John Paul Jones, III v. Department of Veterans Affairs ( 2015 )


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  •                           UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    JOHN PAUL JONES, III,                           DOCKET NUMBER
    Appellant,                         DE-3330-14-0364-I-1
    v.
    DEPARTMENT OF VETERANS                          DATE: April 13, 2015
    AFFAIRS,
    Agency.
    THIS FINAL ORDER IS NO NPRECEDENTIAL 1
    John Paul Jones, III, Albuquerque, New Mexico, pro se.
    Jeffrey James Hatch, Roanoke, Virginia, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1        The appellant has filed a petition for review of the initial decision, which
    denied the appellant’s request for corrective action under Veterans Employment
    Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
    one only when: the initial decision contains erroneous findings of material fact;
    1
    A nonprecedential order is one that the Board has determined does not add
    sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
    but such orders have no precedential value; the Board and administrative judges are not
    required to follow or distinguish them in any future decisions. In contrast, a
    precedential decision issued as an Opinion and Order has been identified by the Board
    as significantly contributing to the Board’s case law. See 
    5 C.F.R. § 1201.117
    (c).
    2
    the initial decision is based on an erroneous interpretation of statute or regulation
    or the erroneous application of the law to the facts of the case; the judge’s rulings
    during either the course of the appeal or the initial decision were not consistent
    with required procedures or involved an abuse of discretion, and the resulting
    error affected the outcome of the case; or new and material evidence or legal
    argument is available that, despite the petitioner’s due diligence, was not
    available when the record closed. See Title 5 of the Code of Federal Regulations,
    section 1201.115 (
    5 C.F.R. § 1201.115
    ). After fully considering the filings in this
    appeal, and based on the following points and authorities, we conclude that the
    petitioner has not established any basis under section 1201.115 for granting the
    petition for review. Therefore, we DENY the petition for review and AFFIRM
    the initial decision, which is now the Board’s final decision.              
    5 C.F.R. § 1201.113
    (b).
    ¶2        The following facts are undisputed unless otherwise noted. The appellant, a
    5-point preference-eligible veteran, applied for a GS-14 Administration Officer
    position under Vacancy Announcement PG-14-DBA-1094170-ORD and the
    agency found him ineligible for the position. Initial Appeal File (IAF), Tab 26
    at 10, Tab 4 at 8, 17. After exhausting his administrative remedies before the
    Department of Labor (DOL), the appellant filed a timely appeal with the Board
    alleging that the agency “used overly selective criteria . . . to deny highly
    qualified veterans their rights under VEOA,” and he requested a hearing on his
    appeal. Tab 1 at 2-5, 8. The agency filed a response stating that the appellant
    lacked the specialized experience required for the position, and that the agency
    did not violate his rights under VEOA. IAF, Tab 4 at 6. The agency asked the
    Board to adjudicate the appeal without holding a hearing and submitted various
    documents, including a copy of the job announcement and the letter informing the
    appellant that the agency adjudicated his TP veterans’ preference but found that
    he was ineligible because his application did not show that he had the specialized
    experience needed for the position. 
    Id. at 8-17
    . The agency also submitted the
    3
    redacted list ranking the job applicants, which included the explanatory notes of
    the human resources specialist who reviewed their applications and determined if
    they were qualified. IAF, Tab 26.
    ¶3         The administrative judge found that the Board had jurisdiction over the
    appeal pursuant to 5 U.S.C. § 3330a and “that within the ambit of issues raised
    with DOL is the appellant’s allegation that the agency failed to properly credit his
    experience in violation of 
    5 U.S.C. § 3311
    .” 2 IAF, Tab 36, Initial Decision (ID)
    at 4, Tab 19 at 3. The administrative judge further found that the Board lacked
    jurisdiction over the other claims raised on appeal by the appellant because he did
    not exhaust those claims at DOL. 3 ID at 4, 7. The administrative judge also
    ordered the appellant to provide evidence and argument to show the existence of a
    genuine dispute of material fact that warranted a hearing. IAF, Tab 27 at 1-2.
