Lorene Hopkins v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORENE HOPKINS, DOCKET NUMBER
Appellant, AT-3330-16-0279-I-1
v.
DEPARTMENT OF THE ARMY, DATE: January 30, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lorene Hopkins, Augusta, Georgia, pro se.
Shannon M. Callahan, Fort Sam Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL 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 dismissed for lack of jurisdiction her
claims of race and disability discrimination and a violation of the Uniformed
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Services Employment and Reemployment Rights Act of 1994 (codified as
amended at 38 U.S.C. §§ 4301-4335) (USERRA). Generally, we grant petitions
such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous a pplication of
the law to the facts of the case; the administrative 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 affec ted 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. 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, 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).
BACKGROUND
¶2 The relevant background information, as set forth in the initial decision, is
generally not in dispute. Initial Appeal File (IAF), Tab 23, Initial Decision (ID).
In April 2015, the appellant, a retired Federal employee and a preference -eligible
veteran, applied for the Supervisory Education Services Specialist position,
pursuant to merit promotion vacancy announcement number
NCFR156421677139608. ID at 1-3; IAF, Tab 12 at 19-25, Tab 14 at 4-7, Tab 16
at 4-8. The appellant was placed on a certificate of eligibles, referred to a
selecting panel for consideration, and received a high rating, but she was not
selected for the position. ID at 3; IAF, Tab 13 at 19, 22-25, Tab 19 at 18.
¶3 The appellant filed a complaint with the Office of Special Counsel (OSC),
alleging that the agency violated her veterans’ preference rights and discriminated
3
against her because of her race. ID at 3; IAF, Tab 2 at 10-11. After OSC closed
its investigation, she filed a complaint with the Department of Labor (DOL),
alleging that the agency violated her veterans’ preference rights. ID at 3; IAF,
Tab 2 at 12-15.
¶4 After DOL closed its investigation, the appellant timely filed this appeal.
ID at 3-4; IAF, Tab 1. In this appeal, the appellant alleged, among other things,
that the agency violated VEOA and USERRA. ID at 4-11. The administrative
judge found that the appellant made a nonfrivolous allegation that the Board has
jurisdiction over her VEOA claims pursuant to 5 U.S.C. § 3330a(a)(1)(A) and
(a)(1)(B). 2 ID at 4-7; IAF, Tab 17. Without holding the requested hearing, the
administrative judge found that the appellant failed to establish that the agency
violated VEOA because she was not entitled to any veterans’ preference in a
merit promotion vacancy announcement and was given the opportunity to
compete for the position. ID at 7-10. She therefore denied the appellant’s
request for corrective action regarding this claim. ID at 2. The administrative
judge further found that the appellant did not nonfrivolously allege that the Board
has jurisdiction over her USERRA claim. ID at 10-11. The administrative judge
also determined that the appellant’s allegations of race and disability
discrimination and claims of prohibited personnel practices did not provide a n
independent basis for Board jurisdiction. ID at 11-12.
¶5 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 3-4.
2
Pursuant to section 3330a(a)(1)(A), a preference eligible who alleges that an agency
has violated such individual’s rights under any statute or regulation relating to veterans’
preference may file a complaint with the Secretary of Labor. Pursuant to
section 3330a(a)(1)(B), a veteran described in section 3304(f)(1) who alleges than an
agency has violated such section—and thus denied her an opportunity to compete for
vacant positions for which the agency making the announcement will accept
applications from individuals outside its workforce under merit promotion procedures —
may file a complaint with the Secretary of Labor.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). A nonselection for a position
is generally not appealable to the Board. Pridgen v. Office of Management and
Budget, 117 M.S.P.R. 665, ¶ 6 (2012). However, an appellant may appeal a
nonselection through various statutory means, such as VEOA or US ERRA.
Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 5 (2007).
The administrative judge properly denied corrective action concerning the
appellant’s VEOA claim.
¶7 The administrative judge correctly noted in the initial decision that, as a
preference eligible and a veteran, the appellant may seek corrective action for her
VEOA claim pursuant to 5 U.S.C. § 3330a(a)(1)(A) and (a)(1)(B). ID at 6-8.
Neither party challenges the administrative judge’s finding that the appellant has
made a nonfrivolous allegation of Board jurisdiction over her VEOA claim under
both statutory subsections. ID at 4-7; see Montgomery v. Department of Health
& Human Services, 123 M.S.P.R. 216, ¶ 5 (2016) (finding that the Board has
jurisdiction over the appellant’s right-to-compete claim under 5 U.S.C.
§ 3330a(a)(1)(A) and (a)(1)(B)). We affirm that finding herein.
