N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

BEN R. CARRILLO, Petitioner,

v.

DEPARTMENT OF HOMELA ND SECURITY, Respondent.

______________________

2013

- 3105

______________________ Petition for review of the Merit Systems Protection Board in No. DE3330120088 -I- 1.

______________________

Decided: November 13, 2013

______________________

B EN R. C ARRILLO , of Chandler, Arizona, pro se.

V ERONICA N. O NYEMA , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for respondent. With her on the brief were S TUART F. D ELERY , Assistant Atto rney Gener al, J EANNE E. D AVIDSON , Director, and R EGINALD T. B LADES , J R ., Assistant Director.

______________________

Before O’M ALLEY , B RYSON , and W ALLACH , Circuit Judges.CARRILLO v. DHS 2

P ER C URIAM

. Petitioner Ben Carrillo appeals from the Merit Sy stems Protection Board’s (“Board”) final decis ion upholding his nonselection for two positions at the Department of Homeland Security ( “ DHS ” or “agency” ). Because the Board’s decision was supported by substantial evidence, this court affirms.

B ACKGROUND Mr. Carrillo served in the Marine Corps from 1977 to 1998 and was honorably discharged, making him a pre ference eligible veteran. At the time of the events at issue in this case, he was em ployed by DHS as a grade level GS

- 12 Safety and Occupational Health Specialist. Mr. Carrillo’s appeal centers on two DHS job announcements.

The first announced position was posted by DHS on Febru ary 26, 2011, as Job Announcement IHC

- 416825

- KRH

- MP

. The position was for a Supervisory Safety and Occupational Health Manager (“supervisor position”), a GS

- 14 g rade level position. The announcement allowed for the following categories of individuals to apply:
(1) Current Federal employees with compet i tive
status or reinstatement eligibility, (2) current and former Federal employees who meet the esta blished crite ria in an O ffice of Personnel M anag ement I nterchange A gre e ment, and (3) preference eligible veterans who have been separated under honorable conditions after three years or more of

co n tinuous service, per the [ Veterans Emplo y ment Opportunities Act ( “ VEOA ”)]

. Resp’t’s App. (“App’x”) 77 (citing VEOA, 5 U.S.C

. § 3330A (2006)). The job announcement notified applicants that the position was a merit promotion and that it was r equired that applicants qualify at the GS

- 14 level. It also

“ explained that appli cant s would qualify at the GS

- 14 level if they possessed one year of experience thatCARRILLO v. DHS 3

equipped them with the skills needed to perform the job duties. ” App’x 78

. Mr. Carrillo applied for the supervisor position on March 1, 2011, and the job li sting closed on Ma rch 12, 2011. On March 16, 2011, the job listing reopened and Mr. Carrillo was notified by email that it was not nece ssary for him to resubmit his resume

. After evaluating the applications for this position, Human Resources Specialist Andrea Bower determ ined that Mr. Carrillo was at a GS

12 grade level and that the f ederal position he had held prior to going to DHS was a t a GS

- 11 level. Ms. Bower ultimately determined that Mr. Carrillo did not qualify for the GS

- 14 position as he “ did not meet the position’s specialized experience requirements. ” App’x 78. DHS sent Mr. Carrillo a notice that “ he did not meet the time

in

- grade requirements of the position ” and would not be placed on the list of eligible candidates. Id. The time

- in

grade coding on th e letter was erroneous, and on October 18, 2011, Ms. Bower sent Mr. Carrillo a corrected notice

, informing him that he did not meet the position’s specia lized experience require ments. The second job announcement was posted on March 21, 2011, as Job Announcement IHC

- 447669

- kwi

- MP, for a S afety and Occupational Health Manager position (“ team-lead position”), a GS

- 13 grade level position. The only persons eligible to apply were “ current U.S

. Customs and Border Protection employees with competitive st at us, ” because it was a merit promotion p osition. Mr. Carrillo applied for this position and DHS placed him on the Merit Promotion Certificate of Eligibles list. The posting indicated the availability of five separate team

lead positions, one for each of f ive existing Occupational Safety and Health branches. However, an existing team member would only be considered for the branch at which he or she was already employed

. Accordingly, because Mr. Carrillo worked with the Central Branch T eam, he was only con sidered for the Central Branch.CARRILLO v. DHS 4

