Corey Stoglin v. Department of Homeland Security ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COREY DEMOND STOGLIN, DOCKET NUMBER
Appellant, CH-3330-17-0105-I-1
v.
DEPARTMENT OF HOMELAND DATE: February 1, 2023
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Corey Demond Stoglin, Minneapolis, Minnesota, pro se.
Douglas Mark Livingston, Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the i nitial decision, which
denied his request for corrective action in connection with his appeal under the
Veterans Employment Opportunities Act (VEOA) and dismissed for lack of
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
jurisdiction his appeal under the Uniformed Services Employment and
Reemployment Rights Act (USERRA).
¶2 For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE that portion of the initial decision addressing the USERRA
appeal, AFFIRM the portions of the initial decision addressing the appellant’s
VEOA, race discrimination, and whistleblower retaliation claims, and REMAND
the case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶3 The appellant is a 30% disabled preference-eligible veteran. Initial Appeal
File (IAF), Tab 4 at 12, 14. On March 28, 2016, the agency issued vacancy
announcement CIS-1659155-EO1 for the position of Equal Employment
Opportunity Manager (Deputy Chief), GS-15, IAF, Tab 6 at 13-15, and the
appellant applied. Subsequently, he was notified that, although he was one of the
referred and considered applicants, another applicant was selected for the
position. Id. at 5.
¶4 On October 12, 2016, the Department of Labor (DOL), Veterans’
Employment and Training Group (VETS), acknowledged receipt of the
appellant’s VEOA complaint. 2 IAF, Tab 1 at 7-8. Unable to resolve the
complaint, DOL VETS advised the appellant on November 15, 2016, of his right
to appeal to the Board, id. at 9, which he did. In claiming that he was denied the
right to compete for the position, the appellant alleged that the agency retaliated
against him because he had another VEOA/USERRA complaint pending before
DOL, 3 the appeal of which was currently before the Board, MSPB Docket
No. CH-3330-16-0616-I-1, that the agency engaged in racial discrimination, and
2
The appellant did not submit a copy of the complaint he filed with DOL.
3
The appellant asserted that his “DOL complaint was originally filed as a USERRA
complaint.” IAF, Tab 4 at 8.
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that the appeal should be treated as a claim that the agency violated the
Whistleblower Protection Act (WPA). IAF, Tab 1 at 5. He requested a hearing .
Id. at 2.
¶5 The administrative judge issued an order on VEOA jurisdiction and notice
of proof requirements in connection with the appellant’s VEOA appeal. IAF,
Tab 3. In his response, the appellant alleged that, in failing to select him for the
position in question, the agency violated his veterans’ preference rights and that it
also denied him the right to compete under 5 U.S.C. § 3304(f)(1). IAF, Tab 4
at 4-7. The appellant reiterated his claim that the agency’s action was in
retaliation for his other pending VEOA/USERRA claim, and he also raised the
possibility that, as to the nonselection, the agency violated his rights under
USERRA by not properly crediting the experience he earned while he was in the
military. Id. at 6. The agency moved that the appeal be dismissed for lack of
jurisdiction. IAF, Tab 6.
¶6 In an initial decision based on the written record, the administrative judge
first addressed the appellant’s claim under VEOA regarding his nonselection,
finding that he did not show that the agency violated a statutory or regulatory
provision related to veterans’ preference, noting that he did not dispute that he
was referred for consideration under the vacancy announcement at issue. IAF,
Tab 7, Initial Decision (ID) at 3-5. The administrative judge further found that,
in the context of his VEOA appeal, the Board lacks authority to review the
appellant’s racial discrimination claim. ID at 5. Regarding the appellant’s claim
of retaliation for having pursued another VEOA/USERRA matter, the
administrative judge stated that he could file a retaliation complaint with the
Office of Special Counsel (OSC). The administrative judge then addressed the
appellant’s claim of retaliation under the WPA, finding that he failed to show that
he exhausted his remedy before OSC. ID at 6. As to the appellant’s USERRA
claim, the administrative judge found that the appellant “failed to make an initial
showing, by preponderant evidence, that his military status was at least a
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motivating or substantial factor in the agency’s decision to select another
candidate for the positon at issue.” The administrative judge denied the
appellant’s request for corrective action under VEOA and dismissed his USERRA
claim. ID at 7.
