                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-14-0364-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: April 13, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           John Paul Jones, III, Albuquerque, New Mexico, pro se.

           Jeffrey James Hatch, Roanoke, Virginia, 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 initial decision, which
     denied the appellant’s request for corrective action under Veterans Employment
     Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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 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, and based on the following points and authorities, 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).
¶2        The following facts are undisputed unless otherwise noted. The appellant, a
     5-point preference-eligible veteran, applied for a GS-14 Administration Officer
     position under Vacancy Announcement PG-14-DBA-1094170-ORD and the
     agency found him ineligible for the position. Initial Appeal File (IAF), Tab 26
     at 10, Tab 4 at 8, 17. After exhausting his administrative remedies before the
     Department of Labor (DOL), the appellant filed a timely appeal with the Board
     alleging that the agency “used overly selective criteria . . . to deny highly
     qualified veterans their rights under VEOA,” and he requested a hearing on his
     appeal. Tab 1 at 2-5, 8. The agency filed a response stating that the appellant
     lacked the specialized experience required for the position, and that the agency
     did not violate his rights under VEOA. IAF, Tab 4 at 6. The agency asked the
     Board to adjudicate the appeal without holding a hearing and submitted various
     documents, including a copy of the job announcement and the letter informing the
     appellant that the agency adjudicated his TP veterans’ preference but found that
     he was ineligible because his application did not show that he had the specialized
     experience needed for the position. Id. at 8-17. The agency also submitted the
                                                                                             3

     redacted list ranking the job applicants, which included the explanatory notes of
     the human resources specialist who reviewed their applications and determined if
     they were qualified. IAF, Tab 26.
¶3         The administrative judge found that the Board had jurisdiction over the
     appeal pursuant to 5 U.S.C. § 3330a and “that within the ambit of issues raised
     with DOL is the appellant’s allegation that the agency failed to properly credit his
     experience in violation of 5 U.S.C. § 3311.” 2 IAF, Tab 36, Initial Decision (ID)
     at 4, Tab 19 at 3. The administrative judge further found that the Board lacked
     jurisdiction over the other claims raised on appeal by the appellant because he did
     not exhaust those claims at DOL. 3 ID at 4, 7. The administrative judge also
     ordered the appellant to provide evidence and argument to show the existence of a
     genuine dispute of material fact that warranted a hearing. IAF, Tab 27 at 1-2.
¶4         In response to the order, the appellant asked the Board to sanction the
     agency’s representative for calling him a “goat herder.”             IAF, Tab 28.      In
     addition, the appellant provided background information about his prior VEOA
     appeals against a different agency and disputed the finding that the agency herein
     did not violate his rights under VEOA. IAF, Tab 31. The appellant also disputed
     the determination of a Management and Program Analyst from the agency’s
     Office of Research and Development, which conducted an additional review of



     2
       The DOL file closure letter stated that the appellant alleged “that the VA was not
     properly considering [his] veterans’ preference” and “claim[ed] they are not properly
     considering [his] veterans’ preference due to their determination that [he] do[es] not
     meet the specialized experience statement as listed in the job announcement.” IAF,
     Tab 1 at 8. The appellant did not provide a copy of his DOL complaint in his response
     to the administrative judge’s order on VEOA jurisdiction and notice of proof
     requirements. IAF, Tabs 10, 16-17.
     3
       Specifically, the administrative judge found that the appellant failed to exhaust his
     claim that the agency failed to maintain a system that fairly tests the relative capacity
     and fitness of the applicants in violation of 5 U.S.C. § 3304(a)(1), and his claims of age
     discrimination and prohibited personnel practices in vio lation of 5 U.S.C. § 2302(b)(6).
     ID at 4, 7; IAF, Tab 19 at 2-3.
                                                                                           4

