Petition for Writ of Certiorari — Aisha Trimble, Petitioner v. Department of Veterans Affairs

la

APPENDIX TABLE OF CONTENTS

Appendix A:

U.S. Court of Appeals Fed. Cir., Judgment

(June 30, 2023).............. .................................

2a

Appendix B:

U.S. Court of Appeals Fed. Cir., Opinion

(June 30, 2023)...........................................

3a

Appendix C:

MSPB, Final Decision

(Dec. 20, 2022)............

10a

Appendix D:

Legal Text Involved

24a

Case: 23-1307

Document: 19

Page: 1

Filed: 06/30/2023

2a

Appendix A

®ntteb States: Court of Appeals:

for tfje Jpcberal Circuit

AISHA TRIMBLE,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

2023-1307

Petition for review of the Merit Systems Protection

Board in No. DA-4324-22-0350-1-1.

JUDGMENT

THIS Cause having been considered, it is

Ordered and Adjudged:

AFFIRMED

FOR THE COURT

June 30. 2023

Date

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Acting Clerk of Court

Case: 23-1307

Document: 18

Page: 1

Filed: 06/30/2023

3a

Appendix B

NOTE: This disposition is nonprecedential.

®mteb States Court of Appeals:

for tlje jfeberaf Circuit

AISHA TRIMBLE,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

2023-1307

Petition for review of the Merit Systems Protection

Board in No. DA-4324-22-0350-1-1.

Decided: June 30, 2023

Aisha Trimble, Dallas, TX, pro se.

DANIEL Falknor, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washing­

ton, DC, for respondent. Also represented by BRIAN M.

Boynton, Patricia M. McCarthy, Franklin E. White, Jr.

Before HUGHES, CUNNINGHAM, and STARK, Circuit Judges.

Per Curiam.

Case: 23-1307

Document: 18

Page: 2

Filed: 06/30/2023

4a

2

TRIMBLE v. DVA

Ms. Aisha Trimble appeals a decision from the Merit

Systems Protection Board (MSPB) denying her request for

corrective action under the Uniformed Services Employ­

ment and Reemployment Rights Act of 1994 (USERRA).

Because the Board’s conclusion is supported by substantial

evidence, we affirm.

I

Ms. Trimble is a veteran who has service-connected

disabilities rated at 30% or greater. In November 2021, she

applied for an Executive Assistant position with the Board

of Veterans Appeals (the agency). On November 16, 2021,

the agency notified Ms. Trimble that it would “assess [her]

qualifications based upon [her] resume, the responses [she]

provided in the questionnaire, as well as all other materials

requested in the job opportunity announcement.” SAppxS.1

On December 10, 2021, the agency notified Ms. Trimble

that she had been referred to the hiring manager.

After accepting applications, the agency identified

around 500 candidates, including about 92 individuals who

were 30% or more disabled veterans. Six executives acted

as the selecting officials and reviewed certificates of eligi­

ble candidates and applications. The selecting officials

rated candidates as either meriting or not meriting an in­

terview based on the candidates’ ability or experience in

four areas: (1) supporting a senior executive (or equivalent)

in the Federal service; (2) overseeing or leading tasks or

programs involving compliance with deadlines or organiza­

tional change; (3) working collaboratively with executives,

peers, and subordinates; and (4) supporting operations in a

judicial or quasi-judicial environment. One of the selecting

officials listed Ms. Trimble as a “maybe” for an interview,

1 We use “SAppx” to refer to the appendix attached

to the government’s response brief, and “Appx” to refer to

the appendix attached to Ms. Trimble’s opening brief.

Case: 23-1307

Document: 18

Page: 3

Filed: 06/30/2023

5a

3

TRIMBLE v. DVA

but she was not one of the 26 individuals ultimately inter­

viewed.

Ms. Trimble was notified that she had not been selected

for an Executive Assistant position on February 9, 2022. Of

the six individuals given offers, this record indicates that

four are veterans or have prior military service, and two of

those veterans have service-connected disability ratings of

at least 30%.

II

This is the second of two related appeals from Ms.

Trimble. On March 17, 2022, Ms. Trimble filed a complaint

with the Department of Labor alleging a violation of her

right to compete as a preference-eligible veteran. After the

agency denied her claim, she filed two appeals with the

Merit Systems Protection Board. The first sought correc­

tive action under the Veterans Employment Opportunities

Act of 1998 (VEOA). See Trimble v. Dep’t of Veterans Affs.,

23-1306, slip op. (Fed. Cir. June 30, 2023) (per curiam). The

second, which led to the current appeal, sought corrective

action under the Uniformed Services Employment and

Reemployment Rights Act of 1994 (USERRA).

In the USERRA appeal, the Board held an evidentiary

hearing over two days on October 19, 2022 and October 24,

2022. During the hearing, all six selecting officials testified

for the agency. The Board summarized the relevant testi­

mony in its final decision as follows:

All the panelists testified the review process for the

appellant was the same as the process for other

candidates, including the selectee [s]. They all ex­

pressed favorable views of veterans in the work­

force. Four of the panelists are veterans, two are

disabled veterans, and both Human Resources per­

sonnel involved in this action are disabled veter­

ans. Four of the selectees are veterans, and three

are disabled veterans. Two of the selectees have

Case: 23-1307

Document: 18

Page: 4

Filed: 06/30/2023

6a

4

TRIMBLE v. DVA

the same service-connected disability rating as the

appellant.

