Troy S. Piirainen v. Department of the Army , 2015 MSPB 12 ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 12Docket No. DE-3330-14-0057-I-1
Troy S. Piirainen,
Appellant,
v.
Department of the Army,
Agency.
February 11, 2015
Troy S. Piirainen, Colorado Springs, Colorado, pro se.
Benjamin J. Kinsley, Esquire, and Sarah L. Ahn, Fort Carson, Colorado, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). For the reasons set forth below, we DENY
the petition for review.
2
BACKGROUND
¶2 The appellant is a GS-09 Training Instructor (TADSS) 1 for the agency’s
Training Support Center at Fort Carson, Colorado. Initial Appeal File (IAF),
Tab 5 at 15. He is a 10-point preference-eligible veteran with a 30%
service-connected disability. IAF, Tab 1 at 5, Tab 5 at 15.
¶3 The appellant’s supervisors determined that the Training and Support
Center would benefit from having a senior training instructor on staff. Hearing
Compact Disc (HCD) (testimony of the appellant’s first- and second-line
supervisors). The appellant’s second-line supervisor worked with the Fort Carson
Civilian Personnel Advisory Center (CPAC) to develop a position description for
the Senior TADSS Instructor job and to submit a request to the agency’s
Installation Management Command (IMCOM) to hire for the position internally.
IAF, Tab 5 at 18-22, Tab 22 at 10, 17, 23-28; HCD (testimony of Human
Resources Specialist and the appellant’s second-line supervisor).
¶4 On August 30, 2012, while approval from IMCOM was still pending, the
appellant’s second-line supervisor emailed both the appellant and his coworker,
another 10-point preference-eligible 30% disabled GS-09 Training Instructor,
informing them that the Senior TADSS Instructor vacancy was about to be
announced and advising them to get their résumés in order. IAF, Tab 22 at 16,
20-22; HCD (testimony of the appellant’s coworker). On September 6, 2012, the
appellant emailed his second-line supervisor, stating that he was confused as to
why he should get his résumé in order because he understood that the position
would go to his coworker. IAF, Tab 22 at 15-16. The supervisor responded,
stating that the appellant was qualified for the position as well and that “we need
to ensure you both have the opportunity to apply and advance.” Id. at 15.
1
We take official notice that “TADSS” is an acronym for “Training Aids, Devices,
Simulators, and Simulations.” Fort Carson Training Support Center Homepage,
http://www.carson.army.mil/tsc/index.html.
3
¶5 On September 11, 2012, the appellant’s coworker submitted his résumé and
application to the second-line supervisor. Id. at 17; HCD (testimony of the
appellant’s coworker). That same day, the appellant’s second-line supervisor
forwarded the coworker’s materials to CPAC “[f]or the selection of the Sr
TADSS Instructor.” See IAF, Tab 22 at 17; see also HCD (testimony of the
appellant’s second-line supervisor). The appellant never submitted his résumé,
but instead sent his second-line supervisor emails on October 9 and 11, 2012,
seeking advice on how to proceed. IAF, Tab 22 at 14-15; HCD (testimony of the
appellant). The agency did not respond to either of these inquiries. In the
meantime, IMCOM approved the position description and the internal hiring
authority, and the agency extended a job offer to the appellant’s coworker via
Veterans’ Readjustment Act (VRA) “name request,” which he accepted effective
October 21, 2012. IAF, Tab 5 at 23-27, Tab 22 at 10-12; HCD (testimony of the
appellant’s coworker and second-line supervisor). On October 26, 2012, the
appellant again emailed his second-line supervisor inquiring about the status of
the Senior TADSS Instructor vacancy announcement. IAF, Tab 22 at 14. The
second-line supervisor responded, stating that “[a]fter not getting any response
from you for over one month, I presumed you were not interested. By the time
you responded this action was locked in another direction.” Id.¶6 The appellant filed a veterans’ preference complaint with the Department
of Labor (DOL). IAF, Tab 1 at 7. After DOL notified him of its determination
that there was no veterans’ preference violation, the appellant filed the instant
Board appeal. 2 IAF, Tab 1. The administrative judge found that the appellant
2
As the administrative judge noted, the appellant’s September 11, 2013 DOL complaint
was filed outside the 60-day statutory window for challenging the alleged October 2012
veterans’ preference violation. IAF, Tab 1 at 7; IAF, Tab 29, Initial Decision (ID) at 4
n.3; see 5 U.S.C. § 3330a(a)(2)(A). Nevertheless, because DOL found the complaint
timely, the administrative judge correctly proceeded to the merits of the appellant’s
4
established jurisdiction over the appeal, but after conducting a hearing, he denied
his request for corrective action on the merits. ID at 1-2, 5, 8. Specifically, the
administrative judge found that, when making an appointment under the VRA, an
agency must consider all eligible candidates who are “on file,” who are qualified,
and who reasonably could expect to be considered. ID at 6. He found that the
appellant was not “on file” because he had not submitted his job application and
that the agency therefore did not violate his veterans’ preference rights by failing
to consider him. ID at 7.
