carrier has a right to expect under userra and i countries laws that he will be treated equally in terms of employment when he returns from his service in this case when the f a a discounted and ignored his highly relevant experience specifically military experience that he brought to his which goes to show that the board's decision is not supported by substantial evidence it made an error of walk which should have caused reversal and it's fundamentally its analysis of whether mr davis military service was a motivating factor or a substantial factor in his  one looks at the broad remedial purpose of this statue and when one looks at the fact the staff is designed to ensure equal treatment and nondiscrimination against veterans that to ignore military experience and military experience is germane to the position that issue is clearly discrimination and right and and so that is why this is not a question of veterans preference but it is a question of veterans non discrimination  we think says is particularly telling that not only did the three selectees for the position have  no training in air traffic control or related fields as least to other cases and very little in the fire but that in fact two of the selectees did not even m the wonder of why they did not at that point select mr dice for the position where even after those who selected this had not been selected but looking at beforehand from the perspective of the selecting  official the reason arrives a question as to why would the selecting official select people who had not passed a qualifying test over people who had already passed the qualifying test even if all other qualifications were equal but all other qualifications were clearly not equal and in particular  qualifications that mr dice demonstrated after the navy r f a a certified qualifications when control tower certificate if appropriate and then it says these certificates require demonstrating knowledge of basic meteorology basic air navigation standard air traffic control and communications procedures types and uses of air navigation aids and regulations governing aircraft now the position for which mr dyce was applying was one of three specialties an air traffic control within the f a a said it was the flight service specialist specialty the flight service specialty specifically deals with the provision of weather and navigation information  then if you go to a specific facility say the fort worth airport your checked out in that airport and you get a certification on the back of your car the says checked out for four bucks and it was held against  with that because he served on the carrier a specifically military application he didn't have any facility certifications you don't get those in that case the way you credited but they heighten the suspicion that his military experience was a substantial or a motivating factor in his actually tyson doesn't have to leap up and slap us in the face but this comes pretty pretty close when you compare someone who has been through the very difficult and that was what the official board flying was all here for future success as opposed to say a secretary or a counselor who have no background agency's explanation they simply they have none as an expense that they have come up with any they've come up with things like arguing that there were interviews and then harry to events there were no interviews with making a great deal of hay out of the various places which ones would be eligible to apply for the position but never addressing the quarter issue of who is best qualified for the position and i'd like to just qu selecting officials for this should also evaluate other considerations relevant to the target vacancy which cannot be ascertained from candidate applications for example current or former supervisor of may because of the supplements or simplify information available to the selecting official basically once you're qualified you should all be considered on the merits and the selected official should pick the best person it please the court mr day says council has said that the issue in this case is whether mr dyer should have been hired based upon his status as a veteran and his belief that he had that they did not look at the experience we have testimony in the record and we have years of letter writing from the f a a stating that mr davis was qualified he was qualified the actually seven level the point the agency had was that he had not demonstrated specialized experience to qualify that actually nine level and he was considered among the f g seven candidates for the engine for them and i think you know the question i'm going to truly understand your response just like are you saying that it would be a usera violation if they discount a certain type of the x no terry experience altogether but if they give it substantially less weight than the applicant believes and perhaps an objective observer would conclude it's entitle to then it's not a use or a violation but your honor what the court said in hsien with there are certain factors regarding what would suggest the circumstantial evidence necessary to  violation one with the proximity in time between service one with express hostility to better and one was disparate treatment of people with them are qualifications i don't actually see those this hypothetical fitting and example these at least been given with the she indecision the extent to which it may be relevant to show actual anti military slash veteran animists or is it another time you suppose i'm a civilian employee employer and i say i have nothing against military people i think they're terrific i love to get them on to my staff but the problem is this person was a truck driver in the military and i just think driving around military bases even if he does it for three years is not the same as driving around in the city streets and therefore i'm not going to credit that experience at all i'm going to hire somebody who's been driving around in the city for two are and i simply think perhaps wrongly branch wrong headed and perhaps insupportably that the military experience is not in this particular instance as valuable as a civilian equivalent i think a civilian equivalent or preferable experience would be does that fact pattern give rise to your share of violation in your view i don't think so your honor because there is no evidence the military service  motivating factor in the decision it appears you made a choice between two cult to qualified candidate and i don't think that is sufficient she was salish a violation under thirty eight u s c forty three eleven  one explain the fact that for the final cut of three two of them had nothing you've remotely related to controllers jobs other than being there the secretary and an accountant and the third person who eventually has as least a pilot size this year i think it helps take a look at the nature of his positions as an entry level position the alternate qualifications under the g s twenty one fifty two when i knock about the secretary yes i mus according to the record the most it could be said was that she had conversations as a secretary with air traffic controllers and where whatever their relative roles were and here she was one of the three selected for the final cut as compared with a candidate with significant at least however comparable experience we aren't i don't think the selection official and the memo one and three ninety eight in the record stated that he felt the people that were selected how do you need balance of skills the secretary and the believe accountant had years of experience in the f a a and progressively responsible positions that required attention to detail given this is an entry level position and they can of course have to pass the exam they are given all the training that they need on that position and so the hiring person is selected then the qualifications of the broom to the selection process is totally irrelevant i think for this type of position it wasn't just the decide this factor the fact there was an entry level position that permitted qualifications a person has for the position since this training position on the job i'm not saying it's irrelevant your honor i'm saying that there are people of different backgrounds an entry level type of position particularly one that didn't require specific would have required you know it was in addition been hired an f g nine level or which would have been which may have required more specialized experience was that the basis for this relation in that case they decided the veterans argue that the employer did not properly consider their military experience and i believe they believe their military experience made them better qualified for the job than the understand that your argument is that they did give proper weight to the military experience but on the hypothetical where they didn't give proper ways to you know of driving on a military truck is are just they didn't want to hire veterans but the hypothetical you all given it sounds like these people have comparable experience and the hiring official made a choice which i don't think is abuse or a violation of even the boys in a reasonable choice to reject military experience considering that happens in life there was some evidence that the military experience is a motivating factor for that i think i think you would have to suggest some hostility to veterans or some some awareness that they didn't want veterans of service but i just don't think that is the picture here we had a hiring official who hired veterans and the other positions we looked at in the fourth dies in the wichita position they were slightly different but there's absolutely no evidence of hostility to veterans if i don't know what specific path is a i don't think the board thought that mr dyce's experience with discounted here i don't think they thought there was a problem and i think under the boys the board carefully went through all of the positions the board looked at the record and didn't find any evidence that mr days of military service was the motivating factor here and that he had met its initial burden of proof under userra and i think that was the correct decision and i also think it was correct in light of this court decision and sheehan versus the states just to turn to the fact that he was they didn't properly consider his pink card i think the point that ms argo made when she discussed the testimony was that the fact that mr de says experience shows that he had training but had not actually  rform the work which would have been sufficient to qualify him under specialized experience under the their appointment specialized experience included providing information to pallet them whether air routes navigational aids in airport condition and mr dyce's experience during his eight months in the navy primarily consisted of maintaining data on landings and departures and gathering weather weather briefing and disseminating them to an f a a flight data specialist consisted primarily of trouble troubleshooting the basically mr trius was acting without counsel after he did not succeed his application he did try to pursue a couple of i'd just like to direct the courts should page one thirty five of the appendix which is the actual picture of pink heart and if you look at the top of the pink hard as little hard to read in this picture but it says department of be hostile to african americans to discriminate against them if you treat the money quickly because they're african american it doesn't matter whether you hate them or not it just matters