Ann J. Thomas v. Department of Labor

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANN J. THOMAS, DOCKET NUMBER
Appellant, AT-3330-12-0270-B-2
v.
DEPARTMENT OF LABOR, DATE: September 13, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lorenzo Cobb, Esquire, Sugarhill, Georgia, for the appellant.
Melanie L. Paul, Atlanta, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which denied her request for corrective action. Generally, we grant petitions such
as this one only when: 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 application of the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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, 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 This appeal is before the Board after remand. The record reflects that at the
time of this appeal the appellant was employed as an Unemployment Insurance
Program Specialist, GS-0106-12, with the Employment and Training
Administration, Department of Labor, in Atlanta, Georgia. 2 Initial Appeal File
(IAF), Tab 17, Initial Decision (ID) at 2. The appellant is a 10-point preference
eligible. IAF, Tab 6 at 59. On August 4, 2011, the appellant applied for a
position of Workforce Development Specialist, DE-11-ATL-ETA-120, that was
listed as open only to “ICTAP Eligibles in the Local Commuting Area.” 3 ID at 2.
The appellant submitted her materials for the posting but did not submit her form
DD-214 as the posting required to qualify for veterans’ preference. ID at 2 n.3.
The agency informed the appellant that she was not eligible for the position
2
The agency has noted that, effective October 19, 2014, the appellant was promoted to
a GS-13 position in the Unemployment Insurance Division of the agency’s Employment
and Training Administration (ETA), where she had the requisite 52 weeks of
specialized service at the GS-12 level. Remand Petition for Review (RPFR) File, Tab 3
at 4 n.1.
3
ICTAP refers to the Interagency Career Transition Assistance Plan, a program
established by the Office of Personnel Management that gives priority placement to
displaced Federal workers. See generally 5 C.F.R. part 330, subpart G.
3
because she did not submit proof that she was an ICTAP-eligible employee.
ID at 2.
¶3 The appellant filed a complaint with the Department of Labor’s Veterans’
Employment and Training Service (VETS) alleging that her veterans’ preference
rights were violated by not considering her for the position. ID at 2–3. On
December 5, 2011, VETS notified the agency that it found that the agency’s
failure to include the appellant on the list of candidates violated her right to
compete. IAF, Tab 1 at 10–11. VETS requested that the agency determine the
appellant’s qualifications for the position. Id. at 11. On January 13, 2012, VETS
notified the appellant that it was closing her case and it found no violation based
upon the agency’s subsequent review of her qualifications and determination that
she was not qualified for the position. Id. at 12. On February 4, 2012, the
appellant filed a Board appeal under the Veterans Employment Opportunities Act
of 1998 (VEOA) and requested a hearing. Id. at 1, 4, 7. On August 16, 2012, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction, finding that the appellant failed to nonfrivolously allege that the
agency denied her the right to compete for a vacant position in violation
of 5 U.S.C. § 3304(f)(1). ID at 1, 5.
¶4 On review, the Board found that the record was not sufficiently developed
to determine whether the agency properly assessed the appellant’s qualifications
and whether the agency denied her a right to compete. Thus, the Board remanded
the appeal to require the agency to provide evidence and argument regarding the
basis for disqualifying the appellant for the position, including what
qualifications the agency relied upon in making its determination. Thomas v.
Department of Labor, MSPB Docket No. AT-3330-12-0270-I-1, Remand Order
(May 24, 2013). On remand, the administrative judge held a hearing and required
the parties to supplement the record. After a thorough review of the hearing
testimony and additional documentary evidence, the administrative judge found
that the agency properly determined that the appellant was not qualified for the
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Workforce Development Specialist position because she lacked the specialized
experience working with discretionary grants required for the position. Remand
File (RF), Tab 11, Remand Initial Decision (RID) at 2–5. Accordingly, the
administrative judge denied the appellant’s request for corrective action under the
VEOA.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 An agency is not required to consider a veteran eligible for a position for
which the individual is not qualified. Clarke v. Department of the
Navy, 94 M.S.P.R. 604, ¶ 8 (2003). However, the Board may review whether the
agency denied the appellant the right to compete by improperly finding her not
qualified for the position. Phillips v. Department of the Navy, 110 M.S.P.R. 184,
¶ 12 (2008), cited with approval in Lazaro v. Department of Veterans
Affairs, 666 F.3d 1316, 1320–21 (Fed. Cir. 2012). Here, the Board remanded the
appeal because it found the criteria used in assessing the appellant’s
qualifications to be ambiguous based on inconsistencies between the language of
the vacancy announcement and the required qualifications for the position that the
agency actually evaluated the appellant against. Specifically, the vacancy
announcement required 52 weeks of specialized experience and it provided a list
of “examples.” The Board found that, when the agency reviewed the appellant’s
qualifications, it noted that she possessed some of the examples of specialized
skills, but it was unclear whether the agency determined if she had 52 weeks of
the required experience as stated in the vacancy announcement.