¶7 The appellant has filed a petition for review, disputing the administrative
judge’s finding that he was not “on file” with the agency. Petition for Review
(PFR) File, Tab 1 at 4-6. He also challenges the validity of the Office of
Personnel Management’s (OPM) VRA rules, and argues that the agency
committed disability discrimination by failing to accommodate his memory loss
when it failed to remind him of the vacancy. Id. at 5-6. The agency has not filed
a response.
ANALYSIS
¶8 We find that the appellant’s claim arises under 5 U.S.C. § 3330a(a)(1)(A)
rather than 5 U.S.C. § 3330a(a)(1)(B). The former section pertains to alleged
violations of statutes and regulations relating to veterans’ preference, and the
latter refers to alleged denials of the right to compete for a position
under 5 U.S.C. § 3304(f)(1). Section 3304(f)(1) applies only where the agency
has accepted applications from outside its own workforce, see Washburn v.
Department of the Air Force, 119 M.S.P.R. 265, ¶ 6 (2013), and it is undisputed
that the agency in this case did not do so. In fact, the agency did not even
advertise the position through a vacancy announcement. HCD (testimony of
claim. IAF, Tab 1 at 7; ID at 4 n.3; see Gingery v. Office of Personnel Management,
119 M.S.P.R. 43, ¶ 19 (2012).
5
Human Resources Specialist). Therefore, the appellant’s only possible avenue of
redress is to prove that the agency violated a law or regulation relating to
veterans’ preference. See Isabella v. Department of State, 106 M.S.P.R. 333,
¶ 22 (2007) (to prevail on the merits of a VEOA claim under 5 U.S.C.
§ 3330a(a)(1)(A), an appellant must prove by preponderant evidence that the
agency violated one or more of his statutory or regulatory veterans’ preference
rights), aff’d on req. for recons., 109 M.S.P.R. 453 (2008). The gravamen of the
appellant’s claim is that the agency should have applied competitive-examining
procedures because both he and his coworker were preference-eligible veterans
competing for the position. PFR File, Tab 1 at 5; IAF, Tab 20 at 4-5. The Board
has found that laws governing the competitive-examining process relate to
veterans’ preference for purposes of VEOA. Dean v. Department of
Agriculture, 99 M.S.P.R. 533, ¶¶ 16-19 (2005), aff’d on req. for recons., 104
M.S.P.R. 1 (2006). We find that this is a viable claim and that the appellant
would be entitled to relief if he established that the agency was required, but
failed, to apply these procedures.
¶9 Nevertheless, we agree with the administrative judge that the agency was
not required to apply competitive-examining procedures because the appellant
was not “on file” with the agency for the Senior TADSS Instructor position. ID
at 6-7. Specifically, the agency chose to fill this position through its VRA
appointing authority, as was its right. See Phillips v. Department of the
Navy, 110 M.S.P.R. 184, ¶ 6 (2008) (an agency has the discretion to fill a vacant
position by any authorized method); see also 5 C.F.R. § 330.102 (same). OPM’s
guidance provides as follows:
Ordinarily, an agency may simply appoint any VRA eligible who
meets the basic qualifications requirements for the position to be
filled without having to announce the job or rate and rank applicants.
