NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

RICHARD A. BECKER, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

__________________________ 

2011-3224 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in Case No. NY4324100222-I-1. 

____________________________ 

Decided: May 15, 2012 

____________________________ 

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

AUSTIN M. FULK, Trial Attorney, Commercial Litigation 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. DVA 2

Before LOURIE, DYK, and WALLACH, Circuit Judges. 

PER CURIAM. 

Petitioner Richard A. Becker seeks review of a final 

decision by the Merit Systems Protection Board (“Board”) 

denying his claim under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 

U.S.C. §§ 4301–33, regarding a non-promotion decision by 

the Department of Veterans Affairs (“DVA”). Becker v. 

Dep’t Veterans Affairs, No. NY-4324-10-0222-I-1 (M.S.P.B. 

Feb. 7, 2011) (“Initial Decision”); (M.S.P.B. Aug 25, 2011) 

(“Final Order”). For the reasons described below, we 

affirm the decision of the Board. 

BACKGROUND

Becker is an Army veteran employed as a Nursing 

Assistant, GS-5, at a DVA medical facility in Northport, 

New York. On January 19, 2010, the DVA posted a 

vacancy announcement inviting applications for four GS-6 

Health Technician positions. The announcement stated 

that the positions would be open to permanent DVA 

medical center employees and requested that applications 

be submitted no later than January 21, 2010. Although 

Becker did not apply until January 27, 2010, his application was accepted because he had been on sick leave 

during the specified application period. 

In total, twenty-three individuals applied for the four 

open positions. Seven of those were deemed not qualified; 

the remaining sixteen applications, including Becker’s, 

were referred with the applicants’ names omitted for 

evaluation by a promotion panel. The promotion panel 

consisted of two subject matter experts holding GS-6 

Health Technician positions, Decoteur Samuel and Bernadette Anderson. The panel evaluated the sixteen 
3 BECKER v. DVA

anonymous applications and assigned a numerical score 

to each based on the candidates’ listed background information, supervisory appraisals, and relevant knowledge, 

skills, and abilities. Following review by the promotion 

panel, only the five highest-rated candidates were selected for further consideration. Those candidates received scores of 50, 50, 42, 30, and 28. Becker, with a 

score of 10, was not selected. Accordingly, Becker received a letter from the DVA on February 25, 2010, explaining that although he was qualified for the announced 

positions, he had not ranked highly enough among the 

pool of qualified applicants to merit selection. 

On June 11, 2010, Becker filed an appeal to the 

Board, alleging that the DVA’s non-promotion decision 

had violated his rights under the USERRA. On February 

7, 2011, an administrative judge (“AJ”) issued an initial 

decision denying Becker’s USERRA claim because he had 

failed to establish that his military service was a substantial or motivating factor in the DVA’s personnel decision. 

In particular, the AJ found that Becker had provided no 

evidence that anyone involved in the hiring process was 

hostile to military service members, that the promotion 

panel’s scoring of his application was influenced by his 

military service, or even that the promotion panel had 

been aware of his or any other applicant’s identity in 

scoring the applications. 

Becker sought review of the AJ’s decision by the full 

Board. The Board denied review on August 25, 2011, 

finding no error in the AJ’s decision, and the AJ’s decision 

therefore became the final decision of the Board. This 

appeal followed.
BECKER v. DVA 4

DISCUSSION

We must affirm decisions of the Board unless they are 

“(1) 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.” 5 U.S.C. § 7703(c). 

The USERRA prohibits public and private employers 

from denying employment or promotion based on a candidate’s military service. 38 U.S.C. § 4311(a). To prevail on 

such a claim, a plaintiff employee or applicant must 

establish by a preponderance of the evidence that his or 

her military service was a motivating or substantial factor 

in the disputed employment decision. Id. § 4311(c)(1); 

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

Cir. 2009). If the employee makes that prima facie showing, the employer must demonstrate that it would have 

taken the same action regardless of the employee’s military service to avoid liability. Erickson, 571 F.3d at 1368. 

Becker maintains that the DVA violated his rights 

under the USERRA by failing to select him for a GS-6 

Health Technician position. Becker’s position appears to 

rest primarily on his contentions that (1) no veterans 

were selected for the open positions, (2) the members of 

the promotion panel (Samuel and Anderson) are not 

themselves veterans, and (3) Anderson holds personal 

animus against Becker due to his alleged previous involvement in a misconduct charge filed against her. The 

government responds that Becker failed to satisfy his 

statutory burden under the USERRA because he provided 

no evidence indicating that his military service was a 

motivating or substantial factor in the non-promotion 

decision. 
5 BECKER v. DVA

As recognized by the Board, Becker’s bare assertions 

of discrimination cannot support his USERRA claim. 

Becker seems to suggest that the mere selection of a nonveteran by a promotion panel made up of non-veterans 

establishes discriminatory motivation. But Becker provided no evidence indicating that Samuel or Anderson 

actually held any such bias, nor does he dispute that the 

promotion panel rated each application without knowing 

the applicants’ identities or that one of the three applicants ultimately hired as a Health Technician served in 

the Army National Guard. Similarly, Becker’s argument 

that Anderson harbors personal prejudice against him 

fails to account for the anonymous nature of the selection 

process, and, even if true, that allegation concerns a 

workplace dispute wholly unrelated to Becker’s military 

service. In short, Becker’s allegations of discrimination 

lack any foundation in the record and are insufficient to 

establish by a preponderance of the evidence that his 

military service was a substantial or motivating factor in 

denying his application for promotion. 

CONCLUSION

We have considered Becker’s other arguments and 

find them to be without merit. Accordingly, because 

Becker failed to carry his burden under the USERRA, the 

Board’s decision is affirmed. 

AFFIRMED