ANALYSIS
The appellant’s VEOA appeal
¶7 On review, the appellant does not specifically challenge the administrative
judge’s decision denying him corrective action under VEOA. Petition for Review
(PFR) File, Tab 1 at 3-5. We discern no error in that regard. The agency
advertised the position in question by a vacancy announcement, which indicated
that it was open to the following classes of persons: “Current or Former
Employees with Competitive Status; Reinstatement Eligibles; OPM Interchange
Agreement Eligibles; VEOA, Disability, Surplus/Displaced Eligibles.” IAF,
Tab 6 at 27. The appellant was found qualified for the position and his
application was referred to the hiring official under the Schedule A (30% disabled
veteran) hiring authority. Id. at 18, 22. Because the agency exercised its
discretion to fill the vacancy under the merit promotion process, the ranking and
selection rules that apply to the competitive-examination process, including
veterans’ preference, do not apply. Joseph v. Federal Trade Commission,
505 F.3d 1380, 1382 (Fed. Cir. 2007); Perkins v. U.S. Postal Service,
100 M.S.P.R. 48, ¶ 9 (2005). Moreover, although a preference eligible is entitled
to have a broad range of experience considered by the agency in reviewing his or
her application for a position, how the agency adjudges and weig hs those
experiences is beyond the Board’s purview. See, e.g., Asatov v. Agency for
International Development, 119 M.S.P.R. 692, ¶ 7 (2013) (stating that the matter
at issue in a VEOA appeal is not whether a particular agency action is proper and
should be sustained), overruled on other grounds by Dean v. Department of
Labor, 122 M.S.P.R. 276, aff’d in part, rev’d in part, 808 F.3d 497 (Fed. Cir.
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2015). The appellant has not established that his nonselection violated his rights
under a statute or regulation relating to veterans’ preference, 5 U.S.C.
§ 3330a(a)(1)(A), and, to the extent he claims that there were irregularities in the
selection process, such claims do not compel a contrary result.
¶8 Nor has the appellant shown that he was denied the right to compete under
that part of the VEOA statute. 5 U.S.C. §§ 3330a(A)(1)(B), 3304(f)(1). He
applied for the position, and his application was referred noncompetitively to the
hiring authority for consideration. Nothing more is required. Scharein v.
Department of the Army, 91 M.S.P.R. 329, ¶¶ 9-10 (2002) (emphasizing that
VEOA does not guarantee a preference eligible a positon of employment), aff’d,
No. 02-3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008). While the appellant
questions whether his application was actually forwarded to the hiring official,
PFR File, Tab 5 at 3, he has submitted no evidence in support of his claim, and
evidence submitted by the agency supports the administrative judge’s contrary
finding, IAF, Tab 6 at 18, 22. Even though the appellant in this case was not
selected, we agree with the administrative judge that he was not denied the right
to compete under VEOA. 4 Joseph, 505 F.3d at 1383-84.
¶9 The appellant argues on review that he was denied a hearing. PFR File,
Tab 1 at 3. He has not, however, shown error in the administrative judge’s
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The appellant suggests on review that he has evidence that shows that the documents
submitted by the agency may have been altered or created after the start of the appeal.
He also states that he was, and is still, waiting for information to be verified that may
show that the agency has submitted false evidence. PFR File, Tab 5 at 3. However, he
has not submitted any additional evidence that is new and material, despite the fact that
the Acting Clerk of the Board granted him an extension of time in which to submit a
single supplement to the reply to the agency’s response to his petition for review. PFR
File, Tabs 6-7. The emails the appellant submitted on review, PFR File, Tab 5 at 4 -5, 8,
are not new. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (holding that
the Board generally will not consider evidence submitted for the first time with the
petition for review absent a showing that it was unavailable before the reco rd was
closed despite the party’s due diligence). Further, to the extent the appellant argues
that “the record [below] was abruptly closed without notice,” PFR File, Tab 1 at 4, his
claim is not borne out by an examination of the record, IAF, Tab 2 at 6, Tab 3 at 7.
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finding that none was required because there is no genuine dispute of material
fact in this VEOA appeal and one party, here, the agency, must prevail as a matter
of law. Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 12 (2007); ID at 2
n.1.
The appellant’s USERRA appeal
¶10 To establish jurisdiction under 38 U.S.C. § 4311(a), an appellant must
allege that: (1) he performed duty or has an obligation to perform duty in a
unformed service of the United States; (2) the agency denied h is initial
employment, reemployment, retention, promotion, or any benefit of employment;
and (3) the denial was due to the performance of duty or obligation to perform
duty in the unformed service. Williams v. Department of the Treasury,
110 M.S.P.R. 191, ¶ 8 (2008). Despite language in the initial decision that
appears to suggest that the administrative judge adjudicated this claim on the
merits, he concluded that the Board lacks jurisdiction to address it and he
dismissed it. ID at 9. Although we acknowledge th at USERRA claims should be
broadly construed, Williams, 110 M.S.P.R. 191, ¶ 8, we nonetheless conclude that
the administrative judge’s jurisdictional finding regarding 38 U.S.C. § 4311(a) is
correct.
