Aisha Trimble v. Department of Homeland Security

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AISHA TRIMBLE,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2023-1278
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-4324-22-0332-I-1.
______________________
Decided: September 12, 2023
______________________
AISHA T RIMBLE , Dallas, TX, pro se.
RAFIQUE O MAR ANDERSON, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, P ATRICIA M. MC CARTHY , F RANKLIN E.
WHITE, J R.
______________________
Before M OORE, Chief Judge, REYNA and T ARANTO, Circuit
Judges.
Case: 23-1278 Document: 32 Page: 1 Filed: 09/12/2023

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TRIMBLE v. DHS 2
P ER CURIAM .
Aisha Trimble appeals a decision of the Merit Systems
Protection Board (Board) denying her request for corrective
action under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA). For the fol-
lowing reasons, we affirm.
BACKGROUND
Ms. Trimble is an honorably discharged veteran who
served on active duty in the United States Army from Au-
gust 1996 to June 2000. Appx. 11.1 In January of 2022,
Ms. Trimble applied for the position of Executive Assistant
in the Region 6 team of the Federal Emergency Manage-
ment Agency (FEMA) in Denton, Texas. Id. Ms. Trimble
was initially selected as one of the best qualified candidates
and was invited to interview for the position, along with
five other candidates. Id. Those interviews were con-
ducted by a three-person panel including the FEMA Region
6 Acting Deputy Regional Administrator, who chaired the
panel, and two other Region 6 officials. Id. Based on its
interviews, the panel scored and recommended candidates
for hiring to the Region 6 Regional Administrator, who
acted as the selecting official. Id. at 11–12.
Ms. Trimble was ultimately not selected for the Execu-
tive Assistant position, which was instead offered to an-
other, non-veteran interviewee. Id. at 12. Ms. Trimble
appealed that decision to the Board, arguing her non-selec-
tion violated USERRA, 38 U.S.C. § 4301 et seq., which pro-
hibits, inter alia, discrimination in hiring decisions based
on an applicant’s prior military service. See 38 U.S.C.
§ 4311(a). The Board denied Ms. Trimble’s request for cor-
rective action under USERRA. See Trimble v. Dep’t of
Homeland Sec., No. DA-4324-22-0332-I-1 (M.S.P.B. Oct. 7,
1 Citations to “Appx.” refer to the appendix attached
to the Respondent’s Informal Brief.
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TRIMBLE v. DHS 3
2022) (reproduced at Appx. 10–17). In particular, the
Board found Ms. Trimble failed to demonstrate by a pre-
ponderance of the evidence that her status as a veteran was
a substantial or motivating factor for her non-selection,
Appx. 13–17, a required element of a USERRA claim. Ms.
Trimble timely appealed to this Court.2 We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A).
D ISCUSSION
We must uphold the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). To prove a USERRA violation, the claim-
ant “bears the initial burden of showing by a preponder-
ance of the evidence that his military service was a
substantial or motivating factor in the adverse employ-
ment action.” Erickson v. U.S. Postal Serv., 571 F.3d 1364,
1368 (Fed. Cir. 2009). Whether a veteran’s military service
was a substantial or motivating factor in her non-selection
is a question of fact reviewed for substantial evidence. See
Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013–14 (Fed. Cir.
2001). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a
2 This is not the first appeal in which Ms. Trimble
has alleged a USERRA violation because of her non-selec-
tion for the position of Executive Assistant within a gov-
ernment agency. In Trimble v. Dep’t of Veterans Affs., No.
2023-1307, 2023 WL 4287197 (Fed. Cir. June 30, 2023)
(non-precedential), which involved substantially similar al-
legations, we upheld the Board’s finding that Ms. Trimble
failed to prove her non-selection for an Executive Assistant
position within the Department of Veterans Affairs (VA)
was the result of military service-based discrimination.
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TRIMBLE v. DHS 4
conclusion.” McLaughlin v. Off. of Pers. Mgmt., 353 F.3d
1363, 1369 (Fed. Cir. 2004) (quoting Matsuhita Elec. Indus.
Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984)).
Substantial evidence supports the Board’s finding that
Ms. Trimble failed to carry her initial burden to show her
military service was a substantial or motivating factor in
her non-selection. The Board reviewed the testimony of
Ms. Trimble and each of the interviewing officials and
found no evidence of any animus toward Ms. Trimble be-
cause of her status as a veteran. Appx. 14–16. Ms. Trimble
acknowledged below that the interview panel made no de-
rogatory comments regarding her military service and that
the interview chair—himself a veteran3—described FEMA
as having an inclusive, veteran-friendly culture. Id. at 14.