     his qualifications and found that he lacked the research experience required for
     the position. IAF, Tab 31 at 9; see IAF, Tab 22 at 8-9.
¶5         The administrative judge issued an order finding no dispute of material fact
     and allowed the parties an additional opportunity to supplement the record before
     it closed. IAF, Tab 32. The appellant responded by stating that he disputed the
     “the claims of [the agency’s representative] that he is a ‘goat herder’ and a
     ‘garbage collector’ and that such a dispute is both genuine and material to the
     outcome of the case.” IAF, Tab 33 at 5. The appellant also asked the Board to
     certify an interlocutory appeal to obtain a ruling against the agency’s
     representative for his “abusive misconduct.” IAF, Tab 34 at 4. The appellant
     stated that he submitted “a massive amount of evidence that irrefutably proves
     systemic wrong-doing at the Department of Health and Human Services,” which
     is not the agency in this appeal. IAF, Tab 35 at 4 (emphasis in the original). The
     appellant also argued that there is “probable cause” for the agency to hold a
     hearing to examine the merits of the agency’s action, and he disputed that he
     lacked the 1-year of specialized experience required for the position. Id.
¶6         Based on the written record, the administrative judge found that the agency
     prevailed as a matter of law and did not violate any of the appellant’s statutory or
     regulatory veterans’ preference rights.     ID at 7.    In reaching his decision, the
     administrative judge found that the appellant did not dispute that the agency’s
     human resources specialist reviewed his resume in determining that he lacked
     “the specialized experience” for the position and finding him ineligible. ID at 6. 4
     The administrative judge also found that the appellant did not allege that the
     agency “omitted, overlooked, or excluded” any of the information in his 30-page
     resume in determining that he was not qualified for the position. ID at 6. The


     4
        The vacancy announcement at issue specified such specialized experience as
     including, inter alia, “developing research policies/procedures and preparing a range of
     documents . . .” and “ensuring compliance with program requirements involving human
     subjects research.” IAF, Tab 4 at 9.
                                                                                       5

     administrative judge further found that the appellant’s belief that the agency used
     overly selective criteria did not constitute a violation of his veterans’ preference
     rights and that the Board has no authority to review the merits of the agency’s
     action. ID at 6-7.
¶7        The appellant filed a petition for review reasserting his argument that the
     administrative judge improperly denied his right to a hearing and that the Board
     should review the merits of the agency’s action. Petition for Review (PFR) File,
     Tab 1 at 13-14. The appellant also asks the Board to recommend the removal of
     the agency’s representative for “his reckless, provocative, and shameful
     misconduct.” Id. at 14. The appellant also states that the administrative judge’s
     failure to address his complaints against the agency’s representative is the
     “central dispositive issue in this appeal.”   Id. at 6.   The agency responded in
     opposition to the appellant’s petition for review, and the appellant replied to the
     agency’s response. PFR File, Tabs 2-3.
¶8        To be entitled to relief under VEOA, the appellant must prove by
     preponderant evidence that the agency’s selection violated one or more of his
     statutory or regulatory veterans’ preference rights.       Dale v. Department of
     Veterans Affairs, 102 M.S.P.R. 646, ¶ 10 (2006) (citation omitted). Contrary to
     the appellant’s arguments on review, VEOA does not guaranteed the preference
     eligible appellant a position; the statute only affords him the right to compete for
     the position. See Abell v. Department of the Navy, 92 M.S.P.R. 397, 400-401
     (2002), aff’d, 343 F.3d 1378 (Fed. Cir. 2003). The Board may decide a VEOA
     claim on the merits without a hearing when there is no genuine issue of material
     fact and one party must prevail as a matter of law.        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. Redd v. U.S.
     Postal Service, 101 M.S.P.R. 182, ¶ 14 (2006). A factual dispute is “genuine”
     when there is sufficient evidence favoring the party seeking an evidentiary
                                                                                             6

