“A Hard-Working Man Who Served His Country Honorably”

The Navy was accused by one of its own of violating his rights in filling a promotion vacancy. See how the appeals court has ruled on his complaint.

This significant decision is Beck v. U.S. Navy (USCAFC No. 2019-1205, 5/14/2021). When an appeals court decision starts out with this sentence, it is pretty obvious who won this case: “This appeal marks the decade-long journey of a hard-working man who served his country honorably, only to face workforce discrimination on the basis of that service.” 

Mr. Beck’s decade-long journey began when he lost out on a promotion for a civil service position in the Navy organization where he was working as a civil service employee, having retired from active duty after 21 years honorable service with the U.S. Navy. Over those 21 years, Beck (a high school graduate) rose from junior sailor up to a non-commissioned officer status as Chief Petty Officer (CPO). He began his career as a cook. He eventually was hand-picked by the Chief of Naval Operations (CNO) as his lead In-Flight Logistics Coordinator and Personal Chef. He was in charge of all events at the CNO’s residence, coordinated with congressional representatives, handled diplomatic protocols, and so on. He then moved to the position of CPO for the Defense Logistics Agency in direct support of that Agency’s Director. Meanwhile, Mr. Beck, working in his off time, earned his bachelor’s degree in business, Magna Cum Laude, and his Master’s Degree in Human Resource Management and Development with honors.  (Opinion pp. 3-5)

When he retired, Mr. Beck joined the Navy as a GS-13 Special Events Planning Officer in the Office of Director, Navy Staff. He organized and coordinated events involving senior executives, Navy flag officers, heads of state, and other distinguished and important officials. He applied for Deputy Protocol Officer and was selected. While in transition to that job his duties overlapped those of his previous position, including extensively training his replacement. (Ms. Wible) 

Eventually the brass decided to create a new and better position that Ms. Wible apparently believed was being created for her. She asked Mr. Beck for a copy of his resume so she could better put together her application for the new position. When it was announced, only two people applied, Ms. Wible and Mr. Beck. The first certification of candidates contained only Ms. Wible’s name. When Mr. Beck asked Human Resources why he was not on the list, they rescinded the certification as having been issued in error and submitted a new one with both names on it. Mr. Beck was listed as “Best Qualified,” and Ms. Wible as “Qualified.” (Pp. 6-8)

The designated selection official for the vacancy was Captain Payton. Mr. Beck and Payton had a history, including an incident where Payton was seemingly disturbed when he found out that Beck had started out in the Navy as a cook, and only attained the rank of CPO before his retirement. When the two first met, Payton was enthusiastic that they had served in the same unit; however when he found out Beck had been a cook, “the conversation turned sour.” (P. 9) When Beck discerned Payton’s dismay that Beck had been a cook in Payton’s old unit, Beck tried to salvage the discussion by pointing out he had retired as a CPO. Payton’s reaction was “chief…I can’t believe it…. [H]ow does a retired chief petty officer become the protocol officer to the [CNO]?” (P. 9) While Payton later testified that he could not remember this discussion, Mr. Beck remembered it quite well.

When Payton ended up selecting Ms. Wible for the promotion, Mr. Beck approached HR and complained that Payton had not even interviewed Beck for the position and that he harbored animus toward Mr. Beck. He filed a complaint, Payton waged a campaign to undermine Beck, Beck eventually realized his work prospects were dim, and he resigned to take a lower paying position with the U.S. Army in Germany. As the court noted, “And just as Beck’s career prospects at OPNAV ended, a protracted litigation journey had begun.” (P. 11)

Eventually Beck’s USERRA discrimination claim made its way to the Merit Systems Protection Board (MSPB). After years of delay by the MSPB, the AJ found that Beck’s military service was a motivating factor in his non-selection for the promotion, and that Payton had animosity toward Beck. As the AJ wrote, “[i]t is unusually clear that [Beck] had greater objective qualifications…[as] confirmed when the [Navy] listed [Beck] as the best qualified [candidate]—more qualified than Wible—on the certification form.” (P. 13)

In order to defeat the USERRA discrimination complaint, the Navy had to prove that it would have hired Wible notwithstanding Beck’s military record. The AJ made a “summary” finding that the Navy was “determined to select Wible…” and therefore it really didn’t matter who else had applied for the job. In other words, the Navy had preselected her, which in the AJ’s view amounted to the agency having met its burden to show that Beck’s military record did not matter. (P. 14)

The federal appeals court has now shredded Navy’s position and the MSPB’s decision to uphold that decision. First of all, the court rejects Navy’s contention that Wible was more qualified thus giving the Navy a legitimate reason to select her in spite of the USERRA discrimination against Beck, agreeing with the AJ that it was clear that Beck was the best qualified candidate. Next up is the preselection question. Can that be offered as a defensible reason to pick Wible over Beck? Throughout the case, the Navy waffled on whether there had been preselection. However, the agency leaped on the theory when the AJ used it as a justification to pick Wible over Beck. But the court is having none of this since Beck was not allowed to pursue this issue by the Board. The AJ refused to allow Beck to call witnesses. Hence the court finds that the AJ’s conclusion on preselection is not supported by the evidence. (P. 24)

At this point the court declines to remand the case, stating that “this case is not ordinary. It has lingered in legal limbo for well over a decade and has been marked by countless delays and discovery errors, none of which can be attributed to Beck.” (P.25) 

The court goes on to hold that “preselection is a category of personnel practices that can give rise to a USERRA claim when, as here, the plaintiff has established that the preselection was coupled to unlawful discrimination based on an individual’s current or past military service.” (P. 26)

The Navy asked the court to hold that USERRA does not prohibit discrimination toward a person’s military rank or status. The court simply refuses to make such a distinction: “An individual’s commitment and obligation to…cook meals for fellow service members… ought not to diminish the significant contributions of that person’s service in the armed forces.” (P. 33) This is a significant holding—USERRA discrimination includes that based on rank or service.

In ordering the MSPB to correct the wrong Beck experienced, the court states, “Beck has endured a decade of delayed justice. We cannot correct every wrong in society; but we remedy this wrong today.” (P. 33). In short, Mr. Beck won big, including the court’s order that the government pay his costs for this litigation.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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