Opinion

Mr Jerome Mansfield v. Department of Veterans Affairs

Court
Merit Systems Protection Board
Filed
Mar 1, 2016
Status
Unpublished
Cited by
0 cases
Authority
More cited than 43.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEROME MANSFIELD, DOCKET NUMBER

Appellant, PH-3330-15-0188-I-1

v.

DEPARTMENT OF VETERANS DATE: March 1, 2016

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL *

Jerome Mansfield, Mount Laurel, New Jersey, pro se.

Donald W. Taylor, Philadelphia, Pennsylvania, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The agency has filed a petition for review of the initial decision, which

granted the appellant’s request for corrective action under the Veterans

Employment Opportunities Act of 1998. For the reasons discussed below, we

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

*

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In this appeal, the appellant alleged that the agency violated his veterans’

preference rights when it failed to select him for a veterans claim examiner

trainee position. Initial Appeal File (IAF), Tab 1. He did not request a hearing.

Id. After considering the parties’ responses to several show cause orders seeking

information regarding the appellant’s claim and the agency’s selection process,

IAF, Tabs 3-11, the administrative judge found jurisdiction over the appeal and

granted the appellant’s request for corrective action because she found that the

agency had failed to grant the appellant a five-point preference based on his

service in the United States Air Force from October 22, 2001, through August 18,

2002, IAF, Tab 12, Initial Decision (ID); see IAF, Tab 4 at 3. She ordered the

agency to reconstruct the selection process taking into account the appellant’s

five-point veterans’ preference. ID at 5.

¶3 In its timely filed petition for review, the agency reiterates that the

appellant was not among those deemed best qualified for the position, which was

the only category referred to the selecting official for the position at issue.

Petition for Review (PFR) File, Tab 1 at 3; see IAF, Tab 4 at 2, Tab 11,

Exhibit (Ex.) 6. Under the procedures employed for the selection at issue, the

agency argues it would not have added points to the appellant’s score in any

event. PFR File, Tab 1 at 2-3. It explains that, under its delegated examining

authority, qualified candidates assigned to a category do not receive points but

are instead listed ahead of those in their category who are not preference eligible.

Id. at 3. According to the agency, the appellant’s self-assessment placed him in

the well-qualified category, but the agency found sufficient candidates for referral

to the selection official in the best-qualified category, so the well-qualified

candidates were neither reviewed nor referred. Id. It also contends that the

3

appellant failed to submit evidence of his qualifying service with his application.

Id. at 2. The appellant responds in opposition to the agency’s petition for review.

PFR File, Tab 4.

¶4 According to the agency’s version of how it conducted the selection

process, its failure to credit the appellant’s veterans’ preference appears to be

harmless error because the record reflects that, even had the agency correctly

done so, it still would not have selected the appellant for the position at issue.

Jones v. Department of Health & Human Services, 119 M.S.P.R. 355, ¶¶ 14-15,

aff’d, 544 F. App’x 976 (Fed. Cir. 2013). Under 5 U.S.C. § 3319(b), if the

agency had accorded the appellant his veterans’ preference, his name would have

been at the top of the list of candidates rated as well qualified. See Jones,

119 M.S.P.R. 355, ¶ 15. As noted above, because the agency alleged that it made

its selection from the candidates deemed best qualified, it never reached the

appellant’s cohort, and therefore the appellant’s placement at the head of that list

with other preference-eligible candidates deemed well qualified, which was the

specific benefit of his veterans’ preference in this case, would not have aided him

as the agency did not use that list to refer candidates to the selecting official to

fill the position. IAF, Tab 11, Exs. 2, 6.

¶5 However, the existing record fails to show that the agency conducted the

selection process in the manner it asserts, so we are unable to determine whether

its failure to credit the appellant’s veterans’ preference was harmless error.

Moreover, it is not clear from the record how the agency determined which

applicants were best qualified, as opposed to well qualified. The administrative

judge accepted the agency’s assertion that the appellant’s self-evaluation, for

which he earned a competitive score of 93, placed him in the well-qualified

cohort. ID at 2, 4. Yet the agency’s evidence also indicates that 11 applicants it

deemed best qualified had scores that were either equal to or lower than the

appellant’s score of 93, IAF, Tab 11, Ex. 6 at 5-12, including 2 of the selectees,

id. at 7-8. Given the agency’s allegation that its delegated examining authority

4

did not require it to add points to any of the applicant’s scores to account for

veterans’ preference, it is not clear on this record why the agency deemed the

appellant well qualified while it placed individuals with lower scores than him in

the higher-ranked category of best qualified.

¶6 Accordingly, we must remand the appeal for further development of the

record and a new initial decision addressing the issues identified above.

ORDER

¶7 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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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