Appxl5. The Board found that the agency witnesses were

credible “in their explanations of their selection decisions

and denials of discriminatory animus.” Appxl5. The Board

also credited at least five of the witness’ testimony that

they were looking for a candidate who had experience

working at the agency or had experience supporting execu­

tives in the Federal Government. Based on the evidence

developed at the hearing, the Board concluded that there

was no direct or circumstantial evidence that Ms. Trimble’s

military service was a motivating factor for non-selection.

Ms. Trimble appeals. We have jurisdiction under 28

U.S.C. § 1295(a)(9).

Ill

We set aside the Board’s decision only if it is “(1) arbi­

trary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) obtained without procedures re­

quired by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.” 5 U.S.C.

§ 7703(c). Substantial evidence is “such relevant evidence

as a reasonable mind might accept as adequate to support

a conclusion.” McLaughlin v. Off ofPers. Mgmt., 353 F.3d

1363, 1369 (Fed. Cir. 2004).

IV

We affirm the Board’s decision denying Ms. Trimble’s

USERRA claim because substantial evidence supports that

Ms. Trimble’s military service was not a motivating factor

in her non-selection.

An employee who makes a discrimination claim un­

der USERRA bears the initial burden of showing

by a preponderance of the evidence that [their] mil­

itary service was a substantial or motivating factor

in the adverse employment action. If the employee

Case: 23-1307

Document: 18

Page: 5

Filed: 06/30/2023

7a

TRIMBLE v. DVA

5

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.

Erickson v. U.S. Postal Serv., 571 F.3d 1364, 1368 (Fed.

Cir. 2009). Here, the Board concluded that Ms. Trimble had

not made a prima facie showing that her military service

was a motivating factor in her non-selection. To reach that

conclusion, the Board credited the selecting officials’ testi­

mony that they hold favorable views of veterans in the

workforce, they applied the same review process to all ap­

plicants, and they were generally looking for candidates

who had experience working at the agency or had experi­

ence supporting executives in the Federal Government or

a judicial support role. The Board also credited one select­

ing official’s testimony that, while he listed her as a

“maybe” for an interview, he ultimately did not interview

Ms. Trimble because her resume reflected no Federal expe­

rience and no judicial support experience. Also relevant to

showing a lack of discrimination was the evidence that four

of the selecting officials were veterans (and two of those

were disabled veterans), both HR specialists involved in

hiring for this role are disabled veterans, and multiple of

the selectees were veterans, including a veteran with the

same disability rating as Ms. Trimble. This evidence—in­

cluding the selecting officers’ testimony, the HR specialists’

testimony, and the Board’s credibility determinations—

constitutes substantial evidence to support the Board’s

conclusion.

Ms. Trimble argues thati the selection of at least one

non-veteran shows at least one selecting official “did not

want to hire a veteran or honor laws that grant veterans

preferences for federal jobs.” Pet. Br. 4-5. Not only is this

speculation belied by the evidence discussed above, but

“claimants must show evidence of discrimination other

than the fact of non-selection and membership in the pro­

tected class.” Sheehan v. Dep’t of Navy, 240 F.3d 1009,1015

Case: 23-1307

Document: 18

Page: 6

Filed: 06/30/2023

8a

6

TRIMBLE v. DVA

(Fed. Cir. 2001). The mere fact that at least one of the se­

lectees is not a member of the protected class cannot make

out a prima facie case of discrimination.

Ms. Trimble also argues that the agency discriminated

against her because it preselected candidates and hired in­

dividuals with less experience than her. But the Board in a

USERRA appeal is not tasked with determining who is best

qualified for a position. Rather, the question for the Board

is whether Ms. Trimble’s military service was a motivating

factor in her non-selection. See Becker v. Dep’t of Veterans

Affs., 474 F. App’x 761, 762 (Fed. Cir. 2012) (“[Rjegardless

of how the facts were evaluated as to the respective quali­

fications of the candidates, Becker needed to show that his

military service was a substantial factor in his non-selec­

tion to establish his USERRA claim.”). The Board credited

testimony that the selecting officials were looking for a spe­

cific type of experience: supporting executives in the Fed­

eral government or a supporting role in a judicial context.

Although Ms. Trimble may have more years of one type of

experience, Ms. Trimble’s resume did not reflect the pre­

ferred type of experience. This is substantial evidence that

Ms. Trimble’s military service was not a motivating factor

in her non-selection.

Ms. Trimble also argues that she was entitled to veter­

ans’ preference. But “while USERRA prevents the denial of

a promotion on the basis of military service, it does not it­

self provide a remedy to veterans who are not given prefer­

ences in employment decisions.” Wilborn v. Dep’t of Just.,

230 F.3d 1383 (Fed. Cir. 2000) (unpublished table deci­

sion). The proper statutory hook for this argument is the

VEOA, which is addressed in our related opinion issued to­

day. Trimble v. Dep’t of Veterans Affs., 23-1306, slip op.

(Fed. Cir. June 30, 2023) (per curiam).

Ms. Trimble also argues that the Board did not produce

evidence showing the hearing was not rehearsed, asserts

without evidence that documents were falsified, and

Case: 23-1307

Document: 18

Page: 7

Filed: 06/30/2023

9a

7

TRIMBLE v. DVA

speculates about bias. But it was Ms. Trimble who had the

burden of proof. At best, Ms. Trimble’s accusations reflect

her own opinions and are not part of the record. As dis­

cussed above, substantial evidence supports the Board’s

conclusion that her military service was not a motivating

factor for non-selection.