Mr. Carrillo and six other Central Team applicants interviewed with a three

- person panel for the team-lead position. The panel included the Central Team Superv isor, Bob Hamilton, as well as Dan De Laurentis and Erick Ea stes, supervisors from other branches and both vete rans. All of the candidates were interviewed by phone, and all interviews lasted between fifteen and twenty minutes.
The panel ultimately chose Judy Masura for the Ce ntral Branch team- lead position, the only candidate who held a Certified Safety Professional ( “ CSP ” ) designation. A CSP designation is awarded to individuals who satisfy various experience, testing, and educational requir ements. Ms. Masura was also the only Central Branch candidate who wa s not a veteran. Although Ms. Masura was not a veteran, the panel members who conducted the interviews were all favorably impressed with Ms. Masura’s interview

, and found th at Mr. Ca rr illo’s inte rview was “average ” and “ OK but unre markable.” App’x 86. Mo reover, the evidence showed that if Ms. Masura had declined the position, the panel would not have recommended Mr. Carrillo, but would have recommended another candidate, who was a veter an. On December 1, 2011, Mr. Carrillo filed an appeal with the Board’s Denver Field Office alleging that, r egarding his two nonselections, DHS (1) violated his vete rans’ preference rights under VEOA

, and (2) discriminated against him based on his uniform ed service in violation of the Uniformed Services Employment and Reemp loyment Rights Act of 1994

, 38 U.S.C. § 4311 (2006 ) (“ USERRA ” ). On February 7, 2012, the administrative judge ( “ AJ ” ) issued an order finding that the sixty

- day deadline for challenging nonselection f or the supervisor position under VEOA had already passe d. The AJ found in a subsequent opinion that Mr. Carrillo failed to establish a VEOA claim for the team-lead position. With regard to Mr. Carrillo ’s USERRA claims

, the AJ found that DHS had credited Mr. Carrillo’s military experience and that Mr. Carrill o failedCARRILLO v. DHS 5

to show th ere was any anti

- military bias. On April 23, 2012, Mr. Carrillo petitioned the full B oard to review the AJ’s decision. In this appeal, he reasserted his VEOA and USERRA claims and additionally argued that he was improperly denied equit able tolling for his VEOA claim as to the supervisor position. The B oard denied Mr. Carri llo’s petition for review and affirmed the decision of the AJ

. Mr. Carrillo timely appeals the Board’s decision and presents the same arguments to this court.

We have juris diction pursuant to 28 U.S.C. § 1295(a)(9) (2012).

D ISCUSSION

I. Standard of Review
This court must uphold a decision of the Board unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obta ined wit hout procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial ev idence.” 5 U.S.C. § 7703(c); see also Bennett v. Merit Sys. Prot. Bd. , 635 F.3d 1215, 1218 (Fed. Cir. 2011). Underl ying factual determin ations are reviewed for substantial evidence. Bolton v. Merit Sys. Prot. Bd

. , 154 F.3 d 1313, 1316 (Fed. Cir. 1998).

II. VEOA Claims

“ The VEOA provides preference eligible veterans with a right to file a claim for any agency hiring decision that violated th e veteran’s rights under a statute or regulation relating to veteran’s preference. ” Laza ro v. Dep’t of Vete rans Affairs , 666 F.3d 1 3 16, 1318 (Fed. Cir. 2012); see also 5 U.S.C. § 3330a

. In order for veterans t o receive the benefits of these preference rights, Congress has enacted various statutes and author i zed the Office of Personnel Management to adopt regulations that relate to the hiringCARRILLO v. DHS 6

process of preference eligible veterans. Laza ro , 666 F.3d at 1318

. With regard to his veterans’ preference for the team

lead position, Mr. Carrillo argues that the board failed t o apply 5 U.S.C. § 2302(b)(11). He further contends that the B oard failed to apply “several statutes that constitute a ‘veterans’ preference requirement ’ for purpos es of 5 U.S.C. § 2303(b) (11).” Pet’r’s Br. 6. Section 2302(b)(11)
states
, in part

, that : “A ny employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority . . . knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans ’ preference requirement. ” 5 U.S.C. § 2302(b)(11)(B)

. Mr. Carrillo does not elaborate on how the Board vi olated § 2302

, or identify to what statutes he is referring

. However, in subsequent arguments made in his Petitio ner’s Brief, he references 5 C.F.R. § 302.302(d) (2011) as well as 5 U.S.C. § 3311. Both sections require an agency
to credit preference eligible candidate s with time spent in the military if the posi tion for which they are applying is similar or “material to the position ” which they held immediately before entrance into the military

