NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN PAUL JONES, III,
Petitioner
v.
ARMED FORCES RETIREMENT HOME,
Respondent
______________________
2016-2265
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-4324-15-0275-I-1.
______________________
Decided: November 10, 2016
______________________
JOHN PAUL JONES, III, Albuquerque, NM, pro se.
RUSSELL JAMES UPTON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ALLISON KIDD-MILLER.
______________________
Before PROST, Chief Judge, CLEVENGER, and REYNA,
Circuit Judges.
2 JONES v. ARMED FORCES RETIREMENT HOME
PER CURIAM.
Veteran John Paul Jones, III, filed an appeal with the
Merit Systems Protection Board (“Board”) alleging that
Armed Forces Retirement Home violated the Uniformed
Services Employment and Reemployment Rights Acts of
1994 1 when it did not select him for initial employment as
a Health System Administrator. The Board denied
Mr. Jones’s request for relief. 2 Because the Board’s
decision to deny Mr. Jones’s claim was supported by
substantial evidence, we affirm.
BACKGROUND
Mr. Jones served in Vietnam from March 1968 to De-
cember 1969. In September 2014, the Armed Forces
Retirement Home (“AFRH”), which provides veterans
with residential care and retirement services, advertised
for the position of a Health System Administrator (“HSA”)
with certain healthcare management and administrative
responsibilities. Appx53; Appx43. The AFRH did so in
two job announcements—one under merit promotion for
status candidates and the other under delegated exami-
nation open to all U.S. citizens. Mr. Jones applied to both
of the September job announcements. The AFRH did not
interview any candidates because it determined that none
of the applicants for the September job announcements
had current long-term care experience. In December, the
AFRH reposted the two job announcements with updated
experience requirements. Like the September job an-
nouncements, one of the December job announcements
1 Pub. L. No. 103-353, 108 Stat. 3149 (codified as
amended at 38 U.S.C. §§ 4301–4333 (2012)).
2 Jones v. Armed Forces Retirement Home, No. DE-
4324-15-0275-I-1, 2016 WL 3254425, (M.S.P.B. June 9,
2016) (Appx42–67).
JONES v. ARMED FORCES RETIREMENT HOME 3
was for status candidates and the other was open to all
U.S. citizens. Appx43–46.
Mr. Jones applied to both December job announce-
ments. Regarding the delegated examining position, for
which Mr. Jones was granted veterans’ preference, the
AFRH declined to make a selection. Regarding the status
candidate position, for which veterans’ preference did not
apply, the AFRH found Mr. Jones unqualified because he
failed to submit the required performance appraisal. Six
other candidates were also disqualified for this reason.
The AFRH made a selection under the status candi-
date position, hiring Michael Bayles. Mr. Bayles was
eligible for the status candidate position based on his
veteran status, but he did not receive veterans’ preference
because it did not apply in selection. Appx47–48.
Mr. Bayles was selected for the HSA position for several
reasons. These included his thirty years of experience in
health care, his accreditation, his experience in public
health, infection control, and geriatric components.
Mr. Bayles also had prior work with AFRH, high inter-
view scores, ability to transition into the HSA role, and
education credentials, which included a nursing degree
and a master’s degree in health care administration.
Appx48–49.
Mr. Jones was not selected for a number of reasons.
The AFRH made the selection under the status candidate
posting, for which Mr. Jones was disqualified. Mr. Jones
also had not worked in a health care setting for the past
ten years, had not maintained formal continuing educa-
tion, and held a bachelor’s degree in physics, not a medi-
cal field. Although he had some nursing home experience,
this was in the 1970s in Saudi Arabia and the applicable
standards had changed significantly since then. Appx49–
50.
Between posting the December job announcements
and selecting Mr. Bayles, the AFRH became aware that
4 JONES v. ARMED FORCES RETIREMENT HOME
Mr. Jones had filed a complaint with the Department of
Labor in which he alleged a violation of the Veterans
Employment Opportunities Act of 1998 (“VEOA”) relating
to the HSA position. Appx48.
