McCurry v. Dep't of Justice, 2014-3214
| Decision Date | 15 May 2015 |
| Docket Number | 2014-3214 |
| Parties | ANGELA D. MCCURRY, Petitioner v. DEPARTMENT OF JUSTICE, Respondent |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This disposition is nonprecedential.
Petition for review of the Merit Systems Protection Board in No. AT-4324-13-0506-I-1.
ANGELA D. MCCURRY, Stockton, AL, pro se.
MELISSA BAKER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., STEVEN J. GILLINGHAM.
Before NEWMAN, O'MALLEY, and WALLACH, Circuit Judges.
Angela D. McCurry ("McCurry") appeals the decision of the Merit System Protection Board ("Board") denying her request for corrective action against the Office of the Solicitor General ("OSG") for discrimination in violation of the Uniformed Services Employment and Reemployments Rights Act of 1994, Pub. L. No. 103-353, 108 Stat. 3149 ("USERRA") (codified at 38 U.S.C. §§ 4301-33). Because we find that the Administrative Judge ("AJ") did not fail to timely apprise McCurry of her burden of proof and did not err by declining to exercise jurisdiction over her non-USERRA claims, we affirm.
McCurry is a veteran of the United States Naval Reserve, receiving an honorable discharge from service on July 13, 1996. She also has a Juris Doctor degree from Thomas M. Cooley Law School, though she is not licensed to practice law. McCurry applied for a position as a paralegal specialist with OSG under four vacancy announcements, and was one of four applicants selected to interview for the position. The agency chose not to select any of the four interviewees for the position, and instead re-advertised the position under a different announcement number. McCurry did not re-apply for the position once it was re-advertised.
McCurry filed a complaint challenging OSG's decision on August 15, 2011. In February 2013, the Office of Special Counsel ("OSC") informed McCurry that it intended to take no action on her complaint and proceeded to close the file. On April 24, 2013, McCurry filed the appeal with the Board which is at issue here. McCurry alleged that the OSG's decision not to select her for the paralegal specialist position constituted discrimination in violation of USERRA because the agency improperly considered her status as a veteran in its selection process. McCurry also alleged that the agency committed prohibit-ed personnel actions by discriminating against her on the basis of her race and age, by passing over an applicant with veteran status without providing proper notice, and by failing to inform her in the notice of non-selection that no one was selected for the paralegal specialist position.
In response to her allegations, the AJ issued an initial order finding that the appellant had made nonfrivolous allegations of jurisdiction. The AJ conducted a telephonic prehearing conference on February 20, 2014, during which the AJ instructed McCurry of her burden of proof under USERRA and Sheehan v. Department of Navy, 240 F.3d 1009 (Fed. Cir. 2001), and explained to McCurry that the Board did not have jurisdiction over her claims of discrimination that were unrelated to her veteran status. Finally, the AJ asked the parties to outline the evidence and witnesses they intended to offer at the hearing the AJ scheduled to address McCurry's USERRA claims. These notices were confirmed in a February 21, 2014 order summarizing the February 20 conference. The AJ then held a video-teleconference hearing on February 25. At the hearing, the parties were permitted to introduce evidence, testify, and question witnesses.
The AJ issued an initial decision on March 4, 2014, denying McCurry's request for corrective action under USERRA. McCurry v. Dep't of Justice, No. AT-4324-13-0506-I-1, 2014 M.S.P.B. LEXIS 1302 (March 4, 2014) ("Initial Decision"). The AJ detailed the testimony of Candy Lubin, Supervisor of the Research and Publications Unit at OSC and a member of the panel who interviewed the applicants, and William Dziwura, Acting Executive Director at OSC during the time of the application process. Id. at *5-15. Lubin and Dziwura testified that McCurry's veteran status played no role in the selection process, and that the agency decided to cancel and relist the paralegal specialist vacancy announcement because the Principal Deputy Solicitor General decided to seek more qualified applicants from a larger applicantpool. Id. at *6-8. The AJ found the testimony of Lubin and Dziwura to be "exceedingly credible," id. at *14, and, in light of McCurry's "evasiveness" and "nonresponsive answers," the AJ "seriously question[ed] [McCurry's] credibility." Id. at *11. The AJ concluded that neither a "test" given to McCurry during her interview, a sentence in an email from Dziwura to supervisors referring to McCurry as the "Vet," nor the content of her non-selection notice sufficiently evidenced "that the agency harbored hostility or animosity towards veterans in general or the appellant's status as a veteran in particular." Id. at *15.