The Board also credited testimony of all three interviewers
that they held favorable views of veterans in the workplace
and that the interview process was identical for each of the
six candidates. Id. Each interviewer also testified that the
candidate selected for the Executive Assistant position per-
formed better than Ms. Trimble in the interview, providing
detailed answers tied to specific prior experience, whereas
Ms. Trimble’s answers were generally vague and abstract.
Id. at 14–15. The Board found this testimony credibly
demonstrated that Ms. Trimble was not recommended to
the selecting official because of her weaker performance in
the interview, not because of her military service. Id. Fi-
nally, the Board credited the selecting official’s testimony
that he selected the alternative candidate, rather than Ms.
Trimble, without performing additional interviews because
he trusted the panel’s (non-discriminatory) recommenda-
tion. Id. at 15.
3 The interview chair’s status as a veteran is “[a]lso
relevant to showing a lack of discrimination” against Ms.
Trimble because of her military service. Trimble, 2023 WL
4287197, at *2.
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TRIMBLE v. DHS 5
In the face of this evidence, Ms. Trimble principally re-
lies on the fact that she was not selected for the position,
while a non-veteran was, to establish discriminatory in-
tent. See Appellant’s Informal Op. Br. at 2 (“[The selecting
official] denied initial employment to me, and this fact
clearly proves his willingness to disobey veterans’ prefer-
ence laws before appointing a non-veteran . . . .”); Appx. 14
(noting Ms. Trimble’s argument to the Board that FEMA’s
“refusal to consider [her] non-selection . . . is indicative of
animus”). But Ms. Trimble’s non-selection alone is insuffi-
cient to carry her burden to show a USERRA violation.
Sheehan, 240 F.3d at 1015 (“[C]laimants must show evi-
dence of discrimination other than the fact of non-selection
and membership in the protected class.”). To carry her bur-
den, Ms. Trimble was required to put forward evidence
showing her non-selection was motivated by service-based
discrimination. The Board’s finding that Ms. Trimble did
not succeed in that task is supported by substantial evi-
dence.
Ms. Trimble’s allegation that the selecting official vio-
lated USERRA by allegedly ignoring veterans’ preference
laws, including by conducting and crediting candidate in-
terviews, is also misplaced. See Appellant’s Informal Op.
Br. at 2; Appellant’s Informal Reply Br. at 2. While
USERRA prohibits discrimination against veterans on the
basis of their military service, it does not encompass claims
based on the improper denial of the veterans’ preference
except insofar as the denial is evidence of discriminatory
intent.4 See Jones v. Dep’t of Health & Hum. Servs., 834
4 Claims regarding the improper denial of the veter-
ans’ preference are properly raised under the Veterans Em-
ployment Opportunities Act of 1998 (VEOA). Ms. Trimble
has brought a separate action raising VEOA claims based
on her non-selection by FEMA, which is the subject of a
separate case. Trimble v. Dep’t of Health & Hum. Servs.,
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TRIMBLE v. DHS 6
F.3d 1361, 1368 (Fed. Cir. 2016). Ms. Trimble does not ex-
plain how the alleged failure to apply the veterans’ prefer-
ence demonstrates discriminatory intent, beyond resulting
in her non-selection, which is insufficient by itself to sup-
port a USERRA claim. Further, it is undisputed the Exec-
utive Assistant position was announced through FEMA’s
merit promotion process, see Appx. 11, in which a veteran
“is not entitled to veterans’ preference,” Joseph v. F.T.C.,
505 F.3d 1380, 1383 (Fed. Cir. 2007) (citation omitted).
FEMA’s alleged failure to apply the veterans’ preference in
circumstances where it is inapplicable does not support an
inference of bias.
CONCLUSION
We have considered Ms. Trimble’s other arguments
and find them unpersuasive. For the reasons given, we
hold substantial evidence supports the Board’s finding that
Ms. Trimble failed to prove discriminatory intent was a
substantial or motivating factor in her non-selection and
therefore affirm the Board’s denial of corrective action un-
der USERRA.
AFFIRMED
COSTS
No costs.
No. 2023-1279 (Fed. Cir. Sept. 12, 2023). We addressed
substantially similar VEOA claims based on Ms. Trimble’s
non-selection by the VA in Trimble v. Dep’t of Veterans
Affs., No. 2023-1306, 2023 WL 4287195 (Fed. Cir. June 30,
2023) (non-precedential).
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