¶11 The appellant’s claim of discrimination is based solely on the fact that his
relevant experience for the position in question was derived from his time in the
military, and he assumes that the hiring official would have been aware that this
was the case. IAF, Tab 4 at 8. Notwithstanding, the appellant’s bare assertion
that the hiring official did not select him for the posit ion due to his military
service does not rise to the level of a nonfrivolous allegation. Under the
circumstances, we agree with the administrative judge’s ultimate disposition
dismissing the appellant’s USERRA appeal under 38 U.S.C. § 4311(a) for lack of
jurisdiction. Absent a nonfrivolous allegation of Board jurisdiction under
38 U.S.C. § 4311(a) of the USERRA statute, the appellant was not entitled to a
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hearing in connection with that provision. Downs v. Department of Veterans
Affairs, 110 M.S.P.R. 139, ¶¶ 17-18 (2008).
¶12 However, there is another provision of USERRA, section 4311(b), which
provides that an employer may not retaliate against an individual for pursuing or
assisting another individual in pursuing his USERRA rights. The appellant
argues on review that, in connection with his USERRA appeal, he raised a claim
of retaliation below, PFR File, Tab 1 at 4-5, alleging that, when he was under
consideration for the GS-15 position, he had a pending complaint with DOL
alleging a USERRA violation regarding his nonselection for a GS-14 position,
IAF, Tab 1 at 7.
¶13 According to 38 U.S.C. § 4311(b):
An employer may not discriminate in employment against or take
any adverse employment action against any person because such
person (1) has taken an action to enforce a protection afforde d any
person under this chapter, (2) has testified or otherwise made a
statement in or in connection with any proceeding under this chapter,
(3) has assisted or otherwise participated in an investigation under
this chapter, or (4) has exercised a right provided for in this chapter.
38 U.S.C. § 4311(b). If an appellant engages in one or more forms of the
protected activity described above, an agency violates section 4311(b) if the
appellant’s protected activity “is a motivating factor in the employer’s action,
unless the employer can prove that the action would have been taken in the
absence of such person’s [protected activity].” 38 U.S.C. § 4311(c)(2). In other
words, an agency violates section 4311(b) if it would not have taken the action
but for the appellant’s protected activity. Burroughs v. Department of the Army,
120 M.S.P.R. 392, ¶ 7 (2013). To establish jurisdiction under section 4311(b), as
under section 4311(a), the appellant must raise nonfrivolous allegations in
support of his claim.
¶14 The Board has held that an administrative judge must inform an appellant of
the USERRA burdens and methods of proof in a USERRA appeal. Haynes v.
U.S. Postal Service, 89 M.S.P.R. 9, ¶ 7 (2001). Although the appellant raised this
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argument below, IAF, Tab 1 at 5, the administrative judge failed to issue an order
setting forth, first, the requirements for establishing jurisdiction, and, then, the
requirements for establishing a claim, under section 4311(b) of USERRA. To the
extent that the agency, in attempting to challenge the appellant’s claim, addressed
the USERRA statute, its discussion was incomplete and did not serve to put the
appellant on notice of the statutory requirements. IAF, Tab 6 at 8; cf. Nichols v.
Department of the Interior, 69 M.S.P.R. 386, 388-89 (1996) (holding that an
appeal need not be remanded to address a jurisdictional issue whe n an agency’s
motion to dismiss provides the appellant with notice that was lacking in the
acknowledgment order). Because the appellant has not been afforded proper
notice, a remand is required. Haynes, 89 M.S.P.R. 9, ¶¶ 7-8.
ORDER
¶15 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall inform the appellant of the burdens and elements of
proof in a USERRA retaliation claim brought under 38 U.S.C. § 4311(b). After
affording such notice, the administrative judge shall allow for further
development of the record. If he determines that the appellant has established
Board jurisdiction over this claim, the administrative judge shall convene a
hearing. Downs, 110 M.S.P.R. 139, ¶ 17. In his remand initial decision, the
administrative judge may adopt his prior findings concerning the ap pellant’s
VEOA appeal, his claim under section 4311(a) of USERRA, his claim of race
discrimination, and his whistleblower claim under the WPA.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.