. 5 C.F.R. § 302.302(d)(1); 5 U.S.C. § 3311 (2). Mr. Carrillo appears to argue that his military service was not credite d and that his veterans’ preference was therefore violat ed.
As an initial matter, t he Board has construed vete rans ’ preference statutes to not apply when “an employee seeks a promotion under an announcement limited to internal candidates.” Slater v. U.S. Postal Serv

. , 112 M.S.P.R. 28, 32, (2009); s ee also Joseph v. Fed. Trade C

omm’n

, 103 M.S.P.R. 684, 688 (2006), aff’d

, 505 F.3d 13 80 (Fed. Cir. 2007); 5 U.S.C. § 3304(f)(1) (stating that “[ p] reference eligibles or veterans . . . may not be denied the opportunity to compete for vacant positions for whichCARRILLO v. DHS 7

the agency making the announcement will accept applic ations from individuals outside its own workforce under merit promotion procedures” ) (emphasis added). The team-lead position was only available to internal cand idates, and thus Mr. Carrillo’s veterans’ preference did not apply.
In any event, the evidence shows that the panel me mbers were aware of, and took into account Mr. Carrillo’s relevant experience in the military. An affidavit by a panel member “indicates that the panel asked the appe llant to elaborate on his military service in the M arines.” App’x 10. Specifically, in Mr. De Laurentis’ s declaration he noted that when the panel “ asked [ Mr

. Carrillo ] to elaborate on his time as an Environmental Chief in the Marines, [ Mr. Carrillo ] was able to discuss what he did in that position in a way that was helpful.” App’x 90 . A ccordin gly, substantial evidence supports the Board’s decision that the agency did not violate a law or regul ation relating to his veterans’ preference for the team

- lead position.

Mr. Carrillo also contests the Board’s affirmance of the AJ’s finding that equitable tolling was not warranted for his VEOA claim as to the supervisor position. Specifical ly, Mr. Carr illo argues that the AJ should have granted equita ble tolling to extend the sixty

- day deadline under 5 U.S.C. § 3330a(a) to file his VEOA c omplaint with the Department of Labor ( “ DOL ” ). In order to bring a claim for a veterans ’ preference viol ation to the B oard, the veteran must first present the claim to the DOL within the sixty

- day statutory period. See § 3330 a (a)(2)(A). If the complainant fails to do so, equitable tolling may be gran ted if the “complainant had actively pursued his judicial remedies by filing a defective pleading during the statut ory period, or where the complainan t had been ‘ induced or tricked by his adversary ’ s misconduct into allowing the filing deadline to pass. ’” Roesel v. Peace Corps

, 111CARRILLO v. DHS 8

M.S.P.R. 366, 370 (2009) (citin g Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) )

. Mr. Carrillo contends that his failure to meet the deadline was “induced or tricked by his adversary’s mi sconduct into allowing the filing deadline to pass.” Pet ’ r’s Br. 7 (citations and int ernal quotation marks omitted)

. Mr. Carrillo argues that his equal employment opportun ity ( “ EEO ” ) counselor advised him incorrectly of the date that his VEOA C omplain t had to be filed with the DO L. Mr. Carrillo does not present other evidence of induc ement or trickery. A t the time Mr. Carrillo brought the claim to his EEO counselor

, and was allegedly given i ncorrect information, the sixty

- day deadline had “long since passed”

— it had been 230 days. App’x 83

– 84

. Thus, any inducement or trickery that occurred would have been long after Mr. Carrillo’s filing deadline had already expired.
Mr. Carrillo also argues that “ [b] y wrongfully and willfully failing to give the Petitioner a notice of his appeal rights, the Agency effectively contributed to the Petit ioner’s failure to file a timely appeal, or, perhaps, even caused such untimely filing.” Pet ’ r’s Br. 12. Mr. Carrillo relies on 38 U.S.C . § 4334(a) for this contention and presumably is arguing that DHS should have notified him to file his VEOA claims wit hin the statutory time limit

. However, § 4334 applies to USERRA notices, not VEOA claims. See 38 U.S.C. § § 4301

