MSPB Finds Veterans Employment Violations Require Reconstructed Selection Process
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
On July 22, 2022, the Merit Systems Protection Board (MSPB, the Board) ruled that an agency’s mere reannouncement of the original vacancy does not constitute a proper reconstruction under veterans’ preference laws.
An applicant, who was a 10-point preference-eligible veteran, applied for a vacant Medical Support Assistant position the one of the Department of Veterans Affairs’ (VA) Community Based Outpatient Clinics (CBOC). He was not selected and filed a veterans’ preference complaint with the Department of Labor (DOL) regarding his non-selection.
The VA responded to the complaint, acknowledging that the individual applied and that they had violated veterans’ preference by selecting someone else, who was an internal candidate. The agency reported that to remedy the mistake, they had placed the applicant on a “priority placement list” for 120 days with the CBOC and had provided human resources staff with additional training. The DOL investigator assigned to the case told the VA that was not enough, and that they must reannounce the position to allow the applicant to compete for the position with proper consideration of his veterans’ preference rights or hire the applicant to a comparable GS-5 position at the CBOC.
In response to DOL, the VA reported that had canceled the previous vacancy announcement and returned the selected employee to his previous position while they announced the position under a new vacancy announcement. On December 23, 2016, the VA issued its new vacancy announcement, and the applicant did not apply. Instead, he elected to pursue his Veterans Employment Opportunities Act (VEOA) complaint directly with the MSPB, arguing that reannouncement of the position could not cure his complaint; according to the applicant, the only appropriate remedy was to select him for the position.
An MSPB administrative judge held that the applicant failed to show that the agency’s decision to reannounce violated his veterans’ preference rights, leading the applicant to petition the Board for review. The Board disagreed with the positions of both parties; finding that where the agency concedes it violated the applicant’s veterans’ preference rights, but it is not clear whether the applicant would have been selected absent the violation, the “proper remedy under VEOA is to reconstruct the selection process for the position.”
The Board held that to do so, an “agency must conduct an actual selection process based on the same circumstances surrounding the original faulty selection.” 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.” The Board found that although the agency attempted to comply with one of the remedies proffered by DOL, its reannouncement of the position did not create the same circumstances surrounding the original selection. Therefore, according to the Board, VA “never remedied its original faulty selection process,” and “fell short of the law’s requirements.”
Read the full case: Schultz v. DVA.
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