NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition Is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

06-3248 NORBERT L. MCKEE, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

__________________ _________ DECIDED: November 21, 2006

__________________ _________ Before RADER, Circuit Judge , CLEVENGER, Senior Circuit Judge , and PROST, Circuit Judge

. PER CURIAM. Norbert L. McKee seeks review of the fi nal order of the Merit Systems Protection Board (Board) finding that the United St ates Postal Service (Agency) did not discriminate against him because of his prior military status when it failed to noncompetitively covert him from a temporary to a car eer employee. Finding no reversible error, this court affirms

. I In 1995, Mr. McKee took an entrance examination for employment with the Agency and received a score of 85.2, which in cluded a five point veterans’ preference. After receiving this score, Mr. McKee was rated a thirty percent or more disabledveteran by the Depart m ent of Ve terans Affairs. In December 2004, Mr. McK ee was first hired by the Agency as a casual/temporary employee at the Proce ssing and Distribution Center in Roanoke, Vir g inia. In the summer of 2005, Mr. McK ee cont act ed the Human Reso urces Department of the Agency and requested to be extended on the examinat ion register. Mr. McKee was notified that the score on his 1995 entrance examinat ion had only been valid for two years and expired in 1997. Mr. McKee wa s further notified that becaus e his score was expired, he could not be considered fo r employment from the register. In August 2005, Mr. McKee requested a special entrance examination for disabled v e terans be opened. The Agenc y, however , informed Mr. McKee the next available examination would be open to the public. If he took this examination, however, he would be entitled to a ten point addition to hi s score because he was now a thirty percent or more disabled veteran. Mr. McKee took the September 29, 2005 examination and received t he additional ten points. Additionally , sometime in the summer of 2005, Mr. McKee heard the Agency was planning to hire between three t o five ca reer Mail Handlers. Mr. McKee requested a non-competitive conversion to a c a reer positi on based on his disa bled veteran’s status. Mr. McKee was d enie d conversion. He further asserts the Age n c y fille d thes e positions noncompet itively with non-veterans or non-disabled veterans. II This court must affirm any agency action, findings, or conclusions unless they are: (1) arbitrary or capricious, an abus e of discretion, or other wise not in accordance with the law; (2) obtained withou t procedure required by law, rule, or regulation havin g

06-3248 2been followed; or (3) unsupport ed by subs tantia l evidence. 5 U. S. C. § 7703(c) (1996); Hayes v. Dep’ t of Navy , 727 F.2d 1535, 1537 (Fed. Cir. 1984). In the present appeal, Mr. McKee argue s the Agency violated the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 430 1

- 4332 (2000), Veterans Employ ment Opport unities Act (VEOA), 5 U.S.C. § 3330 a (2004), Veterans Readjustment Act (VRA), 38 U.S.C. § 4214 (2003), and 5 U.S.C. §§ 3308-33 20 (2000) in failin g to convert him fr om a temporary to a career employee. Violations of 5 U.S.C. §§ 3308-3320 and 38 U.S.C. § 4214 were not raised below and therefore are not properly before this court. Regarding Mr. McK ee’s VEO A claim to establis h Board juris d iction ove r an appeal brought under the VEOA, Mr. McK ee mu st: (1) show that he exhausted his remedy with the Department of Labor (DOL); and (2) make nonf rivolous allegations tha t (i) he is a preference eligible wit hin the meani ng of the VEOA, (ii) the action(s) at issue took place on or after the October 30, 1998 enactment date of the VEOA, an d (iii) th e agency violated his rights under a statute or regulation r e lating to v e terans' preference. Abrahamsen v. Dep’t of Veterans Affairs , M.S.P.B. 2003, 94 M.S.P. R. 377. The Boar d held, and Mr. McKee does not dispute, that Mr. McK ee fa iled to provide any evidenc e that he had exhausted his remedies before the D e partment of Labor. This court therefore affirms the Board’s holding that it lacked juris d iction ov er Mr. McKee’s VEOA claim. In support of his USERRA claim, Mr. McKee argued the Appalachian District violated Postal Servic e Han dbook EL-312 when it failed to noncompetitively appoint him

06-3248 3to one of the career Mail Handlers posi tions. Postal Service Handbook EL-312 § 233.35 states: A veteran, who has a co mpensable s e rvice-connec ted dis a bilit y of 30 percent or more and who is cur r ently working as a c a sual or temporary employee, may be considered for noncompetitive conversion to a career vacancy. The veteran must have work ed in t he temporary appoint ment for at least 60 days and must meet t he qualification requirement s of the position, including any currently requir ed examinations. Appointing officials may, but are not obligated to , administer examinations noncompe t itively, if it is determined that applicants are otherwise viable candidates. A prior rating on the appropriate exam ination is acceptable. If necessary, a veteran with 3 0 p e rcent or more disab ility can be given a direct career appointment. This appointment aut hority is entirely discretionary . There are no time l i mits for these appointments. Postal Handbook EL-312 § 233. 35 (2001) (emphasis added). In respons e to Mr. McKee’s contentions, two witness e s testified for the Agency. Robin L. Clay, Hum an Resources Spec ia list for the Agenc y , testified that noncompetitive appointments per EL-312 are optional and not used in the Appalachian District. Gary Hutchinson, Manger for Pers onal Services for the Appalac h ian District, testified that it is wit hin eac h district’s di s c retion whether to invoke EL-3 12 § 233.3 5 when hiring veterans with a th irty percent or higher disabi lity. Mr. Hutchinson further testified that the Appalachian District had never used EL-312 § 233.35 to hire employees. Additionally, Mr. Hutchinson test ified that the Appalac hian Distric t took the position that the nor mal hiri ng procedures , in which the veter a n gets a preference, already provided an advantage over non-veterans. Mr. Hutchinson als o testified that while the Distric t does engage in noncompetitive hiring of severely disabled indi viduals on occasion according to EL 312 § 235.4, these people could not complete in the regular hiring process bec ause their disab ilities present barriers for them to ta ke the examination. Seve rely disab l ed

06-3248 4indiv i duals, however, unlike v e terans, do not receive a higher point score on their examinations because of their disabilities. Mr. McKee admits his 1995 test score was “way out of date,” and that he knew he had to take a new test. Mr. McKee fu rther concedes he was given his ten point veterans’ preference for being a thirty percent or more disabled veteran on the mos t recent examination. He also admits he was aware the Agency som e times hir e d employees noncompet itively, but not so for veterans. Based on Mr. McKee’s admissions below and the unrefuted testimony of the Agency, the Board held Mr. McKee had produced in sufficient circumstanti a l or direct evidenc e that his status as a disabled fo rmer service member was a s u bstantial or motivating factor in the Agency’s decisions not to reopen an exam, and not to select him noncompet itively for a vacant position. The administrative judge correctly found that the fact that Mr. McKee may not have been treated better than non-veterans does not establish discrimination in an USERRA appeal, but rather Mr. McKee must show that he was treated more har shly than non-veterans. See , Sheehan v. Dep’t of Nav y , 240 F.3d 1009 (Fed. Cir. 2001). Regarding Mr. McKee’s general allegations of discriminat ion, the administrative judge found Mr. McK ee’s ev idence and the te stimony provided by his witnesses wh olly inadequate to establish that the Agency’s acti ons were motivated by animus because of his former military sta t us. Also the judge found no s upport for the assertio n that Mr. McKee’s m ilitary service was a s ubstantial or motivating factor in his nonse l ection. We find these conclus i ons neither arbitrary nor capricious , and supported by s ubstantial evidenc e.

06-3248 5For the foregoing reasons, the fi nal decis io n of the Board is affirmed.

06-3248 6