David L. Davidson v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID L. DAVIDSON, DOCKET NUMBER

Appellant, AT-3330-14-0603-I-1

v.

DEPARTMENT OF THE NAVY, DATE: December 15, 2014

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

David L. Davidson, Panama City Beach, Florida, pro se.

Shari L. Oehrle, Pensacola, Florida, 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 his request for corrective action under the Veterans Employment

Opportunities Act of 1998 (VEOA). For the reasons discussed below, we

GRANT the appellant’s petition for review, VACATE the initial decision, and

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

REMAND the case to the regional office for further adjudication in accordance

with this Order.

BACKGROUND

¶2 The appellant is a GS-7 Contract Specialist in the Naval Acquisition

Development Program at the Naval Air Warfare Center in Orlando, Florida.

Initial Appeal File (IAF), Tab 1, Continuation Sheet, Question 5. He requested a

transfer to Naval Surface Warfare Center Panama City Division (NSWC-PCD) on

multiple occasions. Id.; IAF, Tab 11 at 24. The appellant alleges that his spouse,

an employee at NSWC-PCD, also inquired about “transfer prospects” for him and

was told by an agency manager “that he did not want married couples working for

him.” IAF, Tab 7 at 5

¶3 In addition to his transfer requests, the appellant, who is a

preference-eligible veteran, also applied for a GS-7 Contract Specialist position at

NSWC-PCD. IAF, Tab 4 at 4-7. The appellant was not selected for the position,

but two other preference-eligible veterans were. IAF, Tab 6 at 10-11. The

selecting official for this vacancy was the same manager who allegedly told the

appellant’s wife that he did not want spouses working under his supervision.

IAF, Tab 7 at 5-6. According to the appellant, the selecting official checked his

references after the selection decision had already been made and only because

the appellant complained about his nonselection. Id.

¶4 The appellant filed a complaint with the Department of Labor’s (DOL)

Veterans’ Employment and Training Services regarding his nonselection, alleging

that his veterans’ preference was not considered, he was not evaluated based on

merit, and his application did not receive bona fide consideration. IAF, Tab 11 at

20. DOL informed the appellant that it found no violation of his veterans’

preference rights and advised the appellant of his right to file a Board appeal.

IAF, Tab 7 at 8.

3

¶5 The appellant filed a Board appeal alleging that the he had been excluded

from competition for the position in violation of his veterans’ preference. IAF,

Tab 1, Continuation Sheet, Question 5. The administrative judge issued an

acknowledgment order on April 15, 2014, which permitted the parties to engage

in discovery. IAF, Tab 2 at 2. According to the discovery deadlines established

by the acknowledgment order, initial discovery requests were required to be

served within 30 days of the date of the acknowledgment order, and initial

discovery responses were due no later than 20 days after the date of service. Id.

¶6 The administrative judge also issued an order on VEOA jurisdiction and

notice of the proof requirements. IAF, Tab 3. After receiving responses from

both parties, the administrative judge issued an order notifying the parties that

she intended to close the record in the appeal on May 28, 2014. IAF, Tab 8. The

order gave both parties an opportunity to file additional evidence and argument

for consideration. Id. After the record closed, the administrative judge issued an

initial decision finding that the Board had jurisdiction over the appeal but

denying the appellant’s request for corrective action because the appellant failed

to establish that the agency denied him the right to compete for the position at

issue. IAF, Tab 14, Initial Decision at 3. The appellant has filed a timely

petition for review. Petition for Review (PFR) File, Tab 1. The agency has not

filed a response.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 The Board has the authority to decide a VEOA appeal on the merits, without

a hearing, where there is no genuine dispute of material fact and one party must

prevail as a matter of law. Haasz v. Department of Veterans

Affairs, 108 M.S.P.R. 349, ¶ 9 (2008) (citing Williamson v. U.S. Postal

Service, 106 M.S.P.R. 502, ¶ 8 (2007); Davis v. Department of Defense, 105

M.S.P.R. 604, ¶ 12 (2007)). A factual dispute is “material” if, in light of the

governing law, its resolution could affect the outcome. Waters-Lindo v.

