NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ORLANDO JONES,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2011-3172
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DE4324100294-I-1.
__________________________
Decided: January 12, 2012
__________________________
ORLANDO JONES, of Woodbridge, Virginia, pro se.
JEFFREY D. KLINGMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and HAROLD D.
LESTER, JR., Assistant Director.
__________________________
2 JONES v. VA
Before RADER, Chief Judge, LOURIE and LINN, Circuit
Judges.
PER CURIAM.
Orlando Jones (“Jones”) appeals from a final order of
the Merit Systems Protection Board (“Board”) denying his
claim under the Uniform Services Employment and
Reemployment Rights Act of 1994 (codified at 38 U.S.C.
§§ 4301-4333) (“USERRA”). Because the Board’s decision
is supported by substantial evidence, this court affirms.
BACKGROUND
Jones is a 10-point veteran who attained the rank of
Sergeant Major and retired after twenty four years in the
United States Army. In 2007, Jones was hired by the
Department of Veterans Affairs (“DVA”) as an Employ-
ment Development Specialist, GS-12. After applying and
not being selected for four separate positions within the
DVA, Jones brought the present USERRA claim alleging
that the DVA refused to select him for any of the four
positions as a result of his prior military service. Follow-
ing a hearing, the administrative judge issued an initial
decision denying Jones corrective action under USERRA
because he had failed to prove by preponderant evidence
that the DVA had been motivated by his prior military
service when determining not to offer him any of the four
positions for which he was not selected.
In attempting to establish that the DVA’s decisions
not to offer him the four contested positions were based on
his prior military service, Jones relied on the following
evidence: First, Jones testified that Vernell Rhodes
(“Rhodes”), the then Employment and Equal Opportunity
Director for the Eastern Colorado Health Care System
(“ECHCS”), had told him that the Chief of Human Re-
sources (“HR”) for ECHCS, Lorene Connel (“Connel”), had
informed Rhodes that she (Connel), along with the
ECHCS Director, harbored an anti-veteran bias. Jones
JONES v. VA 3
also presented what he testified was a note from one of
Rhodes’s subordinates, Myria Giles, stating that Connel
had informed Rhodes that she (Connel) had pulled one of
the contested positions in order to avoid offering it to
Jones. Second, Jones relied on the testimony of Bernard
Humbles (“Humbles”), President of the American Federa-
tion of Government Employees, Local 2241. Humbles
testified that he had previously conducted discussions
with Connel and the ECHCS Director regarding concerns
expressed by multiple veteran employees who felt that
their prior military service had been held against them.
Third, Jones testified that he believed Myra Picket
(“Picket”), who would later become an HR receptionist at
ECHCS, had improperly accessed his medical records.
Fourth, Jones referred to his applications to the four
contested positions in order to establish that he was
overqualified for each position based on his many
achievements.
The administrative judge, examining the record as a
whole, concluded that Jones failed to provide substantial
evidence that his non-selection was due to his prior mili-
tary experience based on findings that: (1) Rhodes offered
credible testimony that Connel had never expressed to her
any anti-veteran bias in general or any specific bias
against Jones based on his prior military service and that
it did not appear Jones had been passed over on that
basis; (2) Humble’s testimony regarding the concerns of
other employees that their military service had been held
against them was too general to substantiate a specific
bias in Jones’s case; (3) Jones’s allegations of improper
access to his medical records did not substantiate a spe-
cific bias where Connel’s unrebutted testimony showed
that any such access, if it occurred, was prior to Picket’s
employment in HR, and was unknown to other HR em-
ployees; and (4) Jones’s impressive accomplishments both
during and after his career in the military did not evi-
dence that his military experience had been held against
4 JONES v. VA
him. Applying these findings, the administrative judge
denied Jones’s request for corrective action under
USERRA.
Jones petitioned for review by the Board, which de-
nied his petition and made the initial decision of the
administrative judge final on May 9, 2011. In its final
order, the Board also stated that Jones’s allegations of
discrimination and prohibited personnel practices, which
Jones also sought to include in his appeal, were not
properly before the Board. Jones timely appealed and
this court has jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
In reviewing a final decision of the Board, this court
will affirm unless the decision is “(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) un-
supported by substantial evidence.” 5 U.S.C. § 7703(c).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” McEntee v. Merit Sys. Prot. Bd., 404 F.3d
1320, 1325 (Fed. Cir. 2005) (quoting Consol. Edison v.
Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938)).
On appeal to this court, Jones argues that the Board
erred by failing to take into account (1) three documents
(which Jones characterizes as “testimony”), one of which
purports to be the Giles note and the other two of which
purport to be investigator reports from the DVA’s Office of
Resolution Management reciting the beliefs of Rhodes and
another party that Jones’s non-selection was due to racial
bias, and (2) the Connel testimony. Jones’s informal brief
also contains a partial allegation that a record of mini-
mum qualifications was not properly completed. Finally,
JONES v. VA 5
Jones alleges that the Board erred by failing to apply
USERRA.
The DVA responds that the Board’s decision was sup-
ported by substantial evidence and that the evidence
raised on appeal either was considered by the Board or is
not relevant to whether Jones’s military service was a
negative factor in the DVA’s decision. The DVA also
argues that Jones fails to point to any specific rule that
the Board failed to respect in reaching its decision.
To prevail on his USERRA claim, Jones needed to
prove by preponderant evidence that the DVA’s decision
not to offer him these positions had been based upon his
former military service. See Sheehan v. Dep’t of the Navy,
240 F.3d 1009, 1013 (Fed. Cir. 2001) (“The procedures
established by precedent require an employee making a
USERRA claim of discrimination to bear the initial bur-
den of showing by a preponderance of the evidence that
the employee’s military service was ‘a substantial or
motivating factor’ in the adverse employment action.”
(citation omitted)).
The administrative judge’s conclusion, as made final
by the Board, that Jones had failed to carry this burden
was based on credibility determinations and careful
weighing of the evidence. The conclusion is consistent
with the record and fully supported by substantial evi-
dence. On appeal, Jones recites his disagreement with
the conclusion of the administrative judge and the Board,
but offers no reason that would allow this court to disturb
it. With regard to the Giles note and the Connel testi-
mony, Jones’s appeal amounts to a request for this court
to reweigh the same evidence that the Board already
considered. We are not free to do this. See Kahn v. Dep’t
of Justice, 618 F.3d 1306, 1313 (Fed. Cir. 2010) (“[A]n
evaluation of witness credibility is within the discretion of
the Board and . . . in general, such evaluations are virtu-
ally unreviewable on appeal.” (quotations omitted));
Parker v. U.S. Postal Serv., 819 F.2d 1113, 1115 (Fed. Cir.
6 JONES v. VA
1987) (“In determining whether the [Board’s] decision is
supported by substantial evidence, the standard is not
what the court would decide in a de novo appraisal, but
whether the administrative determination is supported by
substantial evidence on the record as a whole.” (citation
omitted)).
Finally, while the DVA argues that the investigator
reports referenced in Jones’s appeal are part of his sepa-
rate EEOC claims rather than the present proceeding, we
do not need to address this issue. As the DVA correctly
explains, the reports do not contain any statements which
tend to show that Jones’s non-selection was based on anti-
veteran bias. They are therefore irrelevant to Jones’s
USERRA claim.
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.