Melissa Anderson v. Department of Veterans Affairs ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELISSA ANDERSON, DOCKET NUMBER
Appellant, AT-3330-14-0254-I-1
v.
DEPARTMENT OF VETERANS DATE: December 23, 2014
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Steven L. Herrick, Esquire, San Diego, California, for the appellant.
Bradley Flippin, Nashville, Tennessee, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) and the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA). For the reasons discussed below,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
we GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the regional office for further adjudication in accordance
with this Order.
¶2 The appellant is a 10-point preference eligible veteran with a compensable
service-connected disability of 30% or more who served as a GS-12 Research
Audiologist on a term appointment. Initial Appeal File (IAF), Tab 1 at 1. She
applied for a permanent GS-13 Audiologist position, but the agency canceled the
vacancy announcement on the closing date. Id., Tab 6, Subtabs 4f-4g. Several
months later, the agency reannounced the vacancy and the appellant again applied
for it. Id., Subtab 4i. The agency determined that, while she met the basic
qualifications, she did not meet the requirements for the reannounced position.
Id., Subtab 4l. She filed a complaint with the Department of Labor (DOL), id.,
Tab 3 at 2-4, and, when DOL’s Veterans’ Employment and Training Services
subsequently advised her that it had completed its investigation into her
complaint and closed its file, id., Tab 4, Subtab 4h, she filed a Board appeal, id.,
Tab 1. Therein she alleged that the agency purposely wrote the job description
for the position under the second announcement in order to preselect a fellow
audiologist who was a nonveteran; that, with regard to the appellant’s
qualifications, certain agency officials only provided the National Audiology
Professional Standards Board (Standards Board) “part of her information;” and
that, in any event, the agency intended to, and did, hire the nonveteran
audiologist. And, the appellant argued that, after she applied for the position, the
agency extended her term appointment for only 6 months, whereas it extended her
fellow audiologists’ appointments for 12 months, id. at 4, and gave her a lower
performance rating, id. at 5. She requested a hearing. Id. at 2.
¶3 The administrative judge acknowledged the appeal as a VEOA appeal,
scheduled the hearing, and directed the parties to file prehearing submissions and
3
to participate in a prehearing conference. 2 Id. Tab 7. When the appellant neither
filed any prehearing submissions nor was available to participate in the
prehearing conference, the administrative judge canceled the hearing, and set a
date for the close of the record. Id., Tab 9. At that time, he also stated that the
appellant appeared to have identified a VEOA and/or a USERRA claim, and he
set out as to both statutes the appellant’s burdens of proof to establish
jurisdiction. Id.
¶4 After the parties made final submissions, id., Tabs 10, 12, the
administrative judge issued an initial decision in which, after finding that the
appellant had established the Board’s jurisdiction under both VEOA and
USERRA, id., Tab 13, Initial Decision (ID) at 2-4, he denied her request for
corrective action under both statutes, ID at 11.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, id., Tab 3.
The administrative judge erred in deciding this case without providing the
appellant her burden of proof to establish her claims on the merits.
¶6 When the administrative judge canceled the hearing and stated his intention
to decide the case on the written record unless the appellant requested that the
hearing be reinstated and provided good cause, he, for the first time, set out the
appellant’s jurisdictional burdens to establish a VEOA and a USERRA claim.
IAF, Tab 9 at 2-3. He also instructed the parties to submit “all documentation
they [wished] the Board to consider” by the close of the record but did not
explain to the appellant what she must show in order to establish her claims on
the merits. Id. at 1. He then proceeded to adjudicate both claims on the merits,
2
The administrative judge also noted that the appellant appeared to have raised an
allegation of retaliation for whistleblowing and indicated that he would open a separate
appeal file to adjudicate that claim. IAF, Tab 7. He subsequently dismissed the
appellant’s individual right of action appeal for lack of jurisdiction. Anderson v.
Department of Veterans Affairs, MSPB Docket No. AT-1221-14-0461-W-1, Initial
Decision at 2-3 (Apr. 8, 2014). That decision became the Board’s final decision on
May 13, 2014, when neither party filed a petition for review.
4
finding that the appellant failed to prove them and denying her request for
corrective action. ID at 5-11.
¶7 To be entitled to relief under VEOA, an appellant must show by
preponderant evidence that the agency violated one or more of her statutory or
regulatory veterans’ preference rights. Dale v. Department of Veterans Affairs,
102 M.S.P.R. 646, ¶ 10 (2006). To prevail on the merits of a USERRA claim
under 38 U.S.C. § 4311(a), 3 an appellant must prove by preponderant evidence
that her uniformed service was a substantial or motivating factor in the agency
action. McMillan v. Department of Justice, 120 M.S.P.R. 1, ¶ 19 (2013). If the
appellant makes that showing, the agency can avoid liability by showing, as an
affirmative defense, that it would have taken the same action for a valid reason
without regard to her uniformed service. Id.