In March 2015, Mr. Jones filed USERRA discrimina-
tion and retaliation claims against the AFRH before the
Board regarding his non-selection for the HSA position.
Mr. Jones asserted that the AFRH improperly hired
Mr. Bayles because, among other things, Mr. Bayles
lacked the experience the AFRH was seeking when it
reposted the HSA positions.
The Board denied Mr. Jones’s claims. Regarding dis-
crimination, it found that Mr. Jones did not prove that his
military service was a substantial or motivating factor in
his non-selection. The Board further found that even if
Mr. Jones had satisfied that burden, the AFRH would
have made the same non-selection for legitimate non-
discriminatory reasons. Regarding retaliation, the Board
found that Mr. Jones did not prove by preponderant
evidence that the AFRH was aware of any prior USERRA
litigation. The Board further held that even if the AFRH
were aware of Mr. Jones’s prior litigation under the
VEOA, this did not constitute a motivating factor in
Mr. Jones’s non-selection.
DISCUSSION
Subject Matter Jurisdiction
We have jurisdiction over an appeal from a final deci-
sion of the MSPB pursuant to 28 U.S.C. § 1295(a)(9)
(2012).
As a threshold matter, we note that the Government
asserts that we “lack[] jurisdiction because, at the time
Mr. Jones filed his appeal, the board’s decision was not
yet final.” Resp’t’s Br. 14. The Government argues that
“Mr. Jones must refile his appeal in order to properly
JONES v. ARMED FORCES RETIREMENT HOME 5
invoke this Court’s review power.” Id. at 15. We disa-
gree.
In an analogous case, we held that we have jurisdic-
tion where the petitioner filed his appeal after the Board
issued its initial decision but before it became final. Jones
v. Dep’t of Health & Human Servs., 834 F.3d 1361, 1361-
63 (Fed. Cir. 2016); see also Schmitt v. Merit Sys. Prot.
Bd., 315 F. App’x 278, 280 (Fed. Cir. 2009) (unpublished)
(“Mr. Schmitt prematurely appealed to this court follow-
ing the AJ’s initial decision. After the Board denied Mr.
Schmitt’s petition for review, the AJ’s decision became
final and Mr. Schmitt’s prematurely filed appeal rip-
ened.”). We thus have jurisdiction over this appeal.
Standard of Review
We may hold unlawful and set aside a Board decision
if it is found to be (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).
In determining whether the Board’s decision is sup-
ported by substantial evidence, the question “is not what
the court would decide in a de novo appraisal, but wheth-
er the administrative determination is supported by
substantial evidence on the record as a whole.” Crawford
v. Dep’t of the Army, 718 F.3d 1361, 1365 (Fed. Cir. 2013)
(quoting Parker v. U.S. Postal Serv., 819 F.2d 1113, 1115
(Fed. Cir. 1987)). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” Crawford, 718 F.3d at 1365
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).
We review the Board’s legal determinations de novo.
Welshans v. U.S. Postal Serv., 550 F.3d 1100, 1102 (Fed.
Cir. 2008).
6 JONES v. ARMED FORCES RETIREMENT HOME
USERRA Discrimination Claims
The USERRA prohibits discrimination against per-
sons because of their service in the uniformed services. 38
U.S.C. § 4301(a)(3). Here, Mr. Jones alleges that the
AFRH violated USERRA by denying him initial employ-
ment due to his military service and that it retaliated
against him for exercising his USERRA rights. See 38
U.S.C. § 4311(a)–(b).
To establish uniformed service discrimination,
Mr. Jones was required to show that service discrimina-
tion was a substantial motivating factor in the decision
not to hire him. Discriminatory motivation under the
USERRA may be reasonably inferred from a variety of
factors, including: (1) the proximity in time between the
employee’s military activity and the adverse employment
action; (2) inconsistencies between the proffered reason
and other actions of the employer; (3) an employer’s
expressed hostility towards members protected by the
statute together with knowledge of the employee’s mili-
tary activity; and (4) disparate treatment of certain
employees compared to other employees with similar
work records or offenses. Sheehan v. Dep’t of Navy, 240
F.3d 1009, 1014 (Fed. Cir. 2001).