McCurry filed a timely petition for review of the Initial Decision with the Board. McCurry v. Dep't of Justice, 121 M.S.P.R. 383, at *5 (July 23, 2014) ("Final Decision"). McCurry argued that the AJ prejudiced her by failing to: (1) provide information regarding her burden of proof under USERRA until the February 20, 2014 telephone conference, (2) find discriminatory animus in the Dziwura email, and (3) correctly accept her proffered evidence. Id. at *6. The Board first concluded that the AJ properly informed the parties of their burdens under USERRA at the telephone conference, and provided the parties with the opportunity to submit evidence and argument prior to the close of the record. Id. at *7-8. The Board then agreed with the AJ that the Dziwura email, when read in context, identified McCurry's veteran status merely to show that the appropriate consideration would be given to her entitlement to a veterans preference. Id. at *9. The Board further determined that McCurry failed to submit any other evidence demonstrating that she met her initial burden of proof under USERRA and Sheehan. Id. at *9-11. Finally, the Board concluded that the AJ did not abuse his discretion in failing to allow evidence that, according to McCurry, was not mentioned in a February 21 summary of the February 20 prehearing conference. Id. at *11-12. The Board thus denied the petition for review and affirmed the Initial Decision.
McCurry filed a timely notice of appeal with this Court on September 22, 2014, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).
Our review of the Board's decisions is limited by statute. 5 U.S.C. § 7703(c). We only set aside the Board's actions, findings, or conclusions that are:
Id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." McLaughlin v. Office of Pers. Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004) (citation and internal quotation marks omitted).
On appeal, McCurry alleges that the AJ erred by failing to provide her with a sufficient opportunity to submit evidence and argument in support of her USERRA claim. Although McCurry concedes that the AJ informed the parties of their respective burdens during the February 20 telephone conference and reiterated those burdens in the February 21 order, she argues that the AJ failed to "proffer[] [any] evidence or facts from the record to support and demonstrate how the administrative judge provided the petitioner with an opportunity to submit evidence and argument . . . ." Appellant Br. at 12. In particular, McCurry argues that, as of February 21, the applicable discovery deadlines for submission of evidence and argument had passed, making the February 21 order "of no effect." Id. at 13. McCurry also alleges that the four days between the date of the February 21 order and the February 25 hearing did not comply with the requirements of 5C.F.R. § 1201.51 (2014). McCurry further claims that the Board erred by concluding that it lacked jurisdiction over her prohibited personnel practices (i.e., non-USERRA) claims, arguing that 5 U.S.C. §§ 1214(a)(3), 1221(a) justify the Board's jurisdiction. And, finally, McCurry contends that the Board erred by not addressing all allegations made in her petition for review.
The government, in response, first notes that McCurry does not challenge the Board's substantive determinations, merely raising procedural arguments. Regarding McCurry's claim that the AJ failed to provide sufficient opportunity to submit evidence, the government argues that none of the evidence McCurry submitted as of the February 25 hearing was rejected as untimely—the AJ only rejected (as untimely) evidence McCurry attempted to enter after the record had been closed. The government also claims that McCurry has failed to demonstrate that she was prejudiced by the timing of the February 20 instructions. The government next argues that the Board complied with 5 C.F.R. § 1201.51, which sets the minimum number of days between the date of the petitioner's receipt of a hearing notice and the eventual hearing, not the number of days between receipt of USERRA instructions and the hearing. The government also asserts that the AJ performed a thorough evaluation of the evidence and the Board considered all relevant objections. Finally, the government claims that neither 5 U.S.C. § 1214(a)(3) nor 5 U.S.C. § 1221(a) would justify the Board's jurisdiction over McCurry's non-USERRA claims.
We agree with Board's disposition of McCurry's claims. USERRA creates a burden-shifting framework for demonstrating that an employer discriminates on the basis of military service. Sheehan,...
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