mr. Becker insists discrimination based on his veteran
status explains his low score on the panel interview.
   Substantial evidence supports the Board’s decision.
Mr. Becker had a lower employment rating as a GS-5
5                                             BECKER   v. VA


than Ms. Giraldi, rated as a GS-6. Further, Ms. Giraldi
earned the highest interview score, contrasted with Mr.
Becker’s lowest score. No evidence indicates a bias on the
panel against veterans. The panel noted that Mr. Becker
did not come across as warm, that he seemed flat, and
even noted Mr. Becker denigrated his fellow employees
during the interview. Substantial evidence supports the
Department of Veteran Affairs’ decision and shows no
discrimination against him because of his veteran status.
    Accordingly, the judgment of the Board is affirmed.
                      AFFIRMED
                         COSTS
    No costs.