    ¶4         In response to the order, the appellant asked the Board to sanction the
    agency’s representative for calling him a “goat herder.”             IAF, Tab 28.      In
    addition, the appellant provided background information about his prior VEOA
    appeals against a different agency and disputed the finding that the agency herein
    did not violate his rights under VEOA. IAF, Tab 31. The appellant also disputed
    the determination of a Management and Program Analyst from the agency’s
    Office of Research and Development, which conducted an additional review of
    2
    The DOL file closure letter stated that the appellant alleged “that the VA was not
    properly considering [his] veterans’ preference” and “claim[ed] they are not properly
    considering [his] veterans’ preference due to their determination that [he] do[es] not
    meet the specialized experience statement as listed in the job announcement.” IAF,
    Tab 1 at 8. The appellant did not provide a copy of his DOL complaint in his response
    to the administrative judge’s order on VEOA jurisdiction and notice of proof
    requirements. IAF, Tabs 10, 16-17.
    3
    Specifically, the administrative judge found that the appellant failed to exhaust his
    claim that the agency failed to maintain a system that fairly tests the relative capacity
    and fitness of the applicants in violation of 
    5 U.S.C. § 3304
    (a)(1), and his claims of age
    discrimination and prohibited personnel practices in vio lation of 
    5 U.S.C. § 2302
    (b)(6).
    ID at 4, 7; IAF, Tab 19 at 2-3.
    4
    his qualifications and found that he lacked the research experience required for
    the position. IAF, Tab 31 at 9; see IAF, Tab 22 at 8-9.
    ¶5         The administrative judge issued an order finding no dispute of material fact
    and allowed the parties an additional opportunity to supplement the record before
    it closed. IAF, Tab 32. The appellant responded by stating that he disputed the
    “the claims of [the agency’s representative] that he is a ‘goat herder’ and a
    ‘garbage collector’ and that such a dispute is both genuine and material to the
    outcome of the case.” IAF, Tab 33 at 5. The appellant also asked the Board to
    certify an interlocutory appeal to obtain a ruling against the agency’s
    representative for his “abusive misconduct.” IAF, Tab 34 at 4. The appellant
    stated that he submitted “a massive amount of evidence that irrefutably proves
    systemic wrong-doing at the Department of Health and Human Services,” which
    is not the agency in this appeal. IAF, Tab 35 at 4 (emphasis in the original). The
    appellant also argued that there is “probable cause” for the agency to hold a
    hearing to examine the merits of the agency’s action, and he disputed that he
    lacked the 1-year of specialized experience required for the position. 
    Id.
    ¶6         Based on the written record, the administrative judge found that the agency
    prevailed as a matter of law and did not violate any of the appellant’s statutory or
    regulatory veterans’ preference rights.     ID at 7.    In reaching his decision, the
    administrative judge found that the appellant did not dispute that the agency’s
    human resources specialist reviewed his resume in determining that he lacked
    “the specialized experience” for the position and finding him ineligible. ID at 6. 4
    The administrative judge also found that the appellant did not allege that the
    agency “omitted, overlooked, or excluded” any of the information in his 30-page
    resume in determining that he was not qualified for the position. ID at 6. The
    4
    The vacancy announcement at issue specified such specialized experience as
    including, inter alia, “developing research policies/procedures and preparing a range of
    documents . . .” and “ensuring compliance with program requirements involving human
    subjects research.” IAF, Tab 4 at 9.
    5
    administrative judge further found that the appellant’s belief that the agency used
    overly selective criteria did not constitute a violation of his veterans’ preference
    rights and that the Board has no authority to review the merits of the agency’s
    action. ID at 6-7.
    ¶7        The appellant filed a petition for review reasserting his argument that the
    administrative judge improperly denied his right to a hearing and that the Board
    should review the merits of the agency’s action. Petition for Review (PFR) File,
    Tab 1 at 13-14. The appellant also asks the Board to recommend the removal of
    the agency’s representative for “his reckless, provocative, and shameful
    misconduct.” 
    Id. at 14
    . The appellant also states that the administrative judge’s
    failure to address his complaints against the agency’s representative is the
    “central dispositive issue in this appeal.”   