      hearing for the administrative judge to rule in favor of that party should that
      party’s evidence be credited. Id.
¶9         Preference-eligible veterans applying for federal employment have the right
      “to credit for all experience material to the position for which examined,
      including   experience    gained    in   religious,   civic   welfare,    service,    and
      organizational   activities,   regardless    of   whether”     such      experience    is
      unpaid. 5 U.S.C. § 3311(2); see 5 C.F.R. § 302.302(d); see also Miller v. Federal
      Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 7 (2014).                 Although a
      preference eligible is entitled to have a broad range of experiences considered by
      the agency in reviewing his application for a position, how the agency adjudges
      and weighs those experiences is beyond the purview of the Board’s review in a
      VEOA appeal. Miller, 121 M.S.P.R. 88, ¶ 9. Pursuant to 5 U.S.C. § 3311(2)
      and 5 C.F.R. § 302.302(d), the Board is limited to assessing whether an agency
      considered all of an appellant’s “valuable experience” material to the position for
      which the appellant has applied. This assessment does not include a review of the
      weight the agency gave to a preference eligible’s prior experiences in determining
      that he was not qualified for a position of employment. Id.
¶10        Although the appellant asks the Board to review the merits of the agency’s
      determination that he lacked the 1-year of specialized experience required for the
      Administrative Officer position, VEOA does not empower the Board to reevaluate
      the merits of an agency’s ultimate determination that a preference-eligible veteran
      is not qualified for a position with the agency. PFR File, Tab 1 at 10-13; see
      Miller, 121 M.S.P.R. 88, ¶ 12. The agency submitted undisputed proof that the
      agency’s human resources specialist reviewed the appellant’s application and
      determined that he was ineligible because she was unable to find any job duties or
      experiences in his 30-page resume that supported his statement that he had the
                                                                                           7

      required specialized experience. 5 ID at 6; IAF, Tab 26 at 10.         Moreover, the
      appellant has failed to identify any valuable experience in his resume that is
      material to the Administrative Officer position that the agency’s human resources
      specialist failed to consider in reviewing his application and making the ultimate
      determination that he was ineligible. ID at 6; see Miller, 121 M.S.P.R. 88, ¶ 9.
      An agency is not required to hire a preference-eligible veteran, if, as was the case
      here, the agency does not believe that the candidate is qualified or possesses the
      necessary experience. See Abell, 343 F.3d at 1384. We find that the appellant
      had a full and fair opportunity to develop the record and to dispute the agency’s
      evidence on the dispositive issues in his responses to the administrative judge’s
      orders, and he failed to identify a genuine dispute of material fact that would
      warrant a hearing.
¶11        The appellant further argues that the administrative judge failed to respond
      decisively to the appellant’s complaints that the agency representative used the
      racial slur “goat herder” and “garbage collector” in reference to the appellant’s
      work experiences.     PFR File, Tab 1 at 6-7, 13.        In the initial decision, the
      administrative judge specifically addressed the “goat herding” comment made by
      the agency’s representative and described the comment as an “offensive
      mischaracterization” of the appellant’s work experience in Riyadh. ID at 7 n.4.
      Although the administrative judge denied the appellant’s request for an
      interlocutory appeal to obtain a ruling against the agency’s representative, and he
      failed to specifically address the “garbage collector” comment in the initial
      decision, the appellant has not shown that the administrative judge’s comments or


      5
        The appellant argues on review that the administrative judge overlooked that he
      disputed an evaluation of his qualifications prepared by the agency’s Management and
      Program Analyst, after he filed his appeal, in response to his request for an internal
      reconsideration decision. PFR File, Tab 1 at 8; ID at 6 n.3. Because the administrative
      judge found that the analyst’s evaluation was “immaterial to the actions over which the
      Board has jurisdiction,” the Board need not consider the appellant’s argument disputing
      the analyst’s evaluation on review. ID at 6 n.3.
                                                                                       8

      actions evidenced “a deep-seated favoritism or antagonism that would make fair
      judgment impossible.” ID at 2; see Bieber v. Department of the Army, 287 F.3d
      1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
      555 (1994)).
¶12        Moreover, contrary to the appellant’s additional arguments on review, we
      find that the “egregious misconduct” of the agency’s representative does not
      constitute preponderant evidence that the agency violated the appellant’s statutory
      or regulatory veterans’ preference rights in the selection process. PFR File, Tab 1
      at 13; see Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 10
      (2010).   The appellant’s remaining arguments on review present no basis for
      disturbing the initial decision denying his request for corrective action under
      VEOA. PFR File, Tabs 1, 3. We agree with the administrative judge’s finding
      that there is no dispute of material fact and that the appellant is not entitled to
      relief as a matter of law. ID at 1, 7. We therefore deny the appellant’s petition
      for review.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States 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

           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
                                                                                  9

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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