¶6 On review, the appellant asserts that the administrative judge abused her
discretion by allowing the agency, when making its qualification analysis, to
consider qualification factors not in alignment with the language of Vacancy
Announcement No. DE-11-ATL-ETA-120. Remand Petition for Review (RPFR)
File, Tab 1. Specifically, the appellant argues that the administrative judge
abused her discretion in finding that she was not qualified for the position at issue
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because she allegedly did not have experience in the area of discretionary grants,
which was not explicitly required in the vacancy announcement. RPFR File,
Tab 1 at 8. The appellant asserts that the Board’s remand order held that the only
outstanding issue should have been “whether the agency determined the appellant
to have 52 weeks of experience as required by the vacancy announcement.” Id. at
9. The appellant also asserts that the agency did not challenge her claim that she
has 52 weeks of specialized experience in the areas she identified at the hearing
and that, pursuant to the qualification standards set forth in the vacancy
announcement, she was clearly qualified for the position at issue.
¶7 However, as the Board stated in it decision remanding this appeal, the
record was ambiguous regarding the criteria the agency used in assessing the
appellant’s qualifications, and, as a result, it was necessary to remand the appeal
for the record to be further developed to enable the Board to determine whether a
right-to-compete violation occurred. In accordance with our instructions, the
administrative judge held a hearing and addressed the issue of whether the
appellant had 52 weeks of experience as required by the vacancy announcement.
As the record reflects, the vacancy announcement stated that an applicant must
have 52 weeks of specialized experience, and it defined this as experience
“directly related to the line of work of the position to be filled and which has
equipped the applicant with the specific knowledge, skills and abilities to
successfully perform the duties of the position.” It then set forth the following
“examples” of specialized experience:
Providing oversight and guidance to one or more discretionary
grantees at the State or local level to help them meet program objects
and grant requirements. Providing technical guidance to and
coordinating the efforts of workforce development personnel and
other subject-matter specialists working on assigned grants/projects.
Studying new and proposed legislation and regulations to determine
impact on the program. Interpreting program data, developing
proposed changes and anticipating the effects and outcomes of the
program. Using approved review guides to conduct on-site
interviews. Presenting discretionary and other ETA grant programs
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information to a diverse audience including congressional staff,
interested citizens, other Federal agencies, etc.
Specialized experience in managing or working with federally
funded workforce program grants (i.e, Youth Build, Energy Training
Partnership grants, High Growth and Emerging Industries, Pathways
out of Poverty, etc.)
IAF, Tab 6 at 41.
¶8 In finding that the agency properly determined that the appellant was not
qualified for the Workforce Development Specialist position because she lacked
the specialized experience working with discretionary grants required for the
position, the administrative judge noted that agency witnesses had extensive
experience in the area of human resources and were familiar with the duties of
both the Workforce Development Specialist position and the Unemployment
Insurance Program Specialist position, which the appellant held at the time she
applied, and that one witness was the Regional Director for the Office of Special
Initiatives and Demonstrations who had supervisory duties over the department
upon which the Workforce Development Specialist was aligned. RID at 3–4; RF,
Tab 6 at 23. In addition, the administrative judge acknowledged that, while the
vacancy announcement set forth “examples,” the language above indicated that
the Workforce Development Specialist position required experience with
discretionary grants. RID at 3; IAF, Tab 6 at 41–42. Moreover, the
administrative judge found that the language in the vacancy announcement was
supported by the testimony of the agency’s witnesses concerning the required
discretionary grant experience. We agree.
¶9 Several times, the language in the announcement explicitly includes the
term “discretionary” in relationship to grant or grantee in the required
qualifications. The announcement also reflects that, because the successful
applicant would be expected to present “discretionary and other ETA grant
programs information to a diverse audience including congressional staff,
interested citizens, [and] other Federal agencies,” discretionary grant experience
7
was required. Further, the hearing testimony reflects that the appellant’s
experience in employment insurance only involved state grants, which are
different than discretionary grants because they are based on yearly formulas that
are set by statute or annual appropriations by Congress. RID at 3–5; RF, Tab 13,
Hearing Compact Disc (HCD). In addition, the administrative judge found it
undisputed that the appellant does not have the 52 weeks of discretionary grant
experience required for the position. RID at 5.
¶10 The administrative judge also considered the appellant’s assertion, which
she reiterates on review, that, when she subsequently applied for similar positions
requiring discretionary grants and she submitted the identical employment résumé
she used for the position in question, the agency found her to be among the best
qualified candidates. The administrative judge found, however, that the agency’s
Supervisory Human Resources Specialist credibly testified that the later
determinations, which found that the appellant met the qualifications for the
GS‑13 position, were in error because the appellant lacked the 52 weeks of
specialized experience working with discretionary grants at the GS-12 level.
While the appellant disagrees with the administrative judge’s determination that
the agency properly found that position required 52 weeks of specialized
experience working with discretionary grants, and it is undisputed that she lacked
the experience working with discretionary grants, we have found no error by the
administrative judge in her findings.