    Id. at 6
    .   The agency responded in
    opposition to the appellant’s petition for review, and the appellant replied to the
    agency’s response. PFR File, Tabs 2-3.
    ¶8        To be entitled to relief under VEOA, the appellant must prove by
    preponderant evidence that the agency’s selection violated one or more of his
    statutory or regulatory veterans’ preference rights.       Dale v. Department of
    Veterans Affairs, 
    102 M.S.P.R. 646
    , ¶ 10 (2006) (citation omitted). Contrary to
    the appellant’s arguments on review, VEOA does not guaranteed the preference
    eligible appellant a position; the statute only affords him the right to compete for
    the position. See Abell v. Department of the Navy, 
    92 M.S.P.R. 397
    , 400-401
    (2002), aff’d, 
    343 F.3d 1378
     (Fed. Cir. 2003). The Board may decide a VEOA
    claim on the merits without a hearing when there is no genuine issue of material
    fact and one party must prevail as a matter of law.        Davis v. Department of
    Defense, 
    105 M.S.P.R. 604
    , ¶ 12 (2007). A factual dispute is “material” if, in
    light of the governing law, its resolution could affect the outcome. Redd v. U.S.
    Postal Service, 
    101 M.S.P.R. 182
    , ¶ 14 (2006). A factual dispute is “genuine”
    when there is sufficient evidence favoring the party seeking an evidentiary
    6
    hearing for the administrative judge to rule in favor of that party should that
    party’s evidence be credited. 
    Id.
    ¶9         Preference-eligible veterans applying for federal employment have the right
    “to credit for all experience material to the position for which examined,
    including   experience    gained    in   religious,   civic   welfare,    service,    and
    organizational   activities,   regardless    of   whether”     such      experience    is
    unpaid. 
    5 U.S.C. § 3311
    (2); see 
    5 C.F.R. § 302.302
    (d); see also Miller v. Federal
    Deposit Insurance Corporation, 
    121 M.S.P.R. 88
    , ¶ 7 (2014).                 Although a
    preference eligible is entitled to have a broad range of experiences considered by
    the agency in reviewing his application for a position, how the agency adjudges
    and weighs those experiences is beyond the purview of the Board’s review in a
    VEOA appeal. Miller, 
    121 M.S.P.R. 88
    , ¶ 9. Pursuant to 
    5 U.S.C. § 3311
    (2)
    and 
    5 C.F.R. § 302.302
    (d), the Board is limited to assessing whether an agency
    considered all of an appellant’s “valuable experience” material to the position for
    which the appellant has applied. This assessment does not include a review of the
    weight the agency gave to a preference eligible’s prior experiences in determining
    that he was not qualified for a position of employment. 
    Id.
    ¶10        Although the appellant asks the Board to review the merits of the agency’s
    determination that he lacked the 1-year of specialized experience required for the
    Administrative Officer position, VEOA does not empower the Board to reevaluate
    the merits of an agency’s ultimate determination that a preference-eligible veteran
    is not qualified for a position with the agency. PFR File, Tab 1 at 10-13; see
    Miller, 
    121 M.S.P.R. 88
    , ¶ 12. The agency submitted undisputed proof that the
    agency’s human resources specialist reviewed the appellant’s application and
    determined that he was ineligible because she was unable to find any job duties or
    experiences in his 30-page resume that supported his statement that he had the
    7
    required specialized experience. 5 ID at 6; IAF, Tab 26 at 10.         Moreover, the
    appellant has failed to identify any valuable experience in his resume that is
    material to the Administrative Officer position that the agency’s human resources
    specialist failed to consider in reviewing his application and making the ultimate
    determination that he was ineligible. ID at 6; see Miller, 
    121 M.S.P.R. 88
    , ¶ 9.
    An agency is not required to hire a preference-eligible veteran, if, as was the case
    here, the agency does not believe that the candidate is qualified or possesses the
    necessary experience. See Abell, 
    343 F.3d at 1384
    . We find that the appellant
    had a full and fair opportunity to develop the record and to dispute the agency’s
    evidence on the dispositive issues in his responses to the administrative judge’s
    orders, and he failed to identify a genuine dispute of material fact that would
    warrant a hearing.