The Board found that Mr. Jones did not carry his bur-
den of showing that uniformed service discrimination was
a substantial or motivating factor in his non-selection.
Appx55–56. As to the first factor, the Board observed
that forty-five years separated Mr. Jones’s service and the
AFRH’s non-selection decisions. Appx53. Regarding the
second factor, the Board noticed a “facial inconsistency”
that the AFRH withdrew the initial September job an-
nouncements on the basis of seeking candidates with
recent nursing home experience and then issued the
December announcements and hired Mr. Bayles who
appeared not to have that experience. Id. The Board,
however, found that Mr. Bayles’s many attributes and
JONES v. ARMED FORCES RETIREMENT HOME 7
qualifications outweighed his lack of nursing home expe-
rience. Id. Regarding the third factor, the Board found
no credible evidence of uniformed service hostility be-
cause, among other things, the decision-making panel was
composed of veterans. Appx54–55. Regarding the fourth
factor, the Board found no credible evidence of disparate
treatment because a veteran (Mr. Bayles) was ultimately
selected for the position and Mr. Jones was disqualified
for the status candidate position along with six other
candidates for a reason unrelated to uniformed service.
Appx55.
Mr. Jones argues that the AFRH’s decision to close
out the September job postings and then hire Mr. Bayles
under the December job postings represents “unlawful
misconduct.” Pet’r’s Br. at 4. The thrust of Mr. Jones’s
argument is that because the AFRH reposted the HSA
position seeking certain experience, but hired Mr. Bayles
who did not appear to have that experience, that shows
the AFRH discriminated against Mr. Jones. Mr. Jones
also argues that the Board “deliberately fudge[d] the issue
of” Mr. Bayles’s veteran status in discussing whether
Mr. Bayles should have received veterans’ preference in
hiring decisions. Pet’r’s Br. at 5–6.
The Board’s decision, however, is supported by sub-
stantial evidence. The Board determined Mr. Bayles was
qualified for the HSA position based on experience and
education. The Board also found that Mr. Jones was not
eligible for the status candidate position under which the
AFRH made its selection because he failed to submit a
performance appraisal. Finally, the Board noted that
Mr. Bayles’s credentials were superior to Mr. Jones’s.
Mr. Bayles’s veteran status was considered by the Board
in determining that Mr. Bayles was eligible for the status
candidate position and that there appeared to be no
disparate treatment of veterans in hiring decisions at the
AFRH. We have considered Mr. Jones’s remaining argu-
ments (Pet’r’s Br. at 7–9) and find them not persuasive.
8 JONES v. ARMED FORCES RETIREMENT HOME
As such, we conclude that the Board’s order dismiss-
ing Mr. Jones’s discrimination claims is supported by
substantial evidence.
USERRA Retaliation Claims
Regarding retaliation claims, the USERRA provides:
An employer may not discriminate in employment
against or take any adverse employment action
against any person because such person (1) has
taken an action to enforce a protection afforded
any person under this chapter, (2) has testified or
otherwise made a statement in or in connection
with any proceeding under this chapter, (3) has
assisted or otherwise participated in an investiga-
tion under this chapter or (4) has exercised a right
provided for in this chapter.
38 U.S.C. § 4311(b).
Mr. Jones argues that “he was subjected to retaliation
by the [AFRH] for peacefully seeking redress through the
legal system for their violations of his VEOA rights.”
Pet’r’s Br. at 1. The Board found that Mr. Jones’s prior
legal cases, including his litigation under the VEOA, did
not constitute a motivating factor in his non-selection.
Appx56–58. As discussed, the Board determined that the
AFRH selected Mr. Bayles based on his experience and
education, and did not select Mr. Jones because
Mr. Bayles’s credentials were superior. The Board relied
on the evidence to determine that the AFRH did not
retaliate against Mr. Jones. Because the Board’s deter-
mination was supported substantial evidence, we affirm.
CONCLUSION
We affirm the Board’s final order.
AFFIRMED
JONES v. ARMED FORCES RETIREMENT HOME 9
COSTS
No costs.