                          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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
                                                                                        4

     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
                                                                                      5

     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
                                                                                     6

           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 candidate is
                                                                                       8

      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 Standard
                                                                                           9

      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
                                                                                 11

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.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