Finally, Ms. Trimble alleges that one or more of the se­

lecting officials illegally accessed her medical records or VA

claim files. First, this argument is forfeited because it was

not raised before the Board. Bosley v. Merit. Sys. Prot. Bd.,

162 F.3d 665, 668 (Fed. Cir. 1998). Second, even if not for­

feited, there is no evidence that any of the officials accessed

her medical records or claim file. Ms. Trimble placed a

FOIA request seeking the names of individuals who ac­

cessed her records. None of the names identified through

this request match the names of the selecting officials.

Moreover, one of the selecting officials testified that he did

not access her medical records or claim file, and Ms. Trim­

ble concedes that she forgot to ask the other officials about

this issue. Thus, no evidence supports Ms. Trimble’s sub­

jective belief that a selecting official accessed this infor­

mation.

V

We have considered Ms. Trimble’s remaining argu­

ments and do not find them persuasive. Because substan­

tial evidence supports the Board’s conclusion that Ms.

Trimble’s military service was not a motivating factor for

non-selection, we affirm.

AFFIRMED

No costs.

10a

Appendix C

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DALLAS REGIONAL OFFICE

AISHA TRIMBLE,

Appellant,

DOCKET NUMBER

DA-4324-22-0350-1-1

v.

DEPARTMENT OF VETERANS

AFFAIRS,

Agency.

DATE: November 15, 2022

Aisha Trimble. Dallas, Texas, pro se.

Joan M. Green, Esquire, Oklahoma City, Oklahoma, and Tijuana D.

Griffin. North Little Rock, Arkansas, for the agency.

BEFORE

Theresa J. Chung

Administrative Judge

INITIAL DECISION

INTRODUCTION

The appellant filed an appeal alleging the agency violated the Uniformed

Services Employment and Reemployment Rights Act of 1994 (codified at

38 U.S.C. §§ 4301-4333) (USERRA) in not selecting her for an Executive

Assistant position.1 Initial Appeal File (IAF), Tab 1. The Board has jurisdiction

over this appeal. See 38 U.S.C. § 3424(b). I held a hearing in this appeal by

i

The appellant’s appeal under the Veterans Employment Opportunities Act of 1998

(VEOA) regarding the same nonselection is being separately adjudicated under MSPB

Docket No. DA-3330-22-0254-1-1.

11a

2

videoconference on October 19, 2022, and October 24, 2022, and the record

closed at the conclusion of the hearing. IAF, Tab 33, Hearing Recording (HR).

For the reasons set forth below, the appellant’s request for corrective action

under USERRA is DENIED.

ANALYSIS AND FINDINGS

Background

The following facts are undisputed. The appellant served on active duty in

the United States Army from August 1996 through June 2000. IAF, Tab 10 at 12.

She was honorably discharged. Id. She has a service-connected disability rated

at 30% or greater. Id. at 19; IAF, Tab 27 at 5 (stipulated fact 2).

In or around November 2021, the appellant applied for the position of

Executive Assistant, with the Department of Veterans Affairs, Board of Veterans’

Appeals (BVA), under Announcement number CARX-11288119-22KB. IAF, Tab

10 at 25-37, 39. The BVA is a major component of the agency, and its mission is

to conduct hearings and to issue timely and quality decisions for veterans and

other individuals.

Id. at 25.

Executive Assistants directly support a Senior

Executive at the BVA and serve as key advisors to members of the BVA. Id. at

25. The position had a promotion potential of GS-14. Id. at 26. There were 6

vacancies, and the location was negotiable after selection. Id. at 25-26.

There were three certificates generated for the position. Id. at 57-100. The

six executives at the BVA reviewed the certificates and the applications of the

521 eligible candidates and selected individuals to interview. Id. at 116-17; Tab

33 (Testimony of Nina Tann, Robert Scharnberger, Tamia Gordon, Thomas

Rodrigues, Silas Darden, and Christopher Santoro).

The panelists prepared a

memorandum listing the 26 individuals who were offered interviews. IAF, Tab

10 at 116-17. The appellant was not selected for an interview, although Santoro

listed the appellant as a possible interview candidate. IAF, Tab 25 at 26. After

conducting the interviews, the six executives decided to select the following

12a

3

individuals: Carly Wright, Maria Braswell, Deborah Moutinho, Carolyn Colley,

Voncelle James, and Natasha Anderson. IAF, Tab 10 at 57, 58, 80, 86, 94, and

119; Tab 33 (Testimony of Tann, Scharnberger, Gordon, Rodrigues, Darden, and

Santoro). Darden left the agency for another position in February 2022, and his

selectee, Natasha Anderson, withdrew from consideration.2

HR (Testimony of

Tann, Darden); IAF, Tab 10 at 57.

On February 3, 2022, the agency extended tentative offers of employment

to the five remaining selectees. IAF, Tab 26 at 177-86. On February 9, 2022, the

agency notified the appellant of her non-selection.

IAF, Tab 10 at 45.

The

agency extended final offers of employment to the selectees. HR (Testimony of

Rozier).