– 34. Mr. Carrillo does not offer other arguments or evidence suggesting that the agency should have given him notice of his a ppeal rights for h is VEOA claims.
Finally, Mr. Carrillo argues that the Board should have applied Kirkendall v. Dep’t of Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc), in order to find equitable tolling applied to his VEOA claim as to the supervisor position. Kirkendall is distinguishable from Mr. Carrillo’s case. In Kirkendall, this court found equitable tolling wasCARRILLO v. DHS 9

warranted when the DOL had taken more than sixty days to resolve Mr. Kirkendall’s claim. 479 F.3d at 847 (holding that “[i]f the DOL is unable to resolve t he complaint within another 60 days, the veteran may ‘appeal the alleged violation to the [Board] in accordance with such procedures as the [ Board ] shall prescribe ’ ”) (quoting 5 U.S.C. § 3330 a (d))

. Mr. Carrillo does not contend that the DOL was responsibl e for the delay and, a ccordingly, Kirkendall is inapposite.

I n light of the foregoing , the Board properly declined
to apply equitable tolling to Mr. Carrillo’s VEOA claim as to the supervisor position.

III. USERRA Claims
Mr. Carrillo argues that the Board failed to consi d er his discrimination claims for both the supervisor and team-lead positions under USERRA. Relying on 5 U.S.C. § 3311(2), which requires that preference eligible cand idates be credited for their service when experience is an element of qualification, Mr. Carrillo argues that “ [a] ll noted experience in relation to the specific experience required by the job announcement is far exceeded. That information was simply ignored.” Pet’ r’s Br. 5.

An employer violates USERRA “ if it would not have taken the adverse employment action but for the emplo yee’ s military service or obligation. ” Erickson v. U.S. Postal Serv

. , 571 F.3d 1364, 1368 (Fed. Cir. 2009). Mr. Carrillo had the burden to show “ by a preponderance of the ev idence that his military service was a substantial or mot ivating factor for an adverse employment action. ” Id

. Mr. Carrillo identifies two inconsistent notices e xplaining his ineligibility for the supervisor position: a M arch 28, 2011, notice informing him that he was inelig ible because he did not meet the time

- in

- grade requir ements, and an October 18, 2011, notice explaining the March notice was in error and he was actually ineligibleCARRILLO v. DHS 10

because he did not meet the specialized experience r equirements. Mr. Carrillo argued to the Board that the timing of the second notice was “suspect” because it was issued just one day after Mr. Carrillo filed his appeal relating to non

- selection. App’x 41. The AJ agreed with Mr. Carrillo th at the timing of the second amended notice was “suspect” but found it was “not preponderant ev idence of improper discriminatory motivation.” Id . The AJ further concluded that though preference eligibles are guaranteed the right to compete for a position, “it does not exempt them from the eligibility criteria . . . that are applicable to all candidates.” Id. at 41

– 42.

T he record supports the fi nding that Mr. Carrillo’s military service had been credited, and not used to di scriminate against him. Specifically, Ms. Bower was aware that Mr. Carrillo was a veteran , reviewe d the relevant materials

, and credited them under his exper ience. Ms. Bower made a statement that she evaluated Mr. Carrillo’s application, including his military service, and found “he did not have the “r equisite experience to qualify at the GS

- 14 level.” Id.

Mr. Carrillo does not offer evidence that contradicts the Board’s fin ding or that indicates the panel was othe rwise motivated by an improper discrimi natory motive as to the supervisor position. T he Board’s determination that Mr. Carrillo failed to substantiate his USERRA claim is therefore supported by substantial evidence

. With respect to the team

- lead position, the record supports the AJ ’s finding that there was no discrimin ation based on Mr. Carrillo’s military ser vice. The panel averred that “they were impressed with [Ms. Masura’s] answers to questions during the interview, and that the appellant’s interview was not particularly remarkable.” Id. at 44. Moreover, the panel stated that Ms. Masura’s specialized CSP designation was important to them. Id. Substantial evidence thus support’s the Board’s determ i-CARRILLO v. DHS 11

nation that Mr. Carrillo was not discriminated against on the bas i s of his military service as to the team-lead pos ition

. CONCLUSION

We have considered the remainder of Mr. Carrillo’s arguments and find them unpersuasive. For the foreg oing reasons, we affirm the Board’s final decision uphol ding Mr . Carrillo’s nonselection for two positions at the Department of Homeland Security

. AFFIRM ED

No costs.