Edward Glospie v. Department of Homeland Security ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWARD GLOSPIE, DOCKET NUMBER
Appellant, NY-3443-16-0121-I-1
v.
DEPARTMENT OF HOMELAND DATE: July 28, 2016
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Edward Glospie, North Arlington, New Jersey, pro se.
Lisa Lucas Kepple, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
DENY the petition for review concerning the appellant’s Veterans Employment
Opportunities Act of 1998 (VEOA) claim and AFFIRM the initial decision’s
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
dismissal of that claim for lack of jurisdiction. We GRANT the petition for
review under 5 C.F.R. § 1201.115 concerning the appellant’s employment
practices claim and REMAND it for adjudication in accordance with this Order.
¶2 The agency advertised for a number of GS-1811-07/09 Criminal
Investigator positions at various geographic locations under vacancy
announcement DAL-INV-1466102-DEU-TY. Initial Appeal File (IAF), Tab 8
at 12-17. The announcement was open to all U.S. citizens. Id. at 12. The
appellant, a 5-point preference-eligible veteran, applied for the vacancy by
completing the Occupational Questionnaire, id. at 20-43, and submitting
appropriate documentation. He was subsequently notified that he had received a
rating of 92 at the GS-7 level, less than the 95 needed, and that he lacked the
minimum education and/or experience at the GS-9 level. Id. at 18.
¶3 The appellant filed a Board appeal in which he alleged that the agency
failed to apply his veterans’ preference. IAF, Tab 1 at 3, 5. He also alleged that
the agency “illegally utilized an OPM hiring practice . . . .” Id. at 5. After
acknowledging the appeal, IAF, Tab 2, the administrative judge issued an order
explaining the limited bases under which the Board may consider an appeal of a
nonselection, including when the applicant claims that the agency’s decision
violated his veterans’ preference rights. IAF, Tab 4. In a subsequent order, the
administrative judge informed the appellant of what is required to establish Board
jurisdiction over a VEOA appeal, including, among other things, a showing that
he exhausted his administrative remedy before the Department of Labor (DOL).
IAF, Tab 5. In response, the appellant submitted proof of his military service,
IAF, Tab 7 at 8, and he referred to the agency’s questionnaire, describing it as
“prejudicial,” id. at 5. The appellant also moved to amend the proceedings to
name the Office of Personnel Management (OPM) as a party, id. at 15-16,
submitting a “complaint” naming both the agency and OPM as parties and
claiming that OPM developed and implemented regulations pertaining to the
competitive service hiring procedures that prejudice and discriminate against
3
veterans as to the assessment of their knowledge, skills, and abilities. Id. at 30.
The agency moved for the dismissal of the appellant’s VEOA appeal for lack of
jurisdiction on the basis that he had failed to exhaust his remedy before DOL.
IAF, Tab 8. In response, the appellant repeated, inter alia, that he was
challenging the questionnaire as prejudicing preference eligibles, and he pointed
out that he had named OPM as a party. IAF, Tab 9.
¶4 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction. IAF, Tab 10, Initial Decision (ID) at 1, 4. She found that,
although directed to do so, the appellant failed to establish that he had exhausted
his remedy before DOL. ID at 3‑4.
¶5 On petition for review, the appellant again claims that the agency’s
questionnaire discriminates against veterans and that the agency developed the
process, in conjunction with OPM’s authority, over the competitive hiring
process. Petition for Review (PFR) File, Tab 1 at 5-6. In response, the agency
argues that the petition for review provides no basis to disturb the initial decision.
PFR File, Tab 3 at 7.
¶6 To establish jurisdiction over a VEOA appeal, an appellant must, among
other things, prove that he exhausted his administrative remedy before DOL.
Downs v. Department of Veterans Affairs, 110 M.S.P.R. 139, ¶ 7 (2008). The
appellant has not challenged the administrative judge’s finding that he failed to
prove exhaustion. Accordingly, we agree that his VEOA appeal was properly
dismissed for lack of jurisdiction. 2
¶7 As noted, however, the appellant argued below that the agency’s
questionnaire did not fairly assess his prior experience because it was not
experience in the Federal Government but rather military experience, and that
2
The appellant is not precluded from filing a new Board appeal on his VEOA claim if
he cures the jurisdictional defect underlying the dismissal of the instant appeal by
submitting evidence in his new appeal showing that exhaustion has now been
completed. See Brown v. Department of the Navy, 102 M.S.P.R. 377, ¶ 14 (2006).
4
OPM, as the agency charged with overseeing the Federal hiring process, failed to
monitor the agency’s action, to the appellant’s detriment. IAF, Tabs 1, 7, 9. We
construe the appellant’s claim as an employment practices appeal, challenging the
manner in which the vacancy announcement measures applicants’ experience.