Of the individuals who were given offers, four are veterans or have

prior military service (Braswell3, Colley4, James5, and Moutinho6).7 Three are

2 It is unclear if Anderson declined the position or withdrew from consideration. IAF,

Tab 10 at 57, 121; HR (Testimony of Tann, Darden). Regardless of the exact status of

her application, it is undisputed Anderson was not hired for the position of Executive

Assistant to Darden, who left the agency for another agency in February 2022. HR

(Testimony of Tann, Darden). Moreover, resolution of this factual issue does not affect

the outcome of this USERRA appeal.

3 See IAF, Tab 26 at 13-14 (DD Form 214 reflecting service from 1984 to 2004 as a

Telecommunications Operations Chief and Administrative Specialist with the U.S.

Army); id. at 15.

4 See IAF, Tab 26 at 23 (DD Form 214 reflecting service from 2001 to 2005 as a Slavic

Crypto Linguist-Russain for the Air Force); id. at 32.

5 See IAF, Tab 26 at 40-41 (DD Form 214 reflecting service from 1996 to 2005 for the

Air Force as an Information Manager); id. at 42; Tab 10 at 94 (listing James’ initials as

J.V.M.).

6 See IAF, Tab 26 at 58 (DD Form 214 reflecting service for the Air Force from 1990 to

2005 as a Chaplain Assistant).

7 The agency records in this regard are inconsistent. The agency initially stated that

two veterans were selected. IAF, Tab 10 at 53, Tab 15 at 13. The agency later revised

its position to state that four selectees were veterans. IAF, Tab 16 at 5. The undisputed

records reflect that four of the selectees were veterans or had prior military service.

4

13a

disabled veterans, and two have a service-connected disability rating of at least

30 percent or more disabling. 8

This appeal followed. IAF, Tab 1.

Applicable Law

Under 38 U.S.C. § 4311(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 initial employment,

reemployment,

retention

in

employment,

promotion,

or

any

benefit

of

employment by an employer on the basis of that membership, application for

membership, performance of service, application for service, or obligation.

USERRA does not provide that veterans will be treated better than non-veterans;

rather, it protects veterans from being discriminated against based on their

military service.

See Gaston v. Peace Corps, 100 M.S.P.R. 411,

7 (2005);

Fahrenbacher v. Department of the Navy, 85 M.S.P.R. 500, *[f 18 (2000), aff’d sub

nom. Sheehan v. Department of the Navy, 240 F.3d 1009 (Fed. Cir. 2001). The

Board’s role in a USERRA case is not to determine whether the appellant should

have been selected for the position in question, but to determine whether the

agency’s decision not to select her was based on discrimination because of her

military service.

Fedder v. Department of the Interior, 103 M.S.P.R. 221, ^[8

(2006).

Also, while I understand the appellant’s confusion, I do not credit the appellant’s

argument or suggestion that Colley and Moutinho lacked military service due to the

veterans preference code in Block 23 of their SF-50s; that veterans preference code is

not dispositive as to their prior military service, and I place greater weight on the DDForm 214s and other official documentation for these two individuals, which are in the

record as part of their application materials, and not disputed. HR (Testimony of Leslie

Bonham); IAF, Tab 26 at 23 (DD-214), 32, 58 (DD-214).

8

IAF, Tab 26 at 15, 32, 42.

14a

5

In USERRA actions, the appellant must first prove by preponderant

evidence that her military status was at least a motivating or substantial factor in

the agency action, upon which the agency must then prove, by preponderant

evidence, the action would have been taken for a valid reason despite the

protected status.

Lazard v. U.S. Postal Service, 93 M.S.P.R. 337, | 9 (2003).

Preponderant evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that

a contested fact is more likely to be true than untrue.

5 C.F.R. § 1201.4(q).

Military service is a motivating factor for an adverse employment action if the

employer relied on, took into account, considered, or conditioned its decision on

that

service.

Erickson

v.

U.S.

Postal

Service,

571 F.3d 1364,

1368

(Fed. Cir. 2009).

The factual question of discriminatory motivation or intent may be proven

by either direct or circumstantial evidence.

Sheehan, 240 F.3d at 1014.

Circumstantial evidence will often be a factor in these cases, because

discrimination is seldom open or notorious. Id. Discriminatory motivation under

USERRA may be reasonably inferred from a variety of factors, including

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 military

activity, and disparate treatment of certain individuals compared to other

similarly situated individuals. Id.

In determining whether the appellant has

proven that her protected status was part of the motivation for the agency’s

conduct, all record evidence may be considered, including the agency’s

explanation for the actions taken. Id.

15a

6

The appellant failed to establish by preponderant evidence that her military

service was a substantial or motivating factor in her nonselection.

In her response to the Board’s Jurisdiction Order, the appellant explained

she believes the agency “didn’t want to hire the Appellant because she is a

veteran being vocal about her grievances with the Agency’s non-selection

decision.” IAF, Tab 8 at 4. She alleges that the agency made comments to her on

a phone call, on March 17, 2022, reflecting their hostility towards veterans. Id.

She stated the certificates were “erroneously drafted” and show the “Agency’s

disdain for 40% or more disabled, preference eligibles.” Id. at 5.

She further

stated the agency “pre-selected the military veterans and non-veterans ... to give

the illusion that the Agency was in full compliance with USERRA.” Id.

The six hiring officials and human resources personnel testified at the

hearing.

Nina Tann, Executive Director for the Office of Appellate Support,

attested that she was one of the six selecting officials for the position.

