Tracy Edwards v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACY LAVETTE EDWARDS, DOCKET NUMBER
Appellant, AT-3443-19-0726-I-1
v.
DEPARTMENT OF VETERANS DATE: May 31, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Tracy Lavette Edwards , Columbus, Georgia, pro se.
Kimberly Kaye Ward , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her nonselection appeal for lack of Board jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the Atlanta Regional Office for further
adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant identified herself below as an Advanced “MSA” at the
agency’s Veterans Health Administration. 2 Initial Appeal File (IAF), Tab 1 at 1.
She asserted that she is preference eligible. Id. She filed an appeal with the
Board challenging her nonpromotion to a Lead MSA position with the
Department of Veterans Affairs (VA). Id. at 5. She argued that she had more
experience and knowledge than all three of the individuals selected for the
position. Id. She further argued that two of the individuals were preselected for
the position and were given the interview questions beforehand. Id. In addition
to expressing her superior knowledge and experience, the appellant asserted that,
unlike herself, none of the individuals selected were veterans. Id. Finally, she
suggested that family members of other VA employees receive preferential
treatment in selection decisions. Id.The administrative judge informed the appellant in an acknowledgment
order that the Board generally lacks jurisdiction over nonselections and
nonpromotions. IAF, Tab 2 at 2. The administrative judge additionally informed
the appellant of six exceptions to this general rule. Id. at 2-5. As relevant here,
she informed the appellant that the Board has jurisdiction over discrimination
based on uniformed service and violations of a candidate’s veterans’ preference
rights. Id. at 5. The agency subsequently argued that the appeal should be
dismissed because it was untimely, the appellant already elected her remedy by
filing a grievance with the union, and the Board lacks jurisdiction over her
nonpromotion. IAF, Tab 6 at 4-5.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID) at 1. She declined to
address the agency’s arguments that the appellant untimely filed the appeal and
that she had previously elected a different forum. ID at 1 n.1, 2 n.3. Rather, the
administrative judge found that the appellant failed to allege an exception to the
2
Neither party here explained the MSA acronym.
3
general rule that nonpromotions are not actions within the Board’s jurisdiction.
ID at 2.
The appellant filed a petition for review. Petition For Review (PFR) File,
Tab 4. In her petition she argues, among other things, that the agency disregarded
veterans’ preference in making its selections for the position at issue. Id. at 6.
The agency has responded to the appellant’s petition for review. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Dale v. Department of Veterans
Affairs, 102 M.S.P.R. 646, ¶ 6 (2006). Generally, a nonselection is not an action
directly appealable to the Board. Id., ¶ 7. However, the Board might have
jurisdiction over a nonselection under either the Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA) or the Veterans Employment
Opportunities Act of 1998 (VEOA). 5 U.S.C. § 3330a(a)(1)(A); 38 U.S.C.
§ 4311(a); Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 11 (2012);
Dale, 102 M.S.P.R. 646, ¶ 7. As relevant here, if an appellant raises a VEOA
claim, she must receive adequate notice regarding her rights and burdens under
VEOA before the Board can dismiss the appeal for lack of jurisdiction. Searcy v.
Department of Agriculture, 115 M.S.P.R. 260, ¶ 11 (2010).
A VEOA claim should be liberally construed and an allegation, in general
terms, that an appellant’s veterans’ preference rights were violated is sufficient to
meet the requirement of a nonfrivolous allegation establishing Board jurisdiction.
Id. The appellant here claimed that she had more experience and knowledge than
the three individuals selected for the position in question. IAF, Tab 1 at 5. She
further claimed that, unlike herself, none of the three persons selected for the
position were veterans. Id. Moreover, on review, the appellant explicitly alleges
that the agency violated veterans’ preference rights by not selecting her or other
veterans who applied for the position. PFR File, Tab 4 at 6; see Pirkkala v.
4
Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016) (explaining that jurisdiction
can be raised at any time, including on review). The appellant’s reference to
VEOA, claim of veterans’ preference, and allegation that the agency disregarded
her status as a veteran in making its selections is sufficient to require that this pro
se appellant receive notice of how to establish jurisdiction over her VEOA claim.
See Searcy, 115 M.S.P.R. 260, ¶¶ 12-13 (finding a pro se appellant’s reference to
VEOA, claim of veterans’ preference, and allegation that the agency violated his
veterans’ preference rights was sufficient to require his receipt of jurisdictional
notice). The record shows, however, that the administrative judge did not inform
the appellant of the elements and her burden to establish VEOA jurisdiction over
her appeal. 3 See Burgess v. Merit Systems Protection Board, 758 F.2d 641,
643-44 (Fed. Cir. 1985) (finding an appellant must receive explicit information
on what is required to establish an appealable jurisdictional issue).