¶8 On review, the appellant renews her claims that an agency employee told
her that she was going to submit only a portion of the appellant’s supporting
documentation to the Standards Board, omitting her service with the Armed
Forces. And she argues that that employee’s statement, submitted by the agency,
is untruthful; that the selecting official stated that he did not wish to hire the
appellant; and that another agency official claimed not to know any prior military
audiologist who did not have significant mental health issues. PFR File, Tab 1
at 3, 5.
¶9 The Board has recognized its obligation to treat pro se appellants fairly.
See, e.g., Melnick v. Department of Housing & Urban Development, 42 M.S.P.R.
93, 97 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table) (the Board has a
long-standing rule of construing pro se pleadings liberally). While it is within the
3
The appellant did not allege, nor does it appear that by its actions the agency violated
38 U.S.C. § 4311(b) which prohibits an agency from discriminating or retaliating
against a person because she has: (1) taken an action to enforce a protection afforded
under chapter 38; (2) testified or otherwise made a statement in or connection with any
proceeding under chapter 38; (3) assisted or otherwise participated in an investigation
under chapter 38; or (4) exercised a right provided for in chapter 38.
5
administrative judge’s sound discretion when to close the record, such discretion
must conform to the basic requirements of fairness and notice. Blackmer v.
Department of the Navy, 52 M.S.P.R. 571, 574 (1992). Here, the appellant, who
appeared pro se below, 4 was never advised prior to the close of the record of her
burden of proof as to the merits on either her VEOA or her USERRA claims or of
the requirement that she present evidence in support. Therefore, this appeal must
be remanded. See Ruffin v. Department of the Treasury, 89 M.S.P.R. 396, 399
(2001); cf. Lis v. U.S. Postal Service, 113 M.S.P.R. 415, ¶ 10 (2010) (where the
appellant did not request a hearing, but was advised below of the burden of proof
on the merits of the VEOA claim and was ordered to submit evidence pertaining
to both jurisdiction and the merits of his request for corrective action, he was
provided a full and fair opportunity to develop the record on his VEOA claim, the
Board could resolve that matter without remanding the case for further
proceedings).
The appellant waived her right to a hearing.
¶10 As noted, after the appellant failed to submit her prehearing submission and
failed as well to appear at the hearing she had requested, the administrative judge
indicated that “it appears likely that [the appellant] has opted to waive her
hearing request and have this matter decided based upon the written record.”
IAF, Tab 9 at 1. Although he canceled the scheduled hearing, he afforded the
appellant an opportunity to submit a motion to reinstate the hearing, directing her
to provide a reasonable explanation for why she was unable to provide timely
prehearing submissions and appear for the scheduled conference, and to provide
her belated prehearing submissions. The administrative judge stated that, if the
appellant complied with his direction by the date given, and if he determined that
she showed good cause for her lapses, he would immediately contact the parties
to reschedule the hearing but that, if she did not, the record would close as he had
4
After the record closed on review, the appellant designated an attorney representative.
PFR File, Tab 4.
6
indicated. Id. at 2. The appellant did not submit a motion to reinstate the
hearing, id., Tab 10, and the record closed in order with the administrative
judge’s earlier order.
¶11 On review, the appellant argues that no witnesses were ever questioned who
could or would have spoken on her behalf. PFR File, Tab 1 at 3. To the extent
that her argument can be read as a challenge to the administrative judge’s
decision not to convene a hearing, that argument is unavailing. An administrative
judge has the authority to sanction a party when necessary to serve the interests
of justice. 5 C.F.R. § 1201.43. That authority includes the right to sanction a
party for failure to comply with an order. Id. While an appellant’s right to a
hearing should not be denied as a sanction absent extraordinary circumstances,
see Hart v. Department of Agriculture, 81 M.S.P.R. 329, ¶ 5 (1999); see also
Stein-Verbit v. Department of Commerce, 72 M.S.P.R. 332, 337 (1996), here, as
noted, the appellant failed to provide prehearing submissions, failed to make
herself available for the scheduled prehearing conference, and could not be
reached at the home and office telephone numbers she had previously provided
the Board, IAF, Tab 9 at 1. Under the circumstances, we find that the
administrative judge did not abuse his discretion by canceling the appellant’s
requested hearing. See Heckman v. Department of the Interior, 106 M.S.P.R.
210, ¶¶ 8-12 (2007). In addition, although afforded the opportunity, the appellant
did not seek to have the hearing reinstated and did not otherwise provide any
explanation for her failure to act. Neither has she provided any such explanation
on review. We further find, therefore, that the administrative judge did not abuse
his discretion in failing to reconvene the hearing. See Blount v. Department of
the Treasury, 109 M.S.P.R. 174, ¶ 9 (2008) (the right to a hearing is waived upon
failure to request on after being placed on notice that such a request is necessary).
7
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.