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Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009). A factual dispute is

“genuine” when there is sufficient evidence favoring the party seeking an

evidentiary hearing for the administrative judge to rule in favor of that party

should that party’s evidence be credited. Id. Where the parties’ submissions

contain genuine disputes of material fact that cannot be resolved on the written

record, the Board has found it proper to conduct a hearing. See, e.g., Graves v.

Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 18 (2010).

¶8 Preference eligibles or veterans who have been separated from the armed

forces under honorable conditions after 3 years or more of active service may not

be denied the opportunity to compete for vacant positions for which the agency

making the announcement will accept applications from individuals outside its

own workforce under merit promotion procedures. 5 U.S.C. § 3304(f)(1). The

right to compete under section 3304(f)(1) does not require that the veteran or

preference eligible be considered at every stage of the selection process up to that

process’s final stage but does require that the individual be permitted to compete

on the same basis as the other candidates. Harellson v. U.S. Postal

Service, 113 M.S.P.R. 534, ¶ 11 (2010).

¶9 It is undisputed that the appellant is a preference-eligible veteran, and the

agency accepted applications for the position at issue from individuals outside its

own workforce. IAF, Tab 6 at 6, Tab 9 at 4. It is also undisputed that the

appellant applied for the position, his application was reviewed and the agency

deemed him qualified, and his name was forwarded to the selecting official for

consideration on the same certificate that was ultimately used to make the

selections. IAF, Tab 11 at 5, Tab 6 at 13-14. These facts suggest that the

appellant received some consideration, which might satisfy the agency’s

obligation under 5 U.S.C. § 3304(f)(1). See, e.g., Joseph v. Federal Trade

Commission, 505 F.3d 1380, 1383-84 (Fed. Cir. 2007) (finding that a veteran was

given a full opportunity to compete when he applied, was found qualified, and

was interviewed for a position but not selected); Harellson, 113 M.S.P.R. 534,

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¶ 11 (stating that the same evidence establishing that the agency accepted and

considered the appellant’s application also indicates that he was permitted to

compete under 5 U.S.C. § 3304(f)(1)).

¶10 Notwithstanding the undisputed facts, however, there remain genuine

disputes of material fact regarding what, if any, consideration the selecting

official gave the appellant’s application. Specifically, the appellant has

established a genuine dispute regarding whether the agency “inappropriately

applied nepotism rules,” PFR File, Tab 1 at 4, and erroneously eliminated him

from consideration, see supra ¶¶ 2-3. The Board has found that a veteran is

denied his right to compete under 5 U.S.C. § 3304(f)(1) when an agency accepts

his application, and determines that he is qualified, but the selecting official does

not give his application any further consideration. See, e.g., Shapley v.

Department of Homeland Security, 110 M.S.P.R. 31, ¶¶ 9-17 (2008) (holding that

the appellant was denied the right to compete when he was found qualified for a

position, was placed on the certificate of eligibles, but the certificate was not

provided to the selecting official for consideration). The appellant alleges that

the selecting official improperly excluded him from competition for invalid

reasons other than merit, which presents a genuine dispute of material fact. PFR

File, Tab 1 at 10; cf. Modeste v. Department of Veterans Affairs, 121 M.S.P.R.

254, ¶¶ 5-6 (2014) (an agency cannot rely on a labor agreement to justify its

failure to consider a veteran in violation of 5 U.S.C. § 3304(f)(1) by improperly

segregating applicants); Gingery v. Department of Veterans Affairs, 114 M.S.P.R.

175, ¶ 10 (2010) (an agency’s internal policy may not override applicable

statutes, including 5 U.S.C. § 3304(f)(1)); Phillips v. Department of the

Navy, 110 M.S.P.R. 184, ¶¶ 7-12 (2008) (examining the agency’s explanation for

not further considering the appellant’s application). Because there remain

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genuine disputes of material fact, we find it appropriate to remand this appeal for

a hearing on the merits of the appellant’s VEOA right-to-compete claim. 2

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.

2

On review the appellant also argues that he was prejudiced when the record closed

prior to the agency responding to his discovery requests. PFR File, Tab 1 at 6. The

appellant’s discovery requests were not submitted as part of his petition for review, and

thus the Board is unable to determine whether not receiving responses to those requests

was prejudicial to the appellant. However, because the appeal will be remanded for

further adjudication, the administrative judge should afford both parties an opportunity

to complete any outstanding discovery prior to the hearing.