HR

(Testimony of Tann). She attested that the panel received the three certificates,

listing a total of 521 applicants. She reviewed all the 521 resumes and selected

individuals for interviews. IAF, Tab 25 at 28. She listed those individuals in a

table, which Christopher Santoro may have created.

HR (Testimony of Tann).

Tann expressed that she wanted to interview all internal candidates for the

position.

Id.

After the interviews, each of the six officials chose their own

Executive Assistant. Id. Tann testified they prepared and signed a memorandum

with the names of the selectees. Id. The memo went to Human Resources (HR)

Max, which initiated the hiring action. Id. Tann selected Carly Wright, who is

not a veteran, because of her experience working at the B VA and her prior federal

service working as an Executive Assistant.9 Id. Tann attested that other offers

9 Wright’s resume reflects that she held the position of Program Specialist, Training,

GS-0301-13 for the agency’s Professional Development Division. IAF, Tab 26 at 66.

She also held the positions of Staff Assistant, BVA, Office of the Chairman, and Project

Manager and Analyst and Administrative Specialist for the U.S. Department of

16a

7

were extended to Braswell, Moutinho, Colley, and James. Id. Anderson declined

the position or withdrew.

Id. Tann attested that, to her knowledge, Braswell,

James, and Colley are veterans, and Montinho had veteran’s preference. Id. She

attested that she knew Wright, Braswell, Colley, and James from prior positions

at the agency. Id.

She denied having any bias against veterans or those with

military service. Id. To her knowledge, no notification was required if they were

passing over veterans.

Id.

Also, she attested that listing the candidates in

alphabetical order on the certificates was not illegal. Id. Further, she stated that

she did not consider internal applicants before external applicants, but looked

across all candidates to determine her selection. Id.

Robert Scharnberger, Deputy Vice Chair and Chief Law Judge, attested to

conducting a similar process to Tann, describing that the panel interviewed

around 25 people. HR (Testimony of Scharnberger).

He attested the panelists

worked together to decide who to interview, and then to make the specific

selections for each position.

Id.

He selected Braswell, who had previously

reported to him in a role where she supervised paralegals who support Veterans

Law Judges.10

Id.

He attested that he knew Braswell is a veteran.

Id.

Scharnberger attested he was looking for someone with experience supporting

federal executives, working in an environment with deadlines in a quasi-judicial

environment, and the ability to work with others. Id. He attested that listing the

Treasury. Id. at 68-69. Although the agency completely redacted the names on the

selectees’ resumes, their names are apparent from the order of the documentation and

the accompanying military documentation, which contains the initials of the selectees.

10 Braswell’s resume reflects that she held the position of Supervisory Administrative

Services Manager, GS-301-14, for the BVA, where she managed the day-to-day

operations and support for 102 Veteran Law Judges, 1,000 attorneys, and various

administrative offices. IAF, Tab 26 at 16. She previously held the position of

Supervisory Administrative Services Manager for the BVA from 2009 to 2019. Id. at

17-18. Braswell’s resume also lists service as the Operations/Training/Administrative

Officer for the U.S. Army, Fort Hood, from 2000 to 2004. Id. at 20.

17a

8

candidates in alphabetical order on the certificates was not incorrect, and that the

alphabetical order had nothing to do with people’s qualifications. Id.' He stated

he knew Wright and Colley prior the interviews. Id. He stated there are around

40-50 veterans who work for him, and he has approximately 10 direct reports who

are veterans. Id. To his knowledge, the agency complied with legal requirements

in the selection process and was not required to notify OPM when passing over

disabled veterans. Id.

Tamia Gordon, Deputy Vice Chair and Veterans Law Judge, attested that

she is a disabled veteran, with a service connected disability rating of 30% or

more.

HR (Testimony of Gordon).

Gordon attested to conducting a similar

process to Tann. She attested that she reviewed the 521 applications, and ranked

them based on who she wanted to consider for interviews, using her own

selection criteria. Id.

The other five panelists did not influence her interview

selections, and they each sent out a list of who they recommended for interviews.

Id.

She stated that she wanted someone with federal experience, and that she

ultimately selected James, who has worked for the agency before. Id. Gordon

attested that she valued James’ prior agency experience because Gordon was new

to the agency.11 Id.

She also stated that James lives in the Washington, D.C.

area, and that Gordon wanted someone who could come into the office several

times a week. Id. She explained the vacancy announcement said the location for

the position was “negotiable” because Scharnberger lives outside the D.C. area,

but that she wanted someone who lives in Washington, D.C. Id. She attested she

11 James’ resume reflects that James held the position of Supervisory Program Analyst

for the Veterans Benefits Administration (VBA), Office of Field Operations, in which

James advised 56 VBA regional offices, four district offices, various business lines, and

multiple program offices. IAF, Tab 26 at 43. James previously was a Supervisory

Program Analyst for the VBA, Office of Client Relations and Chief, Procedures and

Program Development. Id. at 44-45. James also previously held the position of

Executive Assistant to the VBA Compensation Service. Id. at 46. James’ resume also

lists military service for the U.S. Air Force, Honorable Discharge, in 2005. Id. at 48,

56.

9

18a

wanted someone who could support her across a number of multiple projects. Id.

Gordon was aware that James is a veteran. In describing her decision with regard

to the appellant, Gordon opined the appellant’s resume had “more quantity than

quality” and that she wanted someone with more federal experience, including

specific experience supporting a federal executive. Id.

