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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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.
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¶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.