However, as noted, Veterans’ preference applies in making
appointments under the VRA authority. This means that if an agency
has 2 or more VRA candidates and 1 or more is a preference eligible,
the agency must apply Veterans’ preference. Furthermore, an agency
6
must consider all VRA candidates on file who are qualified for the
position and could reasonably expect to be considered for the
opportunity; it cannot place VRA candidates in separate groups or
consider them as separate sources in order to avoid applying
preference or to reach a favored candidate. 3
U.S. Office of Personnel Management, Vet Guide, 4 http://www.opm.gov/policy-
data-oversight/veterans-services/vet-guide/. With respect to being “on file,”
OPM’s guidance provides that:
A 10-point preference eligible may file a job application with an
agency at any time. If the applicant is qualified for positions filled
from a register, the agency must add the candidate to the register,
even if the register is closed to other applicants. If the applicant is
qualified for positions filled through case examining, the agency will
ensure that the applicant is referred on a certificate as soon as
possible. If there is no immediate opening, the agency must retain
the application in a special file for referral on certificates for future
vacancies for up to three years.
Id. We agree with the administrative judge that a 10-point preference eligible’s
application is “on file” if he has submitted it for retention in this “special file” for
referral on certificates for future vacancies. ID at 7. Because the appellant did
not file his application with the agency, he was not “on file” for purposes of the
VRA, and the agency was not required to refer him for consideration for the
appointment. Rather, it was entitled to appoint the appellant’s coworker by
“name request,” i.e., by simply appointing him without announcing the job or
rating and ranking applicants.
3
It is undisputed that, as disabled veterans, both the appellant and his coworker were
VRA-eligible. See 38 U.S.C. §§ 4212(a)(3)(A)(i), 4214(a)(2)(B).
4
While not entitled to the deference accorded to regulations, the Board has found the
Vet Guide to be entitled to some weight where it does not conflict with statute. See
Vassallo v. Department of Defense, 2015 MSPB 8, ¶ 4 (2015); see also Modeste v.
Department of Veterans Affairs, 121 M.S.P.R. 254, ¶ 11 (2014); Graves v. Department
of Veterans Affairs, 114 M.S.P.R. 209, ¶¶ 13-15 (2010).
7
¶10 The appellant disagrees with the administrative judge’s analysis based on
the following provision of OPM’s guidance: “if an agency has 2 or more VRA
candidates and 1 or more is a preference eligible, the agency must apply
Veterans’ preference.” PFR File, Tab 1 at 4. He argues that he became a
“candidate” for the position when the agency reached out to him to solicit his
application and that he was “on file” with the agency as a disabled veteran as
evidenced by the fact that management was aware that he was a disabled veteran.
Id. We disagree because, as explained above, the term “on file” has a specific
meaning, which requires that an individual actually file a job application with the
agency. Under the appellant’s interpretation, the agency would be required to
consider every qualified VRA-eligible on its employment rolls in every hiring
action regardless of whether they had submitted applications. This is not a
reasonable interpretation of the provisions at issue. We find that an individual is
only a “candidate” if he has taken the affirmative step to seek a position with the
agency by filing an application.
¶11 Regarding the appellant’s argument that the Vet Guide provisions at issue
are invalid because they require the agency to commit a prohibited personnel
practice, we find that the appellant did not raise this argument below, and that he
has not established a basis for us to consider it for the first time on review. PFR
File, Tab 1 at 5; see Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980) (the Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence). In any
event, the appellant’s argument appears to proceed from the premise that he was a
candidate on file for the Senior TADSS Instructor position, which, as explained
above, is not the case. PFR File, Tab 1 at 5-6.
¶12 Regarding the appellant’s argument that the agency committed disability
discrimination by failing to accommodate his memory loss, the Board’s
jurisdiction in a VEOA appeal is limited to determining whether the agency
8
violated the appellant’s veterans’ preference rights. It does not extend to claims
of discrimination. Ruffin v. Department of the Treasury, 89 M.S.P.R. 396, ¶ 12
(2001). Accordingly, the Board lacks jurisdiction to consider the appellant’s
disability discrimination claim in the context of this appeal. See Lis v. U.S.
Postal Service, 113 M.S.P.R. 415, ¶ 9 n.4 (2010).
¶13 Even assuming that the agency had given the appellant’s coworker a better
opportunity or clearer instructions on how and when to file his application than it
gave the appellant, such action would not constitute a veterans’ preference
violation because the agency was not required to solicit the appellant’s
application at all for this VRA appointment, but instead was permitted by law to
bypass the competitive-examining process and select the appellant’s coworker
without competition. See 38 U.S.C. § 4214(b); see also Executive Order
No. 11,521 § 1(a), 35 Fed. Reg. 5,311 (Mar. 26, 1970); 5 C.F.R. §§ 307.101,
307.103; U.S. Office of Personnel Management, Vet Guide.
ORDER
¶14 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
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.
9
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
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.