'

Thomas Rodrigues, Deputy Vice Chairman, attested that he is a disabled

veteran. HR (Testimony of Rodrigues). Rodrigues reviewed the 521 resumes and

selected individuals to interview, putting them into categories of those he

definitely wanted to interview, those he might want to interview, and then a

separate column for internal candidates. Id. After the interviews, he selected

Colley, who has prior military service with the Air Force as a linguist for four

years, for the position. Id. He attested that he was new to the BVA, and wanted

someone who could help to orient him. Id. Colley had prior experience with the

BVA and the agency.12 Id. To his knowledge, the agency complied with legal

requirements in making this selection, and was not required to making

notifications in passing over disabled veterans. Id.

Christopher Santoro, Supervisor Veterans Law Judge, Senior Deputy Vice

Chairman, is a veteran. HR (Testimony of Santoro). Santoro listed the appellant

in his chart as a “Maybe” for interviews. Id.; IAF, Tab 25 at 26. However, he

attested that, after reviewing the appellant’s resume, he decided not to interview

her. HR (Testimony of Santoro). He explained his decision not to ultimately

interview the appellant, noting that, while the appellant had legal experience, her

resume reflected no federal experience and no judicial support experience. Id.

12 Colley’s resume reflects that she was on a detail as the Acting Executive Assistant in

support of Executive Order 13861 and the inter-agency Veteran Wellness,

Empowerment, and Suicide Prevention Task Force. IAF, Tab 26 at 33. Before this

detail, she held the position of Associate Counsel for the Board of Veterans Appeals.

Id. at 24-31, 34. Colley’s resume also lists her military service as a Russian

Cryptologist/Linguist from 2001 to 2005 with the U.S. Air Force. Id. at 36.

19a

10

He stated that the position required supporting judges who were SES equivalent,

and so he valued judicial support experience in a candidate. Id. He opined that

Moutinho, who he selected, had effectively served in a very similar role,

supporting immigration judges.13 Id. He was aware that Moutinho is a veteran.

;

Id. Moutinho had worked in a similar position for immigration judges at another

organization, and also had previously worked for Santoro when he was Chief

Immigration Judge. Id. Santoro denied “pre-selecting” Moutinho and stated he

considered other candidates. Id. Santoro attested that he did not apply veteran’s

preference, or rank the candidates in accordance with their veteran’s preference.

Id.

Silas Darden, Chief of Staff, U.S. Marshall’s Service, attested that he

previously held the position of Deputy Vice Chair and Veterans Law Judge at the

agency. HR (Testimony of Darden). Darden, who is a veteran, attested that he

followed a similar process to the other panelists, reviewing all the applications

for the position. Id. Darden attested the panelists conducted joint interviews, and

then held a final meeting to ensure they did not offer the position to the same

person. Id. Darden attested that he selected Anderson, who he thought was the

spouse of a service member. Id. Anderson declined the offer in order to take

another position.

Id.

Darden stated that he did not make another selection

because he left the agency for another position. Id. Darden attested.he wanted to

select someone who had legal experience and who had experience with veterans’

matters, and that he did not specifically recall the appellant’s resume. Id.

Kenneth Bixler, HR Specialist, attested that he is a disabled veteran, with a

service connected disability rating of 30% or more. HR (Testimony of Bixler).

He attested that there were three certificates generated from the announcement,

13 Moutinho’s resume reflects she held the position of Staff Assistant, U.S. Department

of Justice, Executive Office of Immigration Review, Office of the Director, prior to

which she held the position of Staff Assistant, Office of the Chief Immigration Judge.

IAF, Tab 26 at 59-63.

20a

11

which used merit promotion: (1) a Ranking list, including applicants that are 30%

or more disabled, Schedule A, or military spouse; (2) a Merit Referral list,

containing applicants who are current federal employees; and (3) a Competitive

Merit Promotion list, reflecting current federal employees who are eligible for

promotion to a GS-14 position. Id.; see also IAF, Tab 10 at 57-100. No one was

ranked according to experience or whether they were best qualified, because

category rating was not used. HR (Testimony of Bixler). Applicants were listed

in alphabetical order as automatically generated by the system. Id. According to

Bixler, there was no requirement to notify OPM of pass over of preference

I

eligible veterans.14 Id.

Bixler attested that Denise Flemings acted as liaison

between the BVA and HR, and that she was delegated the authority to input the

selection decisions into the system. Id.

Jessica Rozier, a disabled veteran, was the Human Resources Specialist

who assisted with this vacancy announcement after Bixler initially posted the

announcement. HR (Testimony of Rozier). Bixler left for a different agency

position, and, as a result, Rozier finished the process that Bixler started. Id.

Rozier attested that the hiring officials made selections on a website. Id. In this

instance, Flemings, the agency’s HR liaison, inputted the selection decisions into

the computerized system. Id. After receiving the certificates back, on February

3, 2022, Rozier notified applicants for their selection and made offers.

Rozier attested

she received an email

from the

appellant,

Id.

requesting

reconsideration of her application, and that she forwarded the email to her

supervisor, Lesley Bonham. Id.; see also IAF, Tab 25 at 30. Rozier attested that

the pass over rules did not apply because the announcement was a Title 5, merit

14 He attested that pass over applies only if the position was posted to the public, which

was not the case here. Id.; see also HR (Testimony of Lesley Bonham). Rozier’s

supervisor, Bonham, attested the appellant received full consideration, she was placed

on the certificate, her application was reviewed, but she was not selected. HR

(Testimony of Bonham).

