Opinion

Timothy Schultz v. Department of Veterans Affairs

2022 MSPB 23

Court: Merit Systems Protection Board
Filed: Jul 22, 2022
Status: Published
Cited by: 2 cases
Authority: More cited than 59.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 23

Docket No. CH-3330-17-0162-I-1

Timothy M. Schultz,

Appellant,

Department of Veterans Affairs,

Agency.

July 22, 2022

Christopher C. Fry, Dubuque, Iowa, for the appellant.

Gina M. Ozelie, Milwaukee, Wisconsin, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND 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 set forth below, we GRANT

the petition for review, VACATE the initial decision, and ORDER c orrective

action.

BACKGROUND

¶2 The appellant is a veteran entitled to a 10-point preference based on his

service-connected disabilities. Initial Appeal File (IAF), Tab 5 at 75-76. On

July 15, 2016, the agency issued Vacancy Announcement IC-16-339-JRS-

1747909-BU for a Medical Support Assistant position, GS-0679-03/05, at the

Community Based Outpatient Clinic (CBOC) in Dubuque, Iowa. Id. at 139. The

appellant applied for the position but was not selected. Id. at 69, 118.

¶3 On November 14, 2016, the appellant timely filed a veterans’ preference

complaint with the Department of Labor (DOL) regarding the nonselection. IAF,

Tab 1 at 6-7. In response to his complaint, the agency acknowledged that the

appellant had applied for the position, that it had selected another candidate, and

that it had violated the appellant’s veterans’ preference rights in the process.

IAF, Tab 5 at 69. As a remedy, the agency reported that it had placed the

appellant on a priority placement list for 120 days for the Dubuque CBOC and

that it had provided its human resources staff with additional training about

veterans’ preference and changed its staffing processes. Id.

¶4 In response, the DOL investigator assigned to the case informed the agency

that placing the appellant on a priority certification list for 120 days was not a

remedy for violating veterans’ preference laws. Id. at 65. Rather, he explained

that the required remedy included reannouncing the position to allow the

appellant to compete for the position while being afforded his veterans’

preference rights or hiring the appellant to a comparable GS-5 level position at

the Dubuque CBOC. Id. The investigator also determined that the appellant’s

veterans’ preference rights were violated and that his case had merit. Id. at 66.

As a result, he requested that the agency reexamine the appellant’s application

and provide him consideration for the position advertised under Vacancy

Announcement IC-16-339-JRS-1747909-BU as a resolution to the complaint. Id.

The agency responded to the DOL investigator by stating that it had canceled the

previous vacancy announcement and restored the selected employee to his

previous position within the organization and that it would be announcing the

position under a new vacancy announcement. Id. at 56-59. The agency notified

the appellant via email that it had canceled the vacancy announcement and that

the position would be reannounced. Id. at 18.

¶5 On December 23, 2016, the agency issued new Vacancy Announc ement

IC-17-162-JRS-1881799-BU for a Medical Support Assistant position,

GS-0679-03/05, at the Dubuque CBOC. Id. at 12. The appellant did not apply

under the new vacancy announcement. Id. at 10. On December 29, 2016, the

DOL investigator informed the agency that the appellant’s veterans’ preference

claim had been found to have merit and that the appellant had elected to pursue

the complaint directly with the Board. Id. at 11. This appeal followed. IAF,

Tab 1.

¶6 The administrative judge advised the appellant of his burden of proving his

VEOA claim. IAF, Tab 3. After holding the requested hearing telephonically,

the administrative judge issued a decision denying the appellant’s request for

corrective action. IAF, Tab 19, Initial Decision (ID) at 1-2. He found that the

agency conceded that it had violated the appellant’s veterans’ preference rights in

conjunction with the original vacancy announcement. ID at 6. Nevertheless, he

found that the appellant failed to show that the agency’s decision to reannounce

the position violated his veterans’ preference rights. ID at 8. He found no merit

to the appellant’s argument that the sole remedy for curing the agency’s violation

under the original announcement was to offer him the position, concluding that

the statute only entitled him to consideration, not selection. Id. He further found

that the reannouncement of the position provided equal advantages to all veterans

who applied under the first vacancy and fully comported with the legal

requirements necessary to reconstruct the selection process. ID at 8 -9.