    ¶11        The appellant further argues that the administrative judge failed to respond
    decisively to the appellant’s complaints that the agency representative used the
    racial slur “goat herder” and “garbage collector” in reference to the appellant’s
    work experiences.     PFR File, Tab 1 at 6-7, 13.        In the initial decision, the
    administrative judge specifically addressed the “goat herding” comment made by
    the agency’s representative and described the comment as an “offensive
    mischaracterization” of the appellant’s work experience in Riyadh. ID at 7 n.4.
    Although the administrative judge denied the appellant’s request for an
    interlocutory appeal to obtain a ruling against the agency’s representative, and he
    failed to specifically address the “garbage collector” comment in the initial
    decision, the appellant has not shown that the administrative judge’s comments or
    5
    The appellant argues on review that the administrative judge overlooked that he
    disputed an evaluation of his qualifications prepared by the agency’s Management and
    Program Analyst, after he filed his appeal, in response to his request for an internal
    reconsideration decision. PFR File, Tab 1 at 8; ID at 6 n.3. Because the administrative
    judge found that the analyst’s evaluation was “immaterial to the actions over which the
    Board has jurisdiction,” the Board need not consider the appellant’s argument disputing
    the analyst’s evaluation on review. ID at 6 n.3.
    8
    actions evidenced “a deep-seated favoritism or antagonism that would make fair
    judgment impossible.” ID at 2; see Bieber v. Department of the Army, 
    287 F.3d 1358
    , 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 
    510 U.S. 540
    ,
    555 (1994)).
    ¶12        Moreover, contrary to the appellant’s additional arguments on review, we
    find that the “egregious misconduct” of the agency’s representative does not
    constitute preponderant evidence that the agency violated the appellant’s statutory
    or regulatory veterans’ preference rights in the selection process. PFR File, Tab 1
    at 13; see Graves v. Department of Veterans Affairs, 
    114 M.S.P.R. 209
    , ¶ 10
    (2010).   The appellant’s remaining arguments on review present no basis for
    disturbing the initial decision denying his request for corrective action under
    VEOA. PFR File, Tabs 1, 3. We agree with the administrative judge’s finding
    that there is no dispute of material fact and that the appellant is not entitled to
    relief as a matter of law. ID at 1, 7. We therefore deny the appellant’s petition
    for review.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    You have the right to request review of this final decision by the United
    States Court of Appeals for the Federal Circuit. You must submit your request to
    the court at the following address:
    United States Court of Appeals
    for the Federal Circuit
    717 Madison Place, N.W.
    Washington, DC 20439
    The court must receive your request for review no later than 60 calendar
    days after the date of this order. See 
    5 U.S.C. § 7703
    (b)(1)(A) (as rev. eff. Dec.
    27, 2012). If you choose to file, be very careful to file on time. The court has
    held that normally it does not have the authority to waive this statutory deadline
    9
    and that filings that do not comply with the deadline must be dismissed. See
    Pinat v. Office of Personnel Management, 
    931 F.2d 1544
     (Fed. Cir. 1991).
    If you need further information about your right to appeal this decision to
    court, you should refer to the federal law that gives you this right. It is found in
    Title 5 of the United States Code, section 7703 (
    5 U.S.C. § 7703
    ) (as rev. eff.
    Dec. 27, 2012). You may read this law as well as other sections of the United
    States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
    Additional information is available at the court's website, www.cafc.uscourts.gov.
    Of particular relevance is the court’s “Guide for Pro Se Petitioners and
    Appellants,” which is contained within the court's Rules of Practice, and Forms 5,
    6, and 11.
    If you are interested in securing pro bono representation for your court
    appeal, you may visit our website at http://www.mspb.gov/probono for a list of
    attorneys who have expressed interest in providing pro bono representation for
    Merit Systems Protection Board appellants before the court. The Merit Systems
    Protection Board neither endorses the services provided by any attorney nor
    warrants that any attorney will accept representation in a given case.
    FOR THE BOARD:                            ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.