To establish Board jurisdiction over a veterans’ preference appeal brought
under VEOA, 4 an appellant must (1) show that she exhausted her remedy with the
Department of Labor (DOL); and (2) make nonfrivolous allegations that (i) she is
a preference eligible within the meaning of VEOA, (ii) the actions at issue took
place on or after October 30, 1998, and (iii) the agency violated her rights under a
statute or regulation relating to veterans’ preference. Searcy, 115 M.S.P.R. 260,
¶ 13. The record below is insufficiently developed for us to address these
requirements on review. Therefore, on remand, the administrative judge must
provide the appellant with appropriate jurisdictional notice regarding her VEOA
3
The acknowledgment order states that an appellant may establish jurisdiction by
nonfrivolously alleging that she was not selected in violation “of the candidate’s
veterans’ preference rights.” IAF, Tab 2 at 4-5. However, this notice is insufficient
because it does not state the elements necessary to establish VEOA jurisdiction over her
appeal. See Searcy, 115 M.S.P.R. 260, ¶¶ 12-13 (finding jurisdictional notice
insufficient when an administrative judge did not inform the appellant of the elements
and his burden to establish VEOA jurisdiction over his appeal).
4
As a current Federal employee, the appellant is not entitled to corrective action for an
alleged denial of the right to compete under VEOA. Oram v. Department of the Navy,
2022 MSPB 30, ¶ 17.
5
claim and the opportunity to submit evidence and argument to establish the
Board’s jurisdiction under VEOA. We observe, without making a finding, that
the appellant denied in her initial appeal that she filed a complaint with DOL.
IAF, Tab 1 at 4.
Further, this pro se appellant, in referencing that none of the three
individuals selected were veterans while she and several other candidates were
veterans, may be attempting to raise a USERRA claim rather than a VEOA claim.
See Henson v. U.S. Postal Service, 110 M.S.P.R. 624, ¶¶ 9-10 (2009) (remanding
for further adjudication concerning a potential USERRA claim, even though the
appellant never explicitly raised such a claim and only completed sections of the
initial appeal form pertaining to VEOA). The assertion that an employer took or
failed to take certain actions based on an individual’s military status or
obligations constitutes a nonfrivolous allegation entitling the appellant to Board
consideration of his claim. Hammond v. Department of Veterans Affairs,
98 M.S.P.R. 359, ¶ 8 (2005). USERRA does not impose a time limit for filing an
appeal with the Board, and an appellant can file a USERRA complaint directly to
the Board without filing a complaint with DOL. Nahoney v. U.S. Postal Service,
112 M.S.P.R. 93, ¶ 19 (2009); Becker v. Department of Veterans Affairs,
107 M.S.P.R. 327, ¶ 12 (2007). Accordingly, on remand, the administrative judge
should also provide the appellant with adequate notice of what is required to
establish Board jurisdiction under USERRA. 5 Id.5
The acknowledgment order here states that an appellant may establish jurisdiction by
alleging that her nonselection was “the product of discrimination based on uniformed
service.” IAF, Tab 2 at 4-5. However, as with VEOA, the acknowledgment order does
not set forth the elements of proof. To establish Board jurisdiction over a USERRA
claim arising under 38 U.S.C. § 4311(a), an appellant must make nonfrivolous
allegations that (1) she performed duty or has an obligation to perform duty in a
uniformed service of the United States; (2) the agency denied her 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 uniformed
service. Hau v. Department of Homeland Security, 123 M.S.P.R. 620, ¶ 11 (2016), aff’d
sub nom. Bryant v. Merit Systems Protection Board, 878 F.3d 1320, 1325-26 (Fed. Cir.
2017).
6
Should the appellant sufficiently establish Board jurisdiction, the
administrative judge should also address the issues regarding timeliness and the
election of remedies, as appropriate. See Rivera v. Department of the Air Force,
110 M.S.P.R. 564, ¶ 12 (2009) (explaining that an appellant may bring a
USERRA appeal even if he is otherwise covered by a collective bargaining
agreement).
To the extent the appellant is alleging that her nonpromotion was the
product of a prohibited personnel practice not in connection with VEOA or
USERRA, we observe that prohibited personnel practices under 5 U.S.C.
§ 2302(b) are not independent sources of Board jurisdiction. Pridgen v. Office of
Management and Budget, 117 M.S.P.R. 665, ¶ 7 (2012). Further, the Board
cannot obtain jurisdiction over prohibited personnel practice claims through
USERRA or VEOA. Goldberg v. Department of Homeland Security, 99 M.S.P.R.
660, ¶ 11 (2005).
7
ORDER
For the reasons discussed above, we REMAND this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.