¶7 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. On review, he acknowledges that a proper remedy for the agency’s

violation of his veterans’ preference rights would not include a guarantee that the

agency select him for the position. Id. at 5. Rather, he argues that the agency’s

decision to reannounce the vacancy did not constitute a proper reconstruction of

the selection because it was not based on the same circumstances surrounding the

original selection. Id. The agency has filed a response in opposition. PFR File,

Tab 3.

ANALYSIS

The agency’s reannouncement of the original vacancy does not constitute a

proper reconstruction under veterans’ preference laws.

¶8 The agency concedes that it violated the appellant’s veterans’ preference

rights when it considered his application under Vacancy Announcement

IC-16-339-JRS-1747909-BU. IAF, Tab 5 at 69. It is not clear, however, whether

the appellant would have been selected absent the violation. Thus, the proper

remedy under VEOA is to reconstruct the selection process for the position. See

Phillips v. Department of the Navy, 114 M.S.P.R. 19, ¶ 21 (2010); Walker v.

Department of the Army, 104 M.S.P.R. 96, ¶ 18 (2006); see also Marshall v.

Department of Health & Human Services, 587 F.3d 1310, 1316 (Fed. Cir. 2009)

(“[R]econstruction may be an appropriate way to comply in situations where it is

unknown whether a veteran would have been selected for a position. ”);

Kirkendall v. Department of the Army, 573 F.3d 1318, 1325 (Fed. Cir. 2009)

(finding that “an offer of prospective relief, such as priority consideration for a

future job opening,” was insufficient to remedy the agency’s failure to credit the

appellant’s military experience as part of his application). To properly

reconstruct a selection, an agency must conduct an actual selection process based

on the same circumstances surrounding the original faulty selection. Russell v.

Department of Health & Human Services, 120 M.S.P.R. 42, ¶ 13 (2013). This

includes taking the original selectee out of the position, conducting and

evaluating interviews so that they are meaningfully comparable with the original

selectee’s interview, and filling the same number of vacancies as before. Id.

¶9 Here, although the agency attempted to comply with one of the remedies

proffered by the DOL investigator, it did not conduct a selection process based on

the same circumstances surrounding the original selection and, therefore, it never

remedied its original faulty selection process. Accordingly, we find that the

agency’s efforts to remedy its violation fell short of the law’s requirements. 1 See

Phillips, 114 M.S.P.R. 19, ¶ 21.

ORDER

¶10 We ORDER the agency to reconstruct the hiring process for Vacancy

Announcement IC-16-339-JRS-1747909-BU consistent with this Opinion and

Order. The agency must complete this action no later than 30 days after the date

of this decision.

¶11 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶12 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶13 This is the final decision of the Merit Systems Protection Board in thi s

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.

§ 1201.113).

Even if DOL had found that the agency’s reannouncement of the vacancy was a

sufficient remedy under VEOA, which it did not, the Board has held that Congress did

not intend for DOL to have the final word as to what constitutes an appropriate remedy

for a violation of veterans’ preference rights. IAF, Tab 5 at 11; see Gingery v.

Department of the Treasury, 110 M.S.P.R. 83, ¶ 17 (2008).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at title 5 of

the United States Code (U.S.C.), section 3330c(b). The regulations may be found

at 5 C.F.R. §§ 1201.202, 1201.203, and 1208.25. If you believe you meet these

requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR

DAYS OF THE DATE OF THIS DECISION. You must file your motion for

attorney fees and costs with the office that issued the initial decision on your

appeal.

NOTICE TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST DAMAGES

You may be entitled to be compensated by the agency for any loss of wages

or benefits you suffered because of the violation of your veterans’ preference

rights. 5 U.S.C. § 3330c(a); 5 C.F.R. § 1208.25(a). If you are entitled to such

compensation, and the violation is found to be willful, the Board has the authority

to order the agency to pay an amount equal to back pay as liquidated damages.

5 U.S.C. § 3330c(a); 5 C.F.R. § 1208.25(a). You may file a petition seeking

compensation for lost wages and benefits or damages with the office that issued

the initial decision on your appeal WITHIN 60 CALENDAR DAYS OF THE

DATE OF THIS DECISION.

NOTICE OF APPEAL RIGHTS 2

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

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.

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 Meri t

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.

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.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.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

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.aspx.

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:

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. 3 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).

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