¶11 In a right-to-compete VEOA appeal under 5 U.S.C. § 3304(f)(1), the Board
does not determine whether a preference eligible is qualified, or whether she
should have been selected, for a particular position in question, but rather, the
Board only assesses whether the preference eligible was permitted to compete for
the position on the same basis as other candidates. Harellson v. U.S. Postal
Service, 113 M.S.P.R. 534, ¶ 11 (2010); see Abell v. Department of the
Navy, 343 F.3d 1378, 1384 (Fed. Cir. 2003) (finding that an agency “is not
required to hire a preference-eligible veteran if . . . it does not believe that the
8
candidate is qualified or possesses the necessary experience”); Dale v.
Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 13 (2006) (explaining that
VEOA does not provide that a veteran will be considered for a position for which
he is not qualified). Moreover, although a preference eligible is entitled to have a
broad range of experience considered by the agency in reviewing her application
for a position, how the agency adjudges and weighs those experiences is beyond
the Board’s purview. See, e.g., Asatov v. Agency for International
Development, 119 M.S.P.R. 692, ¶ 7 (2013) (stating that the matter at issue in a
VEOA appeal is not whether a particular agency action is proper and should be
sustained); Scharein v. Department of the Army, 91 M.S.P.R. 329, ¶¶ 9–10 (2002)
(emphasizing that VEOA does not guarantee a preference eligible a position of
employment), aff’d, No. 02–3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008).
¶12 Here, we have carefully reviewed the administrative judge’s initial decision;
we agree that the agency credited the appellant with all of her valuable experience
material to the GS-13 Workforce Development Specialist position; and we find
that the appellant cannot demonstrate that the agency failed to consider or omitted
any of her prior experiences under 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d).
The record reflects that the agency dutifully and thoroughly considered the
appellant’s work history, see RID at 3–5 (summarizing hearing testimony); HCD;
IAF, Tab 6, Subtabs 2f, 2g, 2j, and there is no evidence in the record that the
agency omitted, overlooked, or refused to consider any of the appellant’s grant
experience in reaching its conclusion that she was not qualified for the GS-13
Work Development Specialist position, cf. Kirkendall v. Department of the
Army, 573 F.3d 1324, 1325 (Fed. Cir. 2009) (finding a veterans’ preference
violation when information “was simply ignored . . . because it had not been
printed in the two-page, self-made application that [the appellant] submitted”);
Russell v. Department of Health & Human Services, 117 M.S.P.R. 341, ¶¶ 11–14
(2012) (finding that the agency violated the appellant’s veterans’ preference
rights when it failed to credit him with his veterans’ preference as reflected on his
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Standard Form 50). The appellant, moreover, does not dispute that she does not
have the 52 weeks of experience in discretionary grants, RPFR File, Tab 1; RID
at 4-5, and she has failed to identify any of her experience (military or civilian)
that the agency overlooked or failed to consider in finding her not qualified for
the position, see, e.g., RPFR File, Tab 1.
¶13 The appellant, as a preference-eligible veteran, was entitled to be credited
with “all valuable experience” by the agency in assessing her experience for the
GS-13 Workforce Development Specialist position. See 5 U.S.C.
§ 3311(2); 5 C.F.R. § 302.302(d). We find that the agency followed this process
and considered the totality of the appellant’s experiences in determining that she
was not qualified for the GS-13 Workforce Development Specialist position. See
RID at 3-5.
¶14 Finally, the appellant challenges the administrative judge’s credibility
determinations and argues that the administrative judge erred by accepting the
agency’s testimony as true when it was contrary to the record evidence. While
the administrative judge did not specifically cite to factors set forth in Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987), 4 she did perform a
Hillen-type analysis when she stated why she found the testimony of the agency
witnesses more credible. Specifically, the administrative judge found that the
agency’s witnesses explained that the appellant lacked the 52 weeks of
specialized experience working with discretionary grants, and thus, the witnesses
4
To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
versions he believes, and explain in detail why she found the chosen version more
credible, considering such factors as: (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor.
10
“adequately explained during their testimony why the appellant does not meet the
minimum qualifications for this position at the GS-13 level.” RID at 5; HCD.
¶15 As to the subsequent vacancy announcements where the appellant was
found qualified for similar positions, the administrative judge explicitly credited
the testimony of the Supervisory Human Resources Specialist (concerning the
requirements of the positions) over that of the Human Resources Specialists, who
made those later erroneous determinations. RID at 5. While the appellant
disagrees with the administrative judge’s credibility determinations, mere
disagreement with the administrative judge’s findings does not warrant a full
review of the record by the Board. Weaver v. Department of the
Navy, 2 M.S.P.R. 129, 133–34 (1980). Moreover, because the administrative
judge’s determinations were founded on implicit and explicit credibility
determinations based on the observation of the demeanor of the witnesses
testifying at the hearing, we see no basis upon which to disturb her findings in
this regard. The Board must give deference to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. See Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir.
2002). Accordingly, the administrative judge’s initial decision denying the
appellant’s request for corrective action under VEOA is affirmed.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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
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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.
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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
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FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.