21a

12

promotion, not a Title 38 position open to all U.S. citizens,

Id.

Thus, she

believed the agency was not required to notify OPM of pass over of any veterans.

Id.

During her closing argument at hearing, the appellant argued that Tann

assumed she did not want to relocate to Washington, D.C., but that she has more

experience than Tann’s selectee.

HR.

She also argued the vacancy

announcement did not specify the panelists were looking for federal experience.

Id.

The appellant also noted the agency failed to provide emails to or from

Flemings in response to her discovery requests, and further contended the agency

did not provide emails from each of the six panelists in response to her discovery

requests. Id.

All the panelists testified the review process for the appellant was the same

as the process for the other candidates, including the selectee. They all expressed

favorable views of veterans in the workforce. Four of the panelists are veterans,

two are disabled veterans, and both Human Resources personnel involved in this

action are disabled veterans. Four of the selectees are veterans, and three are

disabled veterans.

Two of the selectees have the same service-connected

disability rating as the appellant. I credit the panelists’ testimony that they each

made selection decisions based on the individual qualifications of the selectees,

and not because of the appellant’s prior military service. Their testimony was

consistent with contemporaneous records from the selection process. See Hillen

v. Department of the Army, 35 M.S.P.R. 453, 459-60 (1987) (explaining the

factors relevant to assessing credibility). I also observed the demeanor of the

witnesses and found them to be credible in their explanations of their selection

decisions and denials of discriminatory animus. See Hillen, 35 M.S.P.R. at 458.

Each was straightforward and sincere and answered questions directly,

I

discerned no evidence of discriminatory animus in any of the panelists’

testimony.

22a

13

In sum, the appellant presented no direct evidence her military service was

a motivating factor for the non-selection action, and I find the record lacks

circumstantial evidence sufficient to show discriminatory motivation,

I

considered that the agency ultimately selected some individuals who were not

veterans for the position. However, without more, I do not find this constitutes

preponderant evidence that the appellant’s military service was a substantial or

motivating factor in her non-selection.15

Based on the foregoing, I find the appellant has failed to meet her burden

of proof in this appeal.

Therefore, her request for correction action must be

denied.

DECISION

The appellant’s request for corrective action is DENIED.

FOR THE BOARD:

/S/

Theresa J. Chung

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on December 20, 2022. unless a

petition for review is filed by that date. This is an important date because it is

usually the last day on which you can file a petition for review with the Board.

However, if you prove that you received this initial decision more than 5 days

after the date of issuance, you may file a petition for review within 30 days after

15 The appellant appeared to argue the agency preselected certain individuals. In cases

arising under USERRA, the Board may not consider claims of discrimination or

prohibited personnel practices arising under other statutes. Bodus v. Department of the

Air Force, 82 M.S.P.R. 508,

14-17 (1999). With regard to documents the appellant

argues she failed to receive in discovery, the appellant has failed to demonstrate that

this would compel a different result with regard to her USERRA appeal. Moreover,

discovery concluded at the time of the telephonic prehearing conference, and thus, any

request to reopen the discovery period is denied.

23a

Appendix D

Constitutional Laws Involved

U.S. Const. Art. II, S3.3.1 - he shall take Care that the Laws be faithfully executed,

and shall Commission all the Officers of the United States.

U.S. Const. Amend. 1 - Congress shall make no law abridging the freedom of speech

and to petition the Government for a redress of grievances.

Federal Statutes Involved

5 USC § 2108(l)a(3)(a)(c) - 1) “veteran” means an individual who— (A)served on

active duty in the armed forces during... a campaign or expedition for which a

campaign badge has been authorized; (3) “preference eligible” means, except as

provided in paragraph (4) of this section or section 2108a(c)—

(A)a veteran as defined by paragraph (1)(A) of this section; (C)a disabled veteran;

5 USC § 2302(b)(14) - Any employee who has authority to take, direct others to take,

recommend, or approve any personnel action, shall not, with respect to such

authority—discriminate for or against any applicant for employment—or (14)access

the medical record of an applicant for employment as a part of, or otherwise in

furtherance of, any conduct described in paragraphs (1) through (13).

5 USC § 3304(f)(1) - Preference eligibles or veterans who have been separated from

the armed forces under honorable conditions after 3 years or more of active service

may not be denied the opportunity to compete for vacant positions for which the

agency making the announcement will accept applications from individuals outside

its own workforce under merit promotion procedures.

5 USC § 3309(1) - A preference eligible who receives a passing grade in an

examination for entrance into the competitive service is entitled to additional points

above his earned rating, as follows— (l)a preference eligible under section

2108(3)(C)—(G) of this title—10 points;

5 USC § 3311(2) - In examinations for the competitive service in which experience is

an element of qualification, a preference eligible is entitled to credit for all experience

material to the position for which examined, including experience gained in religious,

civic, welfare, service, and organizational activities, regardless of whether he received

pay therefor.