See Jordan v. Office of Personnel Management, 108 M.S.P.R. 119, ¶ 19 (2008)
(explaining that the Board construes pro se pleadings liberally).
¶8 An applicant for employment who believes that an employment practice
applied to him by OPM violates a basic requirement in 5 C.F.R. § 300.103 is
entitled to appeal to the Board. 5 C.F.R. § 300.104(a). The Board has
jurisdiction under 5 C.F.R. § 300.104(a) when two conditions are met: first, the
appeal must concern an employment practice that OPM is involved in
administering; and second, the appellant must make a nonfrivolous allegation that
the employment practice violated one of the “basic requirements” for employment
practices set forth in 5 C.F.R. § 300.103. Meeker v. Merit Systems Protection
Board, 319 F.3d 1368, 1373 (Fed. Cir. 2003); Mapstone v. Department of the
Interior, 110 M.S.P.R. 122, ¶ 7 (2008).
¶9 The term “employment practices,” which includes the development and use
of examinations, qualifications, standards, tests, and other measurement
instruments, 5 C.F.R. § 300.101, is to be construed broadly. Dowd v. United
States, 713 F.2d 720, 723-24 (Fed. Cir. 1983). Although an individual agency
action or decision that is not a rule or practice of some kind does not qualify as an
employment practice, an agency’s misapplication of a valid OPM requirement
may constitute an employment practice. Prewitt v. Merit Systems Protection
Board, 133 F.3d 885, 887 (Fed. Cir. 1998).
¶10 As stated previously, the second jurisdictional prong is a nonfrivolous
allegation that the employment practice violated a basic requirement for
employment practices set forth in 5 C.F.R. § 300.103. That regulation requires
that employment practices be based on a “job analysis to identify: (1) The basic
duties and responsibilities; (2) The knowledges, skills, and abilities required to
5
perform the duties and responsibilities; and (3) The factors that are important in
evaluating candidates.” 5 C.F.R. § 300.103(a). There also must be a “rational
relationship between performance in the position to be filled . . . and the
employment practice used.” 5 C.F.R. § 300.103(b)(1). And, an employment
practice must not discriminate on the basis of, inter alia, any nonmerit‑based
factor. 5 C.F.R. § 300.103(c).
¶11 In seeking to include OPM as a party to this action, the appellant asserted
that OPM oversees the competitive hiring practice, suggesting that other agencies
who advertise for Criminal Investigators also measure applicants’ experience in a
way that prejudices veterans. IAF, Tab 1 at 5, Tab 7. As such, the appellant has
alleged, but not established, OPM involvement in the agency’s hiring practice
that arguably violates one of the “basic requirements” set forth at 5 C.F.R.
§ 300.103.
¶12 The appellant raised this claim below, but the administrative judge failed to
notify him of his jurisdictional burden over such a claim. IAF, Tabs 2, 4‑5. As
with any other basis for jurisdiction, when an appellant raises an employment
practices claim, an administrative judge must inform him with specificity of his
burden of proving his claim, his burden of going forward with the evidence, and
the types of evidence necessary to make a nonfrivolous allegation. Parker v.
Department of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 7 (2007).
Moreover, neither the agency’s filings nor the initial decision notified the
appellant of what is required to establish jurisdiction over his claim. Id., ¶ 8.
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Therefore, this case must be remanded. 3 Burroughs v. Department of the Army,
116 M.S.P.R. 292, ¶ 21 (2011).
ORDER
¶13 For the reasons discussed above, we remand this case to the field office for
further adjudication of the appellant’s employment practices claim in accordance
with this Remand Order. 4
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
3
In his petition for review, the appellant refers to 5 U.S.C. § 1204(f)(1)(B), which
provides that the Board has original jurisdiction to review rules and regulations issued
by OPM, and he cites Jones v. Office of Personnel Management, 107 M.S.P.R. 115
(2007), wherein the Board denied an appellant’s request for such review. PFR File,
Tab 1 at 7. The appellant has not explained the statutory reference and the only
regulation he has cited is 29 C.F.R. § 1607.14(B)(2)2), a regulation promulgated not by
OPM, but rather by the Equal Employment Opportunity Commission, that deals with
Technical Standards for Validity Studies. Under the circumstances, we find that the
appellant is not attempting to file a petition for regulation review and that his assertions
are more properly considered in the nature of an employment practices claim.
4
The appellant learned the results of his application on December 10, 2015, IAF, Tab 1
at 7-8, and filed his Board appeal on January 9, 2016, id. at 1. Therefore, his appeal
was timely filed. 5 C.F.R. § 1201.22(b).