¶8 To prevail on her VEOA claim pursuant to section 3330a(a)(1)(A), the
appellant must prove by preponderant evidence 3 that (i) she is a preference
eligible within the meaning of the VEOA, (ii) the actions at issue occurred on or
after October 30, 1998, and (iii) the agency violated her rights under a statute or
regulation related to veterans’ preference. 4 Isabella v. Department of State,
106 M.S.P.R. 333, ¶¶ 21-22 (2007), aff’d on recons., 109 M.S.P.R. 453 (2008).
3
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
The Board has held that 5 U.S.C. § 3304(f)(1) is a statute relating to veterans’
preference. Walker v. Department of the Army, 104 M.S.P.R. 96, ¶ 16 (2006).
5
To prevail on a VEOA claim pursuant to section 3330a(a)(1)(B), the appellant
must prove by preponderant evidence that: (i) she is a veteran as described at
5 U.S.C. § 3304(f)(1); (ii) the actions at issue occurred on or after December 10,
2004; and (iii) the agency denied her the opportunity to compete under merit
promotion procedures for a vacant position for which the agency accepted
applications from individuals outside its own workforce. Becker v. Department of
Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010); Graves v. Department of
Veterans Affairs, 114 M.S.P.R. 209, ¶ 19 (2010). As noted above, it is undisputed
that the appellant is a preference eligible and a veteran, the agency accepted
applications from outside its workforce pursuant to merit promotion procedures,
and the nonselection occurred in 2015.
¶9 We agree with the administrative judge that t he appellant has not met her
burden to show that the agency denied her the opportunity to compete for the
position or violated her rights under a statute or regulation related to veterans’
preference. The appellant’s placement on the certificate of eligibles, referral to
the selection panel, and subsequent rating—which was lower than the selectee’s
rating, IAF, Tab 13 at 19-20—satisfies the agency’s obligation to provide her
with an opportunity to compete for the position. See, e.g., Harellson v. U.S.
Postal Service, 113 M.S.P.R. 534, ¶¶ 8-11 (2010) ( finding that the agency
satisfied its statutory obligation to permit the appellant, an outside candidate, to
compete for a Custodian position when an agency official involved in the
selection process reviewed the appellant’s file to determine his qualifications, but
the agency ultimately decided to fill the positions internally) . We agree with the
administrative judge that the appellant was not entitled to veterans’ preference
because the vacancy was announced pursuant to merit promotion procedures, 5 and
the appellant was given an opportunity to compete for the position, consistent
5
The appellant asserts on review that she should have been placed at the top of the
certificate of eligibles. PFR File, Tab 1 at 6. However, such procedures are only
applicable in the competitive examination process, not the merit promotion process.
Joseph v. Federal Trade Commission, 505 F.3d 1380, 1382 (Fed. Cir. 2007).
6
with 5 U.S.C. § 3304(f)(1). Thus, she properly denied the appellant’s request for
corrective action. Because there was no genuine dispute of material fact
regarding her VEOA claim, the administrative judge proper ly did not hold the
appellant’s requested hearing. PFR File, Tab 1 at 5; see Davis v. Department of
Defense, 105 M.S.P.R. 604, ¶ 12 (2007).
¶10 We have considered the appellant’s assertion on review that the agency
gave the selectee preferential treatment because she was serving on a detail in the
position for which the vacancy had been announced and the selectee allegedly
made some odd statements to her. PFR File, Tab 1 at 5-6. Such allegations, even
if true, do not change our analysis of whether the appellant was given an
opportunity to compete for the position.
The administrative judge properly dismissed for lack of jurisdiction the
appellant’s USERRA claim and her allegations of discrimination and other
prohibited personnel practices.
¶11 To establish the Board’s jurisdiction over her USERRA claim, 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. 38 U.S.C. § 4311(a); 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 (Fed. Cir. 2017).
¶12 In the initial decision, the administrative judge noted that the appellant
alleged that the agency did not select her because of her service-related disability.
ID at 10-11 (citing IAF, Tab 12 at 5). The administrative judge concluded that
such an allegation did not constitute a nonfrivolous allegation that the agency
took the action because of the appellant’s military service. ID at 10-11. The
appellant does not appear to challenge this finding on review, and we agree with
the administrative judge that she did not nonfrivolously allege that her uniformed
7
service was a factor in the nonselection. See McBride v. U.S. Postal Service,
78 M.S.P.R. 411, 415 (1998) (finding that the appellant’s back injury, incurred
while performing military service, is incidental to her claim of disability
discrimination and does not bring the claim within the Board’s USERRA
jurisdiction). Because the administrative judge properly found that the Board
lacks jurisdiction over the appellant’s USERRA claim, she is not entitled to a
hearing. Downs v. Department of Veterans Affairs, 110 M.S.P.R. 139, ¶¶ 17-18
(2008).
¶13 Regarding the appellant’s assertion that the nonselection is based on race
and/or disability discrimination or otherwise constitutes a prohibited personnel
practice, PFR File, Tab 1 at 6-7, such claims are not an independent source of
Board jurisdiction. Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980),
aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
NOTICE OF APPEAL RIGHTS 6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourt s.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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
9
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.as px.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.