24a

5 USC § 3313(l)(2)(a) - the names of applicants who have qualified in examinations

for the competitive service shall be entered on appropriate registers or lists of

eligibles in the following order — (1) for scientific and professional positions in GS-9

or higher, in the order of their ratings, including points added under section 3309 of

this title; and (2) for all other positions — (A)disabled veterans who have a

compensable service-connected disability of 10 percent or more, in order of their

ratings, including points added under section 3309 of this title;

5 USC § 3317(b) - When an appointing authority, for reasons considered sufficient

by the Office, has three times considered and passed over a preference eligible who

was certified from a register, certification of the preference eligible for appointment

may be discontinued. However, the preference eligible is entitled to advance notice of

discontinuance of certification.

5 USC § 3318(a) - The nominating or appointing authority shall select for

appointment to each vacancy from the highest three eligibles available for

appointment on the certificate furnished under section 3317(a) of this title, unless

objection to one or more of the individuals certified is made to, and sustained by, the

Office of Personnel Management for proper and adequate reason under regulations

prescribed by the Office.

5 USC § 3318(c)(l-2) - if an appointing authority proposes to pass over a preference

eligible on a certificate in order to select an individual who is not a preference eligible,

such authority shall file written reasons with the Office for passing over the

preference eligible. The Office shall make the reasons presented by the appointing

authority part of the record of the preference eligible and may require the submission

of more detailed information from the appointing authority in support of the passing

over of the preference eligible. The Office shall determine the sufficiency or

insufficiency of the reasons submitted by the appointing authority, taking into

account any response received from the preference eligible under paragraph (2) of

this subsection. When the Office has completed its review of the proposed passover,

it shall send its findings to the appointing authority and to the preference eligible.

The appointing authority shall comply with the findings of the Office. In the case of

a preference eligible described in section 2108(3) (C) of this title who has a

compensable service-connected disability of 30 percent or more, the appointing

authority shall at the same time it notifies the Office under paragraph (1) of this

subsection, notify the preference eligible of the proposed passover, of the reasons

therefor, and of his right to respond to such reasons to the Office within 15 days of

the date of such notification. The Office shall, before completing its review under

paragraph (1) of this subsection, require a demonstration by the appointing authority

that the passover notification was timely sent to the preference eligible’s last known

address.

25a

5 USC § 7703(b)(1)(a) - Except as provided in subparagraph (B) and paragraph (2)

of this subsection, a petition to review a final order or final decision of the Board shall

be filed in the United States Court of Appeals for the Federal Circuit.

Notwithstanding any other provision of law, any petition for review shall be filed

within 60 days after the Board issues notice of the final order or decision of the Board.

5 USC § 7703(c)(l-3) - in any case filed in the United States Court of Appeals for the

Federal Circuit, the court shall review the record and hold unlawful and set aside any

agency action, findings, or conclusions found to be - (l)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;

18 USC § 241 - If two or more persons conspire to... oppress or intimidate any person

in any State, Territory, Commonwealth, Possession, or District in the free exercise or

enjoyment of any right or privilege secured to him by the Constitution or laws of the

United States, or because of his having so exercised the same; They shall be fined

under this title or imprisoned not more than ten years, or both;

18 USC § 242 - Whoever, under color of any law, statute, ordinance, regulation, or

custom, willfully subjects any person in any State, Territory, Commonwealth,

Possession, or District to the deprivation of any rights, privileges, or immunities

secured or protected by the Constitution or laws of the United States, shall be fined

under this title or imprisoned not more than one year, or both.

28 USC § 1254(1) - Cases in the courts of appeals may be reviewed by the Supreme

Court by the following methods: (1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after rendition of judgment or decree;

28 USC § 1295(a)(9) - The United States Court of Appeals for the Federal Circuit

shall have exclusive jurisdiction—of an appeal from a final order or final decision of

the Merit Systems Protection Board, pursuant to sections 7703(b)(1) and 7703(d) of

title 5;

38 USC § 4214(a)(1) - The United States has an obligation to assist veterans of the

Armed Forces in readjusting to civilian life. The Federal Government is also

continuously concerned with building an effective work force, and veterans constitute

a uniquely qualified recruiting source. It is, therefore, the policy of the United States

and the purpose of this section to promote the maximum of employment and job

advancement opportunities within the Federal Government for qualified covered

veterans (as defined in paragraph (2)(B)) who are qualified for such employment and

advancement.

26a

38 USC § 4301(b) - It is the sense of Congress that the Federal Government should

be a model employer in carrying out the provisions of this chapter.

38 USC § 4311 — (a) a person who has performed, in a uniformed service shall not be

denied initial employment, by an employer on the basis of that performance of

service... (c)(1) An employer shall be considered to have engaged in actions

prohibited— (l)under subsection (a), if the person’s 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 service...

Federal Regulations Involved

5 CFR 1201.202(a)(c)(d) - (a) Awards of attorney fees (plus costs... and litigation

expenses, where applicable). The Board is authorized by various statutes to order

payment of attorney fees and, where applicable, costs, and litigation expenses, (c) The

Board may order payment of compensatory damages, as authorized by section 102 of

the Civil Rights Act of 1991 (42 U.S.C. 1981a), based on a finding of unlawful

intentional discrimination (5 U.S.C. 1221(g)) also authorizes an award of

compensatory damages in cases where the Board orders corrective action.

Compensatory damages include pecuniary losses, future pecuniary losses, and

nonpecuniary losses such as emotional pain, suffering, inconvenience, mental

anguish, and loss of enjoyment of life.(d) The Board may award an amount equal to

back pay as liquidated damages under 5 U.S.C. 3330c when it determines that an

agency willfully violated an appellant's veterans' preference rights.