Dion Taylor v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DION TAYLOR, DOCKET NUMBER
Appellant, AT-3330-14-0088-I-1
v.
DEPARTMENT OF VETERANS DATE: October 20, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Dion Taylor, Lake City, Florida, pro se.
Corey J. Thompson, Gainesville, Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL 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). Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 appellant held a WG-09 Carpenter position at the agency’s Gainesville
(Florida) Veterans Affairs (VA) Medical Center. Initial Appeal File (IAF), Tab 1
at 9. He applied for a WS-09 Maintenance Mechanic Supervisor position at the
agency’s Gainesville VA Medical Center, as advertised under job announcement
number GF-13-RSe-954350. IAF, Tab 4, Subtab 2e at 1. The job announcement
stated that the position was only open to current employees of the North
Florida/South Georgia Health System. Id. The job announcement indicated that
eligible veterans should claim preference on the required Occupational
Questionnaire and provide a copy of their DD214 forms. Id. at 3. The agency
referred the appellant and three other candidates to a scoring panel that
interviewed them, but the agency ultimately did not select the appellant for the
position. IAF, Tab 4, Subtab 2c at 1-2, Subtab 2d. The appellant thereafter filed
a complaint with the Department of Labor (DOL) regarding his nonselection.
IAF, Tab 1 at 10-13. The DOL notified the appellant that it had completed its
investigation and concluded that veterans’ preferences rules did not apply because
the agency conducted the selection process under merit promotion procedures.
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Id. at 7-8. The DOL informed him of his right to appeal its decision to the Board.
Id.¶3 The appellant filed a Board appeal and disputed whether the position was
filled under merit promotion procedures, arguing that the job announcement did
not state that it would operate as a merit promotion. Id. at 3. The agency
responded that it was not required to follow preference-related requirements
because it filled the position under merit promotion procedures, and thus
veterans’ preference provisions were not applicable. IAF, Tab 4, Subtab 1. In his
summary of a prehearing conference, the administrative judge determined that the
appellant established Board jurisdiction over his appeal pursuant to 5 U.S.C.
§ 3330a(d)(1) by showing that he exhausted his remedy with the DOL and by
making nonfrivolous allegations that he was a preference eligible within the
meaning of VEOA, the agency violated his rights under a statute or regulation
relating to veterans’ preference, and the action took place on or after October 30,
1998 (the enactment date of VEOA). IAF, Tab 7 at 1-2; see Goldberg v.
Department of Homeland Security, 99 M.S.P.R. 660, ¶ 8 (2005). The
administrative judge also informed the appellant that veterans’ preference rules
do not apply to a merit promotion action and he must prove by preponderant
evidence that the agency violated his rights with respect to a statute or regulation
related to veterans’ preference in order to be entitled to relief under VEOA. IAF,
Tab 7 at 2-3.
¶4 The appellant submitted as hearing exhibits three agency job
announcements for comparison with the job announcement at issue. IAF, Tab 8.
However, the agency’s witness, a Section Chief for Recruitment/Placement,
testified that the job announcement at issue was a merit promotion announcement
open only to current employees. She further testified that the language
concerning veterans’ preference in the job announcement for the mechanic
position was not placed there by the agency but was part of the USAJOBS
template. Hearing CD (32:10-34:20). She also testified that the required
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documents section of the job announcement, which was under the agency’s
control, did not require any veterans’ preference documents. Id. The appellant
did not dispute that the selection process was restricted to current agency
employees within the North Florida/South Georgia Veterans’ Health System and
presented no evidence that the agency considered external candidates for the
position. After holding the requested hearing, the administrative judge denied the
appellant’s request for corrective action. IAF, Tab 9, Initial Decision (ID) at 1, 5.
The administrative judge considered the job vacancy announcement, the
appellant’s hearing exhibits and testimony, the testimony of the agency’s witness,
and both parties’ arguments in concluding that the appellant failed to establish
that the agency violated any right under a statute or regulation related to veterans’
preference. ID at 3-4.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response.
¶6 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). An appellant is not entitled to
veterans’ preference points under merit promotion procedures. Dean v. Consumer
Product Safety Commission, 108 M.S.P.R. 137, ¶ 11 (2008). In his petition for
review, the appellant reiterates his argument from below that the job
announcement did not state that it was for a merit promotion. PFR File, Tab 1
at 3. The administrative judge properly considered the appellant’s argument
based on the statements in the job announcement. ID at 3-4. The appellant has
not identified any error in the administrative judge’s explained finding that the
position was filled through merit promotion procedures for the reasons stated in
the initial decision. Based on our review of the record in this matter, we find no
reason to disturb the administrative judge’s finding that the agency did not violate
any right under a statute or regulation related to veterans’ preference by not
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selecting the appellant for the mechanic position. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings where the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions).
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
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.
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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.